Bowman v Secular Society Ltd

Lorp Fintay 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 publi-
cation of its discoveries.

(1) L. RB. 2 Ex. 230. (2) 29 Beav. 589.

A. C. AND PRIVY COUNCIL.

"(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.

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

"(r) To promote an alteration in the laws concerning religion,
so that all forms of opinion may have the same legal rights of propa-
ganda and endowment.

"(@) 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.

"(#) 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 (0)
of the 3rd paragraph are subsidiary. I agree with what is said by
the founder of the respondent society in an article from the Free-
thinker, 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 (p) and (£), 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 Ist clause
of paragraph 3. That clause, in my opinion, lays down quite
clearly that human conduct should not be based upon supernatural

419

H. L. (E.)
1917

ss

BOowMAN
v,
SECULAR
SOCIETY,
LIMITED.

Lord Finlay
L.C.

4

20

Bits CE)
1917

BowMAN
ve
SECULAR
SOCIETY,
LIMITED.

Lord Finlay
L.C.

HOUSE OF LORDS 11917]

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 certi-
ficate 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 Corpora-

A.C. AND PRIVY COUNCIL.

tion (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 (Consolida-
tion) 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 incor-
poration, 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 pro-
motion 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 blas-
phemy." '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.

A. ©. 1917. 3 2F

421

H. L, (E.)
1917

BowMAN
v.
SECULAR
SOCIETY,
LIMITED,

Lord Finlay
LC.

422,

H. L. (E.)
1917

BOWMAN
Re
SECULAR
SOCIETY,
LIMITED.

Lord Finlay
L.C.

HOUSE OF LORDS [1917]

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 IT. ; 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.) Rea 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 (8) ).
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

3B. & Al. 167.

) 15 Cox, C. C. 281, 238. 5) 3B.

6) (1812) 31 St. Tr. 927.
7) 1B.

8)

(1 (
(2) 1 Vent. 293. (
(3) Fitzg. 64; 2 Str. 834; 1 ay al & C. 26.
Barn. K. B. 162. (8) 5 Jur. 529; 4 St. Tr. (N.S.)
(

4) 26 St. Tr. 653. 563+

A. C. AND PRIVY COUNCIL.

reference to this element that in a passage in the report in 1 Bar-
nardiston, 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 con-
troversy 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 appel-
lants' 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 judg-
ment 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) —(2):15 Cox, ©. C. 231, 238.

563. (3) 724 dis 12, Weta,
(4) L. R. 2 Ex. 230, 233, 236.
3 2F 2

423

H. L. (E.)
1917

BOWMAN
v.
SECULAR
SOCIETY,
LIMITED.

Lord Finlay
L.C.

494

H. L.(E.)
1917

Zs
BOWMAN
v.
SECULAR
SOCIETY,

LIMITED.

Lord Finlay
L.C.

HOUSE OF LORDS [1917]

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 consti-
tute 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.
Mulbourn. (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 defen-
dant, 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.

A. C. AND PRIVY COUNOIL.

duty to allow the question raised to remain in any doubt. That
question is, whether one who has contracted to let rooms for a pur-
pose 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 there-
fore 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 con-
sequence would be that, inasmuch as no penalty is provided by the

LIMITED.

Lord Finlay
Re,

426

Hoi. (E;)
1917

——

BOWMAN

v
SECULAR
SOCIETY,
LIMITED.

Lord Finlay
Lis,

HOUSE OF LORDS [1917]

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 | am 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 punish-
able, 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. Hariley (2)
and Cowan v. Milbourn (3), and says : " Whatever may have been the

(1) [1915] 2 Ch. 463-4. (3) L. R. 2 Ex. 230.
(2) 19 L. J. (Ch.) 416. (4) [1915] 2 Ch. 466-7.

A. C. AND PRIVY COUNCIL.

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 con-
nection 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) be Ro Ex. 230.
(3) [1915] 2 Ch. 473.

427

H. L. (E.)
1917

—
BOWMAN
v,
SECULAR
SOCIETY,
LIMITED. .

Lord Finlay
L.C.

428

H. L. (E.)
1917

—

BOWMAN

OF
SECULAR
SOCIETY,
LIMITED.

Lord Finlay
L.C.

HOUSE OF LORDS [1917]

a change in a principle of law by judicial decision. Such changes
in public opinion may lead to legislative interference and sub-
stantive alteration of the law, but cannot justify a departure by
any Court from legal principle, however they may affect its appli-
cation 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 1200/. 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 propa-
gating 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. (3) 2 Swanst. 487, note (a), 488-
(2) L. R. 2 Ex. 230. 490; Amb. 228.

AGC, AND PRIVY COUNCIL.

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 constitu-
tion 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 con-
nived 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 pro-
motion of a faith contrary to Christianity. Secularism, as explained
in the respondents' memorandum, is much more contrary to Chris-
tianity 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.

429

H. L. (E.)
1917

=
30W MAN
Ch
SECULAR
SOCIETY,
LIMITED.

Lord Finlay
L.C.

430

A. (E.)
1917

——
BOWMAN
Vv.
SECULAR
SOCIETY.
LIMITED.

Lord Finlay
L.C.

HOUSE OF LORDS [1917]

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-Chan-
cellor (Sir J. L. Knight Bruce) said: "' Understanding it to
be admitted, that the testator's writings, published and unpub-
lished, 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 inculeated

(1) Jac. 471. (3) Feb., 1822.
(2) Ibid. 473. (4) 1 Coll. 381, 392, 397.

A. C. AND PRIVY COUNCIL.

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 (8):
" 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. Mulbourn (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. (4) 2 Swanst. 487, note (a);
(2) 29 Beav. 589. Amb. 228.

(3) Ibid. 601. (5) L. R. 2 Ex. 230.

431

H. L. (B)
1917

—vo—
BOWMAN
%,
SECULAR
SOCIETY,
LIMITED.

Lord Finlay
L.C.

432,

H. L. (BL)
1917

ROWMAN
Vv.
SECULAR
SOCIETY,
LIMITED,

Lord Finlay
L.C,

HOUSE OF LORDS [1917]

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 incorpora-
tion. 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.

Lorp Dunzpin. My Lords, before I had committed my views in
this case to writing I had the advantage of seeing not only the judg-
ment 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

A.C. AND PRIVY COUNCIL.

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 with-
out going counter to what has been said by judges of great authority
in past generations. It is always, I feel, no light matter to over-
rule 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) respec-
tively 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 assist-
ance 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. Nowif money was laid out in either procuring publica-
tions 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. .

433

H. L. (E.)
1917

—S—>

BOwMAN

Us
SECULAR
SOCIETY,
LIMITED.

Lord Dunedin.

434

H. L. (E.)
1917

—S—

BOWMAN

VU.
SECULAR
SOCIETY,
LIMITED.

Lord Dunedin.

HOUSE OF LORDS [1917]

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 pro-
fession 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 imnocuous
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 beimg 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. Havrt-
ley (1), and in favour of the view Iam 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 disqualifi-
cations, 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.

A. C. AND PRIVY COUNCIL.

in the words used by Shadwell V.-C. in Briggs' Case (1), " con-
sistent 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.

Tt 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, | 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.

435

AL.
1917

BOWMAN
%
SECULAR
SOCIETY,
LIMITED.

Lord Dunedin.

436

H. L. (E.)
1917

BOWMAN
v,
SECULAR
SOCIETY,
LIMITED,

HOUSE OF LORDS [1917]

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.

Lorp ParKER oF WappINncTon. (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 elemen-
tary 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.

A.C. AND PRIVY COUNCIL.

of the subject-matter, and that the donee must be capable of
acquiring the subject-matter. Ifa 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 circum-
stances, 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 unenforce-
able 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 500/. 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 500/. to A., where conversations had taken place between

A. and the testator as to the purposes for which the legacy should
A. 0. 1917. 3 2G

437

H. L. (E.)
1917

——

BOWMAN
v.
SECULAR
SOCIETY,
LIMITED.

Lord Parker of
Waddington.

438

H. L. (E.)
1917

——_~

BOWMAN

Vv.
SECULAR
SOCIETY,
LIMITED.

Lord Parker of
Waddington.

HOUSE OF LORDS [1917]

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 Ist 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

A. C. AND PRIVY COUNCIL.

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 other-
wise 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 memoran-
dum 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 asso-
ciation, 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 autho-
rized 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.
3 2G 2

439

H. L. (E.)
1917 -

BOWMAN
wv
SECULAR
SOCIETY,
LIMITED.

Lord Parker of
Waddington.

440

HOUSE OF LORDS [1917]

H.L.(B.) of the Companies Act, 1900, nor the corresponding section of the

1917
——
BOWMAN
»%
SECULAR
SOCIETY,
LIMITED.

Lord Parker of
Waddington.

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 capa-
city 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 some-
thing 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 suciety 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 1s 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 sub-
ject-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 other-

wise, 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 com-
(1) L. R. 7 H. L. 653.

A.C. AND PRIVY COUNCIL.

pany 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 charit-
able, 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. Ifa gift to a corporation expressed to be made for its cor-
porate 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 neces-
sarily charitable: Morice v. Bishop of Durham (2); James v.

(1)f(1834) 1 My. & K. 420. (2) (1805) 10 Ves. 522.

441

He CEs)
1917

——

BOWMAN

Vv.
SECULAR
SOCIETY,
LIMITED.

Lord Parker of
Waddington.

442,

Bel. (2.)
1917

—S~

BOWMAN

v.
SECULAR
SOCIETY,
LIMITED.

Lord Parker of

Waddington.

HOUSE OF LORDS [1917]

Allen (1); In re Jarman's Estate, (2) Now if your Lordships
will refer for a moment to the society's memorandum of asso-
ciation you will find that none of its objects, except, possibly,
the first, are charitable. The abolition of religious tests, the dis-
establishment 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. Hquity
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,

a te ES ee ee <
not because it-is illegal, for every one is at liberty to advocate or

promote by any lawful means a change im 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 charit-
able 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 Themmnes 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. (3) 31 Beay. 14
(2) (1878) 8 Ch. D. 584. (4) (1828) 5 Russ. 288

A.C. AND PRIVY COUNCIL.

of the application of the rule is the case of De Coste 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 Hard-
wicke 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 memoran-
dum, 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 memo-
randum must be the paramount object, and that all the other
specified objects must be subsidiary or subordinate. Such an assump-
tion introduces a new, and in my opinion a very dangerous, canon of
construction. Moreover, in the present case it appears to be incon-
sistent 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.

443

HLA (ES)
1917

——

BOWMAN

v
SECULAR
SOCIETY,
LIMITED.

Lord Parker of
Waddington,

444

H.L, (BE)
1917

ee;
BOWMAN
Vv.
SECULAR
SOCIETY,
LIMITED.

Lord Parker of

Waddington.

HOUSE OF LORDS [1917]

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 (1), is ' to assist by votes of money or otherwise other
societies or associated persons or individuals who are specially pro-
moting," 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 charit-
able 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 prin-
ciple 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

Axe: AND PRIVY COUNCIL.

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 know-
ledge 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 nar-
rowly 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. Hven 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 pro-
motion 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 blas-
phemy 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

445

H. L, (E.)
1917

——
BOWMAN
v
SECULAR
SOCIETY,
LIMITED.

ord Parker of
Waddington.

446

H.L. (E)
1917

SECULAR
SOCIETY,
LIMITED.

Lord Parker of
Waddington.

HOUSE OF LORDS (1917)

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 irreve-
rence 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 expres-
sion 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. Chris-
tianity 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 Blas-
phemy 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 prose-
cution 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

A. C. AND PRIVY COUNCIL.

in question is against public policy as opposed to being illegal in
the criminal sense the appellants relied principally on two authori-
ties—namely, Cowan v. Milbourn (1) and Briggs v. Hartley. (2)
In the former case the Court, consisting of Kelly 0.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, there-
fore, 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.

447

ean)
1917

BOWMAN
Vv.
SECULAR
SOCIETY,
LIMITED.

Lord Parker of
Waddington.

448

H. L. (E.)
1917

BOWMAN
OF
SECULAR
SOCIETY,
LIMITED.

Lord Parker of
Waddington.

HOUSE OF LORDS [1917]

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 unaccom-
panied 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 Reforma-
tion 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,

A. C. AND PRIVY COUNCIL.

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 contaimed 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 distince-
tion 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)553 Geo. 3, c. 160.

449

H. L. (E.)

vw
SECULAR
SOCIETY,
LIMITED.!

Lord Parker of
Waddington.

450

H. L. (E.)
1917

——

BowMAN

OG
SECULAR
SOCIETY,
LIMITED.

Lord Parker of
Waddington.

HOUSE OF LORDS [1917]

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 prés applica-
tion. 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 statu-
tory 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. Gomperiz. (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 prés application.

My Lords, apart from the question of religious trusts there is one
authority directly in poimt. In Pare v. Clegg (8) 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); (2) (1786) cited in 7 Ves. 61.
Amb. 228. (8) 29 Beav. 589, 596.

A. C. AND PRIVY COUNCIL.

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 expres-
sion, 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, pro-
vided the testator's writings, published or unpublished, contained
nothing " irreligious, illegal or immoral."

My Lordsy in my opinion the authorities I have mentioned are
sufficient to establish that the first object of the society's memoran-
dum 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 irre-
ligious, for itis 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 Beay. 589.
(3) 9 Cl. & F. 355, 539.

451

H. L. (B.)
1917

—

BOWMAN
».
SECULAR
SoOcIETY,
LIMITED,

Lord Parker of
Waddington.

452

H. L, (E.)
1917

——

BowMAN

uv.
SECULAR
SOCIETY,
LIMITED.

Lord Parker of
Waddington.

HOUSE OF LORDS [1917]

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.

©

Lorp 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 requisi-
tions of this Act in respect of registration have been complied
with" (Companies Act, 1862, s. 18), and that the respondent
society 1s 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.

A. C. AND PRIVY COUNCIL

to the first and some are so expressed. It is true that object (K)
is "' to publish books," and object (1) " 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 con-
strued 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 con-
strued 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 share-
holders 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.
A. O. 1917. 3 2H

453

H. L. (E.)
1917

ae
BOWMAN
v,
SECULAR
SOCIETY,
LIMITED.

Lord Sumner,

454

H. L. (E.)
1917

——
BOWMAN
OF
SECULAR
SOCIETY,
LIMITED.

Lord Sumner.

HOUSE OF LORDS [1917]

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 Chris-
tianity 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 Par-
liament 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. 'T7338; 735 7 Wb°Cox, C, 0; 231, 935.

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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 welfaie of this kingdom."
That the Blasphemy Act simply added new penalties for the com-
mon 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); (3) (1817) 3 Mer. 353, 398, 399.
Amb. 228. (4) Y. B. 34 Hen. 6, fo. 40.
(2) 3 B. & Al. 161. (5) (1649) 4 St. Tr. 1269, 1307.

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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 IT. was one of notorious laxity
both in faith and morals, and for a time it seemed as if the old safe-

(1) (1608) 7 Rep, 17a. (2) (1745) Willes, 538, 542,

A.C. AND PRIVY COUNCIL.

guards 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 blas-
phemy, 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 J'aylor'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 guber-
nationis 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 Govern-
ment, 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. (3) (1617) 2 Roll. Abr. 78.
Tr. 155. (4) (1618) Hob. 236.
(2) 1 Vent. 293. (5) 1 Vent. 293 ; 3 Keb. 607, 621.

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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.

Curls 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 ecclesias-
tical 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. (3) (1727) 2 Str. 788; 1 Barn,
(2) 1 Vent. 293. K. B. 29,

A. C. AND PRIVY COUNCIL'

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 considera-
tions 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 Chris-
tian 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. (3) (1821) 4B. & Al. 329.
(2) 1B. & C. 26. (4) (1838) 2 Lew. 237, 254.

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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 con-
tains 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 relaxa-
tion 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 conclu-
sion 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 con-
viction 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 persecu-
tions, and are therefore unpopular, and so only the gross cases have
been proceeded against. This explains the immunity of the nume-
rous 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, 5380; 4 St. Tr. (S)Rlom Cox Ca Cs Sele teGane

(N.S.) 563. & E. 126.
(2) 4 St. Tr. (N.S.) 693.

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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 imprison-
ment.

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
emda, (24. 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 plaintifi'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 applica-
tion 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 plaintifi's
" Lectures on Physiology." As the lectures seemed to him to ques-
tion 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. Lord Eldon at all events was not
(2) [Two false spellings for which answerable are here corrected.]
(3) Jac. 471.

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imperils copyright in most books on geology. In the present case
the respondents do not appeal for protection to the Court's dis-
cretion, 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 propa-
gating 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 respon-
dents 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 indict-
able 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. (3) 15 Cox, C.C. 231; Cab. & E.

(2) L, R. 2 Ex. 230. 126.
(4) 16 L. T. 290.

A. C. AND PRIVY COUNCIL.

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. Bram-
well 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.

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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 Eng-
land "' 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 Chris-
tianity 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, Chris-
tianity 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 prin-

(1) 19 L. J. (Ch.) 416. (2) (1828) 4 Bing. 628, 641.

A. G. AND PRIVY COUNCIL.

ciples, 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 pro-
position. 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 irre-
ligious 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) Hven 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 charit-
able 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. 1., ch. 26, p. 358, says that "' all blas-
phemies 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 ques-
tions of religious liberty than Lord Mansfield in his eloquent address

(1) 15 Cox, C. C.231; Cab. & E. 126,

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SocIETY,
LIMITED.

Lord Sumner.

466

H: L. (B.D
1917

——

BOWMAN

et,
SECULAR
Sociery,
LIMITED,

Lord Sumner,

HOUSE OF LORDS [1917]

to this House in Hvans 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 consti-
tuted 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
dénial, even of the existence of God, is not an offence against our
law, however great an offence it may be against the Almighty Him-
self, 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 juris-
diction, do not, and never did that I can find, punish irreligious
words as offences against God. As to them they held that deorum
jnjuriae 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 ; (2) 9 Cl. & F. 355.
16 Parly. History, pp. 315, 317. (3) L. BR, 2 Bx. 2380,

A. C. AND PRIVY COUNCIL.

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 con-
ditions have again changed. After all, the question whether a
given opinion isa 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 com-
petence. 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.

Lorp Buckmaster. My Lords, the terms of the will of the testa-

tor and the circumstances leading up to this appeal do not demand

467

Baly GE)
1917

BOWMAN
Vv,
SECULAR
SOCIETY,
LIMITED.

Lord Sumner.

468

H. L. (B.)
1917

—
BOWMAN
v,.
SECULAR
SOCIETY,
LIMITED.

Lord
Buckmaster.

HOUSE OF LORDS [1917]

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 com-
pany 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 défined 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 propa-
gation 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.

A. C. AND PRIVY COUNCIL.

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 con-
trary 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 con-
sequence 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 argu-
ment) 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.
A. 0, 1917. ey a

469

H. L. (E.)
1917

—— '5
BOWMAN

VW
SECULAR
SOCIETY,
LIMITED.

Lord
Buckmaster.

470

H. L. (B.)

1917
=
BOWMAN

vy,
SECULAR
SocIETY,
LIMITED,

Lord

Buckmaster.

HOUSE OF LORDS [1917]

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 con-
tinuing 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 propa-
gation 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. (3) 15 Cox, C. C. 231.

1
(2) 1 Vent. 293. (4) 72 J. P. 188.
(5) 9 CL. & F. 524, 525.

A. C. AND PRIVY COUNCIL.

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 prece-
dents 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 eflect ; 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) ; (2) 2 Swanst. 470.

Amb. 228. (3) 19 L. J. (Ch.) 416.
3 212

471

H. L. (£.)
1917
ee

BOWMAN

v.
SECULAR
SOCIETY,

LIMITED.

Lord
Buckmaster.

SECULAR
SOCIETY,
LIMITED.

Lord

Buckmaster.

HOUSE OF LORDS [1917]

not take effect. Itis 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 had
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. Wool-
ston (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. (3) 2 Swanst. 487, note (a) ;
(2) Fitzg. 64; 2 Str. 834. Amb, 228,

ASC. AND PRIVY COUNCIL.

e. 59. Iam 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 unre-
pealed, 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. Walson (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)f9 Cl. & F. 355, 397. (2) L. R. 2 Ex. 230.

473

H. L. (E.)
1917

a

BOWMAN
v.
SECULAR
SOCIETY,
LIMITED.

Lord
Buckmaster.

474

H. L. (E.)
1917

BowMAN
V.
SECULAR
SOCIETY,
LIMITED,

Lord

Buckmaster.

HOUSE OF LORDS [1917]

of the Blessed Trinity, and for the purpose of making this exemption
effectual it repeals, as far as was necessary, 9 & 10 Will. 3, ¢. 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. (4) 3 Mer. 353, 409, 410.

(2)3 B. & Al. 161. (5) 2 My. & K. 684.
(3) 1 B. & ©. 26. (6) 5 Hare, 406.

A. C. AND PRIVY COUNCIL.

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 com-
mon 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 Chris-
tian 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.

47

H. L. (B.)
1917

BOWMAN
Vv.
SECULAR
SoOcIETY,
LIMITED,

Lord
Buckmaster.

5

476

ee.)
1917

aw)

BOWMAN

©
SECULAR
SOCIETY,
LIMITED,

Lord

Buckmaster.

HOUSE OF LORDS [1917]

I am glad to think that this opinion is supported by the care-
fully considered and weighty utterances of many learned judges.
The case of Shore v. Walson (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 Chris-
tianity 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.

A.C. AND PRIVY COUNCIL.

Christianity, so far as they are recognized by law, are either statu-
tory 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 considera-
tions, 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 imma-
terial; and, if it be said that all the later purposes are the instru-
ments 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.

477

H. L. (8)
1917

—
BOWMAN
v.
SECULAR
SOCIETY,
LIMITED

Lord
Buckmaster.

478

H. L. (E.)
1917

—_
BOWMAN
KAS
SECULAR
SOCIETY,
LIMITED,

Lord

Buckmaster,

HOUSE OF LORDS [1917]

Even if all the objects of the company were illegal, it would not
follow that while the certificate of incorporation remained unre-
voked 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.