Lord Simonds
MY LORDS,
The Appellant, Ethel Gilmour, is the present Prioress of the Carmelite Priory of St. Charles' Square, Notting Hill, London. In that capacity she appeals against a judgment of the Court of Appeal, whereby that Court dismissed an appeal from a judgment of Mr. Justice Jenkins who had in effect declared the purposes of the Carmelite Priory not to be charitable in the technical sense which the law ascribes to that word.
The question arises in this way. By a declaration of trust made on the 10th June, 1946, between the Respondent, Evelyn Dudley Coats, of the one part and herself and George Bellow (therein called "the Trustees") of the other part a sum of £500 cash was settled upon trust after payment of costs for investment as therein mentioned and to hold the resulting trust fund " Upon trust if the purposes of the Roman Catholic Community situate and known as the Carmelite Priory, St. Charles' Square, Notting Hill, in the County of London, are charitable to apply the income of the Trust Fund to all or any such purposes . . . but if the purposes of the said community are not charitable then upon trust to apply the Trust Fund to all or any of the purposes of the Converts' Aid Society of 20, Holmes Road, Twickenham, Middlesex." This settlement was admittedly made for the purpose of raising the question which has now reached this House. Accordingly within a short time an originating summons was issued in the Chancery Division by the trustees, to which the present Appellant and certain persons representing the Converts' Aid Society, who are the present Respondents, were made Defendants, asking how the trustees ought to apply the income of the trust fund. The question, though framed in this general way, was intended to raise the issue whether the purposes of the Carmelite Priory were charitable. For it was clear that the settlement created a perpetuity in favour of that community, so that, if the purposes were not charitable, the gift over in favour of the Converts' Aid Society would take effect.
What then were the purposes of this Carmelite Priory, which I will some-times refer to as "the Convent" or "the community"? Upon this matter evidence was given by the Appellant herself and by His Eminence Cardinal Griffin, the Roman Catholic Archbishop of Westminster. This evidence is stated at length in the very careful judgment of Mr. Justice Jenkins and 1 will refer to certain salient features of it. The whole of it has been carefully considered by the House.
It appears that this community is one of the communities of the Discalced Nuns of the Order of Our Blessed Lady of Mount Carmel, and that the Discalced Friars and Nuns have been a separate branch of the Order under the jurisdiction of their own Father General since the General Chapter of the whole Order held at Cremona in the year 1593. They were founded by St. Theresa of Avilawith the object of restoring the strict enclosure and intensifying the contemplative life of the communities and promoting their share in the apostolate. The first convent of nuns was founded by her at Avila in 1562. The convent here in question was founded in the year 1878 from the Convent of the Incarnation in Paris and from it 33 other convents have been founded in England, Scotland and Wales.
The Discalced Carmelite Nuns throughout the world follow the Primitive Rule, which was drawn up by St. Albert Patriarch of Jerusalemand confirmed by Pope Innocent IV in 1247, and the Constitutions of 1591 as modified in 1926 to bring them into conformity with the new code of Canon Law of the Roman Catholic Church. Each Carmelite Conventconsists of not more than 20 or 21 nuns who live in community and are presided over by a Prioress. Each convent is autonomous and all are subject to the jurisdiction of the General of the Discalced Carmelite Friars or of the local Bishop. The purposes of the nuns are conveniently summarised in the prologue to the Constitutions of the Discalced Carmelite Friars which states two vocations in their due order have been divinely ordained. The more important aim of our life shall be the love and contemplation of divine things and the secondary aim the apostolate, particularly all that pertains to our neighbours' salvation.
The nuns take vows of perpetual poverty, chastity and obedience and live under rules which impose and regulate the strict enclosure and observance of silence, which are said to be the conditions of the true and fruitful following of the contemplative life. So too their rules prescribe the occupations which are to fill their lives. They must assist devoutly and every day at the celebration of the mass and the recital of the Divine Office and other offices and prayers of the Church, must spend so many hours a day in mental prayers which are offered with general or special intentions in furtherance of their aims, must never be idle but must spend all the time that is not occupied in community duties in prayer or spiritual reading or work in their cells. Further, the rules prescribe practices to further the spirit of humility and particular mortifications, as for example a monastic fast lasting from September 14th to Easter, and the prohibition throughout their lives of those aids to comfort which by ordinary women are regarded as necessities rather than luxuries of life.
This, then, is the life which it is the purpose of this community to promote in the women who join it. Is it a charitable purpose and is a trust for its furtherance a charitable trust?
The community does not engage in, indeed is by its rules debarred from, any exterior work, such as teaching, nursing or tending the poor, which distinguishes the active branches of the same Order. A Catholic woman, it is said, joins such a contemplative Order as this to promote in herself more fully and perfectly the love of God, expressed in as perfect a sub- mission to His will as she can achieve with the help of His Grace, to promote that love in her neighbour and to make reparation to God for the sins of mankind. It is the teaching of the Church that the religious life thus led is, as it is called, the State of Perfection. But it is not a complete statement of their purpose to say that it is merely to work out their own salvation. For it is the established belief of the Roman Catholic Church, as appears from the Apostolic Constitution Umbratilem that the prayers and other spiritual penances and exercises, in which the nuns engage for the benefit of the public, in fact benefit the public by drawing down upon them grace from God, which enables those who are not yet Christians to embrace the Christian religion and those who are already Christians to practice Christianity more fully and fruitfully, and, further, that the prayers and other spiritual exercises of the nuns are the more efficacious by virtue of the fact that they devote their lives with especial devotion to the service of God. It is this benefit to all the world, arising from the value of their intercessory prayers, that the Appellant puts in the forefront of her case in urging the charitable purpose of the trust.
Nor is it only upon the intercessory value of prayer that the Appellant relies for the element of public benefit in their lives. For it is the evidence of Cardinal Griffin—and I do not pause to ask whether it is evidence of fact or opinion—that the practice of the religious life by the Carmelite nuns and other religious is a source of great edification to other Catholics—and indeed in innumerable cases to non-Catholics—leading them to a higher estimation of spiritual things and to a greater striving after their own spiritual perfection and that the knowledge that there are men and women who are prepared to sacrifice all that the worldly in man holds dear in Order to attain a greater love of God and union with Him inculcates in them a greater estimation of the values and importance of the things which are eternal than they would have if they had not these examples before them. Here then is the second element of public benefit, upon which the Appellant relies, the edification of a wider public by the example of lives devoted to prayer.
I will reserve for final consideration an argument which was not urged in the Courts below; that the trusts declared by the settlement are beneficial to the public in that qualification for admission to the community is not limited to any private group of persons but any person being a female Roman Catholic may be accepted, and therefore those trusts provide facilities for the intensified and most complete practice of religion by those members of the public who have a vocation for it. Your Lordships were reluctant to listen to an argument upon which you have not the advantage of the opinions of the learned Judges in the Courts below, but in the special circumstances of this case thought fit to admit it.
I turn then to the question whether, apart from this final consideration, the Appellant has established that there is in the trusts which govern this community the element of public benefit which is the necessary condition of legal charity. If now for the first time the necessity for determining that question arose, it might be a more difficult one to answer than it now appears to me to be.
But, my Lords, when I consider the law of charity, its origin and the manner of its development, when I find that, though communities such as this have existed over a considerable period and their charitable character has been rarely advocated and never sustained, I do not think that it is possible to open the door and admit them to the house of charity unless there is some novel and compelling reason for doing so.
When I speak of the law of charity, I mean that law which the Court of Chancery and its successor, the High Court of Justice, has evolved from a consideration of the statute 43 Eliz. c. 4. It is a commonplace that that statute, as its title implied, was directed not so much to the definition of charity as to the correction of abuses which had grown up in the administration of certain trusts of a charitable nature. But from the beginning it was the practice of the Court to refer to the preamble of the statute in order to determine whether or not a purpose was charitable. The objects there enumerated and all other objects which by analogy are deemed within its spirit and intendment and no other objects are in law charitable. This is settled and familiar law. I refer to it for two reasons. First, I think that it follows that, however valuable an investigation of the earlier law may be for determining the legality of religious practices (as was shown in Bourne v. Keane [1919] A.C. 815), it is of negligible importance for determining whether an object is charitable. Three hundred and fifty years have passed since the statute became law; few, if any, subjects have more frequently occupied the time of the Court. The law of mortmain, the law of perpetuity, and in latter days the revenue law, in all these aspects it has over and over again been the vital issue whether or not an object is charitable, and always it is primarily to the statute of Elizabeth and not behind it that the Court has looked for guidance.
And this leads me to my second reason. A great body of law has thus grown up. Often it may appear illogical and even capricious. It could hardly be otherwise when its guiding principle is so vaguely stated and is liable to be so differently interpreted in different ages. But, be that as it may, I suppose that if there was any question upon which in this branch of the law an answer based upon authority could confidently be given, it would be the question whether a gift to a community such as this was a gift for charitable purposes. This is no question of a patent mis-interpretation of a statute. If it were, following Bourne v. Keane, Imight not hesitate to say that a new departure should be made. But it is far otherwise. It is a matter in which the Court has consistently over a long period of time, acting on those principles which it has laid down for its own guidance, held that a particular object is not charitable. I do not seek to qualify what I recently said in the National Anti-Vivisection Society Case [1948] A.C. 31 that there may be circumstances in which the Court will in a later age hold an object not to be charitable which has in earlier ages been held to possess that virtue. And the converse case may be possible. That degree of uncertainty in the law must be admitted. But I would ask your Lordships to say that it is only a radical change of circumstances, established by sufficient evidence, that should compel the Court to accept a new view of this matter. Let me then examine briefly the law as it is to-dayand, having done so, ask what are the compelling reasons for a change.
I need not go back beyond the case of Cocks v. Manners (L.R. 12 Eq. 574), which was decided nearly 80 years ago by Wickens V.C. In that case the testatrix left her residuary estate between a number of religious institutions, one of them being the Dominican Convent at Carisbrooke, a community not differing in any material respect from the community of nuns now under consideration. The learned Judge who was, I suppose, as deeply versed in this branch of the law as any judge before or since (for he had been for many years junior counsel to the Attorney General in equity cases), used these words, which I venture to repeat, though they have already been cited in the Courts below:
On the Act [sc. the Statute of Elizabeth] unaffected by authority I should certainly hold that the gift to the Dominican Convent is neither within the letter nor the spirit of it; and no decision has been referred to which compels me to adopt a different conclusion. A voluntary association of women for the purpose of working out their own salvation by religious exercises and self-denial seems to me to have none of the requisites of a charitable institution, whether the word ' charitable' is used in its popular sense or in its legal sense. It is said, in some of the cases, that religious purposes are charitable, but that can only be true as to religious services tending directly or indirectly towards the instruction or the edification of the public; an annuity to an individual, so long as he spent his time in retirement and constant devotion, would not be charitable, nor would a gift to ten persons, so long as they lived together in retirement and performed acts of devotion, be charitable. Therefore the gift to the Dominican Convent is not, in my opinion, a gift on a charitable trust.
No case, said the learned Vice Chancellor, had been cited to compel him to come to a contrary conclusion, nor has any such case been cited to your Lordships. Nor have my own researches discovered one. But since that date the decision in Cocks v. Manners has been accepted and approved in numerous cases. They are referred to in the judgment of Mr. Justice Jenkins and I need only remind your Lordships, first, that Lord Lindley in In re White [1893] 2 Ch. 41 used these words: A society for the promotion of private prayer and devotion by its own members, and which has no wider scope, no public element, no purposes of general utility would be a ' religious' society, but not a ' charitable ' one: see Cocks v. Manners, and, secondly, that in Dunn v. Byrne [1912] A.C. 407. Lord Macnaghten in delivering the judgment of the Privy Council refers to Cocks v. Manners as the exemplar of a case in which the purpose would be considered by a devout Catholic to be conducive to the good of religion but which is certainly not charitable.
I have thus stated the law as it was universally accepted in case-law (except some recent Irish cases) and also in all text books of authority at the date when these proceedings were begun, and I now ask what is the argument upon which your Lordships are invited to unsettle it.
Apart from what I have called the final argument, which I will deal with later, the contention of the Appellant rests not on any change in the lives of the members of such a community as this nor, from a wider aspect, on the emergence of any new conception of the public good, but solely on the fact that for the first time certain evidence of the value of such lives to a wider public together with new arguments based upon that evidence has been presented to the Court. Never before, it was urged, has the benefit to be derived from intercessory prayer and from edification been brought to the attention of the Court; if it had been, the decision in Cocks v. Manners would, or at least should, have been otherwise. I have examined the records of Cocks v. Manners which were supplied to me by the Record Office and I find that the case has been fully and accurately reported. There was no such evidence as was adduced in this case by the Appellant and Cardinal Griffin. Nor, as appears from the Report, was any argument addressed to this specific point nor any judgment upon it.
What weight is to be attributed to this, which is the mainstay of the Appellant's case? To me, my Lords, despite the admirable argument of Mr. Charles Russell, the weight is negligible. True it is that Wickens V.C. emphasised that aspect of the religious life which is admittedly its more important aim, the love and contemplation of divine things. But its secondary aim the apostolate, particularly all that pertains to our neighbours' salvation " (I use the Appellant's words) is no new thing and I cannot suppose that it was absent from the learned Judge's mind that those, who devote their lives to prayer, pray not for themselves alone, or that they believe that their prayers are not in vain. Nor, as I think, can he have been unaware of the effect which the example of their lives may have upon others. As I venture to think, these aspects of the case were neither insisted upon in evidence or argument nor discussed by the learned Judge because they do not afford any real support for the contention that there is in the purpose of the community the element of public benefit which is the condition of legal charity.
My Lords, I would speak with all respect and reverence of those who spend their lives in cloistered piety, and in this House of Lords Spiritual and Temporal, which daily commences its proceedings with intercessory prayers, how can I deny that the Divine Being may in His wisdom think fit to answer them? But, my Lords, whether 1 affirm or deny, whether I believe or disbelieve, what has that to do with the proof which the Court demands that a particular purpose satisfies the test of benefit to the community? Here is something which is manifestly not susceptible of proof. But, then it is said, this is a matter not of proof but of belief: for the value of intercessory prayer is a tenet of the Catholic faith, therefore in such prayer there is benefit to the community. But it is just at this therefore that I must pause. It is, no doubt, true that the advancement of religion is generally speaking one of the heads of charity. But it does not follow from this that the Court must accept as proved whatever a particular church believes. The faithful must embrace their faith believing where they cannot prove: the Court can act only on proof. A gift to two or ten or a hundred cloistered nuns in the belief that their prayers will benefit the world at large does not from that belief alone derive validity any more than does the belief of any other donor for any other purpose. The importance of this case leads me to state my opinion in my own words but, having read again the judgment of the learned Master of the Rolls, I will add that I am in full agreement with what he says upon this part of the case.
I turn to the second of the alleged elements of public benefit, edification by example. And I think that this argument can be dealt with very shortly. It is in my opinion sufficient to say that this is something too vague and intangible to satisfy the prescribed test. The test of public benefit has, I think, been developed in the last two centuries. Today it is beyond doubt that that element must be present. No Court would be rash enough to attempt to define precisely or exhaustively what its content must be. But it would assume a burden which it could not discharge if now for the first time it admitted into the category of public benefit something so indirect, remote, imponderable and, I would add, controversial as the benefit which may be derived by others from the example of pious lives. The Appellant called in aid the use by Wickens V.C. of the word indirectly in the passage that I have cited from his judgment in Cocks v. Manners, but I see no reason to suppose that that learned Judge had in mind any such question as your Lordships have to determine.
I must now refer to certain cases upon which the Appellant relied. They consist of a number of cases in the Irish Courts and re Cans [1934] Ch. 162, a decision of Mr. Justice Luxmoore. A consideration of the Irish cases shows that it has there been decided that a bequest for the saying of masses whether in public or in private is a good charitable bequest; see e.g., A. G. v. IR. 426 and O'Hanlon v. Logue [1906] 1 I.R. 247. And in re Caus Luxmoore J. came to the same conclusion. I would expressly reserve my opinion upon the question whether these decisions should be sustained in this House. So important a matter should not be decided except upon •direct consideration of it. It is possible that, particularly in regard to the celebration of masses in public, good reason may be found for supporting a gift for such an object as both a legal and a charitable purpose. But it follows from what I have said in the earlier part of this opinion that I am unable to accept the view, which at least in the Irish cases is clearly expressed, that in intercessory prayer and edification that public benefit which is the condition of legal charity is to be found. It is perhaps significant that even in Ireland, where in regard to the saying of masses the law has thus been established, there is no consensus of opinion that a gift to a community of contemplative nuns is charitable: see Munsterand Leinster Bank v. A. G. [1940] I.R. 19 re Maguire [1943] I.R. 238 re Keogh [1945] I.R. 13. From the judgment of Black J. in the first cited case I would quote these words (at pp. 30, 31 of the report) which succinctly express my own view, " There are perhaps few forms of human activity, good in themselves, " but solely designed to benefit individuals associated for the purpose of " securing that benefit, which may not have some repercussions or consequential effects beneficial to some section of the general community: and unless a further and sweeping inroad is to be made on the rule against perpetuities, the line must be drawn somewhere. Cocks v. Manners has drawn it.
Of the decision of Mr. Justice Luxmoore in re Caus, I would only say that his ratio decidendi is expressly stated to be, first, that it (i.e., a gift for the saying of masses) enables a ritual act to be performed which is recognised by a large proportion of Christian people to be the central act of their religion, and, secondly, that it assists in the endowment of priests whose duty it is to perform the ritual act. The decision therefore does not assist the Appellant's argument in the present case and I make no further comments on it.
It remains finally to deal with an argument which, as I have said, was not presented to the Court of Appeal but appears in the Appellant's formal case. It is that the element of public benefit is supplied by the fact that qualification for admission to membership of the community is not limited to any group of persons but is open to any woman in the wide world who has the necessary vocation. Thus, it is said, just as the endowment of a scholarship open to public competition is a charity, so also is a gift to enable any woman (or, presumably, any man) to enter a fuller religious life a charity.
To this argument which, it must be admitted, has a speciously logical appearance, the first answer is that which I have indicated earlier in this opinion. There is no novelty in the idea that a community of nuns must, if it is to continue, from time to time obtain fresh recruits from the outside world. That is why a perpetuity is involved in a gift for the benefit of such a community and it is not to be supposed that, to mention only three masters of this branch of the law, Vice Chancellor Wickens, Lord Lindley, or Lord Macnaghten failed to appreciate the point. Yet by direct decision or by way of emphatic example a community such as this is by them regarded as the very type of religious institution which is not charitable. I know of no consideration applicable to this case which would justify this House in unsettling a rule of law which has been established so long and by such high authority. But that is not the only, nor indeed the most cogent, reason why I cannot accede to the Appellant's argument. It is a trite saying that the law is life, not logic. But it is, I think, conspicuously true of the law of charity that it has been built up not logically but empirically. It would not, therefore, be surprising to find that, while in every category of legal charity some element of public benefit must be present, the Court had not adopted the same measure in regard to different categories, but had accepted one standard in regard to those gifts which are alleged to be for the advancement of education and another for those, which are alleged to be for the advancement of religion, and it may be yet another in regard to the relief of poverty. To argue by a method of syllogism or analogy from the category of education to that of religion ignores the historical process of the law.
Nor would there be lack of justification for the divergence of treatment which is here assumed. For there is a legislative and political background peculiar to so-called religious trusts, which has I think influenced the development of the law in this matter. Thus, even if the simple argument that, if education is a good thing, then the more education the better, may appear to be irrefutable, to repeat that argument substituting religion for education is to ignore the principle which I understand to be conceded that not all religious purposes are charitable purposes. It was, no doubt, this consideration which led Wickens V.C. to say that a gift to a Dominican convent was one of the last gifts which the Legislature which passed the Act would have thought of including in it. Upon this final argument I would add this observation. I have stressed the empirical development of the law of chanty and your Lordships may detect some inconsistency in an attempt to rationalise it. But it appears to me that it would be irrational to the point of absurdity on the one hand to deny to a community of contemplative nuns the character of a charitable institution but on the other to accept as a charitable trust a gift which had no other object than to enable it to be maintained in perpetuity by recruitment from the outside world.
Finally 1 would say this. I have assumed for the purpose of testing this argument that it is a valid contention that a gift for the advancement of education is necessarily charitable if it is not confined within too narrow limits. But that assumption is itself difficult to justify. It may well be that the generality of the proposition is subject to at least two limitations. The first of them is implicit in the decision of Russell J. in re Hummeltenberg [1923] 1 Ch. 237: the second is one that is not in the nature of things likely to occur, but, if it can be imagined that it was made a condition of a gift for the advancement of education that its beneficiaries should lead a cloistered life and communicate to no one, and leave no record of, the fruits of their study, I do not think that the charitable character of the gift could be sustained.
For the reasons that I have given I am of opinion that this appeal should be dismissed.
Lord Simonds: I understand there is some question to be raised on the matter of costs. I will give Counsel an opportunity, when the other noble Lords have delivered their opinions, of making representations upon it.
Lord du Parcq
MY LORDS,
1 cannot usefully add any words of my own to what has been said by my noble and learned friend on the Woolsack in support of the view that a principle which has for so long been followed and is so well established as that laid down in Cocks v. Manners cannot now be repudiated. For the reasons which he has so convincingly stated I believe it to be the duty of your Lordships' House to treat that decision as conclusive of this appeal, unless it be possible to find a real distinction between that case and this. It is on the question whether any such distinction exists that 1 wish to add some observations.
The appellant seeks to draw the necessary distinction on three grounds, none of which, as my noble and learned friend has pointed out, was very likely to have been overlooked in earlier cases if it had any validity. As to the third of these grounds I have only to express my concurrence in what my noble and learned friend has said. The two other contentions were founded on evidence which had not been before the court in Cocks v. Manners. First, there was here evidence that in the belief of the Roman Catholic Church the prayers and mortifications of the members of the Church for their neighbour both inside and outside the Church advance religion and are an inestimable spiritual benefit to their neighbour. (I am now quoting from the affidavit of Cardinal Griffin.) Secondly, there was evidence, which again was lacking in Cocks v. Manners, that the practice of the religious life by the Carmelite Nuns is a source of great edification to other Roman Catholics and also (it is said) in innumerable cases to non-Catholics. Under both these heads, it was submitted, the necessary element of public benefit is found.
My Lords, the first of these three heads of the argument must stand or fall with a further submission which was powerfully urged at the bar and is not without the support of authority. This submission requires the acceptance of the proposition that when a question is raised as to the spiritual efficacy of religious acts, the court is bound to assume that the doctrines of the religion which practises them are true, and must ascertain according to those doctrines whether or not they have the spiritual efficacy which is claimed for them.
The learned counsel for the appellant, in their presentation of this argument, naturally relied on the decision of the Court of Appeal in Ireland in O'Hanlon v. Logue [1906] 1 I.R. 247, and in particular on the judgment of Palles, C.B. in that case. In the earlier case of The Attorney-General v. Delaney I.R. 10 C.L. 104, at pp. 126-127, the learned Chief Baron had stated the law in these words: —
I am of opinion that a gift for a religious, or for any other purpose, to be charitable within the Statute of Elizabeth, must, to some extent at least, be in the nature of a general public use. It must be of such a nature that the Court can determine that its execution shall confer a benefit upon the public or upon some section of the public. . . . To constitute a charitable use in analogy to the Statute of Elizabeth the purpose must be one which the Court itself can ascertain and declare to be public or beneficial to the public. It cannot, in my opinion, derive the element of public benefit from the efficacy spiritual or temporal which, according to the faith of the testatrix, the religious act may possess.
Over thirty years later, in O'Hanlon v. Logue, the learned Chief Baron was persuaded that he had been wrong in the view which he had expressed in Delaney's case, and reached the conclusion that if, according to the doctrines of the religion in question, an act of divine service does result in public benefit, either temporal or spiritual, the act must, in law, be deemed charitable.
My Lords, in my respectful opinion the earlier of these two opinions of Palles, C.B. is, and the later is not, consonant with the law as it has developed in England. I must add, after giving careful consideration to the reasoning of the learned Chief Baron in the later case, that it does not seem to me to be convincing.
I am now referring to the third reason which the Chief Baron gave for his decision, a reason which, as he said, was of wider application than the others which he gave, and would, if valid, be applicable to the present case. It may be stated fairly, I think, in this way. The law can only know what spiritual efficacy religious acts have by knowing first what efficacy the doctrines of the particular religion concerned ascribe to them. But when it knows those doctrines, although it knows that, according to them, such an act has the spiritual efficacy alleged, it cannot know it objectively and as a fact, unless it also knows that the doctrines in question are true. It cannot know this, and therefore one of two results must follow. Either the law must cease to admit that any divine worship can have spiritual efficacy to produce a public benefit; or it must admit the sufficiency of spiritual efficacy, but ascertain it according to the doctrines of the religion whose act of worship it is.
My Lords, the learned Chief Baron ruled out the former of these alternatives as impossible, because to accept it, he said, would be to refuse to recognise the essence of all religion. The other result therefore, he held, must necessarily ensue.
It must be remembered that the law of Englandrecognises as proper objects of charitable endowment at least all those varied forms in which the Christian religion is professed and practised. In some respects there are differences and irreconcilable conflicts of opinion between some of the many religious bodies which are thus recognised. An argument which leads to the conclusion that the courts, when they are considering whether it is for thepublic benefit that property should be devoted for ever to a religious purpose are compelled to accept as true any doctrine of a particular religion which ascribes efficacy, spiritual or temporal, to acts which that religion enjoins upon its followers, cannot I think be sound. The learned Chief Baron spoke of a hypothetical admission of the truth of the religious belief, but a court is not performing its duty if it treats a hypothesis as a proved fact and proceeds to draw inferences from it. It appears to me, therefore, that the conclusion to which one is forced is that expressed by the learned Chief Baron in the earlier case of Delaney, that the purpose of the trust must be one which the court itself can determine and declare to be beneficial to the public.
Judged by this test, the case before your Lordships cannot in my opinion be distinguished on the first ground from that of the convent in Cocks v. Manners. The conclusion which the Chief Baron feared, that the law would deny spiritual efficacy to all prayers and religious exercises, by no means follows from the adoption of his original opinion. The law may assume, without inconsistency, that all intercessory prayer for spiritual benefits, offered by devout persons of no matter what religion, is capable of benefiting the public generally or a section of it. This will not suffice the appellant. It is not merely on the ground that the nuns offer intercessory prayer that the appellant's case must rest. It is not to be supposed that if they did not live in seclusion they would cease to pray, though it is of course true that a life in the world would not allow them to give their time so unremittingly to prayer and devotion. The religion which they follow with such self-sacrificing zeal itself teaches, as the Cardinal's affidavit tells us, that public prayer excels any other. It has not been suggested that private prayer is a fit subject for charitable endowment unless there is something to distinguish it from that offered by the ordinary man. What it would be necessary to accept as a fact in order to show public benefit in the sense in which that phrase is used of charity is that (I again quote the Cardinal's words) the prayers and mortifications of the contemplative and practising religious are especially efficacious. Here we are outside the region of proof as it is understood in our mundane tribunals. This is ground on which the law does not presume to tread.
When I turn to the second contention, I find that (apart from the fact that, as has already been said, edification by example is too remote a public benefit to be considered) the same difficulty arises. It is true that those who share the beliefs of these devout women, and some, it may be, of those who do not share them, are moved to admiration, if not to imitation, by the knowledge of their example. But the total effect on the community outside the convent of a life lived according to ideals which one faith, but by no means every faith, ranks among the highest, is something which the law has no means of judging. It happens that in the present case the litigants who were before the court were at one in accepting the tenets of the Roman Catholic religion. If there were evidence before a court concerning religious acts which the creed of a particular church commended, or enjoined as duties, and if it were said on behalf of one party to a dispute that these acts resulted in the edification of many, and on behalf of another, that they aroused in the hearts of no less a number of persons feelings injurious to the advancement of religion, it must surely be conceded that no court could properly attempt the task of deciding between the disputants. Indeed it could hardly be desired by the devout followers of any creed that such a task should be essayed by a temporal court.
I have only to add that although I am unable to accept part of the reasoning which led the Court of Appeal in Ireland to the conclusion that a bequest for Masses, whether they were to be said privately or in public, was a good charitable bequest, I do not desire to express, and indeed have not formed, any opinion as to the propriety of that decision on other grounds. It follows that I must reserve my opinion as to the correctness of the decision of Luxmoore J. in In re Cans. I concur in the recommendation of the Committee that this appeal should be dismissed.
Lord Normand:
MY LORDS,
1 agree with the opinions which have been delivered by my noble and learned friend on the Woolsack and by my noble and learned friend Lord du Parcq. I have had the advantage of reading the opinion of my noble and learned friend Lord Reid and I concur also with it.
Lord Morton of Henryton:
MY LORDS,
I also have had the advantage of reading the opinions to which my noble and learned friend Lord Normand has referred. I agree with them and I have come to the conclusion that 1 cannot usefully add anything to them.
Lord Reid
MY LORDS,
In this case a sum of money was given to be held by trustees Upon trust if the purposes of the Roman Catholic Community situate and known as the Carmelite Priory St. Charles' Square Notting Hill in the Countyof Londonare charitable to apply the income of the Trust Fund to all or any such purposes . . but if the purposes of the said Community are not charitable then Upon trust" for other purposes. The question for decision is whether or not the purposes of that community are charitable in the legal sense of that word. It is admitted and properly admitted by the Appellant that it is not enough to make this gift charitable in the legal sense that it is a gift for religious purposes: the Appellant can only succeed by showing that the gift involves a benefit to the public. On the other hand it is not disputed that if benefit to the public can be held to be established the appeal must succeed. Accordingly the sole point in issue is whether or not there is any ground on which it can be held that the gift would involve public benefit.
The community referred to is a community of Discalced Carmelite Nuns belonging to one of the Orders of the Roman Catholic Church which are called contemplative Orders. They are so called because their members are strictly enclosed in their convents and engage in no exterior works but devote their lives to contemplation and penance, contemplation including not only assisting at Mass and reciting the Divine Office and other vocal prayers but also reflection of the mind on God and the things of God which evokes from the Will or heart acts of adoration, propitiation, love and intercession towards God and which in the case of contemplatives as a general rule passes sooner or later and to a less or greater degree into mystical prayer. I quote from the Affidavit of Cardinal Griffin. That affidavit and the affidavit of the Prioress of the Community set out at length the purposes of the Order and the teaching of the Roman Catholic Church. As I understand it from these affidavits the essential part of that teaching for the present purpose is that the daily prayers and mortification which these nuns offer for others advance religion and are an inestimable spiritual benefit to those both inside and outside the Church, and that the prayers and mortification of contemplatives are especially efficacious in view of the high degree of union with God which results from the following of their vocation.
Mr. Russell for the Appellant submitted three grounds on each of which he argued that the Appellant is entitled to succeed: if none of these three grounds is valid the appeal must fail. His main argument was that a Court is entitled to accept the belief of Roman Catholics that spiritual benefit to mankind flows from intercessory prayer as sufficient to establish the necessary element of public benefit. It was not suggested that the effect of prayer is capable of legal proof by evidence. No temporal Court of Lawcan determine the truth of any religious belief: it is not competent to investigate any such matter and it ought not to attempt to do so. How then does the law deal with a question like that now in issue?
The leading authority cited by Mr. Russell was O'Hanlon v. Logue [1906], 1 I.R. 247. In that case it was held, on a reconsideration of the older Irish authorities, that the celebration of Mass in private was a charitable purpose. The question there decided is not the same as that which arises in the present case, but many of the reasons stated by the Irish judges are equally applicable to both questions. I shall examine them in some detail; by doing so I shall deal with the main argument for the Appellant: Walker, C., states (p. 259): There are some legal propositions germane to the case for which it would be mere pedantry to cite authority . . . (b) that included amongst charitable objects is one which, according to the ideas of the giver, is for the public benefit. It appears from the report of the argument (p. 252) that there had been cited from the opinion of FitzGibbon, L.J., in Webb v. Oldfield [18981, 1 I.R. 446, this passage, the benefit must be one which the founder believes to be of public advantage, and his belief must be at least rational and not contrary either to the general law of the land or to the principles of morality. Walker C., appears to have accepted this view and I think that his whole opinion is largely based on it. But Mr. Russell could not maintain that it correctly states the law of England. I do not think that there has been any doubt, at least since the decision of In re Hummeltenberg [1923] 1 Ch. 237, by Russell J., as he then was, that the Court cannot accept the opinion of the donor as sufficient to establish public benefit. As regards an opinion or belief other than a religious belief I think that that is conclusively settled by the decision of this House in National Anti-Vivisection Society v. Inland Revenue Commissioners [19481 A.C. 31. The point could only now be maintained in the form that when the opinion of the donor is based on a religious belief of the Church of which the donor is a member different considerations apply. That I think is the question to be determined in the present case.
The opinion of Palles, C.B., in O'Hanlon's case is based on three considerations. In the first place he deals with the validity of gifts for religious purposes prior to the Reformation. Such gifts were regarded as gifts to God and were frequently stated to be gifts to God and to a particular Abbey or Church. I think that his view was that such a gift was always held to be charitable without there being any need to enquire further whether there was any public benefit involved in it. It may well be that that is correct. It is the next step in his reasoning that I am unable to accept. He takes the view that after the Reformation the only reason why gifts such as gifts for Masses to be celebrated in private ceased to be regarded as charitable was that the purposes of such gifts had been made illegal by Statute and that (p. 273) " when, in 1793, all laws prohibiting or discouraging the practice of the Roman Catholic religion were repealed the illegality determined, and they resumed the character they enjoyed in pre-Reformation times, and once more became charitable (1) because of their piety; and (2) because they were devoted to the support and maintenance of the clergymen, the celebrants. With the greatest respect to that great judge I think that he has not given due weight to an essential difference between the position before the Reformation and the position now. Before the Reformation only one religion was recognised by the law and in fact the overwhelming majority of the people accepted it. It was natural that the law should accept the beliefs of that religion without question and act upon them. But since diversity of religious beliefs arose and became lawful the law has shown no preference in this matter to any church and other religious body. Where a belief is accepted by some and rejected by others the law can neither accept nor reject, it must remain neutral. If the law before the Reformation accepted gifts for religious purposes as charitable simply because of their piety and without further consideration of the question of public benefit I think that it did so on grounds which are no longer available. I think that Palles, C.B., sums up this part of his opinion when he says (p. 274) that the celebration of Mass is an act from which the CommonLaw knew previous to the Reformation, and therefore knows now, that benefits spiritual and temporal flow to the general body of the faithful--benefits which, even were they spiritual only, would render the service charitable within 10 Car. 1 Sess. 3 c. 1. I have difficulty in seeing how this could be consistent with the law showing no preference to any particular religion. There may be a new religion with new beliefs which the Common Law never knew. To preserve equality between the old and the new it would be necessary to hold that the law must also know, in the sense of accepting as true, new beliefs which may directly contradict the old. Whatever other reasons there may be to support the Appellant's case this reason appears to me to be invalid. I am unable to agree with Palles, C.B., when he says (p. 270) Even had the Common Law acknowledged more religions than one, it would have held pious any gift making provision for the worship of God, irrespective of the particular acknowledged religion according to which the worship was to be offered, provided only such religion were recognised as lawful. If this were so, one would expect to find some authority to support it after the law did acknowledge more religions than one: 1 have not found it.
The second ground of judgment of the learned Chief Baron appears to be based on the premiss (p. 274) all will admit that the divine service of the Reformed Church was, by virtue of its spiritual efficacy, a charitable act, so long as it remained the established Church. I can find no basis for drawing a distinction in the matter of charity between the Established Church and other churches. But apart from that it has been decided in Englandthat it is not a charitable purpose to provide for Church of England services in a private chapel. Hoare v. Hoare (1887) 56 L.T. 147.
The third ground of Palles, C.B.'s, judgment is perhaps the most relevant to the present argument. It is to the effect that the only basis on which the law can hold, as it does hold, that public benefit flows from Divine Worship, is the acceptance as true of the beliefs of the worshippers. Palles, C.B., puts a dilemma (p. 276): " There must be one of two results: either (1) the law must cease to admit that any divine worship can have spiritual efficacy to produce a public benefit; or (2) it must admit the sufficiency of spiritual efficacy, but ascertain it according to the doctrines of the religion whose act of worship it is". Holmes, L.J., puts the matter thus (p. 285): I am wholly at a loss to know now, if the Court cannot determine whether the celebration of a private Mass carries with it public benefits, by what means it can determine that a Mass said in public confers such benefits. Again I must with great respect suggest that these learned judges have taken too narrow a view. There is another way of looking at the matter which avoids these difficulties.
The Law of England has always shown favour to gifts for religious purposes. It does not now in this matter prefer one religion to another. It assumes that it is good for man to have and to practise a religion but where a particular belief is accepted by one religion and rejected by another the law can neither accept nor reject it. The law must accept the position that it is right that different religions should each be supported irrespective of whether or not all its beliefs are true. A religion can be regarded as beneficial without it being necessary to assume that all its beliefs are true, and a religious service can be regarded as beneficial to all those who attend it without it being necessary to determine the spiritual efficacy of that service or to accept any particular belief about it. Admittedly public benefit in the present case can only be established if the Court is entitled to accept and act on the beliefs of the Roman Catholic Church. This would in my view now be something new.
In Cocks v. Manners, 12 Eq. 574, there was a gift to a community which belonged to a contemplative order of the Roman Catholic Church and in that case that gift was held not to be a charitable gift because it lacked the necessary element of public benefit. The only difference between that case and the present case is that in that case there was no evidence of the teaching of the Roman Catholic Church about the efficacy of intercessory prayer or of the special place which these orders occupy in that church;but I find it difficult to believe that these matters were wholly unknown not only to Wickens, V.C., who decided that case, but also to the numerous judges of great eminence, both English and Irish, who have referred to that decision with approval and without even suggesting that it may have been decided without all the relevant facts being before the Court. I think that it is also noteworthy that, with one exception, the Irish Courts have not since the decision of O'Hanlon v. Logue taken the view that Cocks v. Manners should no longer be followed in Ireland. In Commissioners of Charitable Donations v. M'Cartan [1917J 1 I.R. 388, a gift to establish a monastery was held not to be charitable. O'Connor, M.R., said (at p. 396): Monasteries of men and women are often, if not mostly, institutions the members of which devote their lives exclusively to acts of piety such as pious meditation, prayer and self-denial. Such institutions, however praise-worthy, are not charitable in the sense recognised by this Court. In Munster and Leinster Bank v. Attorney General [19401 I.R. 19, to which I shall return in another connection, Black, J., recognised Cocks v. Manners as good law. In re Keogh [1945] I.R. 13, gifts for the purposes of Discalced Carmelite Orders were held not to be charitable. The one exception is Maguire v. Attorney General [19431 I.R. 238, where Gavan Duffy, J., held that a gift to found a convent for the perpetual adoration of the Blessed Sacrament was charitable. He said (p. 250): To rescue the gift here from the post Elizabethan morass and place it upon firm ground, I am driven back to the earlier position before prescriptive legislation had for the time being blocked the steady flow of the common law. Having expressed the opinion that the case of O'Hanlon was decided on the dual grounds that the gift was charitable at common law and that it imported the element of public benefit necessary to bring a gift within the Statute of Pious Uses he said I rest my judgment upon the common law. Accordingly this case is not an authority which helps Mr. Russell's main argument on public benefit. For the reasons which I have given I do not think that this argument can succeed.
Before passing to the second argument 1 should notice the case of In re Cans [11934] 1 Ch.162. In that case Luxmoore, J., held following O'Hanlon that a bequest for private Masses was a good charitable gift. There are grounds on which it can be argued that such a gift is charitable which do not apply to the present case. I express no opinion as to whether this decision can be supported on these grounds. But in my view it cannot be supported on the ground that a Court is entitled to accept the beliefs of Roman Catholics or the teaching of the Roman Catholic Church regarding the Mass as sufficient to establish the necessary element of public benefit.
Mr. Russell's second argument is founded on Cardinal Griffin's affidavit in which it is stated It is an undoubted fact that the practice of the religious life by the Carmelite Nuns and other religious is a source of great edification to other Catholics—and indeed in innumerable cases to non-Catholics—leading them to a higher estimation of spiritual things and to a greater striving after their own spiritual perfection and that the knowledge that there are men and women who are prepared to sacrifice all that the worldly in man holds dear in order to attain a greater love of God and union with Him inculcates in them a greater " estimation of the value and importance of the things which are eternal than they would have if they had not these examples before them. This argument must be considered on the footing that it has already been decided that the necessary element of public benefit cannot be directly established under the first argument—otherwise the Appellant would succeed without this argument. Mr. Russell relies on a passage in the judgment of Wickens, V.C., in Cocks v. Manners, It is said, in some of the cases, that religious purposes are charitable, but that can only be true as to religious services tending directly or indirectly towards the instruction or the edification of the public. He says that it is proved by evidence that the public or at least a sufficient section of the public are edified. I doubt whether Wickens, V.C.. meant to use the word edification in this sense. But whether he did or not there must be some limit to the kind of indirect instruction or edification which will constitute a public benefit. It is hard to imagine anyform of religious activity by an organised religious body which does not have some effect of this kind, and if the words were applied literally the requirement of public benefit would virtually disappear. Mr. Russell admitted that it must be a question of degree whether or not in any case the public benefit is too remote. In this case 1 think it is too remote. Moreover I do not think that, when a decision has stood for three-quarters of a century as Cocks v. Manners has, it ought to be reversed on a question of degree of this kind. No broad principle is here involved. I agree with the view of Black, J., in Munster and Leinster Bank v. Attorney General unless a further and sweeping inroad is to be made on the rule against perpetuities, the line must be drawn somewhere. Cocks v. Manners has drawn it.
The third argument submitted by Mr. Russell is of a different character. It was not submitted to the Court of Appeal. It is that the existence of this community enables some 20 women to practise religion in a way which would otherwise be impossible for them ; and that, if the law recognises the practice of religion as beneficial, it must regard any gift to enable religion to be practised more fully as a gift for a beneficial purpose. On this argument the necessary element of public benefit is found in the fact that the 20 persons benefited are not drawn from any limited class but from the whole body of Roman Catholic women who have a vocation for a contemplative life. I am prepared to assume that, if the law can regard the purposes of this community as beneficial, the necessary element of public benefit could be so found. But this argument, like the last, can only be reached after the Appellant has failed on the first argument and it has therefore been decided that the law is disabled from recognising any public benefit resulting from the existence of the community. Mr. Russell when asked was unable to cite any authority to the effect that it can be a valid charitable purpose to assist persons to do something which cannot be shown to have any public utility. In the absence of authority I can see no reason why this should be regarded as a valid charitable purpose and therefore I think that this argument fails.
Accordingly I agree that the appeal must be dismissed.