COUNSEL: G. J. Talbot, K.C., and J. Arthur Price,for the appellants.

Tomlin, K.C., and Hon. Malcolm Macnaghten, for the respondents.

 

SOLICITORS: For appellants: Calder Woods & Pethick.

For respondents: Stoneham & Sons.

 

JUDGES: Lord Finlay L.C., Lord Dunedin, Lord Parker Of Waddington, Lord Sumner, and Lord Buckmaster.

 

DATE: 1917 May 14.

 

 

Company – Objects – Legality – Anti-Christian Company – Blasphemy – Capacity to receive Gifts – Bequest to Company – Validity – Conclusiveness of Certificate of Incorporation as to Legality of Objects – Blasphemy Act, 1697 (9 & 10 Will. 3, c. 32 [9 Will. 3, c. 35, Rev. Stat.]) – Companies Act, 1900 (63 & 64 Vict. c. 48), s. 1.

 

The Secular Society, Limited, was registered as a company limited by guarantee under the Companies Acts, 1862 to 1893. The main object of the company, as stated in its memorandum of association, was “to promote …. the principle that human conduct should be based upon natural knowledge, and not upon super-natural belief, and that human welfare in this world is the proper end of all thought and action”:–

 

Held, assuming that this object involved a denial of Christianity, (1) that it was not criminal, inasmuch as the propagation of anti-Christian doctrines, apart from scurrility or profanity, did not constitute the offence of blasphemy; and (2) (by Lord Dunedin, Lord Parker of Waddington, Lord Sumner, and Lord Buckmaster; Lord Finlay L.C. dissenting) that it was not illegal in the sense of rendering the company incapable in law of acquiring property by [*407] gift, and that a bequest “upon trust for the Secular Society Limited” was valid.

 

The principle of Reg. v. Ramsay and Foote (1883) 15 Cox, C. C. 231; Cab. & E. 126 applied.

 

Briggs v. Hartley (1850) 19 L. J. (Ch.) 416 and Cowan v. Milbourn (1867) L. R. 2 Ex. 230 overruled.

 

The conclusiveness of the certificate of incorporation upon the legality of the objects of the company considered.

 

Decision of the Court of Appeal [1915] 2 Ch. 447 affirmed.

 

APPEAL from an order of the Court of Appeal affirming an order of Joyce J. (1)

 

Charles Bowman, by his will dated September 14, 1905, devised and bequeathed his residuary real and personal estate to his trustees upon trust after the death of his wife for sale and conversion, and to stand possessed of the proceeds, subject to certain annuities, “upon trust for the Secular Society Limited of 2 Newcastle Street Farringdon Street London” (the respondents).

 

The testator made a codicil to his will not material to the purposes of the present appeal, and he died on April 21, 1908.

 

The testator’s widow died on October 18, 1914.

 

On November 25, 1914, the respondent society took out an originating summons asking for payment over to them of the residue of the testator’s estate and administration of the estate so far as necessary.

 

The appellants, the next of kin of the testator, disputed the validity of the residuary gift to the respondent society on the ground that the objects of the society were unlawful.

 

The respondent society was registered on May 27, 1898, as a company limited by guarantee under the Companies Acts, 1862 to 1893, with a memorandum and articles of association.

 

The objects of the society as stated in clause 3 of the memorandum of association were as follows:–

 

“(A) To promote, in such ways as may from time to time be determined, the principle that human conduct should be based upon natural knowledge, and not upon super-natural belief, and that human welfare in this world is the proper end of all thought and action.

 

“(B) To promote the utmost freedom of enquiry and the publication of its discoveries.

 

(1) [1915] 2 Ch. 447. [*408]

 

“(C) To promote the secularisation of the State, so that religious tests and observances may be banished from the Legislature, and Executive, and the Judiciary.

 

“(D) To promote the abolition of all support, patronage, or favour by the State of any particular form or forms of religion.

 

“(E) To promote universal secular education, without any religious teachings, in public schools maintained in any way by municipal rates or imperial taxation.

 

“(F) To promote an alteration in the laws concerning religion, so that all forms of opinion may have the same legal rights of propaganda and endowment.

 

“(G) To promote the recognition by the State of marriage as a purely civil contract, leaving its religious sanctions to the judgment and determination of individual citizens.

 

“(H) To promote the recognition of Sunday by the State as a purely civil institution for the benefit of the people, and the repeal of all Sabbatarian laws devised and operating in the interest of religious sects, religious observances, or religious ideas.

 

“(I) To purchase, lease, rent or build halls or other premises for the promotion of the above objects.

 

“(J) To employ lecturers, writers, organisers or other servants for the same end.

 

“(K) To publish books, pamphlets, or periodicals.

 

“(L) To assist by votes of money or otherwise other societies or associated persons or individuals who are specially promoting any of the above objects.

 

“(M) To have, hold, receive and retain any sums of money paid, given, devised or bequeathed by any person, and to employ the same for any of the purposes of the society.

 

“(N) To co-operate or communicate with any kindred society in any part of the world.

 

“(O) To do all such other lawful things as are conducive or incidental to the attainment of all or any of the above objects.”

 

At the hearing of the summons the appellants tendered certain evidence as to the course of business of the respondent society. Joyce J., however, rejected this evidence, and held that the legality of the society must be determined solely upon a consideration of its memorandum and articles of association; and he held, further, [*409] that there was nothing in either the memorandum or articles subversive of morality or contrary to law. He was therefore of opinion that the residuary gift was valid.

 

The Court of Appeal (Lord Cozens-Hardy M.R., Pickford L.J., and Warrington L.J.) affirmed the decision of the learned judge upon both points.

 

Jan. 30; Feb. 1, 2, 5, 8. G. J. Talbot, K.C., and J. Arthur Price, for the appellants. The question is whether the gift to the respondent society is a gift for an illegal purpose. In determining the legality of the objects of this society the Courts below held that they were bound to look only at the memorandum and articles of association and excluded evidence of the conduct of the society. It is submitted that that is wrong. The appellants are entitled to succeed on the memorandum alone, but they are further entitled to look at the memorandum in the light of the doings of the society. It is not really disputed that this society is actively engaged in propagating doctrines subversive of Christianity. But that its main object is the subversion of Christianity appears by implication from the memorandum itself: see particularly sub-clause (A) of clause 3. The appellants’ case is that a society for the subversion of Christianity is illegal and is incapable of enforcing a bequest to it. The Court of Appeal, in upholding the bequest, have created an absolutely new precedent. Admittedly the whole tenor of authority is the other way. Their decision is not an interpretation but an alteration of the law. Christianity is and has always been regarded by the Courts of this country as the basis on which the whole of the English law, so far as it has an ethical side, rests, and any movement for the subversion of Christianity has always been held to be illegal. If so, when and how has the law been altered? What is consistent or inconsistent with Christianity is a question on which opinion may differ from time to time, but that is a question of the application of the principle. Here the Court of Appeal have not applied the principle at all, but have revoked it and have usurped the province of the Legislature. In Cowan v. Milbourn (1) the refusal by the owner of the use of a room which had been hired for the delivery of lectures impeaching the character and teachings

 

(1) L. R. 2 Ex. 230. [*410]

 

of Christ was held to be justified on the ground that the intended use was for an unlawful purpose, and Kelly C.B. there said that Christianity was part and parcel of the law of the land. Bramwell B. pointed out that a thing might be unlawful so as to prevent its being the foundation of any legal right though not punishable criminally. By the Toleration Act of 1688 (1 Will. & Mar. c. 18) dissenting Protestants were relieved from the penalties imposed by the Act of Uniformity and certain other Acts, but Papists and persons denying the doctrine of the Blessed Trinity were expressly excluded from the benefits of that Act. By the Blasphemy Act, 1697 (9 & 10 Will. 3, c. 32) (1), persons educated in the Christian religion who were convicted of denying the Trinity or the truth of Christianity were subjected to very heavy penalties and disabilities. That Act really recognizes the common law and imposes additional penalties to the common law offence of blasphemy. So far as appears, no indictment has ever been instituted under that Act. By 53 Geo. 3, c. 160, the Toleration Act of 1688 and the Blasphemy Act of 1697, so far as they related to persons impugning the doctrine of the Holy Trinity, were repealed and such persons were relieved from penalties. By the Roman Catholic Charities Act, 1832 (2 & 3 Will. 4, c. 115), Catholics, and by the Religious Disabilities Act, 1846 (9 & 10 Vict. c. 59), Jews, are now placed in the same position as Protestant nonconformists. But before the passing of the last-named Act a gift for the advancement of the Jewish religion was held by Lord Hardwicke to be illegal as being contrary to the Christian religion, which was part of the law of the land: De Costa v. De Paz. (2) Since the passing of 53 Geo. 3, c. 160, gifts for Unitarian objects have been held good: Shrewsbury v. Hornby (3);. In re Barnett.(4) In Shore v. Wilson (5) the point did not directly arise, but that case, rightly read, shows that the toleration of Unitarians is based upon the implied effect of 53 Geo. 3, c. 160, which, while in terms relieving only from statutory penalties, impliedly relieves from all penalties and places Unitarians in the same position as other Protestant dissenters. But, except so

 

(1) Called in the Revised Statutes 9 Will. 3, c. 35.

 

(2) (1754) 2 Swanst, 487, note (a); Amb, 228.

 

(3) (1846) 5 Hare, 406.

 

(4) (1860) 29 L. J. (Ch.) 871.

 

(5) (1842) 9 Cl. & F. 355. [*411]

 

far as repealed by that Act, the Blasphemy Act still remains in force, and there is no such thing as an obsolete Act. It follows that a society, such as this is, for the subversion of all religion is an illegal association and is incapable of receiving bequests: see Thompson v. Thompson (1); Thornton v. Howe (2); In re Bedford Charity. (3) Offences against religion were originally within the exclusive jurisdiction of the Ecclesiastical Courts, to which every subject of the realm, unless expressly exempted, was amenable to the same extent as to the common law Courts. The status of ecclesiastical law is fully discussed in Caudrey’s Case. (4) With regard to the jurisdiction as to heresy, the common law Courts regarded themselves as bound by the decisions of the Ecclesiastical Courts, and the heretic was burnt by virtue of the writ De Haeretico Comburendo, which was a common law writ: Hawkins, Pleas of the Crown, book 1, part 2, c. 26, tit. “Heresy,” s. 10; Coke’s Institutes, 3rd Part, c. 5; Fitzherbert’s Natura Brevium, p. 269. See also Maitland’s Canon Law in the Church of England, c. 6. By 29 Car. 2, c. 9, the writ De Haeretico Comburendo was abolished, but the Act contained a proviso expressly saving the jurisdiction of the Ecclesiastical Courts “in cases of atheism, blasphemy, heresy, or schism”; and see the Ecclesiastical Courts Act, 1813 (53 Geo. 3, c. 127), ss. 1, 2, 3, which abolished excommunication except in certain specified cases. Upon a review of the common law and the legislation recognizing and modifying it it is impossible to maintain that an attack upon Christianity is lawful. Blackstone (Commentaries, book 4, c. 4, s. iv.), in dealing with offences against religion, says that the fourth species of offences more immediately against God and religion is “that of blasphemy against the Almighty, by denying his being or providence; or by contumelious reproaches of our Saviour Christ. …. These are offences punishable at common law by fine and imprisonment, or other infamous corporal punishment: for Christianity is part of the laws of England.” The first recorded case of an indictment for blasphemy is Rex v. Taylor (5) in 1675, where Lord Hale held that blasphemy was indictable

 

(1) (1844) 1 Coll. 381, 397.

 

(2) (1862) 31 Beav. 14, 20.

 

(3) (1819) 2 Swanst. 470, 527.

 

(4) (1591) 5 Rep. 1a, 8a.

 

(5) (1675) 1 Vent. 293. [*412]

 

at common law. Therefore in theory it has always been indictable. Since that date there have been several convictions for blasphemy: Rex v. Woolston (1); Rex v. Williams (2); Rex v. Mary Carlile (3); Rex v. Waddington (4); Reg. v. Hetherington.(5) It is true that in most of these cases the attack on Christianity was accompanied by scurrility, but that was not the ground on which the Courts proceeded; they regarded Christianity as part of the law of England, and looked at the substance and not the form of the attack. In Harrison v. Evans (6) Lord Mansfield draws a distinction between the eternal principles of Christianity and mere nonconformity, and his judgment further shows that the Toleration Act does not merely exempt the dissenters’ way of worship from particular penalties, but renders it innocent and lawful. In Lawrence v. Smith (7) and Murray v. Benbow (8) Lord Eldon recognized that Christianity was part of the law of the land, and held that any publication which contradicted or vilified the Scriptures was not entitled to the protection of the Court.

 

[LORD PARKER OF WADDINGTON referred to Reg. v. Moxon. (9)]

 

The only authority which is opposed to this view is Lord Coleridge’s summing-up in Reg. v. Ramsay and Foote. (10) He says, first, that the dicta of the judges in old times cannot be supported at the present day, and, secondly, that those dicta are in harmony with the law as he laid it down. His summing-up is inconsistent with itself. He also relies on a passage from Starkie on Libel, which does not purport to be a statement of what the law is, but of what in Mr. Starkie’s view the law ought to be. For the reasons

 

(1) (1729) Fitzg. 64; 2 Str. 834; 1 Barn. K. B. 162.

 

(2) (1797) 26 St. Tr. 653.

 

(3) (1819) 3 B. & Al. 167.

 

(4) (1822) 1 B. & C. 26.

 

(5) (1841) 5 Jur. 529; 4 St. Tr. (N.S.) 563.

 

(6) Feb. 3, 1767. The judgment of Lord Mansfield is to be found in “A Sketch of the History and Proceedings of the Delegates appointed to protect the Civil Rights of the Protestant Dissenters” (1813), p. 31; in the appendix to Dr. Philip Furneaux’s Letters to Mr. Justice Blackstone (2nd ed.); and in “Parliamentary History,” vol. 16, pp. 315-327. The case is also referred to in 2 Burn’s Eccl. Law, pp. 207-220, sub nom. Evans v. Chamberlain of London.

 

(7) (1822) Jac. 471.

 

(8) (1822) 4 St. Tr. (N.S.) 1409; Jac. 474, n.

 

(9) (1841) 4 St. Tr. (N.S.) 693.

 

(10) 15 Cox, C. C. 231; Cab. & E. 126. [*413]

 

stated by Sir James Fitzjames Stephen in an article in vol. 41 of the Fortnightly Review, p. 289 (March, 1884), which the appellants desire to adopt as part of their argument, Lord Coleridge’s view of the law is erroneous: and see the same author’s History of the Criminal Law of England, vol. 2, p. 474. This society, therefore, inasmuch as it is formed for the destruction of Christianity, is for a blasphemous object. Apart from the criminal aspect of the case, it is, and always has been, illegal to attack Christianity. At any rate, there is no trace of Lord Coleridge’s doctrine having ever been applied to anything but the criminal prosecution. [With regard to the law relating to superstitious uses they referred to Tyssen on Charitable Bequests, c. 5; Cary v. Abbot (1); Smart v. Prujean (2); and West v. Shuttleworth. (3)]

 

Tomlin, K.C., and Hon. Malcolm Macnaghten, for the respondents. (1.) In these proceedings the question of the legality of the respondent company is not open. (2.) If a company has any legal object, then a gift to the company applicable to any of its purposes is not invalid. (3.) On the true construction of this memorandum of association sub-clause (A) of clause 3 does not necessarily involve any attack on or subversion of Christianity at all. (4.) There is no illegality in any sense of the term in a temperate discussion of the Christian religion. As to (1.), the respondents rely upon the terms of the registrar’s certificate. This company was formed in 1898 under the Companies Act, 1862, and by ss. 18 and 192, since replaced by s. 1 of the Companies Act, 1900, which is made retrospective, the certificate of incorporation is conclusive evidence of the legality of the company. If this were a company for a wholly illegal object, it is not contended that there might not be proceedings by quo warranto or scire facias for avoiding the registration. But so long as the company is registered the certificate is conclusive that the company is associated for a lawful purpose: Moosa Goolam Ariff v. Ebrahim Goolam Ariff (4), a decision upon a similar provision in the Indian Companies Act. British Association of Glass-Bottle Manufacturers v. Nettlefold (5) turned upon the Trade Union Act, 1871, and is distinguishable. This, then, is a legal corporation and is

 

(1) (1802) 7 Ves. 490.

 

(2) (1801) 6 Ves. 560, 567.

 

(3) (1835) 2 My. & K. 684, 697.

 

(4) (1912) L. R. 39 Ind. Ap. 237.

 

(5) (1911) 27 Times L. R. 527. [*414]

 

capable in law of receiving the bequest. The only right which the Court of Chancery has to withhold the payment of the money is because the gift is bad. In a claim by next of kin to money given to a legal corporation it is no answer to the company’s right to say that some of its objects are illegal. If the gift is good it is not open to the Court to impose the terms upon which the company is to be paid. As to (2.), the existence of one illegal object does not make a gift to the company illegal where the gift is not fixed with a trust for the illegal purpose. Here the company has a number of legal objects, e.g. (D), (E), (F), (G). Suppose a company formed to carry on a shipping business between London and Havre and London and Hamburg, and war intervenes between the United Kingdom and Germany; and suppose coal is ordered by the company. Could the coal owner refuse to supply it on the ground that it might be used on a voyage from London to Hamburg? As to (3.), upon the construction of sub-clause (A) it contains nothing which is necessarily subversive of Christianity, and it is for those who impeach the gift to establish the illegality of the object. There is no declaration in the sub-clause contradictory of anything which can be regarded as fundamentally Christian; it is not anti-religious, but nonreligious, and is nothing more than a statement of the Positivist position. Pare v. Clegg (1) is an analogous case. Moreover, object (A) must be read by the light of the other objects of the company, and the legality of those objects suggests a doubt whether object (A) is unlawful. As to (4.), it is not a criminal offence in this country temperately and in decent language to express opinions which are contrary to the Christian faith, nor is it illegal in the sense that a contract with a company for the promotion of such opinions cannot be enforced. In considering what the law is to-day some regard must be had to the history of the persecution or restraint of opinion in the past. The grounds of persecution have varied from time to time. They have been defined by Sir Frederick Pollock (Essays in Jurisprudence and Ethics, c. 6) as tribal, theological, political, and social. The persecution of the Christians by the Romans belonged to the tribal stage, the theory being that the harbouring of persons who offended the tribal gods was a source of danger to the tribe or city; but it was concerned with conduct

 

(1) (1861) 29 Beav. 589, 601. [*415]

 

rather than with opinion. Then came the theological stage, which was based on the principle that the one true faith was in the custody of the Church, and that that way lay salvation. This is exemplified by the prosecutions for heresy. Then with the Reformation came the third stage, which was mainly political. Roman Catholics were prosecuted on the ground that they owed a double allegiance and Puritans because they were opposed to the monarchy. The last is the social stage, where the governing principle is a desire to prevent breaches of the peace. The age in which the penal statutes under consideration in this case were passed was an age in which the social and political theories had displaced the theological theory as the predominant motive of the Legislature. It is inaccurate to say that the Christian faith is part of the law of the land. All that is meant by that phrase is that one of the institutions of the State is a body established by law known as the Christian Church in England and that the constitution and polity of England is founded on the Christian religion. But Christianity is not part of the law of England in the sense that a denial of the truth of christianity constitutes a legal offence. That would be giving to the common law Courts a wider jurisdiction than even the Ecclesiastical Courts professed to exercise. Their jurisdiction in that regard was confined to persons who were brought up as Christians and to cases of obstinate heresy. Contumeliously to attack Christianity has always been an offence at common law, but the view of what amounts to contumely varies from time to time. None of the cases cited by the appellants is free from the element of scurrility or contumely. Woolston’s Case (1) is no exception. The Court there relied upon Hall’s Case (2) and Taylor’s Case (3), which were precedents of gross scurrility, and the dictum that it is an offence to deny the truth of Christianity is wrong. Upon the authorities there is no ground for saying that the common law treats as blasphemy a mere denial of the Christian faith. Scurrility is essential to the offence. The law is correctly stated by Lord Coleridge in Reg. v. Ramsay and Foote (4), which has since been followed by Phillimore J. in Rex v. Boulter. (5) Nor can

 

(1) Fitzg. 64; 2 Str. 834; 1 Barn. K. B. 162.

 

(2) (1720-1) 1 Str. 416; 2 Str. 790.

 

(3) 1 Vent. 293.

 

(4) 15 Cox, C. C. 231; Cab. & E. 126.

 

(5) (1908) 72 J. P. 188. [*416]

 

the appellants derive any assistance from the Blasphemy Act. That statute recognizes that there was an offence of blasphemy at common law, but does not indicate what the offence was, and it creates a new offence for a special class of persons. Its object was primarily political, and it had nothing whatever to do with the common law: Rex v. Richard Carlile (1); Stephen’s History of the Criminal Law, vol. 2, p. 473. As regards the Toleration Act and the Act 53 Geo. 3, c. 160, those Acts did not confer privileges on particular classes, but relieved certain classes of persons from certain statutory disabilities; and in Harrison v. Evans (2) Lord Mansfield did not intend to suggest that the Toleration Act had any wider effect. Then, if a denial of Christianity is not of itself a criminal offence, is it unlawful, or what may be called undesirable, in the sense that no contract in respect of it will be enforced? With the exception of Cowan v. Milbourn (3), which, it is submitted, is wrongly decided, there is no authority that a denial of Christianity is unlawful in the latter sense. So far as a thing is unlawful and not criminal it depends upon public policy, but what is included in public policy is a matter which varies with the circumstances of the age: Evanturel v. Evanturel. (4) This is well illustrated by the cases on contracts in restraint of trade: Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co. (5) In determining the quality of the expression of certain opinions the Courts to-day might differ from the Courts of the time of Elizabeth, though the principle would be the same. [They also referred to In re Michel’s Trust (6) with regard to the effect of the Religious Disabilities Act, 1846.]

 

G. J. Talbot, K.C., in reply. As regards the registrar’s certificate, the respondents’ contention lays an altogether unreasonable burden on the words of the Act. The appellants are not contending that the company ought not to exist, but merely that this bequest is for an illegal object. The observations of Lord Halsbury in Daimler Co. v. Continental Tyre and Rubber Co. (7) are in point. Then it is said that if the company has among its objects some legal and some illegal it must be assumed that a gift to the company will

 

(1) (1819) 3 B. & Al. 161, 166.

 

(2) See note (6), p. 412, ante.

 

(3) L. R. 2 Ex. 230.

 

(4) (1874) L. R. 6 P. C. 1, 29.

 

(5) [1894] A. C. 535, 564.

 

(6) (1860) 28 Beav. 39.

 

(7) [1916] 2 A. C. 307, 316. [*417]

 

be applied to the legal objects. The appellants dispute that proposition. If there are several considerations for a promise and one is unlawful, that vitiates the whole contract. If one of the objects of the company is unlawful, the addition of other innocent objects will not entitle the company to obtain the money and the gift will be avoided. That is conclusive and does not turn upon any question of onus, but for the purposes of the present case it is immaterial which is the true view. Sub-clause (A) is the primary object of the company, and if that is gone the whole substratum is gone: In re German Date Coffee Co. (1) The other objects (B) to (O) are ancillary to (A), and if they were worked for the advancement of Christianity the company would be wound up. Upon this point the Court of Appeal were in favour of the appellants. Then it is said that object (A) does not in fact involve the subversion of Christianity. It promotes the exclusion of all religion as an article of faith and as a guide to conduct, and the very name of the company supports the appellants’ contention. See the definition of “Secular” and “Secularism” in the Oxford English Dictionary. This point also was decided by the Court of Appeal in favour of the appellants. Lastly, it is said that it is neither criminal nor illegal to attack Christianity apart from scurrility. As regards the criminal aspect, the form of indictment for blasphemous libel shows that the ground of the offence is not that the libel is scurrilous or leads to a breach of the peace, but that it dishonours God: Archbold’s Criminal Pleading, 24th ed., p. 1131.

 

[LORD FINLAY referred to Mayne’s Criminal Law of India, pp. 141 to 144, and to the observations of Blackburn J. on Moxon’s Case.&FN(2)]

 

The Blasphemy Act aimed at the promulgation of opinion and not the injury to people’s feelings. On the question whether the object of this company is unlawful in the sense that a legacy for that object will not be enforced, in Briggs v. Hartley (3) a bequest was avoided as being inconsistent with Christianity. That decision is in accordance with the view of the law expressed in De Costa v. De Paz (4), Thompson v. Thompson (5), Thornton v. Howe (6), and

 

(1) (1882) 20 Ch. D. 169.

 

(2) 4 St. Tr. (N.S.) 693, 722, note (a).

 

(3) 19 L. J. (Ch.) 416.

 

(4) 2 Swanst. 487, note (a); Amb. 228.

 

(5) 1 Coll. 381.

 

(6) 31 Beav. 14. [*418]

 

Cowan v. Milbourn. (1) Pare v. Clegg (2) proceeded on the view that religion was not there impugned. Assume that this is merely a question of public policy, the analogy of the restraint of trade cases is illusory, because there the facts have altered. But here what change has occurred as to the belief in the truth of Christianity or as to the mischief of attacks on Christianity? And if the judges of former times have always regarded attempts to undermine Christianity as contrary to public policy, what ground is there for changing that policy? It is said that public policy is a dangerous principle, but every consideration against introducing new rules of public policy applies equally to abrogating old rules.

 

The House took time for consideration.

 

May 14. LORD FINLAY L.C. My Lords, the question in this case is as to the validity of a bequest of residue to the respondents, the Secular Society, Limited.

 

The right of the respondents to payment was attacked by the present appellants, the next of kin of the testator, upon the ground that the objects of the respondents’ society were such that the bequest was not enforceable. The respondents took out an originating summons, dated November 25, 1914, for the payment over of the residue to them. Joyce J. decided in their favour, and his decision was upheld by the Court of Appeal.

 

The decision of the case must turn upon the proper construction of the memorandum of association of the respondents’ society and the view to be taken of the law of England with regard to bequests for such purposes as are therein enumerated.

 

The memorandum of association, so far as material, is as follows:

 

“(3.) The objects for which the company is formed are:–

 

“(A) To promote, in such ways as may from time to time be determined, the principle that human conduct should be based upon natural knowledge, and not upon super-natural belief; and that human welfare in this world is the proper end of all thought and action.

 

“(B) To promote the utmost freedom of enquiry and the publication of its discoveries.

 

(1) L. R. 2 Ex. 230.

 

(2) 29 Beav. 589. [*419]

 

“(C) To promote the secularisation of the State, so that religious tests and observances may be banished from the Legislature, the Executive, and the Judiciary.

 

“(D) To promote the abolition of all support, patronage, or favour by the State of any particular form or forms of religion.

 

“(E) To promote universal secular education, without any religious teaching in public schools maintained in any way by municipal rates or imperial taxation.

 

“(F) To promote an alteration in the laws concerning religion, so that all forms of opinion may have the same legal rights of propaganda and endowment.

 

“(G) To promote the recognition by the State of marriage as a purely civil contract, leaving its religious sanctions to the judgment and determination of individual citizens.

 

“(H) To promote the recognition of Sunday by the State as a purely civil institution for the benefit of the people, and the repeal of all Sabbatarian laws devised and operating in the interest of religious sects, religious observances, or religious ideas.”

 

In my opinion the governing object of the society is that which is stated in paragraph 3 (A) of the memorandum of association, and the other objects stated in the memorandum under heads (B) to (O) of the 3rd paragraph are subsidiary. I agree with what is said by the founder of the respondent society in an article from the Freethinker, June 19, 1898, which is in evidence, “Clause A is of the highest importance and governs everything else.” It was argued on behalf of the respondents that some, at all events, of the objects of the society are not affected by any taint of illegality, e.g., that 3 (D) and (E), which state disestablishment and universal secular education as objects to be promoted, are in themselves harmless. It is, of course, the fact that either of these two objects may be advocated from motives which are entirely friendly to religion. But if (A) is the governing object, then these and all the other clauses in the memorandum must be read by its light; in other words, all the other clauses in the 3rd paragraph are so many ways of carrying into practical application the principle enunciated in the 1st clause of paragraph 3. That clause, in my opinion, lays down quite clearly that human conduct should not be based upon supernatural [*420] belief. This amounts to a negation of all religion, including, of course, the Christian religion, as governing human conduct. If the influence of supernatural motives is to be eliminated, the Christian religion is discarded in common with all forms of religion in the ordinary sense of the term.

 

I think, therefore, that the memorandum shows that the object of the society was to promote in various ways the principle that human conduct should be based upon natural knowledge only, and that human welfare in this world is the proper end of all thought and action. Is a legacy in favour of a society which exists for such a purpose enforceable by English law?

 

Two preliminary points were taken on behalf of the respondents. They contended, first, that the certificate of incorporation is conclusive to show that the objects of the society are not unlawful and, secondly, that some of the objects were not unlawful, and that it cannot be presumed that the legacy in question would be applied to any but lawful objects. We were informed that these points were argued on behalf of the respondents in the Court of Appeal. No notice is taken of either of them in any of the judgments, and the Court must have considered that they had been disposed of in the course of the argument. In my opinion neither is tenable The society was registered on May 27, 1898, as a company limited by guarantee under the Companies Acts. The statute then in force was the Companies Act, 1862 (25 & 26 Vict. c. 89). The 18th section deals with the effect of registration and enacts that the certificate of incorporation shall be conclusive evidence that all the requisitions of the Act in respect of registration have been complied with, and s. 192 repeats this provision and adds that the certificate is to be conclusive evidence that the company is authorized to be registered under the Acts. The amending Act of 1900 (63 & 64 Vict. c. 48) enacts by its 1st section that the certificate shall be conclusive evidence that all the requisitions of the Companies Acts in respect of registration and in matters precedent and incidental thereto have been complied with, and that the association is a company authorized to be registered and duly registered under the Companies Acts. This provision appears to have been introduced into the Act of 1900 to get rid of some doubts which had been raised by what was said in the case of In re National Debenture and Assets [*421] Corporation (1), to the effect that if, in fact, only six persons had subscribed the memorandum, incorporation would not have been validly effected, and it is repeated in the 17th section of the Companies (Consolidation) Act, 1908 (8 Edw. 7, c. 69). It was argued before us that the society could not have been properly incorporated if its objects were illegal, and that, as the certificate is conclusive to show that the company is one authorized to be registered and duly registered, it follows that it cannot for any purpose be contended that the objects are illegal. In my opinion this argument is an attempt to extend the effect of these enactments beyond their fair meaning and manifest object. What the Legislature was dealing with was the validity of the incorporation, and it is for the purpose of incorporation, and for this purpose only, that the certificate is made conclusive. This first preliminary point, in my opinion, fails. The second point also fails on the true construction of the memorandum with which I have dealt above. Taken in themselves, some of the objects, as stated in the memorandum, may be harmless, but they cannot be taken by themselves. They are mere applications of the governing principle stated in 3 (A), and we are driven back upon the question whether that object is legal.

 

Mr. Talbot, on behalf of the appellants, contended that it was illegal on two grounds. First, that it is criminal to attack the Christian religion, however decent and temperate may be the form of attack. Second, that a Court of law will not assist in the promotion of such objects as that for which this society is formed, whether they are criminal or not.

 

In support of the first of these propositions it was contended that to attack the Christian religion is blasphemy by the common law of England, and that the view put forward upon this subject by the late Lord Coleridge C.J. is erroneous. Lord Coleridge laid it down in the case of Reg. v. Ramsay and Foote (2) that “if the decencies of controversy are observed, even the fundamentals of religion may be attacked without the writer being guilty of blasphemy.” This view was controverted by Sir James Fitzjames Stephen, who, in his History of the Criminal Law, vol. 2, pp. 449-476, on a review of the authorities, maintained that blasphemy consisted in the character of the matter published and not in the manner in

 

(1) [1891] 2 Ch. 505.

 

(2) 15 Cox, C. C. 231, 238. [*422]

 

which it is stated, and that any attack on the Christian religion, in whatever language expressed, constituted the offence of blasphemy at common law. A reply to the arguments of Sir J. F. Stephen was made by Mr. Aspland, of the Middle Temple, Barrister-at-Law, in a pamphlet entitled “The Law of Blasphemy,” published in 1884, in which the authorities up to date are collected and examined.

 

If Sir J. F. Stephen’s view be right, any pamphlet or speech in promotion of the governing object of the respondent society would be criminal and in every sense illegal. In my opinion the appellants have failed to establish that all attacks upon religion are at common law punishable as blasphemous. There are no doubt to be found in the cases many expressions to the effect that Christianity is part of the law of England, but no decision has been brought to our notice in which a conviction took place for the advocacy of principles at variance with Christianity, apart from circumstances of scurrility or intemperance of language.

 

The earliest prosecution for blasphemy in the common law Courts was in the reign of Charles II.; in earlier times probably such cases were dealt with by the Ecclesiastical Courts.

 

The main cases on this subject prior to Reg. v. Ramsay and Foote (1) are:– (1.) Rex v. Taylor (2); (2.) Rex v. Woolston (3); (3.) Rex v. Williams (4) (in connection with which Rex v. Mary Carlile (5) and Rex v. Eaton (6) should be referred to); (4.) Rex v. Waddington (7); (5.) Reg. v. Hetherington.(8)

 

In the cases numbered 1, 3, 4, and 5 it is apparent on the face of the reports that the language used was scurrilous and offensive. This is less apparent in the reports of No. 2 (Rex v. Woolston (3)). But examination of the libels in respect of which informations in that case were filed – namely, Mr. Woolston’s first, second, third, and fourth discourses of the miracles of our Saviour – shows that the sacred subjects treated by him were handled with a great deal of irreverence, and in many passages language was used by him that was blasphemous in every sense of the term. It is apparently with

 

(1) 15 Cox, C. C. 231, 238.

 

(2) 1 Vent. 293.

 

(3) Fitzg. 64; 2 Str. 834; 1 Barn. K. B. 162.

 

(4) 26 St. Tr. 653.

 

(5) 3 B. & Al. 167.

 

(6) (1812) 31 St. Tr. 927.

 

(7) 1 B. & C. 26.

 

(8) 5 Jur. 529; 4 St. Tr. (N.S.) 563. [*423]

 

reference to this element that in a passage in the report in 1 Barnardiston, p. 163, the Court, in dealing with the second point made on behalf of Mr. Woolston, observed “That as the Christian religion was part of the law, whatever derided that, derided the law.” The true view of the law of blasphemy appears to me to be that expressed by Lord Denman in Reg. v. Hetherington (1), which is substantially in accordance with that taken by Lord Coleridge in Reg. v. Ramsay and Foote (2), and followed by Phillimore J. in Rex v. Boulter.(3)

 

We have been referred by Lord Dunedin to the law of Scotland on this subject as stated in Hume’s Criminal Law (vol. 1, p. 568), and it appears to be the case that in Scotland scurrility or indecency is an essential element of the crime of blasphemy at common law. Certain Scotch statutes which made it a crime to contravene certain doctrines have been repealed. The consequences of the view put forward on behalf of the appellants would be somewhat startling, and in the absence of any actual decision to the contrary I think we must hold that the law of England on this point is the same as that of Scotland, and that the crime of blasphemy is not constituted by a temperate attack on religion in which the decencies of controversy are maintained.

 

The appellants, however, contended that, whether criminal or not, the objects for which the society was formed were such that the law would give no help for the recovery of funds to be applied in their promotion. The principle on which this part of the appellants’ case rested was very clearly stated by Bramwell B. in Cowan v. Milbourn. (4) In the course of the argument Bramwell B. said: “An act may be illegal in the sense that it will not be recognised by the law as capable of being the foundation of any legal right, or that it may even deprive what it accompanies of that capacity, although it is followed by no penalty,” and in the course of his judgment he expressed himself to the same effect. The principle is very familiar, and has been applied in innumerable cases. The question whether the present case falls within it demands a careful examination of the authorities.

 

In arriving at the conclusion that the object of the respondent

 

(1) 5 Jur. 529; 4 St. Tr. (N.S.) 563.

 

(2) 15 Cox, C. C. 231, 238.

 

(3) 72 J. P. 188.

 

(4) L. R. 2 Ex. 230, 233, 236. [*424]

 

society was not unlawful in the sense that the Court will not aid the plaintiffs to get the legacy, the Court of Appeal found it necessary to overrule two cases. The first of these cases is Briggs v. Hartley. (1) In this case a legacy had been left for the best original essay on “The subject of Natural Theology, treating it as a Science, and demonstrating the truth, harmony, and infallibility of the evidence on which it is founded, and the perfect accordance of such evidence with reason; also demonstrating the adequacy and sufficiency of natural theology when so treated and taught as a science to constitute a true, perfect, and philosophical system of universal religion (analogous to other universal systems of science, such as astronomy, &c.) founded on immutable facts and the works of creation, and beautifully adapted to man’s reason and nature, and tending, as other sciences do, but in a higher degree, to improve and elevate his nature and to render him a wise, happy, and exalted being.” Shadwell V.-C. gave judgment in these terms: “I cannot conceive that the bequest in the testator’s will is at all consistent with Christianity; and, therefore, it must fail.”

 

This is a direct decision by a judge of great eminence upon the point, and in my opinion the Court of Appeal had no sufficient ground for overruling it. The second of these cases is Cowan v. Milbourn. (2) In that case the plaintiff had hired of the defendant some rooms at Liverpool for the purpose of having lectures delivered there. Placards were issued giving as some of the subjects of the lectures “The Character and Teachings of Christ; the former Defective, the latter Misleading,” and “The Bible shown to be no more Inspired than any other Book; with a Refutation of Modern Theories thereon.” The use of the rooms was refused by the defendant, and he justified his refusal by the character of the lectures proposed to be delivered. In an action in the Court of Passage, Liverpool, for breach of contract to let, the learned judge ruled that the lectures announced were blasphemous and illegal, and a verdict was entered for the defendant, with leave to the plaintiff to move to enter a verdict for him on each of these counts. Motion was made accordingly in the Court of Exchequer before Kelly C.B., Martin B., and Bramwell B. The Court refused to grant a rule, the Chief Baron expressing himself as follows: “It would be a violation of

 

(1) 19 L. J. (Ch.) 416, 417.

 

(2) L. R. 2 Ex. 230, 234, 235, 236. [*425]

 

duty to allow the question raised to remain in any doubt. That question is, whether one who has contracted to let rooms for a purpose stated in general terms, and who afterwards discovers that they are to be used for the delivery of lectures in support of a proposition which states, with respect to our Saviour and His teaching, that the first is defective and the second misleading, is nevertheless bound to permit his rooms to be used for that purpose in pursuance of that general contract. There is abundant authority for saying that Christianity is part and parcel of the law of the land; and that, therefore, to support and maintain publicly the proposition I have above mentioned is a violation of the first principles of the law, and cannot be done without blasphemy. I therefore do not hesitate to say that the defendant was not only entitled, but was called on and bound by the law, to refuse his sanction to the use of his rooms.”

 

Martin B. concurred. Bramwell B. said: “I am of the same opinion, and I will state my grounds. I think that the plaintiff was about to use the rooms for an unlawful purpose, because he was about to use them for the purpose of, ‘by teaching or advised speaking,’ ‘denying the Christian religion to be true, or the Holy Scriptures of the Old and New Testament to be of Divine authority.’ That he intended to use the rooms for the purposes declared by the statute to be unlawful is perfectly clear, for he proposed to show that the character of Christ was defective, and His teaching misleading, and that the Bible was no more inspired than any other book. That being so, his purpose was unlawful; and if the defendant had known his purpose at the time of the refusal, he clearly would not have been bound to let the plaintiff occupy them, for, if he would, he would then have been compelled to do a thing in pursuance of an illegal purpose.” Then a little further on: “Now it appears that the plaintiff here was going to use the rooms for an unlawful purpose; he therefore could not enforce the contract for that purpose, and therefore the defendant was not bound, though he did not know the fact. It is strange there should be so much difficulty in making it understood that a thing may be unlawful, in the sense that the law will not aid it, and yet that the law will not immediately punish it. If that only were unlawful to which a penalty is attached, the consequence would be that, inasmuch as no penalty is provided by the [*426] law for prostitution, a contract having prostitution for its object would be valid in a Court of law. The rule must be refused, and I do not regret the result, and on this ground, that this placard must have given great pain to many of those who read it.”

 

The authority of these two decisions has never, so far as I am aware, been questioned in any later case, and no satisfactory reason is given in the Court of Appeal for disregarding them. The Master of the Rolls says (1): “It seems to me that the undoubted relaxation of the views as to common law blasphemy must extend to matters outside the criminal law.” He goes on to say that in his view the decision in Briggs v. Hartley (2) ought not to be followed, and with regard to Cowan v. Milbourn (3) he says: “So far as I arm aware this case, which was decided in 1867, has never been followed, and, notwithstanding my profound respect for the learned judges who decided it, I am bound to say that I think it ought not to be followed. If Cowan v. Milbourn (3) is still good law, the plaintiffs cannot claim the legacy, but as I do not consider it is good law I think Joyce J. was right in the view which he took.”

 

Pickford L.J. says (4): “A much more difficult question is whether this object, though not illegal in the sense of being punishable, is illegal in the sense that the law will not recognize it as being the foundation of legal right and will do nothing to aid it. The denial of religion is not in terms the object of the company as set out in (a), but I think that it is involved in it, and that it is not possible to promote the principle that human conduct should be based upon natural knowledge and that human welfare is the proper end of all thought and action without at any rate inferentially denying the Divine government of the world and the principles of religion. I think there is no doubt that in former times such an object would have been held to be contrary to public policy, but the question is whether it is right to hold so now. I think that the doctrine of public policy cannot be considered as being always the same and that many things would be, and have been, held contrary to public policy which are not so held now.” The learned Lord Justice goes on to refer to the cases of Briggs v. Hartley (2) and Cowan v. Milbourn (3), and says: “Whatever may have been the

 

(1) [1915] 2 Ch. 463-4.

 

(2) 19 L. J. (Ch.) 416.

 

(3) L. R. 2 Ex. 230.

 

(4) [1915] 2 Ch. 466-7. [*427]

 

doctrine as to public policy prevailing in 1850, when the former case was decided, I do not think that it ought now to be followed. If the latter decision means that no consideration will support a contract which involves any questioning of the truth of religion, I also think that should not be followed, but the Court may have inferred from the title to which I referred that the lectures attacked religion in a reviling and contumelious manner, and if that were the case, the decision was, I think, right.”

 

Warrington L.J. does not specifically refer to the case of Briggs v. Hartley (1), but with regard to the judgments of Kelly C.B. and Bramwell B. in Cowan v. Milbourn (2) he says(3): “Neither of the judges really dealt with the question whether the lectures, if not infringing a positive ordinance of law, would have rendered the contract incapable of being enforced. It is quite true that Bramwell B. laid it down that a thing may be unlawful in the sense that the law will not aid it, and yet that the law will not immediately punish it, but accepting this as correct, as I think it clearly is, it still remains to consider whether the particular thing in question is unlawful in the wider sense or not. In my opinion there is no authority binding us to hold that the promotion in a proper manner of the objects of the company is contrary to public policy, and we ought not to hold it to be so.”

 

It may be that there has been a considerable change of public opinion with regard to the discussion of religion, but the question is whether anything has taken place to justify any Court in holding that the principle of law on this matter may be treated as obsolete. From time to time the standard as to what is decent discussion of religious subjects may vary, and in one age a jury would find that a particular publication was blasphemous in the strict sense of the term which would not be so considered in another. With regard to questions of public policy, such as those arising in connection with restraint of trade, circumstances with regard to facility of communication and of travel may so alter that the principle invalidating such contracts would apply to a particular state of circumstances in one age but not in another. But it is difficult to see how a change in the spirit of the time could justify

 

(1) 19 L. J. (Ch.) 416.

 

(2) L. R. 2 Ex. 230.

 

(3) [1915] 2 Ch. 473. [*428]

 

a change in a principle of law by judicial decision. Such changes in public opinion may lead to legislative interference and substantive alteration of the law, but cannot justify a departure by any Court from legal principle, however they may affect its application in particular cases.

 

The decisions in Briggs v. Hartley (1) and Cowan v. Milbourn (2) are in conformity with a considerable body of authority on this subject.

 

It has been repeatedly laid down by the Courts that Christianity is part of the law of the land, and it is the fact that our civil polity is to a large extent based upon the Christian religion. This is notably so with regard to the law of marriage and the law affecting the family. The statement that Christianity is part of the law of the land has been often given as a reason for punishing criminally contumelious attacks upon Christianity. It is true that expressions have in some cases been used which would seem to imply that any attack upon Christianity, however decently conducted, would be criminal. For the reasons I have already given I do not think that this view can be accepted as having represented the common law of England at any time. But the fact that Christianity is recognized by the law as the basis to a great extent of our civil polity is quite sufficient reason for holding that the law will not help endeavours to undermine it.

 

These two cases do not stand alone.

 

In 1754 the case of De Costa v. De Paz (3) came before Lord Hardwicke, the question arising upon a will which directed that the investment of 1200l. and the revenue arising therefrom should be applied for ever in the maintenance of a Jesiba, or assembly for daily reading the Jewish law, and for advancing and propagating their holy religion. A bill was brought to have the money laid out according to the will, and, as stated in the report, “The Lord Chancellor upon the opening asked, if there had ever been a case where such a charity as this had been established, for it being against the Christian religion, which is part of the law of the land, he thought he could not decree it.” After argument Lord Hardwicke said that the first question was “whether the

 

(1) 19 L. J. (Ch.) 416.

 

(2) L. R. 2 Ex. 230.

 

(3) 2 Swanst. 487, note (a), 488-490; Amb. 228. [*429]

 

legacy in question is good, and such as this Court can or ought to establish.” He pointed out that the case would be different where the legacy was for the support of poor persons of the Jewish religion, and then proceeds as follows: “But this is a bequest for the propagation of the Jewish religion; and though it is said, that this is a part of our religion, yet the intent of this bequest must be taken to be in contradiction to the Christian religion, which is a part of the law of the land, which is so laid down by Lord Hale and Lord Raymond; and it undoubtedly is so; for the constitution and policy of this nation is founded thereon. As to the Act of Toleration no new right is given by that, but only an exemption from the penal laws. The Toleration Act recites the penal laws, and then not only exempts from those penal laws, but puts the religion of the dissenters under certain regulations and tests. This renders those religions legal, which is not the case of the Jewish religion, that is not taken notice of by any law, but is barely connived at by the Legislature.”

 

Accordingly Lord Hardwicke declared he was of opinion that the legacy was not good in law, and ought not to be decreed or established by the Court.

 

In 1819, in the case of In re Bedford Charity (1), Lord Eldon referred to the case of De Costa v. De Paz (2) as establishing that no one can found, by charitable donation, an institution for the purpose of teaching the Jewish religion, and made the following observations: “I apprehend that it is the duty of every judge presiding in an English Court of justice, when he is told that there is no difference between worshipping the Supreme Being in chapel, church, or synagogue, to recollect that Christianity is part of the law of England.”

 

It will be observed that the case of De Costa v. De Paz (2) is a decision given by Lord Hardwicke in 1754 and approved by Lord Eldon in 1819, to the effect that a legacy for the promotion of the Jewish religion was not enforceable, as being for the promotion of a faith contrary to Christianity. Secularism, as explained in the respondents, memorandum, is much more contrary to Christianity than is the Jewish religion. The Jews have been relieved

 

(1) 2 Swanst. 470, 522, 527.

 

(2) 2 Swanst. 487, note (a), 488-490; Amb. 228. [*430]

 

by the Jewish Relief Act, 1846 (9 & 10 Vict. c. 59), s. 2, but there is no statute in similar terms with regard to those holding the views expressed by the memorandum of the respondent society.

 

In Lawrence v. Smith (1) a bill was filed to restrain the piracy of some lectures delivered at the College of Surgeons. An ex parte injunction was granted, and a motion was made by the defendant to dissolve the injunction on the ground that the work could not be the subject of copyright, and passages were referred to which it was contended were hostile to natural and revealed religion and denied the immortality of the soul. The Lord Chancellor said, in giving judgment (2): “Looking at the general tenour of the work, and at many particular parts of it, recollecting that the immortality of the soul is one of the doctrines of the Scriptures, considering that the law does not give protection to those who contradict the Scriptures, and entertaining a doubt, I think a rational doubt, whether this book does not violate that law, I cannot continue the injunction. The plaintiff may bring an action, and when that is decided, he may apply again.”

 

In a note on p. 474 it is stated that in Murray v. Benbow (3) Mr. Shadwell, on the part of the plaintiff, moved for an injunction to restrain the defendant from publishing a pirated edition of Lord Byron’s poem “Cain,” and that the Lord Chancellor, after reading the work, refused the motion on grounds similar to those stated in Lawrence v. Smith. (1) A note of Lord Eldon’s judgment on that application is given in the preface to “Cain” in the large octavo edition of Byron’s works, published in 1846 by John Murray, p. 317.

 

In Thompson v. Thompson (4), a question having arisen as to a bequest for literary purposes with reference to the doctrines maintained in the testator’s writings, the Vice-Chancellor (Sir J. L. Knight Bruce) said: “Understanding it to be admitted, that the testator’s writings, published and unpublished, contain nothing irreligious, illegal, or immoral, I have no doubt that this is a legal disposition, according to the law of England;” and he held the bequest good, “supposing neither atheism, sedition, nor any other crime or immorality to be inculcated

 

(1) Jac. 471.

 

(2) Ibid. 473.

 

(3) Feb., 1822.

 

(4) 1 Coll. 381, 392, 397. [*431]

 

by the works.” Here Sir J. L. Knight Bruce recognized the doctrine that a bequest for irreligious purposes could not be enforced.

 

In 1850 the case of Briggs v. Hartley (1) was decided.

 

In the case of Pare v. Clegg (2) it was contended that the claim of the plaintiff as creditor of a society called the National Community Society (which afterwards took the name of the Rational Society) must fail on the ground that the society was founded for an immoral and illegal purpose. The Master of the Rolls, Lord Romilly, in delivering judgment dealt with this contention as follows (3): “The charges against it” (the society) “are, that it was founded, first, for the purpose of propagating natural religion, to the injury of revealed religion; secondly, in order to put an end to all moral restraint on the actions of mankind; and, thirdly, with a view to destroy the institution of private property generally. I have perused the rules of the society for the purpose of considering the force of this objection, and although I am of opinion that the society is based upon irrational principles, and seeks to realise a visionary and unattainable object, it is not, I think, to be considered as founded for the purpose of propagating irreligious and immoral doctrines in the ordinary and proper sense of those words. It is not such a society as that a person dealing with it could not acquire the right to enforce a contract entered into with him by the society.” This implies that if the result of the examination of the rules had been to show that the society was formed for irreligious purposes the decision might have been the other way.

 

These authorities, beginning with De Costa v. De Paz (4) in 1754 and ending with Pare v. Clegg (2) in 1861, appear to me to establish that the Courts will not help in the promotion of objects contrary to the Christian religion, apart altogether from any criminal liability, and to show that Briggs v. Hartley (1) and Cowan v. Milbourn (5) were well decided, and that, if the law of England is to be altered upon the point, the change must be effected, not by judicial decision, but by the act of the Legislature.

 

It is foreign to the subject of the present inquiry to consider whether the welfare of the individual and the greatness of the nation

 

(1) 19 L. J. (Ch.) 416.

 

(2) 29 Beav. 589.

 

(3) Ibid. 601.

 

(4) 2 Swanst. 487, note (a); Amb. 228.

 

(5) L. R. 2 Ex. 230. [*432]

 

would be best promoted by proceeding on the lines of the Secular Society, involving the ignoring of the supernatural as influencing human conduct, and holding out the promotion of happiness in this world as the chief end of man, or upon the lines indicated in the striking passage with which Lord Bacon concludes his Essay on Atheism and the still more striking quotation from Cicero which he there makes. Such considerations bear upon public policy and may have had some influence in moulding the English law upon the subject. But we have to deal not with a rule of public policy which might fluctuate with the opinions of the age, but with a definite rule of law to the effect that any purpose hostile to Christianity is illegal. The opinion of the age may influence the application of this rule but cannot affect the rule itself. It can never be the duty of a Court of law to begin by inquiring what is the spirit of the age and in supposed conformity with it to decide what the law is. Very nice and difficult questions may arise as to whether in any particular case the purpose is hostile to the Christian religion. No such difficulty arises in the present case, as by the memorandum of association the axe is laid to the root of the tree of all religion.

 

The legacy was given and would be taken for the purposes of the society, as stated in the memorandum, and if these purposes are illegal their illegality is not mended by the certificate of incorporation. In my opinion they are illegal in the sense that the law will not aid in their promotion and this appeal ought to be allowed.

 

LORD DUNEDIN. My Lords, before I had committed my views in this case to writing I had the advantage of seeing not only the judgment just delivered by the Lord Chancellor, but also those about to be delivered by my noble and learned friends Lord Parker and Lord Buckmaster. In these there is contained so much that not only has my adhesion, but is expressed better than I could hope to do, that I shall refer to them for several of the propositions on which my judgment rests, and shall only state succinctly the reasons which have led me, though not without hesitation, to the conclusion that this appeal should be dismissed.

 

My Lords, I have said that I have formed my opinion not without hesitation; but that hesitation is due to one fact only. Had there been no authorities to deal with, and I were to approach the matter [*433] from the point of view of legal principle alone, I do not think I should have felt much difficulty. What has troubled me is that I think it is impossible to decide the case as I think it should be decided without going counter to what has been said by judges of great authority in past generations. It is always, I feel, no light matter to overrule such pronouncements.

 

I shall first deal with two points which must be resolved before the case can be further considered, but on which, for the reason already mentioned, I shall adopt the opinion of others as my own. I agree with what I understand is the unanimous opinion of your Lordships, that as to what is necessary to constitute the crime of blasphemy at common law the dicta of Erskine J., Lord Denman C.J., and Lord Coleridge C.J. in the cases of Shore v. Wilson (1), Reg. v. Hetherington (2), and Reg. v. Ramsay (3) respectively are correct and I adopt the reasoning of the Lord Chancellor and Lord Buckmaster. Further, I agree with the Lord Chancellor that, on a fair construction, paragraph 3 (A) of the memorandum of association of the respondent company expresses the dominating purpose of the company; and that the other matters are mentioned not as independent, but only as subsidiary aims. I agree with him in thinking that teaching in accordance with 3 (A) is inconsistent with and to that extent subversive of the Christian religion – by which expression, without attempting definition, I mean all such forms of religion as have for a common basis belief in the Godhead of the Lord Jesus Christ.

 

It is said for the appellants that the Court will not lend its assistance for the furtherance of an illegal object, and that money given to the society must needs be illegally applied, because it certainly can only be used for objects in terms of the memorandum, and such objects are illegal, because the Christian religion is part of the law of the land. Now if money was laid out in either procuring publications or lectures in terms of the objects of the memorandum such publications or lectures need not be couched in scurrilous language and so need not be such as would constitute the crime of blasphemy at common law. Nor need they be criminal under the Blasphemy Act; for here I agree with Lord Buckmaster that the Act is so

 

(1) 9 Cl. & F. 355, 524.

 

(2) 4 St. Tr. (N.S.) 563.

 

(3) 15 Cox, C. C. 231. [*434]

 

framed as to make its penalties only apply when there has been what may be termed apostasy. It would not, I think, be safe to found any argument on the fact – but it is a fact sufficiently curious to be mentioned – that the Scottish Parliament two years before the Blasphemy Act passed an Act in similar terms, but omitting the words “having been educated in or at any time having made profession of the Christian religion, &c.” In the repealing Act, 50 Geo. 3, c. 160, this and another older Scottish Act are repealed in toto, while the Blasphemy Act was allowed to stand. How innocuous it was on a true construction may be surmised from the fact that there seem to have been no prosecutions under it.

 

Criminal liability being negatived, no one has suggested any statute in terms of which it – by which I mean the supposed use of the money – is directly prohibited. There is no question of offence against what may be termed the natural moral sense. Neither has it been held, I think, as being against public policy, as that phrase is applied in the cases that have been decided on that head. Now if this is so, I confess I cannot bring myself to believe that there is still a terra media of things illegal, which are not criminal, not directly prohibited, not contra bonos mores, and not against public policy. Yet that, I think, is the result of holding that anything inconsistent with Christianity as part of the law of England cannot in any way be assisted by the action of the Courts.

 

The Lord Chancellor has reviewed the authorities which he holds to be contrary to this opinion. Undoubtedly there are dicta; but so far as concerns actual judgments they might, I think, all be supported on grounds not inconsistent with this opinion, except Briggs v. Hartley (1) and Cowan v. Milbourn.(2) On the other hand, the opinions of the consulted judges in Shore v. Wilson (3) (including those of Parke B. and Tindal C.J.) are, in my view, clearly inconsistent with the decision in Briggs v. Hartley (1), and in favour of the view I am holding. For it is, I think, impossible to hold that the terms of 53 Geo. 3, c. 160, effected anything more than relief from statutory penalties and disqualifications, and equally impossible to say that Unitarian doctrine is,

 

(1) 19 L. J. (Ch.) 416.

 

(2) L. R. 2 Ex. 230.

 

(3) 9 Cl. & F. 355, 499-578. [*435]

 

in the words used by Shadwell V.-C. in Briggs’ Case (1), “consistent with Christianity.” I do not say more about the cases, because they are to be reviewed with great minuteness by Lord Buckmaster, in whose views I entirely concur.

 

It is not, however, on this point alone that I desire to rest my judgment. So far I have dealt with the matter as if the question were one of contract or of trust. Now that there is no trust here is, I think, clear beyond doubt. The trust to be constituted must either be found in some expression of the donor – here the testator – relative to the gift, or in the fact that the donee – here the society – is a trustee, and that the gift is only given to him in that capacity. But the testator has clogged his gift with no conditions. He has made an absolute gift to a legal entity which is entitled to receive money. The certificate of incorporation in terms of the section quoted of the Companies Act, 1900, prevents any one alleging that the company does not exist. Then the law of Ashbury Railway Carriage and Iron Co. v. Riche (2) is based upon the consideration of what is and what is not intra vires of a statutory corporation, but I have never heard it suggested that it made a company a trustee for the purposes of its memorandum. I do not say more, for here I wish respectfully to concur with what is said on this subject by Lord Parker. Trust being out of the reckoning, there can be no doubt that there is here no question of contract. What remains? Nothing but an ordinary action for a legacy at the instance of a legal person that has a right to sue. It is here that I feel disposed to quarrel with the phrase “the assistance of the Courts.” I do not see that the company is seeking the assistance of the Courts to carry out the objects of the memorandum. It is seeking their assistance only to compel the executor to do his duty, so that it may receive what is legally due to it. If the legacy were due to an individual, the executor would not be heard to discuss the probable uses to which the legatee would put the money. I do not think he can do so in the case of the society. For after all – and treating the memorandum, in spite of the opinion I have expressed already, as indicating purposes entirely illegal such as in contract would not serve as foundation for an action – there is no reason why the society should not employ the money in paying

 

(1) 19 L. J. (Ch.) 416.

 

(2) (1875) L. R. 7 H. L. 653. [*436]

 

its office rent. For these reasons and those to be more fully stated by my noble and learned friends who are to follow me I am of opinion that this appeal should be dismissed, and I move your Lordships accordingly.

 

LORD PARKER OF WADDINGTON. (1) My Lords, in considering the questions which arise for decision on this appeal, it is, I think, well to bear in mind certain general and perhaps somewhat elementary principles. At common law the conditions essential to the validity of a gift are reasonably clear. The subject-matter must be certain; the donor must have the necessary disposing power over, and must employ the means recognized by common law as sufficient for the transfer of, the subject-matter; and, finally, the donee must be capable of acquiring the subject-matter. If these conditions be fulfilled, the property in the subject-matter of the gift passes to the donee, and he becomes the absolute owner thereof and can deal with the same as he thinks fit. The common law takes no notice whatever of the donor’s motive in making the gift or of the purposes for which he intends the property to be applied by the donee, or of any condition or direction purporting to affect its free disposition in the hands of the donee. It is immaterial that the gift is intended to be applied for a purpose actually illegal – as, for example, in trade with the King’s enemies – or in a manner contrary to the policy of the law – as, for example, in paying the fines of persons convicted of poaching. In either case, the essential conditions being fulfilled, the gift is complete, the property has passed, and there is an end of the matter. A gift at common law is never executory in the sense that it requires the intervention of the Courts to enforce it.

 

With regard to the conditions essential to the validity of a gift, equity follows the common law. On the one hand, if the subject-matter be property transferable at common law, equity will not as a rule aid a gift which does not fulfil the essential conditions. On the other hand, when the property is transferable in equity only, equity also requires that the subject-matter must be certain, that the donor must have the necessary disposing power, and must employ the means which equity recognizes as sufficient for a transfer

 

(1) Read by Lord Shaw of Dunfermline. [*437]

 

of the subject-matter, and that the donee must be capable of acquiring the subject-matter. If a donee sues in equity to recover the subject-matter he sues by virtue of an equitable estate already vested in him, and not to enforce the gift. Under certain circumstances, however, the donee does not in equity, even if all the requisite conditions be fulfilled, obtain an absolute interest. The gift may have been obtained by duress or undue influence, in which case it will be set aside in equity, and if the donee has obtained any legal property he will be compelled to restore it to the donor or those claiming under him. Again, the circumstances of the gift or the directions given or objects expressed by the donor may be such as to impose on the donee the character of a trustee. In such a case equity will enforce the trust so far as may be, and, if for any reason the trust fails, will imply a resulting trust in favour of the donor or those claiming under him. But, except so far as they may be relevant on the points above mentioned, equity does not any more than the common law pay any attention to the donor’s motives in making the gift or to the purposes for which he intends the property to be applied by the donee, or to any condition or direction affecting its free disposition in the hands of the donee. The question whether a trust be legal or illegal or be in accordance with or contrary to the policy of the law only arises when it has been determined that a trust has been created, and is then only part of the larger question whether the trust is enforceable. For, as will presently appear, trusts may be unenforceable and therefore void, not only because they are illegal or contrary to the policy of the law, but for other reasons.

 

It may be well to illustrate what I have said by one or two examples. Thus, if a testator gives 500l. to A., saying that he knows A. will expend it in procuring masses to be said for testator’s soul, the question arises whether A. is a trustee for the purpose indicated. If he be not a trustee, he will in equity take the legacy beneficially; the fact that the trust, if there be a trust, would be unlawful being quite immaterial. If, however, it be held that A. is a trustee, then, as the trust is unlawful, equity will not allow the trustee to retain the legacy. Again, in the case of a simple legacy of 500l. to A., where conversations had taken place between A. and the testator as to the purposes for which the legacy should [*438] be applied, the question would arise whether these conversations rendered it unconscionable for A. to take the legacy for his own use. If so, equity would treat him as a trustee. If not, it would allow him to retain the legacy, although the purpose for which the legacy was intended by the testator was unlawful or otherwise unenforceable. Again, it is well settled that a gift to A. to help him in his business is an absolute gift to A., and it is therefore immaterial whether A.’s business is that of a corn merchant or a receiver of stolen goods. If, however, A. were a trustee the character of the business would be material in considering whether the trust was one which equity would carry into execution.

 

My Lords, in the present case you will find that the testator has given his residuary estate through the medium of trustees for sale and conversion to the Secular Society, Limited, and the question is as to the validity of this gift. There is no doubt as to the certainty of the subject-matter, or as to the testator’s disposing power, or as to the validity of his will. So far as the conditions essential to the validity of the gift are concerned, the only doubt is as to the capacity of the donee.

 

The Secular Society, Limited, was incorporated as a company limited by guarantee under the Companies Acts, 1862 to 1893, and a company so incorporated is by s. 17 of the Act of 1862 capable of exercising all the functions of an incorporated company. Prima facie, therefore, the society is a corporate body created by virtue of a statute of the realm, with statutory power to acquire property by gift, whether inter vivos or by will. The appellants endeavour to displace this prima facie effect of the Companies Acts in the following manner. If, they say, you look at the objects for which the society was incorporated, as expressed in its memorandum of association, you will find that they are either actually illegal or, at any rate, in conflict with the policy of the law. This being so, the society was not an association capable of incorporation under the Acts. It was and is an illegal association, and as such incapable of acquiring property by gift. I do not think this argument is open to the appellants, even if their major premise be correct. By the 1st section of the Companies Act, 1900, the society’s certificate of registration is made conclusive evidence that the society was an association authorized to be registered – that [*439] is, an association of not less than seven persons associated together for a lawful purpose. The section does not mean that all or any of the objects specified in the memorandum, if otherwise illegal, would be rendered legal by the certificate. On the contrary, if the directors of the society applied its funds for an illegal object, they would be guilty of misfeasance and liable to replace the money, even if the object for which the money had been applied were expressly authorized by the memorandum. In like manner a contract entered into by the company for an unlawful object, whether authorized by the memorandum or otherwise, could not be enforced either in law or in equity. The section does, however, preclude all His Majesty’s lieges from going behind the certificate or from alleging that the society is not a corporate body with the status and capacity conferred by the Acts. Even if all the objects specified in the memorandum were illegal, it does not follow that the company cannot on that account apply its funds or enter into a contract for a lawful purpose. Every company has power to wind up voluntarily, and moneys paid or contracts entered into with that object are in every respect lawfully paid or entered into. Further, the disposition provided by the company’s memorandum for its surplus assets in case of a winding up may be lawful though all the objects as a going concern are unlawful. If there be no lawful manner of applying such surplus assets they would on the dissolution of the company belong to the Crown as bona vacantia: Cunnack v. Edwards. (1)

 

My Lords, some stress was laid on the public danger, or at any rate the anomaly, of the Courts recognizing the corporate existence of a company all of whose objects, as specified in its memorandum of association, are transparently illegal. Such a case is not likely to occur, for the registrar fulfils a quasi-judicial function, and his duty is to determine whether an association applying for registration is authorized to be registered under the Acts. Only by misconduct or great carelessness on the part of the registrar could a company with objects wholly illegal obtain registration. If such a case did occur it would be open to the Court to stay its hand until an opportunity had been given for taking the appropriate steps for the cancellation of the certificate of registration. It should be observed that neither s. 1

 

(1) [1896] 2 Ch. 679. [*440]

 

of the Companies Act, 1900, nor the corresponding section of the Companies (Consolidation) Act, 1908, is so expressed as to bind the Crown, and the Attorney-General, on behalf of the Crown, could institute proceedings by way of certiorari to cancel a registration which the registrar in affected discharge of his quasi-judicial duties had improperly or erroneously allowed. But, as will appear later, I do not think that the present is a case requiring such action on the part of your Lordships’ House.

 

My Lords, it follows from what I have already said that the capacity of the Secular Society, Limited, to acquire property by gift must be taken as established, and, all the conditions essential to the validity of the gift being thus fulfilled, the donee is entitled to receive and dispose of the subject-matter thereof, unless either (1.) the gift was obtained by duress or undue influence, or (2.) there is something which in a Court of Equity imposes on the donee the character of a trustee. Admittedly there is no question of duress or undue influence, and in my opinion it is impossible to hold that the donee was intended to take or in fact takes the subject-matter as trustee or in any other character than that of absolute owner. It should be observed that the testator says nothing as to how he desires his residuary estate to be applied in the hands of the society, nor is there any evidence that he made any communication to any one on behalf of the society with regard to such application. The only possible argument in favour of the testator’s intention to create a trust rests upon this: The society is a body corporate to which the principle of your Lordships’ decision in Ashbury Railway Carriage and Iron Co. v. Riche (1) is applicable. Its funds can only be applied for purposes contemplated by the memorandum and articles as originally framed or altered under its statutory powers. A gift to it must, it may be said, be considered as a gift for those purposes, and therefore the society is a trustee for those purposes of the subject-matter of the gift. This argument is, in my opinion, quite fallacious. The fact that a donor has certain objects in view in making a gift does not, whether he gives them expression or otherwise, make the donee a trustee for those objects. If I give property to a limited company to be applied at its discretion for any of the purposes authorized by its memorandum and articles, the company

 

(1) L. R. 7 H. L. 653. [*441]

 

takes the gift as absolutely as would a natural person to whom I gave a gift to be applied by him at his discretion for any lawful purpose. The case of Attorney-General v. Haberdashers’ Co. (1) is an express authority on this point. A gift of a fund on trust to pay the income thereof in perpetuity to a society, whether corporate or otherwise, might possibly, if the objects of the society were charitable, be established as a charitable gift, exempt from objection on the ground that it created a perpetuity. But it is one thing to establish a gift (which would otherwise fail) on the ground that it is charitable, and quite another thing to avoid a gift which would otherwise be good on the ground that it creates an unenforceable trust. If a gift to a corporation expressed to be made for its corporate purposes is nevertheless an absolute gift to the corporation, it would be quite illogical to hold that any implication as to the donor’s objects in making a gift to the corporation could create a trust. The argument, in fact, involves the proposition that no limited company can take a gift otherwise than as trustee. I am of opinion, therefore, that the society, being capable of acquiring property by gift, takes what has been given to it in the present case, and takes it as absolute beneficial owner and not as trustee.

 

My Lords, the above considerations appear to me to be alone sufficient to dispose of this appeal. Nevertheless, I will proceed to consider the matter on the footing that the society takes in the character of trustee. On that footing it seems to me that the trust is clearly void, and that the appellants ought to succeed, whatever opinion your Lordships hold on the questions which were argued before the House. A trust to be valid must be for the benefit of individuals, which this is certainly not, or must be in that class of gifts for the benefit of the public which the Courts in this country recognize as charitable in the legal as opposed to the popular sense of that term. Moreover, if a trustee is given a discretion to apply trust property for purposes some of which are and some are not charitable, the trust is void for uncertainty. A simple instance of this is a gift for charitable or benevolent purposes. Such a gift is void, for benevolent purposes are, as is well settled, not necessarily charitable: Morice v. Bishop of Durham (2); James v.

 

(1) (1834) 1 My. & K. 420.

 

(2) (1805) 10 Ves. 522. [*442]

 

Allen (1); In re Jarman’s Estate.(2) Now if your Lordships will refer for a moment to the society’s memorandum of association you will find that none of its objects, except, possibly, the first, are charitable. The abolition of religious tests, the disestablishment of the Church, the secularization of education, the alteration of the law touching religion or marriage, or the observation of the Sabbath, are purely political objects. Equity has always refused to recognize such objects as charitable. It is true that a gift to an association formed for their attainment may, if the association be unincorporated, be upheld as an absolute gift to its members, or, if the association be incorporated, as an absolute gift to the corporate body; but a trust for the attainment of political objects has always been held invalid, not because it is illegal, for every one is at liberty to advocate or promote by any lawful means a change in the law, but because the Court has no means of judging whether a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift. The same considerations apply when there is a trust for the publication of a book. The Court will examine the book, and if its objects be charitable in the legal sense it will give effect to the trust as a good charity: Thornton v. Howe (3); but if its object be political it will refuse to enforce the trust: De Themmines v. De Bonneval. (4) If, therefore, there be a trust in the present case it is clearly invalid. The fact, if it be the fact, that one or other of the objects specified in the society’s memorandum is charitable would make no difference. There would be no means of discriminating what portion of the gift was intended for a charitable and what portion for a political purpose, and the uncertainty in this respect would be fatal.

 

My Lords, the only way of meeting this difficulty would be to argue in favour of a general charitable intention on the part of the testator. The rule of equity in this respect is well known, and, however admirable in the interest of the public, has, I think, gone further than any other rule or canon of construction in defeating the real intention of testators. Perhaps the most striking instance

 

(1) (1817) 3 Mer. 17.

 

(2) (1878) 8 Ch. D. 584.

 

(3) 31 Beav. 14.

 

(4) (1828) 5 Russ. 288. [*443]

 

of the application of the rule is the case of De Costa v. De Paz (1), to which I shall have to return presently. There the trust was for the purpose of establishing an assembly for reading the Jewish law and instructing the people in the Jewish religion. The Jewish Relief Act had not yet been passed, and therefore the gift could not be applied as directed by the testator. Nevertheless Lord Hardwicke held that, the gift being for a religious purpose, the testator had manifested a general charitable intent, and accordingly the fund was applied for paying a preacher to instruct children in the Christian instead of the Jewish religion.

 

Any argument in favour of the testator’s general charitable intention in the present case would have to proceed on the footing that the society’s first and paramount object was charitable, and that its subsequent objects, though not charitable in themselves, were entirely subsidiary to the first object. It would be an argument depending for its validity on the true construction of the memorandum, and precisely analogous to that urged by the appellants in support of their contention that because the society’s first object was illegal all its other objects were also illegal, or, as they put it, tinged with illegality. I will consider the two arguments together.

 

The only object specified in the company’s memorandum of association which can of itself be said to be either charitable or illegal is the first. All the other specified objects are in themselves clearly non-charitable, and admittedly legal. The suggestion must be that the charitable or illegal character of the first object so clearly manifests a charitable or illegal intention on the part of the testator that all the subsequent objects (being non-charitable) must, on the hypothesis that the first is charitable, be ignored altogether, or being legal must, on the hypothesis that the first is illegal, be themselves treated as illegal. Such suggestion, when analysed, appears to rest entirely on the assumption that the object first specified in the memorandum must be the paramount object, and that all the other specified objects must be subsidiary or subordinate. Such an assumption introduces a new, and in my opinion a very dangerous, canon of construction. Moreover, in the present case it appears to be inconsistent with the terms of the memorandum itself. The first object is to promote the principle therein referred to, not in such manner

 

(1) 2 Swanst. 487, note (a); Amb. 228. [*444]

 

as thereafter mentioned, but in such ways as may from time to time be determined. This can only point to the subsequent objects being distinct or independent objects. Moreover, one of those objects, that lettered (L), is “to assist by votes of money or otherwise other societies or associated persons or individuals who are specially promoting,” not the first object, but any of the objects thereinbefore mentioned.

 

How can it be argued that the society is precluded from giving assistance to societies or individuals who, while repudiating the society’s first object, advocate the secularization of education or the disestablishment of the Church on political or even on religious grounds? It is impossible to limit the societies or individuals to whom assistance may be granted to such as uphold the principle referred to in the society’s first object. It is equally impossible to treat an act expressly authorized by the memorandum as ultra vires the company because of the motive by which the agents of the company may be inspired. The whole frame of the memorandum points to the company having distinct and separate objects, and not to the first object being paramount and the others subsidiary. Any argument in favour of a general charitable or a general illegal intention must therefore fail. Just as the objects of the society which the testator had in view in making the gift cannot be said to be illegal merely because the first object specified in the memorandum is illegal, so also if the society takes as trustee it cannot be said that the testator had a general charitable intention sufficient to support the trust merely because the first object specified in the memorandum is charitable. It follows that the trust, if a trust has been created, is wholly invalid, whether the first object is on the one hand charitable or on the other hand illegal.

 

My Lords, I will next proceed to consider whether a trust for the first object specified in the memorandum would be a valid trust. The society’s first object is “to promote …. the principle that human conduct should be based upon natural knowledge and not upon super-natural belief, and that human welfare in this world is the proper end of all thought and action.” A trust to promote or advocate this principle would certainly not be a trust for the benefit of individuals. But could it be established as a charitable trust? It is certainly not within the preamble of [*445] the statute 43 Eliz. c. 4. This is not conclusive, though the Courts have taken such preamble as their guide in determining what is or is not charitable. It is not a religious trust, for it relegates religion to a region in which it is to have no influence on human conduct. The principle may have its attractions for certain types of mind, but on analysis it appears to be extremely vague and ambiguous. The first branch does not prescribe the end to which human conduct is to be directed. It merely says that whatever aim a man has in view he is to base his conduct on natural knowledge rather than on supernatural belief. This may merely mean that if, for example, we desire to defeat our enemies we should avail ourselves of all known scientific means, and not rest idle in the belief that there is a special providence looking after our interests. The meaning intended must necessarily be obscure until the terms “natural knowledge” and “supernatural belief” are more narrowly defined. Passing to the second branch of the principle, it is, I think, equally obscure. It lays down dogmatically what ought to be the end of all human thought and action, “so think and act as to secure human welfare in this world.” No hint is given as to what constitutes human welfare, a point on which there is the widest difference of opinion, or as to why any one should act on the precept unless it be assumed that altruism is merely enlightened egoism. It would in my opinion be quite impossible to hold that a trust to promote a principle so vague and indefinite was a good charitable trust. Even if the principle to be promoted were as definite as Kant’s categoric imperative, I doubt whether a trust for its promotion would be charitable.

 

My Lords, it remains to consider the question (which formed the chief topic of argument at your Lordships’ Bar) whether the promotion of the principle specified as the society’s first object is either illegal or against the policy of the law. A trust for the promotion of the principle being unenforceable on other grounds, this question could only arise on a criminal prosecution for blasphemy or in an action to enforce a contract entered into for the purpose of promoting the principle. In discussing it I shall assume that the principle involves a denial of or an attack upon some of the fundamental doctrines of the Christian religion.

 

My Lords, on the subject of blasphemy I have had the advantage [*446] of reading, and I entirely agree with, the conclusions arrived at by my noble and learned friends the Lord Chancellor and Lord Buckmaster. In my opinion to constitute blasphemy at common law there must be such an element of vilification, ridicule, or irreverence as would be likely to exasperate the feelings of others and so lead to a breach of the peace. I cannot find that the common law has ever concerned itself with opinion as such, or with expression of opinion, so far as such expression is compatible with the maintenance of public order. Indeed there is express authority that heresy as such is outside the cognizance of a criminal Court unless the heretic by setting up conventicles or otherwise endangers the peace: see Hawkins’ Pleas of the Crown, vol. 1, p. 354. The contrary view appears to be based on various dicta (I do not think they are more than dicta) to the effect that Christianity is part of the law of the land, the suggested inference being that to attack or deny any of its fundamental doctrines must therefore be unlawful. The inference of course depends on some implied major premise. If the implied major premise be that it is an offence to speak with contumely or even to express disapproval of existing law, it is clearly erroneous. If, on the other hand, the implied major premise is that it is an offence to induce people to disobey the law, the premise may be accepted, but to avoid a non sequitur it would be necessary to modify the minor premise by asserting that it is part of the law of the land that all must believe in the fundamental doctrines of Christianity, and this again is inadmissible. Christianity is clearly not part of the law of the land in the sense that every offence against Christianity is cognizable in the Courts.

 

A good deal of stress was laid in this connection upon the Blasphemy Act (9 & 10 Will. 3, c. 32), and its provisions undoubtedly give rise to certain difficulties. I think, however, for reasons which will appear later, that this Act should be construed as imposing, in the case of persons educated in or who have at any time professed the Christian religion, certain additional penalties for the common law offence rather than as creating a new statutory offence. The fact that there has, so far as can be discovered, never been a prosecution for an offence under the Act points to this view having been generally accepted.

 

My Lords, on the question whether the promotion of the principle [*447] in question is against public policy as opposed to being illegal in the criminal sense the appellants relied principally on two authorities – namely, Cowan v. Milbourn (1) and Briggs v. Hartley.(2) In the former case the Court, consisting of Kelly C.B., Martin B., and Bramwell B., refused to enforce a contract for the hire of rooms, the purpose of the hirer being to use the rooms for certain lectures, one of which, as advertised, was to be on “The Character and Teachings of Christ; the former Defective, the latter Misleading,” and another on “The Bible shown to be no more Inspired than any other Book.” Kelly C.B. was of opinion that the first of these lectures could not be delivered without blasphemy. He referred especially to the fact that Christianity was part of the law of the land. Martin B. agreed. Bramwell B. quoted the Blasphemy Act, and said that the rooms were clearly intended to be used for a purpose declared by the statute to be unlawful. It appears, therefore, that all three judges considered that the purpose was unlawful in the strict sense, though Bramwell B. referred to the distinction between things actually unlawful in the sense of being punishable and things unlawful in the sense of being contrary to the policy of the law. This, however, appears to have been unnecessary for the decision. The Court refused to enforce the contract. In the case of Briggs v. Hartley (2) the testator had created a trust to provide a prize for the best essay on natural theology, treated as a science, and sufficient when so treated to constitute a true, perfect, and philosophical system of universal religion. Shadwell V.-C. held the trust void as inconsistent with Christianity. In my opinion the first of these cases might possibly be supported on the footing that the lectures intended to be given would involve vilification, ridicule, or irreverence likely to lead to a breach of the peace. In so far as it decided that any denial of or attack upon the fundamental doctrines of Christianity was in itself blasphemous either at common law or under the statute, I think it was wrong. The second case, however, appears to be a direct authority on the point at issue, for the trust was clearly a good charity unless it could be held contrary to the policy of the law.

 

My Lords, I desire to call the attention of the House to certain general considerations and to certain authorities which have led

 

(1) L. R. 2 Ex. 230.

 

(2) 19 L. J. (Ch.) 416. [*448]

 

me to the conclusion that Briggs v. Hartley (1) was wrongly decided and that there is nothing contrary to the policy of the law in an attack on or a denial of the truth of Christianity or any of its fundamental doctrines, provided such attack or denial is unaccompanied by such an element of vilification, ridicule, or irreverence as is necessary for the common law offence of blasphemy. In the first place I desire to say something as to the history of religious trusts.

 

Trusts for the purposes of religion have always been recognized in equity as good charitable trusts, but so far as I am aware there is no express authority dealing with the question what constitutes religion for the purpose of this rule. Prior to the Reformation that form of Christianity now called Roman Catholic was undoubtedly within the rule, but the same cannot be said with equal certainty of other forms of Christianity or of the Jewish religion, which has little in common with Christianity except its monotheism and its belief in the inspiration of the Old Testament. After the Reformation Anglican Christianity was undoubtedly within the rule, but this cannot be said with equal certainty of Roman Catholicism or of any form of Protestant dissent or of the religion of the Jews. The question is complicated by the fact that the Reformation was followed by a number of penal statutes enforcing conformity with the Established Church and imposing penalties on the exercise of any other form of religion, whether Christian or otherwise. As long as these statutes remained in force no trust for the purposes of any other religion than the Christian religion, or of any form of Christianity other than the Anglican, were enforceable, because it was clearly against public policy to promote a religion or form of religion the exercise of which was penalized by statute. The fact that no such trust was enforceable does not show that it was not a trust for the purposes of religion within the meaning of the rule.

 

The Revolution of 1688 was followed by the Toleration Act of that year, which exempted Protestant dissenters from the penalties imposed by the earlier Acts, but provided that nothing therein contained should afford any protection to Roman Catholics or persons denying the Trinity. From the date of this Act all trusts for the religious purposes of any nonconformist body entitled to the

 

(1) 19 L. J. (Ch.) 416. [*449]

 

benefit of its provisions have been held good charitable trusts, and inasmuch as the provisions of the Act do not deal with the validity of trusts, but merely give exemption from penalties, I think we are safe in assuming that, in the equitable rule as to trusts for the purposes of religion being charitable, religion includes all forms of religion which accept, as the exempted nonconformists may be said to have done, the fundamental doctrines of the Christian faith.

 

But subsequent decisions enable us to go a step further. The Unitarian Relief Act, 1813 (as I may call it) (1), repeals so much of the Toleration Act, 1688, as enacts that nothing therein contained should extend to give any ease or benefit to persons denying the Trinity, and also so much of the Blasphemy Act as relates to persons denying the Trinity. As from the passing of this Act trusts for the religious purposes of Unitarians have always been held good charitable trusts. The repeal of the Blasphemy Act, which did not itself affect the common law, could not alter the common law. These decisions proceed, therefore, on the footing that a mere denial of the Trinity is not criminal. The Unitarian Relief Act containing no provisions as to trusts, they also proceed on the footing that, but for the statutory penalties to which, prior to the Act, persons who denied the Trinity had been subject, a trust for a religion which rejects the doctrine of the Trinity would have been a good charitable trust. A denial of or attack on the doctrine of the Trinity can never, therefore, have been either actually illegal or contrary to the policy of the law.

 

Further, whatever may have been the case with the Unitarians of 1813, it is quite certain that in more recent years many Unitarians have not only denied the Trinity but have disputed the “Divine authority” of the Old and New Testament in the sense in which that expression is ordinarily used by persons professing the Christian faith. If there is any doctrine vital to Protestant Christianity it would appear to be that of the Divine authority of the Scriptures, and yet in the case of trusts for the religion of Unitarians no distinction has been drawn between those who do and who do not hold this doctrine. It would seem to follow that a trust for the purpose of any kind of monotheistic theism would be a good charitable trust

 

(1) 53 Geo. 3, c. 160. [*450]

 

and that it is not illegal or contrary to public policy to deny the authority of the Old or New Testament.

 

The Roman Catholic Relief Act, 1832, and the Jewish Relief Act, 1846, expressly validate trusts for the purposes of the Roman Catholic and Jewish religions. No inference can, therefore, be drawn from any decision since they were placed on the Statute-book. But the case of De Costa v. De Paz (1), to which I have already referred, is important in this connection. It was decided before the Jewish Relief Act, and Lord Hardwicke held that a trust for the purpose of the Jewish religion was bad on the ground that it was against Christianity and Christianity was the law of the land. It would have been enough to say it could not be enforced on the ground that the practice of the Jewish religion was subject to statutory penalties. On further consideration, however, Lord Hardwicke upheld the gift on the ground that it was for a charitable purpose and that the testator’s general charitable intention ought not to be defeated because the fund could not be applied in the way the testator desired. He left it to the Crown to direct a cy pr�s application. As I have already said, the Crown applied it for the purposes of the Christian religion. This case seems to show that the Jewish religion is within the equitable rule and that, apart from the statutory penalties, there was never anything inconsistent with public policy in enforcing a trust for the benefit of the Jewish religion. De Costa v. De Paz (1) was followed in Isaac v. Gompertz.(2) Lord Thurlow there held that a trust for the maintenance of a Jewish synagogue was charitable, and directed an application to the Crown with a view to its cy pr�s application.

 

My Lords, apart from the question of religious trusts there is one authority directly in point. In Pare v. Clegg (3) the plaintiff sued the trustees of a friendly society known as the Rational Society for moneys lent to the society. The trustees objected that the society had illegal objects and that the money could not be recovered on that account. The objects of the society included the promotion of the following propositions:–

 

“(1.) That all facts yet known to man indicate that there is an external or internal cause of all existences by the fact of their

 

(1) 2 Swanst. 487, note (a); Amb. 228.

 

(2) (1786) cited in 7 Ves. 61.

 

(3) 29 Beav. 589, 596. [*451]

 

existence: that this all-pervading cause of motion and change in the universe is the power which the nations of the world have called God, Jehovah, Lord, &c.; but that the facts are yet unknown to man which define what that power is.

 

“(2.) That all ceremonial worship by man of this cause, whose qualities are yet so little known, proceeds from ignorance of his own nature, and can be of no real utility in practice; and that it is impossible to train men to become rational in their feelings, thoughts or actions until all such forms shall cease.”

 

These propositions are clearly anti-Christian. If they point to religion at all, it is a kind of negative deism, if I may use that expression, and not a theistic religion. Nevertheless it was held by Romilly M.R. that they contained nothing “irreligious or immoral,” and that, therefore, the defence failed. It follows that he cannot have thought that there was anything against public policy in advocating deism or (a fortiori) any form of monotheism.

 

This conclusion is further borne out by Thompson v. Thompson. (1) There the trust was to pay a stipend to some literary man who had not been successful in his career and who would assist in extending the knowledge of the doctrines to which the testator had devoted his attention and pen. This was held to be a charitable gift, provided the testator’s writings, published or unpublished, contained nothing “irreligious, illegal or immoral.”

 

My Lords, in my opinion the authorities I have mentioned are sufficient to establish that the first object of the society’s memorandum is not open to objection as contrary to the policy of the law. It is not illegal, for it does not involve blasphemy. It is not irreligious, for it is at any rate consistent with that negative deism which was held not to be irreligious in Pare v. Clegg. (2) It is not immoral or seditious. It is, no doubt, anti-Christian, but, to adopt the words of Coleridge J. in Shore v. Wilson (3), “There is nothing unlawful at common law in reverently doubting or denying doctrines parcel of Christianity, however fundamental. It would be difficult to draw a line in such matters according to perfect orthodoxy, or to define how far one might depart from it in believing or teaching without offending the law. The only safe, and, as it seems to me, practical

 

(1) 1 Coll. 381.

 

(2) 29 Beav. 589.

 

(3) 9 Cl. & F. 355, 539. [*452]

 

rule, is that which I have pointed at, and which depends on the sobriety and reverence and seriousness with which the teaching, or believing, however erroneous, are maintained.”

 

My Lords, I am glad to be able to come to this conclusion. It would be a serious matter for your Lordships’ House, unless clearly compelled by authority, to lay down a principle which would not only lead to the anomalies pointed out by Lord Buckmaster, but would preclude the Courts of this country from giving effect to trusts for the purposes of religions which, however sacred they may be to millions of His Majesty’s subjects, either deny the truth of Christianity or, at any rate, do not accept some of its fundamental doctrines.

 

On all these grounds I think the appeal fails.

 

LORD SUMNER. (1) My Lords, the question is whether an anti-Christian society is incapable of claiming a legacy, duly bequeathed to it, merely because it is anti-Christian. The certificate proves that the incorporation is that of the statutory number of persons in accordance with the formalities of the Act, that “all the requisitions of this Act in respect of registration have been complied with” (Companies Act, 1862, s. 18), and that the respondent society is a complete person in law. It does not prove that all the memorandum powers are lawfully exercisable.

 

What then are the society’s character and powers? For them we must look at the memorandum, and then the question will be, Does the law permit their exercise?

 

Paragraph 3 (A) gives its principle. The first part is stated both as a positive proposition, namely, that human conduct should be based upon natural knowledge, and as a negative proposition, namely, that it should not be based on supernatural belief. The second part is expressed only positively, namely, that human welfare in this world is the proper end of all thought and action, but equally the negative of this proposition is implied. Since “human welfare is the proper end of all thought and action,” any object save the welfare of mankind in this world (for example, the glory of God) cannot be a proper end for any thought or action at all. The powers taken in the subsequent paragraphs are ancillary

 

(1) Read by Lord Dunedin. [*453]

 

to the first and some are so expressed. It is true that object (K) is “to publish books,” and object (L) “to assist by votes of money other societies or associated persons or individuals who are specially promoting any of the above objects,” but are we to say that this company has among its memorandum powers the publication of Bibles and Prayer Books, the subvention of Bible societies, and the doing of all lawful things conducive to the attainment of such objects, such as building a mission-hall for reading the Bibles and offering the prayers? If the memorandum is to be so construed it is decisive of the case, for I agree that this gift is not an imperfect gift nor impressed with any trust in the donee’s hands, and a donee who sometimes acts legally and sometimes illegally cannot be deprived of his legacy for fear he might follow the evil and eschew the good. It is not a question of hoping for the best, as was argued; the law must presume that what is legal will be done, if anything legal can be done under the memorandum. Thus one just man may save the city. To my mind, if the memorandum be construed as it is by my noble and learned friend, who has immediately preceded me, any consideration of blasphemy or Christianity or their legal position is irrelevant, for the appeal fails without it, and before we come to it. I think we should look at the substance and that all the paragraphs should be construed as if they concluded with the words “for the purposes and on the principle stated in paragraph (A).” Surely a society incorporated on such a principle cannot be supposed, as a matter of construction, to exercise ancillary powers on other principles or for independent purposes. Of course, it must be assumed that the powers taken are to be used, if possible, for lawful ends; for example, to subsidize a blaspheming lecturer would be an ultra vires act, and those who so disbursed the company’s money would be personally liable to refund it, apart from aiding and abetting; but as I take the memorandum to be that of a society deliberately and entirely anti-Christian, in which opinion I believe the shareholders themselves would agree, I am constrained to deal with the question, What if all the company’s objects are illegal per se? For I should be loth to dispose of this case on the narrow ground that, even if all its other objects are illegal, the company in law can always wind up and so dispose of its funds. [*454]

 

If the respondents are an anti-Christian society, is the maxim that Christianity is part of the law of England true, and, if so, in what sense? If Christianity is of the substance of our law, and if a Court of law must, nevertheless, adjudge possession of its property to a company whose every action seeks to subvert Christianity and bring that law to naught, then by such judgment it stultifies the law. So it was argued, and if the premise is right, I think the conclusion follows.

 

It is not enough to say with Lord Coleridge C.J. in Ramsay’s Case (1) that this maxim has long been abolished, or with my noble and learned friend the Master of the Rolls in the Court below that “the older view,” based on this maxim, “must now be regarded as obsolete.” If that maxim expresses a positive rule of law, once established, though long ago, time cannot abolish it nor disfavour make it obsolete. The decisions which refer to such a maxim are numerous and old, and although none of them is a decision of this House, if they are in agreement and if such is their effect, I apprehend they would not now be overruled, however little Reason might incline your Lordships to concur in them. In what sense, then, was it ever a rule of law that Christianity is part of the law?

 

The legal material is fourfold: (1.) statute law; (2.) the criminal law of blasphemy; (3.) general civil cases; (4.) cases relating to charitable trusts. From statute law little is to be gleaned. During the sixteenth century many Acts were passed to repress objectionable doctrines, but plainly statutes were not needed if the common law possessed an armoury for the defence of Christianity as part and parcel of itself. Indeed, who but the King in Parliament could then say whether the Christianity, which for the time being formed part of the common law, was the Christianity of Rome or of Geneva or of Wittenberg? Certainly the Courts could not.

 

After the Revolution of 1688 there were passed the Toleration Act to give “some ease to scrupulous consciences in exercise of religion,” which, upon conditions, relieved certain dissenters (Papists and those who denied the Trinity excepted) from the operation of various existing statutes, and the Blasphemy Act,

 

(1) 48 L. T. 733, 735; 15 Cox, C. C. 231, 235. [*455]

 

which recites that “many persons have of late years openly avowed and published many blasphemous and impious opinions, contrary to the doctrines and principles of the Christian religion …. and may prove destructive to the peace and welfare of this kingdom.” That the Blasphemy Act simply added new penalties for the common law offence of blasphemy, when committed under certain conditions, was held by Lord Hardwicke in De Costa v. De Paz (1) and by the Court of King’s Bench in Richard Carlile’s Case (2), and Lord Eldon in Attorney-General v. Pearson (3) said that the Toleration Act left the common law as it was and only exempted certain persons from the operation of certain statutes. Such, indeed, is the clear language of the statutes, nor can the fact that persons are singled out for special punishments who deny the Godhead of the Three Persons of the Trinity, the truth of the Christian religion, and the Divine authority of the Holy Scriptures, or who maintain that there be more gods than one, be accepted as showing that the common law offence of blasphemy consists in such denials and assertions and in nothing else. Later Acts have relieved various religious confessions from the burthen of the Blasphemy Act and other statutes, but, except in so far as they deal with charitable trusts for the purposes of such confessions, on which I do not now dwell, they seem to carry the present matter no further.

 

The common law as to blasphemous libels was first laid down after the Restoration, and here the statement that Christianity is part of the law is first found as one of the grounds of judgment. Earlier opinions of the same kind are curiously general in character. In Bohun v. Broughton (4), on a quare impedit, it is said “a tielx leis que ils de Saint Eglise ont en ancien Scripture, covient a nous a doner credence; car ceo common ley sur quel touts man[iere]s leis sont fondes.” Again in the “Doctor and Student” (dialogue 1, chs. 5, 6, and 7) three successive chapters state the grounds of the law of England – the first, the law of reason; the second, the law of God; and the third, the usage and custom of the realm. When Lilburne was on his trial in 1649 (5) he complained that he was not

 

(1) 2 Swanst. 487, note (a); Amb. 228.

 

(2) 3 B. & Al. 161.

 

(3) (1817) 3 Mer. 353, 398, 399.

 

(4) Y. B. 34 Hen. 6, fo. 40.

 

(5) (1649) 4 St. Tr. 1269, 1307. [*456]

 

allowed counsel and appealed to the judges “to do as they would be done by.” “You say well,” replied Lord Keble. “The law of God is the law of England.” But all the same, Lilburne had to do the best he could for himself. A passage from Lord Coke may also be quoted. Brooke J. had once observed casually (Y. B. 12 Hen. 8, fo. 4) that a pagan could not have or maintain any action, and Lord Coke in Calvin’s Case (1), founding himself on this and on St. Paul’s Second Epistle to the Corinthians (ch. 6, v. 15), stated that infidels are perpetui inimici, and “a perpetual enemy cannot maintain any action or get anything within the realm.” Of this Willes C.J. in Omichund v. Barker (2) observes: “Even the devils themselves, whose subjects he (Lord Coke) says the heathens are, cannot have worse principles; and besides the irreligion of it, it is a most impolitic notion and would at once destroy all that trade and commerce from which this nation reaps such great benefits.” Evidently in this interval the spirit of the law had passed from the Middle Ages to modern times. So far it seems to me that the law of the Church, the Holy Scriptures, and the law of God are merely prayed in aid of the general system or to give respectability to propositions for which no authority in point could be found.

 

At the beginning of the seventeenth century a considerable change of procedure took place in reference to religion. Legate was burnt at Smithfield in 1612 upon a writ de haeretico comburendo, and another heretic, named Wightman, at Lichfield about the same time, but they were the last persons to go to the stake in this country pro salute animae. No doubt this process was moribund. Before the Restoration the Court of Star Chamber and the Court of High Commission had been suppressed, and at length, by the statute, 29 Car. 2, c. 9, the writ de haeretico comburendo itself was abolished with all process and proceedings thereupon and all punishment of death in pursuance of any ecclesiastical censures. It is to be noted that the Act, in saving the jurisdiction of the Ecclesiastical Courts over “atheism, blasphemy, heresy, or schism,” distinguishes blasphemy from the profession of false doctrines, whether atheistical or heretical. The time of Charles II. was one of notorious laxity both in faith and morals, and for a time it seemed as if the old safeguards

 

(1) (1608) 7 Rep. 17a.

 

(2) (1745) Willes, 538, 542. [*457]

 

were in abeyance or had been swept away. Immorality and irreligion were cognizable in the Ecclesiastical Courts, but spiritual censures had lost their sting and those civil Courts were extinct, which had specially dealt with such matters viewed as offences against civil order.

 

The Court of King’s Bench stepped in to fill the gap. In 1663 Sir Charles Sedley was indicted for indecency and blasphemy. (1) The indecency was so gross that little stress was laid on the blasphemy, which was probably both tipsy and incoherent. The Court told the prisoner that they would have him know that, although there was no longer any Star Chamber, they acted as custos morum for all the King’s subjects, and it was high time to punish such profane actions, contrary alike to modesty and to Christianity.

 

Then follows Taylor’s Case (2) in 1675, when the indictment was for words only, though ribald and profane enough. This is the earliest trial for blasphemy. Adwood’s Case (3) in 1617 is not an instance. It is like Traske’s Case (4), where the matter in hand was the making of conventicles as tending to sedition. The indictment in Taylor’s Case (2) is given in Tremaine’s Placita, p. 226, and shows that the charge was not confined to the fact that Taylor’s language was contrary to true religion, but that it was considered dangerous to civil order, for it concludes: “Ad grave scandalum professionis verae Christianae religionis in destructionem Christianae gubernationis et societatis …. ac contra pacem dicti domini regis.”

 

Now Taylor’s Case (2) is the foundation-stone of this branch of the law, and for a century or so there is no sign of carrying the law beyond it. The case repays scrutiny. The objection that the offence was an ecclesiastical one lay on the very face of the words charged, and in directing the jury Hale C.J. found it necessary to show why it was also a civil offence. He said that such kind of wicked, blasphemous words, though of ecclesiastical cognizance, were not only an offence to God and religion, but a crime against the laws, State, and Government, and “therefore punishable in this Court. For to say, religion is a cheat, is to dissolve all those obligations whereby the civil societies are preserved.” (5) It is true that he added that Christianity was

 

(1) (1663) 1 Sid. 168; 17 St. Tr. 155.

 

(2) 1 Vent. 293.

 

(3) (1617) 2 Roll. Abr. 78.

 

(4) (1618) Hob. 236.

 

(5) 1 Vent. 293; 3 Keb. 607, 621. [*458]

 

parcel of the laws of England, “and therefore to reproach the Christian religion is to speak in subversion of the law,” but this does not really enlarge the previous statement. Speaking in subversion of the law, without more, in the sense of saying that particular laws are bad and should be mended, has never been a criminal offence, and agitating against them has often led on to fortune. Woolston’s Case (1), in 1728, supplies the completion of the doctrine. Upon a motion in arrest of judgment the Court followed Taylor’s Case (2) as settled law. The argument was that Woolston’s crime, if any, was of ecclesiastical cognizance (he was a clergyman who joked about the miracles), and that “mere difference of opinion is tolerated by law.” Lord Raymond’s answer was, “I would have it taken notice of, that we do not meddle with any differences in opinion, and that we interpose only where the very root of Christianity itself is struck at. …. To say, an attempt to subvert the established religion is not punishable by those laws upon which it is established, is an absurdity.” True it is that the last words somewhat invert Lord Hale’s reasoning, for they seem to treat an attempt to subvert the established form of Christianity (not any other) as an offence, because it attacks the creature of the law, not because that form is the basis of the law itself and the bond of civilized society. At any rate the case leaves untouched mere differences of opinion, not tending to subvert the laws and organization of the realm.

 

Curl’s Case (3), heard about the same time, was a case for publishing an obscene libel, but is of some incidental importance. The Courts were chary of enlarging their jurisdiction in this regard, and in Queen Anne’s time judgment had been arrested in such a case for supposed want of precedent, and the offence was treated as one for ecclesiastical cognizance only. On a motion for arrest of the judgment on Curl it was argued that the libel, being only contra bonos mores, was for the spiritual Courts. The motion was refused, the Chief Justice saying: “If it reflects on religion, virtue, or morality, if it tends to disturb the civil order of society, I think it is a temporal offence.” He said, too, “religion is part of the common law,” but Probyn J. clears this up, adding, “It is punishable at common law

 

(1) Fitzg. 64; 2 Str. 834.

 

(2) 1 Vent. 293.

 

(3) (1727) 2 Str. 788; 1 Barn. K. B. 29. [*459]

 

as an offence against the peace in tending to weaken the bonds of civil society.”

 

At the end of the eighteenth and beginning of the nineteenth centuries various publishers of Paine’s “Age of Reason” were prosecuted. The words indicted were chosen for their scoffing character, and indeed are often really blasphemous, but the idea throughout is that the book was the badge of revolution and tended to jeopardize the State. Thus in the trial of Williams (1) Ashhurst J., passing sentence on him in the Court of King’s Bench, stated the ground of this offence thus: “All offences of this kind are not only offences to God, but crimes against the law of the land, and are punishable as such, inasmuch as they tend to destroy those obligations whereby civil society is bound together; and it is upon this ground that the Christian religion constitutes part of the law of England.”

 

If later cases seem to dwell more on religion and less on considerations of State, I think, when examined, they prove to be of small authority. In Waddington’s Case (2) there seems to have been little argument, and no decisions were cited. Rex v. Davison (3) decides in effect that contempt of God in Court may be also contempt of Court. In 1838 Alderson B. told a York jury (Reg. v. Gathercole (4) that “a person may, without being liable to prosecution for it, attack Judaism; or Mahomedanism, or even any sect of the Christian religion (save the established religion of the country); and the only reason why the latter is in a different situation from the others is, because it is the form established by law, and is therefore a part of the constitution of the country. In like manner, and for the same reason, any general attack on Christianity is the subject of criminal prosecution, because Christianity is the established religion of the country.” The defendant, in fact, had not made any general attack on Christianity, but, being a Protestant clergyman, had foully aspersed a Roman Catholic nunnery. Whether this strange dictum was material or not, and whether it is right or not (and Baron Alderson’s is a great name), it only shows that the gist of the offence of blasphemy is a supposed tendency in fact to shake the fabric of society generally. Its tendency to provoke an immediate

 

(1) 26 St. Tr. 653, 715.

 

(2) 1 B. & C. 26.

 

(3) (1821) 4 B. & Al. 329.

 

(4) (1838) 2 Lew. 237, 254. [*460]

 

breach of the peace is not the essential, but only an occasional, feature. After all, to insult a Jew’s religion is not less likely to provoke a fight than to insult an Episcopalian’s; and, on the other hand, the publication of a dull volume of blasphemies may well provoke nothing worse than throwing it into the fire.

 

Hetherington’s Case (1) was a motion in arrest of judgment. Even here, alongside of the propositions that the Old Testament contains the law of God, and that “it is certain that the Christian religion is part of the law of the land” (per Patteson J.), we find Lord Denman C.J. saying: “As to the argument, that the relaxation of oaths is a reason for departing from the law laid down in the old cases, we could not accede to it without saying that there is no mode by which religion holds society together but the administration of oaths; but that is not so, for religion …. contains the most powerful sanction for good conduct.” Reg. v. Moxon (2) is of small authority. Later prosecutions add nothing until Lord Coleridge’s direction to the jury in Reg. v. Ramsay and Foote. (3) For thirty years this direction has been followed, nor was it argued by the appel lants that the publication of anti-Christian opinions, without ribaldry or profanity, would now support a conviction for blasphemy. It is no part of your Lordships’ task on the present occasion to decide whether Lord Coleridge’s ruling was or was not the last word on the crime of blasphemy, but the history of the cases and the conclusion at present reached go to show that what the law censures or resists is not the mere expression of anti-Christian opinion, whatever be the doctrines assailed or the arguments employed.

 

It is common ground that there is no instance recorded of a conviction for a blasphemous libel, from which the fact, or, at any rate, the supposition of the fact, of contumely and ribaldry has been absent, but this was suggested to be of no real significance for these reasons. Such prosecutions, it was said, often seem to be persecutions, and are therefore unpopular, and so only the gross cases have been proceeded against. This explains the immunity of the numerous agnostic or atheistic writings so much relied on by Secularists. All it really shows is that no one cares to prosecute such things till

 

(1) 5 Jur. 529, 530; 4 St. Tr. (N.S.) 563.

 

(2) 4 St. Tr. (N.S.) 693.

 

(3) 15 Cox, C. C. 231; Cab. & E. 126. [*461]

 

they become indecent, not that, decently put, they are not against the law. Personally I doubt all this. Orthodox zeal has never been lacking in this country. The Society for Carrying into Effect His Majesty’s Proclamations against Vice and Immorality, which prosecuted Williams in 1797, has had many counterparts both before and since, and as anti-Christian writings are all the more insidious and effective for being couched in decorous terms, I think the fact that their authors are not prosecuted, while ribald blasphemers are, really shows that lawyers in general hold such writings to be lawful because decent, not that they are tolerable for their decency though unlawful in themselves. In fact, most men have thought that such writings are better punished with indifference than with imprisonment.

 

I may now turn to decisions in civil cases other than cases of charitable trusts. They are at least inconclusive. In Murray v. Benbow (1) Byron’s “Cain” was in question. Lord Eldon read it, and, as it happened, was able to compare it with “Paradise Lost.” “You have alluded,” he says, “to Milton’s immortal work. It did happen in the course of last Long Vacation, amongst the sollicitae jucunda (2) oblivia vitae, I read that work from beginning to end. …. Taking it altogether, it is clear that the object and effect were not to bring into disrepute, but to promote the reverence of our religion.” So judging “Cain” he doubted, and, as an injunction was matter of discretion and not of right, he refused an injunction till the plaintiff’s right had been established at law. According to Smiles’s John Murray (i., 428) the necessary action was brought, a jury upheld the copyright, and on a subsequent application the injunction was granted. About the same time, however, in 1822, in Lawrence v. Smith (3) an injunction had been obtained ex parte to restrain the issue of a pirated edition of the plaintiff’s “Lectures on Physiology.” As the lectures seemed to him to question the immortality of the soul, Lord Eldon dissolved it as a matter of discretion and in the absence of any judgment deciding the right at law, and observed that “the law does not give protection to those who contradict the Scriptures,” a dictum which, in its full width,

 

(1) 4 St. Tr. (N.S.) 1409, 1410.

 

(2) [Two false spellings for which Lord Eldon at all events was not answerable are here corrected.]

 

(3) Jac. 471. [*462]

 

imperils copyright in most books on geology. In the present case the respondents do not appeal for protection to the Court’s discretion, but vindicate a right of property, as clearly established as if there were a verdict. Again in Pare v. Clegg (1) Lord Romilly M.R. gave judgment against the defendant, remarking that the society which he represented, though based on irrational principles, was not formed “for the purpose of propagating irreligious and immoral doctrines,” and so was liable. This is not authority for saying generally that a society formed for the purpose of propagating irreligious doctrines could not be made to pay its debts. At most they must be such irreligious doctrines as the law forbids, and that leaves open the whole question what it is that the law forbids. Whether or not it is an authority directly in favour of the respondents I am not prepared to say. Cowan v. Milbourn (2) has long stood unchallenged. The judges meant to decide no new law, but to follow and apply the passages cited from Starkie on Libel. I cannot follow the observation of Lord Coleridge C.J. in Ramsay’s Case (3) that the judgments, or at any rate that of Bramwell B., turn on the effect of the statute of William III. The rooms had been engaged for two purposes. One was for a tea party and ball in memory of Tom Paine, and the other was the delivery of the lectures in question. As to the first, the recorder left the case to the jury, who gave a farthing damages for the frustration of this dismal, but no doubt harmless, festivity. As to the other, some fear of a breach of the peace may have existed, for intervention by the chief constable is mentioned in the Law Reports, but not in the Law Journal, Law Times, or Weekly Reporter. The plea (4) alleged a purpose “to use the said rooms for certain irreligious, blasphemous, and illegal lectures,” but they had not been delivered, and no indictable words could have been assigned. The recorder refused to leave the question of purpose to the jury with regard to the lectures. The argument in moving for the rule was that the case should have gone to the jury, for the placards per se did not prove an intention to insult or mislead, and temperate discussion of such subjects is lawful. Clearly the recorder had ruled that under such titles no

 

(1) 29 Beav. 589.

 

(2) L. R. 2 Ex. 230.

 

(3) 15 Cox, C. C. 231; Cab. & E. 126.

 

(4) 16 L. T. 290. [*463]

 

lecture could be delivered that would not be unlawful. It is upon such a presentation of the case and, I suppose, on such a ruling at the trial that Kelly C.B. said “Such a lecture cannot be delivered …. without blasphemy and impiety,” and from this his colleagues do not dissent. I do not think that the Court were finding in the placards and the chief constable a quia timet justification for the defendant’s breach of contract. Their ground was that the hiring was and could only be for an illegal object, and therefore the contract could not be enforced. The distinction is well settled between things which are illegal and punishable and things which, though not punishable, are illegal so as not to support a contract for good consideration. Prostitution is one of the common examples. Bramwell B. evidently thought that Secularism was another. But this reasoning postulates that, whatever lectures were actually delivered, they could not but be unlawful. Lectures, lawful because decently expressed, could, however, have been delivered under those titles, and therefore the hiring was not conclusively shown to have been for an unlawful purpose and void. The case should have gone to the jury. The alternative view of the case must be that the whole Court held that any general denial or dispute of Christian faith is unlawful, which had not been held at law before. From this it would follow that a person, whose business it was to publish and sell anti-Christian books, need neither pay his printer’s bill nor the poor rates for his shop, a proposition which is refuted by stating it, and from which at least two members of the Court in Cowan v. Milbourn (1) would have recoiled. I think the decision was wrong.

 

As to De Costa v. De Paz (2), Lord Hardwicke is reported as saying that there is a great difference between laying penalties on persons for the exercise of their religion and establishing them by acts of the Court. So here I think there is a great difference between laying civil disabilities on a man for the profession of his irreligion or on a company for the exercise of its memorandum powers, however contrary to Christianity, and establishing them by the act of the Court. The appellants’ claim is that the Court should deny the respondent company’s right to receive this money on the ground that it cannot make any lawful use of it, not that it

 

(1) L. R. 2 Ex. 230.

 

(2) 2 Swanst. 487, note (a), 490, n.; Amb. 228. [*464]

 

should establish the money in the company’s hands as a charitable trust for un-Christian objects. It is true that Lord Hardwicke goes on to say that “the intent of this bequest must be taken to be in contradiction to the Christian religion, which is a part of the law of the land …. for the constitution and policy of this realm is founded thereon,” and there are a good many other cases of the same kind, especially Briggs v. Hartley (1), in which similar language is used; but charitable trusts form a particular and peculiar branch of the law, and I do not think that the reasoning, and still less the remarks, contained in those cases bear usefully on general principles. However right it may be to refuse the aid of the law in establishing a trust for Secularist purposes, I cannot see why a Secularist is not to receive a gift of money because he is a Secularist and says so. I will not further pursue the cases cited on charitable trusts, nor could I presume to add to what has fallen from my noble and learned friend Lord Parker of Waddington.

 

My Lords, with all respect for the great names of the lawyers who have used it, the phrase “Christianity is part of the law of England” is really not law; it is rhetoric, as truly so as was Erskine’s peroration when prosecuting Williams: “No man can be expected to be faithful to the authority of man, who revolts against the Government of God.” One asks what part of our law may Christianity be, and what part of Christianity may it be that is part of our law? Best C.J. once said in Bird v. Holbrook (2) (a case of injury by setting a spring-gun): “There is no act which Christianity forbids, that the law will not reach: if it were otherwise, Christianity would not be, as it has always been held to be, part of the law of England”; but this was rhetoric too. Spring-guns, indeed, were got rid of, not by Christianity, but by Act of Parliament. “Thou shalt not steal” is part of our law. “Thou shalt not commit adultery” is part of our law, but another part. “Thou shalt love thy neighbour as thyself” is not part of our law at all. Christianity has tolerated chattel slavery; not so the present law of England. Ours is, and always has been, a Christian State. The English family is built on Christian ideas, and if the national religion is not Christian there is none. English law may well be called a Christian law, but we apply many of its rules and most of its principles,

 

(1) 19 L. J. (Ch.) 416.

 

(2) (1828) 4 Bing. 628, 641. [*465]

 

with equal justice and equally good government, in heathen communities, and its sanctions, even in Courts of conscience, are material and not spiritual.

 

Frequently as the proposition in question appears in one form or another, it is always as something taken for granted and handed down from the past rather than as a deliberate and reasoned proposition. It constantly has been used in charging juries as to unmistakably scurrilous words, where there was neither opportunity nor occasion for defining the limits of legitimate religious and irreligious opinion. I question if the foundations of the criminal law of blasphemous libel were ever fully investigated in any Court before Ramsay’s Case. (1) Even then Lord Coleridge passed over numerous decisions. To be sure his omissions were faithfully dealt with soon afterwards by Stephen J., one of his own puisnes, in a popular periodical, and this paper your Lordships allowed Mr. Talbot to read as part of his argument, to which, nevertheless, it added nothing either in learning or in cogency. Such observations, too, have often been employed by judges of first instance in cases relating to charitable trusts, where there was equally little need for any analysis of the proposition or for discussion, either historical or juridical, of its implications. It is fairly clear, too, that men of the utmost eminence have thought, and said advisedly, that mere denials of sundry essentials of the Christian faith are indictable as such. Hawkins, in his Pleas of the Crown, bk. i., ch. 26, p. 358, says that “all blasphemies against God; as denying His being ….” as well as “all profane scoffing at the Holy Scripture” are punishable offences, and adds as the reason for punishing the latter that offences of this nature “tend to subvert all religion or morality, which are the foundation of government.” Blackstone, bk. iv., p. 59, describes a class of “offences more immediately against God and religion” consisting in “blasphemy against the Almighty, by denying his being or providence” or “contumelious reproaches of our Saviour Christ,” and refers to this head “all profane scoffing at the holy scripture or exposing it to contempt and ridicule.” Probably few great judges have been willing to go further in questions of religious liberty than Lord Mansfield in his eloquent address

 

(1) 15 Cox, C. C. 231; Cab. & E. 126. [*466]

 

to this House in Evans v. Chamberlain of London. (1) Yet there he says: “The eternal principles of natural religion are part of the common law: the essential principles of revealed religion are part of the common law; so that any person reviling, subverting, or ridiculing them may be prosecuted at common law.” Again, the very careful Commissioners on the Criminal Law, of whom Serjeant Starkie was one and Sir William Wightman another, observe in their Sixth Report, p. 85: “Although the law distinctly forbids all denial of the being and providence of God, or the truth of the Christian religion …. it is only where irreligion assumes the form of blasphemy, in its true and primitive meaning, and has constituted an insult both to God and man, that the interference of the criminal law has taken place.” Nevertheless it seems to need no citation of authorities (the opinions of the majority of the Judges in your Lordships’ House in Shore v. Wilson (2) having been fully discussed) to show that a temperate and respectful denial, even of the existence of God, is not an offence against our law, however great an offence it may be against the Almighty Himself, and, except for Cowan v. Milbourn (3), it has never been decided outside of the region of charitable trusts that such a denial affects civil rights. I cannot bring myself to think that it does so. What, after all, is really the gist of the offence of blasphemy, or of its nature as a cause of civil disability? Ribaldry has been treated as the gist, which must be a temporal matter; as between creature and Creator, how can the bad taste or the provocative character of such a denial come into question? The denial itself, not the mode of it, must be what merits the Divine anger: but that is an offence against God. Our Courts of law, in the exercise of their own jurisdiction, do not, and never did that I can find, punish irreligious words as offences against God. As to them they held that deorum injuriae dis curae. They dealt with such words for their manner, their violence, or ribaldry, or, more fully stated, for their tendency to endanger the peace then and there, to deprave public morality generally, to shake the fabric of society, and to be a cause of civil strife. The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable

 

(1) 2 Burn’s Ecc. Law, p. 218; 16 Parly. History, pp. 315, 317.

 

(2) 9 Cl. & F. 355.

 

(3) L. R. 2 Ex. 230. [*467]

 

or insecure in fact, or is believed by its reasonable members to be open to assault. In the present day meetings or processions are held lawful which a hundred and fifty years ago would have been deemed seditious, and this is not because the law is weaker or has changed, but because, the times having changed, society is stronger than before. In the present day reasonable men do not apprehend the dissolution or the downfall of society because religion is publicly assailed by methods not scandalous. Whether it is possible that in the future irreligious attacks, designed to undermine fundamental institutions of our society, may come to be criminal in themselves, as constituting a public danger, is a matter that does not arise. The fact that opinion grounded on experience has moved one way does not in law preclude the possibility of its moving on fresh experience in the other; nor does it bind succeeding generations, when conditions have again changed. After all, the question whether a given opinion is a danger to society is a question of the times and is a question of fact. I desire to say nothing that would limit the right of society to protect itself by process of law from the dangers of the moment, whatever that right may be, but only to say that, experience having proved dangers once thought real to be now negligible, and dangers once very possibly imminent to have now passed away, there is nothing in the general rules as to blasphemy and irreligion, as known to the law, which prevents us from varying their application to the particular circumstances of our time in accordance with that experience. If these considerations are right, and the attitude of the law both civil and criminal towards all religions depends fundamentally on the safety of the State and not on the doctrines or metaphysics of those who profess them, it is not necessary to consider whether or why any given body was relieved by the law at one time or frowned on at another, or to analyse creeds and tenets, Christian and other, in which I can profess no competence. Accordingly I am of opinion that acts merely done in furtherance of paragraph 3 (A) and other paragraphs of the respondents, memorandum are not now contrary to the law, and that the appeal should be dismissed.

 

LORD BUCKMASTER. My Lords, the terms of the will of the testator and the circumstances leading up to this appeal do not demand [*468] close attention, for according to the appellants’ argument the whole question to be decided depends upon the meaning of the 3rd article of the memorandum of association of the respondent company, and upon the determination of whether this article, properly construed, renders the real object of the respondent company either criminal or illegal as contrary to the common law. The point of construction must be decided by considering the fair meaning of the language used and without resort to external means. Neither the documents preliminary to the incorporation of a company registered with a memorandum of association, nor the action of directors after a company has been formed, can properly be received in evidence for the purpose of determining what the objects of the company may be.

 

Clause 3, sub-head (A) of the memorandum defines the main object of the company in these words: “To promote, in such ways as may from time to time be determined, the principle that human conduct should be based upon natural knowledge, and not upon super-natural belief, and that human welfare in this world is the proper end of all thought and action.”

 

Upon this follow a series of objects which in themselves it is not suggested are obnoxious to the law, while the last sub-head of the clause is in general terms and gives power “to do all such other lawful things as are conducive or incidental to all or any of the above objects.” Without this last provision the true construction of the memorandum would involve the view that if the defined objects could be attained, either by lawful or by unlawful means, it was only those that were lawful that were permitted. But the latter provision makes the meaning quite plain.

 

This conclusion, however, does not affect the appellants’ case, which depends upon the assertion that there are no lawful ways by which the objects of the society can be carried out. It is said that the true meaning of the memorandum is to encourage the propagation of doctrines directly contrary to the Christian faith – doctrines that are inimical to the central principle of Christianity and incapable of reconciliation with any essential portion of its creeds. Warrington L.J., indeed, thought that to promote such objects would be to promote atheism, and as this may be a material matter it is necessary to state the reasons why I am unable to accept this view. [*469] Natural law may, as it seems to me, be properly regarded as part of the Divine purpose, revealed through the instrument of reason; and if natural knowledge be accepted, as on this assumption it must, as equivalent to the truth, then to take that as the basis of human conduct, as the first part of the clause directs, does not, to my mind, necessarily mean that a belief in God is thereby excluded.

 

The latter part of the clause, which says that human welfare in this world is “the proper end of all thought and action,” is more difficult. That human welfare is a proper end of thought and action few would dispute – it is the end on which the noblest minds have concentrated their highest effort; even if it be regarded as the sole object, I can conceive it being steadfastly pursued by people who possessed a firm belief in a supreme invisible Power using the instrument of man’s agency to accomplish the Divine will. That this clause of the memorandum defines an object contrary to the generally accepted conception of the Christian faith is, I think, assented to by all who have heard this case, and from this view I am not prepared to dissent. It is not necessary, and if unnecessary it is certainly not desirable, to attempt a definition of what the law would regard as the essential features of that faith. It is sufficient to say that the respondent company has as its main object the propagation of doctrines hostile to the Christian religion, and the question to be determined is whether it is in consequence an illegal association – incapable of receiving or holding property.

 

This objection is stated by Mr. Talbot (to whom I am much indebted for his research and for the matter and manner of his argument) by saying that such doctrine offends, in the first case, against the common law, which prohibits blasphemy. He regards the essence of legal blasphemy as the publication of matter denying or hostile to the Christian faith, and he rejects the interpretation put upon it by Erskine J. in Shore v. Wilson (1), by Lord Denman C.J. in Reg. v. Hetherington (2), and by Lord Coleridge C.J. in Reg. v. Ramsay (3), each of whom states the law so as to limit the offence to the act of denial associated with ribald, contumelious, or scurrilous language

 

(1) 9 Cl. & F. 355, 524.

 

(2) 4 St. Tr. (N.S.) 563, 590.

 

(3) 15 Cox, C. C. 231. [*470]

 

or conduct. I am unable to accept the appellants’ contention as correct. To do so would involve the conclusion that all adverse critical examination of the doctrines of Christianity – even though it was conducted with the utmost reverence – was a blasphemous publication which rendered the writer liable to criminal proceedings. It would, indeed, be hard to find a worse service that could be done to the Christian faith than to prevent people from explaining and inviting an answer to the reasoned convictions that led them to question its truth.

 

The common law which forbids blasphemy is to be gathered from usage and custom, and it is a striking fact that with one possible exception – the case of Rex v. Woolston (1) – every reported case upon the matter, beginning with Rex v. Taylor (2), and continuing down to Reg. v. Ramsay (3) and Rex v. Boulter (4), is a case where the offence alleged was associated with, and I think constituted by, violent, offensive, or indecent words.

 

That it was considered necessary to report the earlier cases as precedents affords, to my mind, a strong presumption that it was the character of the attack which constituted the crime, for if the law was well recognized as forbidding any adverse criticism, the cases where such criticism was coarse and disgraceful would be too plain to merit preservation. In my opinion, therefore, the common law of England does not render criminal the mere propagation of doctrines hostile to the Christian faith. The crime consists in the manner in which the doctrines are advocated, and whether in each case this is a crime is a question for the jury, who should be directed in the words of Erskine J. in Shore v. Wilson (5), quoted by the Master of the Rolls in his judgment on the present case.

 

It is then said that, even if this be conceded, the object of the society is illegal, not in the sense that acts done to further its objects would be criminal, but that they are of such a nature as to be incapable of establishing a legal right to receive money for their furtherance. I find it difficult to appreciate this distinction, but I understand the contention to be that Christianity is part of the common law of England, and it must, therefore, be illegal,

 

(1) Fitzg. 64; 2 Str. 834.

 

(2) 1 Vent. 293.

 

(3) 15 Cox, C. C. 231.

 

(4) 72 J. P. 188.

 

(5) 9 Cl. & F. 524, 525. [*471]

 

even if it were not criminal, for any body of people to promote doctrines that are hostile to its creed. If this argument be carried to its full extent, it will really show that Unitarians, Positivists, Comtists, and other similar religious and ethical bodies, unless relieved by statute, are illegal associations, for the Christianity known to the common law is certainly not Unitarian Christianity, nor is it reconcilable with the doctrines of Comte or Hegel. Again, it would result that editors and publishers would be able to deny payment to contributors and authors whom they had expressly employed to write philosophical and scientific articles or books if it could be decided that the work was anti-Christian, while no one could be compelled to pay for any such books when purchased. Indeed, the doctrine, as it seems to me, would apply to a great deal of classical and scientific literature, and the conditions which would condemn these works might vary from year to year as different views from time to time prevailed.

 

It is quite right to point out that, if the law be as the appellants contend, these considerations afford an argument for its alteration, but do not prove that it does not exist. If, on the other hand, the law is not clear, it is certainly in accordance with the best precedents so to express it that it may stand in agreement with the judgment of reasonable men.

 

Apart from the criminal cases already mentioned certain authorities are referred to, which, if correctly decided, do appear to afford support for the appellants, argument. The case of De Costa v. De Paz (1), a decision of Lord Hardwicke’s, is one of these authorities; and In re Bedford Charity (2) is a decision of Lord Eldon’s, containing statements to the same effect; and so also is the case of Briggs v. Hartley. (3) The first of these was a gift for the purpose of providing a fund to be applied for ever for the reading of the Jewish law and for advancing and propagating the Jewish faith. It was certainly open to argument that this was not a charitable bequest and was consequently void as a perpetuity. But it was not upon this ground that the decision was based; it was held that it was a charity (see the report in Ambler), but that the mode of disposition was such that it could

 

(1) 2 Swanst. 487, note (a); Amb. 228.

 

(2) 2 Swanst. 470.

 

(3) 19 L. J. (Ch.) 416. [*472]

 

not take effect. It is true that in the report in 2 Swanston the reason why the gift to the specific object of the charity was held inoperative was because it was contrary to the Christian religion, but in Ambler it is stated that the objects were contrary to the “established” religion, and as at that date the statutory disabilities under which the adherents of the Jewish faith suffered had not been removed this might have been sufficient for the purpose of the case; indeed, on any other view it is hard to understand why if the whole object was illegal it was supported as a charity at all. I do not, however, propose further to pursue this question, as I have had the advantage of reading Lord Parker’s opinion, and with it I am in entire agreement. The second case was merely a question as to whether Jews might enjoy the benefits of a particular charity, and it was held they might not. The last was a legacy for the best essay on Natural Theology treated as a science, and sufficient when so treated and taught to constitute a true, perfect, and philosophical system of universal religion; and it was held bad for no further reason than that it was not consistent with Christianity, but the law was in no way examined or criticized.

 

In the two earlier cases it was stated that Christianity is part of the law of the land, and the authorities quoted in support of the proposition are the cases of Rex v. Taylor (1) and Rex v. Woolston (2); but the pronouncements of Lord Hale and Lord Raymond in these cases must be taken in reference to the subject-matter of the case, which, in one instance certainly, and in the other possibly, was a prosecution for scurrilous blasphemy.

 

If the reasons for the decision in De Costa v. De Paz (3) were those urged by the appellants I should not regard them as correct. If a gift to endow any body that propagates doctrines hostile to the generally accepted view of the Christian religion was at any time contrary to the common law, it is, in my opinion, contrary at the present time, and gifts to Unitarians and similar religious bodies for the support and endowment of their religious faith are now void. It is urged in answer to this that the position with regard to Unitarians, as also with regard to Jews, is altered by two statutes – the one 53 Geo. 3, c. 160, and the other 9 & 10 Vict.

 

(1) 1 Vent. 293.

 

(2) Fitzg. 64; 2 Str. 834.

 

(3) 2 Swanst. 487, note (a); Amb. 228. [*473]

 

c. 59. I am unable to accept this view. The statutory position appears to me to be plain. By the Act of 1 Will. & Mar. c. 18 (generally known as the Toleration Act) it is provided that no penalties shall apply to any person dissenting from the Church of England that shall take the oaths that are specified in 1 Will. & Mar. c. 1 and in 30 Car. 2, stat. 2, and (as to persons in orders) accept the Articles of Religion, excepting Articles 34, 35, and 36, and certain words of the 20th Article. But Papists and those denying the doctrines of the Blessed Trinity as declared in the said Articles of Religion are omitted from the protection of this statute. The penalties from which this statute grants relief are statutory penalties and disabilities, and it left the common law exactly what it was.

 

The Act known as the Blasphemy Act (9 & 10 Will. 3, c. 32) is really an Act directed against apostates from the Christian faith, and that Act again provides certain penalties, cumulative and severe on second conviction, for any person who, having been educated in, or at any time having made profession of, the Christian religion within this realm, shall by writing or advised speaking deny any one of the Persons of the Holy Trinity to be God, or who shall assert that there are more gods than one, or shall deny the Christian religion to be true. This is a disabling statute still unrepealed, imposing penalties so severe that it is said no prosecution has ever been instituted under its provisions. Its terms, therefore, demand the narrowest and most jealous scrutiny. The fact that it has only incidentally been brought under judicial notice may explain the loose and, as I think, erroneous references made to its effect, as for example by Lord Lyndhurst in Shore v. Wilson (1), where he says that “those persons who by preaching denied the doctrine of the Trinity …. are subject to the penalties of the Act,” and again by Bramwell B. in Cowan v. Milbourn (2) This is not accurate; only those persons who had been educated in, or had at any time made profession of, the Christian religion within the realm could incur the statutory penalties.

 

The Act 53 Geo. 3, c. 160, repeals so much of the Toleration Act as provides that the exemption of the statute shall not extend so as to give its advantage or benefit to persons denying the doctrine

 

(1) 9 Cl. & F. 355, 397.

 

(2) L. R. 2 Ex. 230. [*474]

 

of the Blessed Trinity, and for the purpose of making this exemption effectual it repeals, as far as was necessary, 9 & 10 Will. 3, c. 32. The statute of 9 & 10 Vict. c. 59 (the Religious Disabilities Act, 1846) provides that persons professing the Jewish religion shall, in respect of their schools, places of religious worship, educational and charitable purposes, and property held by them, be subject to the same laws as His Majesty’s Protestant subjects who dissent from the Church of England. This means that they are freed from all disabilities imposed by statute and open to all existing at common law. This is the view expressly stated by Lord Eldon in Attorney-General v. Pearson (1), and is in agreement with the decisions in Rex v. Richard Carlile (2) and Rex v. Waddington.(3)

 

So far as holding property is concerned Jews are to be regarded as being in the same position as His Majesty’s Protestant subjects who dissent from the Church of England. This must be taken to mean that they can hold property; for the common law – whatever its scope – did not specially safeguard what we now know as the Established Church, but the Christian faith. And there was never anything, apart from statutory disabilities, to prevent Protestant dissenters from holding property: Attorney-General v. Pearson. (4) Of course, while any particular belief was made the subject of penalty by statute, a gift to further the purpose of that belief would be contrary to the statute law; but when once the statutory disability was removed, unless some disability could be found outside, there could be nothing to hinder the gift of money for the purpose of any such association.

 

It is this that explains the case of West v. Shuttleworth (5), which was a decision on the statute in relief of Roman Catholics similar to that in relief of Jews (2 & 3 Will. 4, c. 115). Now the Roman Catholic religion – whatever views may be taken of the Reformation – was certainly never contrary to the common law; and therefore, when once the statutory prohibitions were taken away, the receipt of money for the general purpose of their faith was not forbidden. In the case of Shrewsbury v. Hornby (6) a gift in support of Unitarian doctrine was held

 

(1) 3 Mer. 353, 405.

 

(2) 3 B. & Al. 161.

 

(3) 1 B. & C. 26.

 

(4) 3 Mer. 353, 409, 410.

 

(5) 2 My. & K. 684.

 

(6) 5 Hare, 406. [*475]

 

good, and it is suggested that this was because 53 Geo. 3, c. 160, repealed the common law so far as it affected Protestant ministers. I am unable to find that the statute effects this purpose. If by implication any part of the common law is repealed there would appear to be no particular reason why it should be repealed so as to allow a special class of Protestant dissenters – but not other people – to deny the doctrine of the Holy Trinity. It would, indeed, be strange if the publication of a book, or the delivery of a lecture, would be legal or illegal according to the religious opinion of the person who wrote it, and not according to its contents. If any repeal at all had been effected by these Acts it would, in my opinion, have been the repeal of the whole doctrine had it ever existed; but the true view, in my judgment, is that it did not exist. The common law throughout remains unaffected; and I cannot find any case except Briggs v. Hartley (1) where as a necessary step in the decision it is enunciated in terms as wide as are necessary to support the appellants’ case. For example, in Thompson v. Thompson (2) it was held that a gift will be supported for the encouragement of the general doctrines advocated in a testator’s writings if neither atheism, sedition, nor any crime or immorality is to be inculcated. Again, in Harrison v. Evans (3) Lord Mansfield defined the common law in these terms: “There never was a single instance, from the Saxon times down to our own, in which a man was ever punished for erroneous opinions concerning rites or modes of worship, but upon some positive law. The common law of England, which is only common reason or usage, knows of no prosecution for mere opinions. For atheism, blasphemy, and reviling the Christian religion, there have been instances of persons prosecuted and punished upon the common law.” It is unnecessary to determine whether and under what circumstances the promulgation of atheism is illegal, for by “atheism” in this connection I understand a disbelief in one eternal and invisible God, and I have already stated my views that the respondents’ objects do not properly include the advocacy of such a doctrine. Blasphemy is constituted by violent and gross language, and the phrase “reviling the Christian religion” shows that without vilification there is no offence.

 

(1) 19 L. J. (Ch.) 416.

 

(2) 1 Coll. 381, 397.

 

(3) 2 Burn’s Ecc. Law, 207, 218. [*476]

 

I am glad to think that this opinion is supported by the carefully considered and weighty utterances of many learned judges. The case of Shore v. Wilson (1), in its actual result, depended upon a question of construction of deeds of trust and upon special facts and, so regarded, the decision could have but little application to other disputes; but when the case was before this House the opinions of the judges were taken on certain questions, and the sixth question was this: “Whether such (i.e., Unitarian) ministers, preachers, widows and persons are in the present state of the law incapable of partaking of such charities or any and which of them.”

 

Erskine J. (p. 525), Coleridge J. (p. 539), Maule J. (p. 509), Williams J. (p. 545), Gurney B. (p. 554), Parke B. (p. 565), and Tindal C.J. (p. 578) all agreed in thinking that they were not. It is true that Coleridge J. based his opinion upon the ground that Unitarians were Christians, but Maule J. stated that there was no authority to show that teaching Unitarian doctrine was contrary to the common law, and Erskine J. stated that it was open to any man “without subjecting himself to any penal consequences soberly and reverently to examine and question the truth of those doctrines which have been assumed as essential to the Christian faith.”

 

There is indeed to be found in certain of these opinions indications of the view expressed in Rex v. Woolston (2) that it is not illegal to deny any doctrine of the Christian faith, but that it is to deny them all collectively. I cannot accept this view of the law. The Christianity offences against which are illegal at common law is the Christianity known to the common law, and Unitarian Christianity is opposed to the central doctrine of this faith.

 

There remains the case of Cowan v. Milbourn (3), in which the distinction urged by the appellants is clearly stated by Bramwell B.; but it is equally clear that he misconceived the meaning of the Blasphemy Act, for he based his judgment on the statement that the hirer “proposed to use the rooms for purposes declared by the statute to be unlawful,” but, as I have already shown, the statute had no such comprehensive scope.

 

I am unable to ascertain what is the real reason upon which the distinction is supported. It appears to me that offences against

 

(1) 9 Cl. & F. 355.

 

(2) 2 Str. 834.

 

(3) L. R. 2 Ex. 230. [*477]

 

Christianity, so far as they are recognized by law, are either statutory offences, leading to statutory penalties, or they are criminal offences at common law, punishable by the criminal Courts, and I am unable to see how such offences, if not so punishable, exist at all, or how in this connection an act can be illegal without being the subject of prosecution, for even if it be accepted that Christianity is part of the common law it does not follow that it is illegal to question its wisdom or its truth. The analogy of the cases with regard to restraint of trade and immorality of consideration does not appear to me to be sound. Restraint of trade, though contrary to the common law of England, never was a criminal offence; and, again, acts of immorality, though not criminal, cannot be made a consideration sufficient to support a contract, nor can a contract entered into to further such acts be enforced in the Courts. The latter of these classes of case are those which offend against good morals – the former are those contrary to public policy. The alleged offence in this case is neither one nor the other. The common law of England, in the words of Lord Mansfield, “knows no prosecution for mere opinion,” and if the holding of opinion be not contrary to the common law, I cannot see why its expression should be unlawful, provided such expression be kept within proper limits of order, reverence, and decency. If this be so, a society to propagate such opinions, if properly conducted, is not an illegal society.

 

I have only to add that, apart altogether from these considerations, I think that the respondents are well founded in arguing that since the company is a legal entity, and as some at least of its objects are on the face of them lawful, there is no ground upon which it is possible to prevent them from receiving money which has been the subject of a bequest in their favour.

 

I cannot accede to the argument that the later purposes in the memorandum, which, taken alone, must be regarded as proper and lawful objects, become unlawful because they are associated with the first purpose of the memorandum. If an unequivocal act be lawful in itself the motive with which it is performed is immaterial; and, if it be said that all the later purposes are the instruments by which the first purpose may be effected, this, as it seems to me, may be an argument for showing that the first purpose is lawful, but it cannot establish that the later purposes are not. [*478]

 

Even if all the objects of the company were illegal, it would not follow that while the certificate of incorporation remained unrevoked the company would be unable to receive money. It is a mistake to treat the company as a trustee, for it has no beneficiaries, and there is no difference between the capacity in which it receives a gift and that in which it obtains payment of a debt. In either case the money can only be used for the purposes of the company, and in neither case is the money held on trust. If, by oversight, or mistake a company were incorporated for wholly illegal objects, the right course to follow, where its capacity to receive money was questioned in legal proceedings, would be to direct an adjournment till proper steps had been taken to revoke the incorporation. This matter has been so fully dealt with by Lord Parker, with whose views I entirely agree, that I do not desire to elaborate it further. For these reasons I am of opinion that this appeal should be dismissed.

 

The question of costs was considered on May 17.

 

Order of the Court of Appeal affirmed and appeal dismissed with costs.

 

Lords’ Journals, May 17, 1917.