[HOUSE OF LORDS.]

AND

Superstitious Uses - Bequest for Masses for Soul of Testator - Bequest to Monastic Order - Statute of Chantries (1 Edw. 6, c. 14) - Roman Catholic Relief Act, 1829 (10 Geo. 4, c. 7), ss. 28, 29 - Roman Catholic Charities Act, 1832 (2 & 3 Will. 4, c. 115), s. 1 - Roman Catholic Charities Act, 1860 (23 & 24 Vict. c. 134), s. 1.

A bequest of personal estate for masses for the dead is not void as a gift to superstitious uses.

West v. Shuttleworth (1835) 2 My. & K. 684, and the cases founded upon it (Heath v. Chapman (1854) 2 Drew. 417; In re Blundell's Trusts (1861) 30 Beav. 360; In re Fleetwood (1880) 15 Ch. D. 594; and In re Elliott (1891) 39 W. R. 297), overruled on this point.

So held by Lord Birkenhead L.C., Lord Buckmaster, Lord Atkinson, and Lord Parmoor; Lord Wrenbury dissenting.

Held by Lord Wrenbury that West v. Shuttleworth had been recognized as an authority for so long a period that it ought not now to be disturbed.

The authorities upon the non-disturbance of decisions of long standing reviewed.

An Irish Roman Catholic testator, domiciled in England, bequeathed 200l. to Westminster Cathedral for masses, and 200l. and his residuary personal estate to "the Jesuit Fathers, Farm Street," for masses.

Eve J. and the Court of Appeal held, on the authority of West v. Shuttleworth, that the gifts were void as gifts to superstitious uses. At the Bar of the House the next of kin contended that the bequests to the Jesuit Fathers were void under the Roman Catholic Relief Act, 1829, as gifts to a monastic order.

Held (1.) (Lord Wrenbury dissenting) that the bequests were not void as superstitious; (2.) (Lord Wrenbury expressing no opinion on this point) that the contention of the next of kin as to the bequests to the Jesuit Fathers failed - by Lord Birkenhead L.C., and Lord Atkinson, for insufficiency of evidence as to the constitution of the community, and by Lord Birkenhead L.C., on the further ground that the point was not raised by the next of kin in their case; by Lord Buckmaster and Lord Parmoor (following In re Smith [1914] 1 Ch. 937) because these bequests were given, not to a monastic order, but to individual members of a particular order resident at a named place, and were impressed with no trust for the benefit of the order.

Held, therefore, that all the bequests were valid.

Decision of the Court of Appeal [1918] 2 Ch. 350 reversed.

APPEAL from a decision of the Court of Appeal(1) affirming a decision of Eve J.

Edward Egan, by his will dated November 29, 1916, appointed the respondents James Keane and Thomas Cowperthwaite executors thereof, and bequeathed (inter alia) the following sums for masses: To the Cathedral, 200&L; to the Jesuit Fathers, Farm Street, 200l.; and to the Dominican Fathers, Black Abbey, Kilkenny, 100l.; and, after providing for funeral expenses, he gave what money should remain after all expenses to the Jesuit Fathers, Farm Street, for masses.

The testator was an Irish Roman Catholic. He died on December 27, 1916, and was at the date of his death domiciled in England.

The executors took out an originating summons to determine (inter alia) the questions: whether the Westminster Cathedral was the cathedral referred to in the will, whether the gift to such cathedral for masses was valid, whether the pecuniary bequests to the Jesuit Fathers and to the Dominican Fathers were valid, and whether the gift of residue to the Jesuit Fathers was valid.

The court appointed the appellant, the Rev. Terence Donnelly, to represent the Jesuit Fathers, the respondent, the Rev. James Alphonso O'Reilly, to represent the Dominican Fathers, and the respondent, Catherine Broderick, to represent the statutory next or kin of the testator.

Eve J., having previously decided that the Westminster Cathedral was the cathedral referred to by the testator, held, on the authority of West v. Shuttleworth(2), that all these gifts were void, and his decision was affirmed by the Court of Appeal (Swinfen Eady M.R., Warrington and Duke L.JJ.).

Two questions arose for determination on the present appeal:

1. Whether the bequests in question were void as gifts to superstitious uses.

2. If not, whether the bequests to the Jesuit Fathers and to the Dominican Fathers were void as gifts to religious orders of the Church of Rome bound by monastic vows.

(1) [1918] 2 Ch. 350.

(2) 2 My. & K. 684.

The second question was not argued by the respondent, Catherine Broderick, in the Court of Appeal and was not raised by her in her case on the appeal to this House.

The evidence as to the constitution of the Jesuit Fathers and of the Dominican Fathers is fully set out in the judgment of the Lord Chancellor.

The respondent, the Rev. J. A. O'Reilly, did not appear. The respondents, the executors of the will, took no part in the argument.

March 21, 24, 25, 27; May 14.

Hon. Frank Russell K.C. and C. J. Mathew K.C. (with them F. McMullan) for the appellants.

There are here two questions to be determined: 1. Are gifts for masses for the testator's soul illegal? 2. If not illegal, are they good charitable gifts? As to the first question, it is conceded that it was not open in the Court of first instance or in the Court of Appeal; but it has never been raised in this House. At the date of the passing of the Chantries Act (1 Edw. 6, c. 14) these gifts were perfectly good: Co. Litt. pp. 93b, 95a and b, 96b, 133, 135, 137, where tenure by frankalmoigne and tenure by Divine service are described. It is there said that they which hold in frankalmoigne are bound of right before God to make orisons, prayers, masses, and other Divine services for the souls of their grantors, and the difference between tenure in frankalmoigne and tenure by Divine service is explained to be that in the latter case the manner of the service is specified, e.g., to sing a mass every Friday. By 31 Edw. 3, c. 11, it was enacted that in case of intestacy the ordinary should depute the next and most lawful friends of the deceased to administer his goods; "which deputies shall have an action to demand and recover as executors the debts due to the said person intestate in the King's Court, for to administer and dispend for the soul of the dead." The first statutory restriction on the gifts is to be found in 23 Hen. 8, c. 10, which imposed a time limit of twenty years upon assurances of land for the performance of obits. That was a Mortmain Act, and it shows that within

that limit devises of land for the purpose of obtaining masses were perfectly good. The will of Henry VIII, which is set out in Froude's History of England, vol. IV., pp. 523-528; 3rd ed., pp. 525-530, contained a direction for setting up an altar at Windsor, "honorably prepared and apparelled for daily masses there to be said perpetually while the world shall endure." The first Prayer Book of Edward VI., issued in 1549 (2 & 3 Edw. 6, c. 1) (which was after the date of the Chantries Act), included prayers for the dead in the Prayer of Consecration in the Communion Service. But in the second Prayer Book, which was introduced by 5 & 6 Edw. 6, c. 1, in 1551, prayers for the dead drop out. At the date of the Chantries Act there was nothing in either the common law or the statute law of the land to prohibit gifts of personal estate for masses for the dead. Then the question is: What was the effect upon the gifts of the Statute of Chantries?

The preamble of that Act is framed in language which, if not vituperative, is not pleasant to Roman Catholic ears, and it is that preamble which has caused most of the trouble in this matter. It recites that "a great part of superstition and errors in Christian religion hath been brought into the minds and estimations of men, by reason of the ignorance of their very true and perfect salvation through the death of Jesus Christ, and by devising and phantasing vain opinions of purgatory and masses satisfactory to be done for them which be departed, the which doctrine and vain opinion by nothing more is maintained and upholden than by the abuse of trentals" (an office for the dead continuing thirty days), "chantries, and other provisions made for the continuance of the said blindness and ignorance," and that the amendment thereof and converting the same to good and godly uses, as in erecting of grammar schools, augmenting of the universities, and better provision for the poor and needy, could not in that Parliament be conveniently done, nor ought to be committed to any other than the King, who would wisely and beneficially both for the honour of God and the weal of the realm order and dispose of the same. The Act then proceeds to give to the King, first, all manner of colleges, free chapels, and chantries in esse

within five years before the first day of the then existing Parliament and the lands, etc., belonging thereto; secondly, all lands and rents assigned or paid for the finding or maintenance of a priest to have continuance for ever, and whereby any priest had been maintained or found within the said period of five years: s. 2; thirdly, all lands or rents theretofore assigned for the finding or maintenance of a priest for a term of years, and employed for that purpose within the said period of five years (saving the rights of the reversioners): ss. 3 and 4; fourthly, all lands or rents theretofore given to be wholly employed towards the finding or maintenance "of any anniversary or obit or other like thing, intent or purpose, or of any light or lamp in any church or chapel, to have continuance for ever," which had been kept or maintained within the said period of five years: s. 5. Finally, the Act gives to the King all moneys theretofore given or assigned, to have continuance for ever, and which had been paid within the said period of five years, by any manner of corporations, guilds, fraternities, etc., towards the finding or maintenance of a priest, of any anniversary or obit, lamp, light or lights or other like thing: s. 7. That is the only section in the Act which deals with personal estate. The Act also excepts from its operation the Universities of Oxford and Cambridge, St. George's Chapel, Windsor, the Colleges of Eton and Winchester, and the cathedrals of episcopal sees: s. 19. It is incredible that if the intention of the Act was to render all these gifts illegal there should have been any exception at all. Sect. 38 is important. It deals with the maintenance of priests and the founding of obits in the future, and it provides that it shall not be lawful to re-enter lands for the breach of a condition as to finding a priest, obit, etc. That shows that the Legislature did not regard obits as illegal, but discouraged them to this extent, that if land was given upon condition to found an obit the holder of the land might disregard the condition with impunity. The essential features of this Act are as follows: 1. It only applies to then existing dispositions which had been operative within the previous five years. 2. With a small exception, it applies to land only. 3. That exception is that

it applies to then existing gifts of money in perpetuity, operative within the period of five years, by corporations, etc. 4. It does not anywhere avoid the gifts with which it deals, but simply gives the property to the King. 5. It excepts from its operation the colleges of the Universities of Oxford and Cambridge, and chantries founded at various places. 6. It contemplates the founding of obits and suchlike things in future, and does not avoid them; it merely says that where land is given subject to such conditions a person entitled to re-enter on breach of the conditions shall not re-enter. The most that can be said of this Act is that it desired to discourage these gifts. It does not make them illegal. As to existing gifts it transfers the property to the King, as to future gifts it recognizes them. The preamble, by using harsh words, cannot make the gifts illegal, if the enacting part of the statute does not do so. Undoubtedly for a great number of years gifts for masses were illegal, but on a totally different ground. In 1581, by 23 Eliz. c. 1, the hearing or the saying of mass was made an offence punishable by fine and imprisonment, and that statute remained in full force until it was mitigated by the Roman Catholic Relief Act, 1791. It is said that Adams and Lambert's Case(1), which was decided after this Act of Elizabeth, shows that these gifts were illegal under the Chantries Act. That case decided four things: (1.) that land given for superstitious uses to a son or daughter or other relative is nevertheless within the Act; (2.) that land given in tail or for life is within the Act, as well as estates in fee or for years; (3.) that a devise of land, not to the intent to find a priest, but upon condition to find him, is within the Act; (4.) that all the lands in question in that case were given by the Act to the King. Lord Ellesmere says of Coke's report of this case: "Whoso doth read Adams and Lambert's Case(2) shall run into a wood or thicket out of which he shall not easily wind himself; he" (Coke) "hath so darkened the case by many intricate

(1) (1602) 4 Rep. 104b.

(2) The Lord Chancellor Egerton's observations on the Lora Coke's Reports .... Lond. n.d. [c. 1710, authorship doubted, see D. N. B. xvii. 163], p. 21.

differences whereof the Court that argued the same did never dream." And indeed it is difficult to distinguish the dicta of the judges from the comments of the reporter. The date of the will in that case is not given in the main report, but it appears from the record as extracted by Coke(1) that the will was temp. Hen. 6, 1431. In the course of the judgments in the case under discussion numerous cases were cited, which were supposed to be decisions within the Act. In many of them no date is given, but in every case (with one doubtful exception) where the date of the instrument is given it is before the Act. The only case which causes any difficulty is the Dean of St. Paul's Case(2), where it is stated that "the executors of A. B. according to the will of their testator, anno 6 Eliz. 2, assigned and conveyed" lands to the value of 14l. per annum to the Dean and Chapter of St. Paul's to find a competent sustentation yearly of 10 marks sterling for a priest and his clerk to sing mass every day for the testator's soul and all Christian souls in the Church of St. Paul; and all the other profits of the promises by the executors were assigned to be employed for the yearly obit for the said testator in the said church. That might possibly mean that the will, which was the operative instrument, was made before the Act of Chantries, although the executors did not execute the conveyance they were directed to make by the will until subsequently. But, if not, there is conceivably some mistake in the date. The "2" is unintelligible. Not only is it extremely improbable that in the sixth year of the reign of Elizabeth a gift should be made for the purpose of singing masses in St. Paul's, but in the report in Dyer it is stated: "Which chantry priest was found for 6l. 13s. 4d. per annum until the Statute of Chantries [1 Edw. 6, c. 14], but the obit was not kept within five years of the said statute." This clearly shows that the gift must have been before the Act. The question was whether the land was given to the Queen or only the annual rent, and it was decided that she had no title to more than the annual rent of 6l. 13s. 4d.

It has never been said that Adams and Lambert's Case(3)

(1) 4 Rep. 96a.

(2) (1580) 4 Rep. 109a; 3 Dyer, 368a.

(3) 4 Rep. 104b.

was a decision with regard to lands given after the Act, but it is attempted to spell out of the general observations which occur throughout the case(1) as to the policy and intent of the Act an intention on the part of the Court to treat as illegal all gifts of the kind mentioned in the Act, whether made before or after the Act. In the appellants' submission that case amounts to nothing more than a decision upon a devise which was clearly within the terms of the Act. Duke on Charitable Uses, 1st ed., p. 106; Bridgman's ed., p. 350, is also relied on in support of the proposition that the Chantries Act renders illegal all gifts for superstitious uses within the meaning of the Act, whether before or after the Act, but the cases cited by the learned author do not establish that proposition. A large number of cases under the Act are collected at p. 466 of Bridgman's edition, and again the same difficulty arises that in many of the cases the date of the gift is not given; but wherever it is given it is before the Act. The Roman Catholic Relief Act, 1791 (31 Geo. 3, c. 32), mitigated to some extent the provisions of the Act of Elizabeth. It provided that no person who should subscribe the oath thereby appointed to be taken should be prosecuted for professing the Popish religion or for hearing or saying mass; but by s. 17, all uses, trusts or dispositions which immediately before the passing of the Act were deemed superstitious were to continue to be so deemed, anything in the Act contained notwithstanding. The next Act is of great importance. Toleration had been granted to Dissenters, and by the Roman Catholic Charities Act, 1832 (2 & 3 Will. 4, c. 115), Roman Catholics are put on the same footing as Dissenters in respect to their schools, places for religious worship, education and charitable purposes in Great Britain, and the property held therewith and the persons employed in or about the same. It is incredible that the Legislature should at the same time have legalised the Roman Catholic places of worship and retained any illegality attaching to the ceremonies in their places of worship. The implication is at least as strong that this statute abolished any illegality which may have been implied from the language of the

(1) 4 Rep. 106b, 109b, 111b, 113a.

Statute of Chantries as the implication that the Statute of Chantries created a hitherto non-existent illegality. So far as Catholics are concerned, the mass is the central supreme rite of their religion, without which their religion would be a mere husk, and prayers for the dead are an essential part of every mass. If then a gift to build a Roman Catholic Cathedral is valid, how can it be said that a gift for masses is illegal? The nature of the mass is fully explained by Dr. Delaney in his evidence in Attorney-General v. Delaney.(1) In the appellant's submission the modern authorities on this question are wrong and ought to be overruled. They all depend on the decision of Lord Cottenham, when Master of the Rolls, in West v. Shuttleworth(2) in 1835, where bequests for masses for the soul of the testatrix were held void under the Chantries Act. Lord Cottenham rightly points out that the legacies in question were not within the terms of the statute of Edw. 6, which, as had been observed by Sir William Grant in Cary v. Abbot(3), applied only to existing uses, but he then says that "that statute has been considered as establishing the illegality of certain gifts, and, amongst others, the giving legacies to priests to pray for the soul of the donor has, in many cases collected in Duke, been decided to be within the superstitious uses intended to be suppressed by that statute." Apparently the Master of the Rolls means "considered as shown in the cases in Duke," which do not show anything of the kind. It is probable that the attention of the Master of the Rolls was not called very closely to the terms of the Act, and no mention is made of s. 38, which contemplates future gifts of this kind. Attorney-General v. Fishmonger's Co. (Kneseworth's Will)(4), which is also a decision of Lord Cottenham, is not in point, because it was a decision upon a will made in 1513 by a testator who died in 1539, so that it was clearly within the terms of the Statute of Chantries. Heath v. Chapman(5) is founded on West v. Shuttleworth(2), but Kindersley, V.-C. takes rather a different view of the statute. He says that at the time of the passing

(1) (1875) I. R. 10 C. L. 104.

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

(3) (1802) 7 Ves. 490.

(4) (1841) 5 My. & Cr. 11.

(5) 2 Drew. 417.

of the statute of Edw. 6 gifts for masses were void at common law, and that the statute did not declare the uses void, but assumed that they were void, and gave the property to the Crown. That is a wholly erroneous impression. In In re Michel's Trust(1), where an annual sum was bequeathed by a Jew for the saying of a Hebrew prayer on the anniversary of his death, Lord Romilly expressed grave doubts as to the correctness of West v. Shuttleworth(2) and Heath v. Chapman(3), but in In re Blundell's Trusts(4), which was a case of a gift for masses, he felt bound to follow West v. Shuttleworth(2) to the full extent, as he could not overrule it. In In re Fleetwood(5) and In re Elliott(6) the question was treated as concluded by authority. All those cases are founded on West v. Shuttleworth(2), and are based on one of two erroneous views, (1) that the Chantries Act by implication made all gifts for masses illegal; (2.) that such gifts were illegal at the date of the statute, which gave the property to the King. In Bowman v. Secular Society(7), where a gift for promoting the subversion of Christianity was upheld, Lord Parker said that a gift for masses for the testator's soul was illegal; but the point was not there raised, and he was putting that forward by way of illustration only. In the same case Lord Buckmaster said that the Roman Catholic religion was never contrary to the common law, and that, when once the statutory prohibitions were taken away, the receipt of money for the general purpose of their faith was not forbidden. An argument has been founded on the Roman Catholic Charities Act, 1860 (23 & 24 Vict. c. 134). Sect. 1 provides that no gift upon any lawful charitable trust for the exclusive benefit of persons professing the Roman Catholic faith shall be invalidated by reason only that the same estate has been subjected to any trust "deemed to be superstitious, or otherwise prohibited by the laws affecting persons professing the same religion," but that the property may be apportioned and the whole applied to lawful purposes. It is said that

(1) (1860) 28 Beav. 39.

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

(3) 2 Drew. 417.

(4) (1861) 30 Beav. 360.

(5) 15 Ch. D. 594, 609.

(6) 39 W. R. 297; [1891] W. N. 9.

(7) [1917] A. C. 406, 437, 474.

there are no superstitious trusts to which the statute can refer except those declared to be superstitious by West v. Shuttleworth.(1) That is not admitted. But, however that may be, all that the statute says is that if there is a bad use mixed with a good use the bad use does not kill the good use, but is applied ct-pr�s. If West v. Shuttleworth(1) cannot stand on its own authority, but requires this Act to support it, then the Act is turned from being a relieving statute into a penal statute. There is no adoption of West v. Shuttleworth(1) by the statute, but the question is left as it was before. If it were otherwise, the decisions in which West v. Shuttleworth(1) was discussed after the Act would have proceeded on the force of the Act. There is nothing either in the frame or in the object or in the phraseology of the statute to make that bad which would otherwise be good. In other countries, where the Chantries Act does not apply, gifts for masses have been held good; in Canada in Elmsley v. Madden(2); in New Zealand in Carrigan v. Redwood(3); in Australia in Nelan v. Downes(4); in the United States in Holland v. Alcock(5) and in In re Schouler.(6) To sum up, these gifts for masses were never illegal before the Chantries Act; they were not rendered illegal by the Chantries Act; if they were, they were rendered illegal by implication only; and that implication has been removed by an equally strong implication under the Roman Catholic Charities Act of 1832. They are therefore good legal gifts at the present date unless they are void for perpetuity.

As to the second question, whether these gifts are charitable, these are gifts of capital out and out and no question of perpetuities arises. But the position is this. The point has never arisen in England because hitherto these gifts have been treated as illegal, and there cannot be a charitable gift for an illegal purpose. But in Ireland, to which the Statute of Chantries does not apply, it has been dealt with in several cases. In Attorney-General v. Delaney(7) it was held that a gift for masses was not a gift for charitable purposes on the ground that,

(1) 2 My. & K. 684.

(2) (1871) 18 Grant, 386.

(3) (1910) 30 N. Z. L. R. 244.

(4) (1917) 23 C. L. R. 546.

(5) (1888) 108 N. Y. 312.

(6) (1883) 134 Mass. 426.

(7) I. R. 10 C. L. 104.

masses not being necessarily said in public, there was no element of public benefit about them. In Attorney-General v. Hall(1) a gift for masses to be said in public was held to be charitable, notwithstanding that the primary motive of the testator was a private benefit to himself. Finally, in O'Hanlon v. Logue(2) it was held that a gift for masses, whether to be said in public or private, was a good charitable gift on the grounds (1.) that it was a pious gift to God; (2.) that it is a gift from which benefits flow to the whole body of Catholics; (3.) that it is a gift for the support of the ministers of a religion tolerated by law.

Muldoon K.C. (of the Irish Bar) and J. A. R. Cairns for the respondent, Catherine Broderick.

1. All these bequests are unlawful under the Chantries Act. 2. The law has been settled for so long that it ought not now to be interfered with. 3. The bequests to the Jesuit Fathers are bequests to an unlawful body bound by monastic vows, and are void as contrary to the policy of the Roman Catholic Relief Act, 1829 (10 Geo. 4, c. 7), ss. 28, 29.

[ Mathew K.C. This point was not raised by the respondent in the Court of Appeal and it is not raised by the respondent's case.]

As to 1: It is conceded that gifts for masses were not void by the common law of England, which is the same as the common law of Ireland. And in Ireland bequests for masses are lawful: Read v. Hodgens.(3) The respondent's case is founded entirely upon the Chantries Act. There has been a consensus of opinion in England extending over nearly a century that gifts for masses are void and superstitious. All the text-books have been in similar agreement. Tudor (pp. 5, 140), in discussing superstitious uses, traces the origin of their invalidity to the Act of Hen. 8 and the Chantries Act, and shows that a gift failing on that ground goes to the heir at law or next of kin. The preamble of the Chantries Act, though it has no legislative force, has great importance as indicating the policy of the Act (Overseers

(1) [1897] 2 I. R. 426.

(2) [1906] 1 I. R. 247.

(3) (1844) 7 Ir. Eq. Rep. 17.

of West Ham v. Iles(1)), and shows that the policy of that Act was to regard all uses of this description as superstitious and void. After that Act was passed nobody could conceive that a bequest for masses for the dead was not a superstitious use. This was the view of the Court in Adams and Lambert's Case(2), where it is said that the intent and meaning of the Act, as appeared by the preamble, was to extirpate out of men's minds these superstitious errors, and to take them utterly away, in what manner and for what time they were given; and again that the intent of the Act was to prohibit all superstitious uses which were public in churches, for the general prejudice which might accrue by them. In West v. Shuttleworth(3), when Lord Cottenham said that that statute had been considered as establishing the illegality of these gifts, he must have been referring to his own experience at the Bar. The fact that this Act has been left so long on the statute book after Parliament has known the interpretation which has been put upon it is a strong reason for not interfering with that interpretation. Since West v. Shuttleworth(3) was decided Parliament has considered this question in 1846 (9 & 10 Vict. c. 59), in 1860 (23 & 24 Vict. c. 134), and again in 1888 (Mortmain and Charitable Uses Act, 1888), but in no case did it touch the Chantries Act. The inference is that Parliament must have accepted Lord Cottenham's construction. Further, the superstitious trusts mentioned in s. 1 of the Act of 1860 can only refer to bequests for masses for the dead, that being the only disability affecting Roman Catholics at that time. "Or otherwise prohibited by law" in that section refers to gifts to a religious order, which would not be superstitious. See Tyssen on Charitable Bequests, p. 51. The statute recognizes West v. Shuttleworth(3) as good law, and gives a partial, but not an entire relief against that disability. The legislation in relief of Roman Catholics nowhere validates masses, and, if they are tolerated in fact, that is not the same thing as allowing gifts for that purpose, which is encouraging masses.

As to 2: Assuming that West v. Shuttleworth(3) was wrongly

(1) (1883) 8 App. Cas. 386, 388.

(2) 4 Rep. 104b, 106b, 109b.

(3) 2 My. & K. 684.

decided it has governed the actions of testators and lawyers for eighty-five years, and has been repeatedly followed, and therefore it ought not now to be disturbed. Where there has been a uniform interpretation of a statute, which is constantly acted upon, the Courts recognize that it is better to follow the course of the decisions than to reverse them. This is a principle of general application, and is not limited to cases affecting the title to real property: Morgan v. Crawshay(1); Tancred, Arrol & Co. v. Steel Company of Scotland(2); Attorney-General v. Fishmongers' Co. (Preston's Will)(3); Hebbert v. Purchas(4); Cohen v. Bayley-Worthington(5); Clyde Navigation Trustees v. Laird(6); Associated Newspapers v. London Corporation(7); Ex parte Willey.(8)

As to 3: The gifts to the Jesuit Fathers are gifts to the order, and are bad. Under the Roman Catholic Relief Act, 1829, monastic orders are prohibited associations, and bequests which tend to perpetuate such communities are illegal as violating the expressed purpose of the statute. The sections forbidding these orders are saved by the Act of 1860 (23 & 24 Vict. c. 134, s. 7). Every gift to the society as a whole or to individual members of the society, if it tends to strengthen the society, is obnoxious to the statute: Cussen v. Hynes(9); Burke v. Power(10); Sims v. Quinlan(11); Liston v. Keegan v(12); Walsh v. Walsh.(13) In In re Smith(14) Joyce J. held that a gift in trust for "the society or institution known as the Franciscan Friars of Clevedon in the County of Somerset" was an immediate gift to the individual friars composing the society at the testator's death, and was valid. That decision is erroneous and ought to be overruled, first, because the learned judge misconstrued the will, and, secondly, because, assuming that this was a gift to individuals, it was given to them as members of the order and was still bad. That decision

(1) (1871) L. R. 5 H. L. 304, 319, 320.

(2) (1890) 15 App. Cas. 125, 141.

(3) (1841) 5 My. & Cr. 16, 18.

(4) (1871) L. R. 3 P. C. 605, 650.

(5) [1908] A. C. 97, 99.

(6) (1883) 8 App. Cas. 658, 673.

(7) [1916] 2 A. C. 429, 451.

(8) (1883) 23 Ch. D. 118, 127.

(9) [1906] 1 I. R. 539.

(10) [1905] 1 I. R. 119.

(11) (1865) 17 Ir. Ch. Rep. 43.

(12) (1882) 9 L. R. Ir. 531.

(13) (1869) Ir. R. 4 Eq. 396.

(14) [1914] 1 Ch. 937.

went a long way beyond anything that had ever been decided before, and, if it is right, the whole course of decision in Ireland is wrong, and no gift to these orders would be invalid. Cocks v. Manners(1) is not relevant to the question. This is a gift to the Jesuit Fathers as a body and is indirect conflict with the statute.

Hon. Frank Russell K.C. in reply.

It is impossible to give effect to the Roman Catholic Charities Act, 1860, without legalizing the mass and, if so, a gift for that purpose is good. As to the Chantries Act, the preamble may be used to ascertain the meaning of a statute when the enacting part is ambiguous, but it cannot be used either to enlarge or to restrict the enacting part if the language of that part is clear and free from doubt: Maxwell on Statutes (4th ed.) p.p. 62, 66, 72; Kent County Council v. Lord Gerard(2) per Lord Herschell. As to the gift to the Jesuit Fathers: There is no evidence sufficient to enable the House to decide that this is a gift for the benefit of the order. There is no society of Jesuit Fathers, but the society is the society of Jesus, and comprises (1.) priests, (2.) persons being trained for the priesthood, (3.) lay members. This is not a gift to an order at all, but is a gift to individuals, members of the society at a particular time, not clothed with any trust for the benefit of the order. Even if this were a gift to the order impressed with a trust for masses, it would still be good, because no gift fails for want of trustees. The Roman Catholic Relief Act, 1829, contains no provision that an individual being a Jesuit cannot hold property. The sections as to monastic orders have been an absolutely dead letter ever since the passing of the Act, and the only reported attempt to enforce these provisions ended in failure: Rex v. Kennedy.(3) In dealing with an Act with such a history this House will not be astute to put into it a disqualification which is not to be found there. In re Smith(4) is directly in the appellants' favour and is an a fortiori case. It is not inconsistent with the Irish authorities, with the single exception of Burke v. Power(5) (which is

(1) (1871) L. R. 12 Eq. 574.

(2) [1897] A. C. 633, 639.

(3) (1902) 86 L. T. 753.

(4) [1914] 1 Ch. 937.

(5) [1905] 1 I. R. 119.

a doubtful decision), because in each of the other cases the gift was a gift for the benefit of the order as such, whereas a gift for masses is not a gift for the benefit of the order as such. As to the non-disturbance by this House of long-settled authority, the leading case is Morgan v. Crawshay.(1) If Lord Chelmsford there lays down the true rule the appellants are not within it. He says: "After this long-continued course of dicta and decisions, unless your Lordships entertained the strongest opinion that the first decision on the subject was erroneous, and all the cases that followed were merely echoes of the first, you would be most unwilling to pronounce a condemnation of the judgments which have been given, and of the practice which has uniformly prevailed for so long a period." Here West v. Shuttleworth(2) was clearly erroneous and the subsequent cases were merely echoes of it. Moreover, there is here no question of unsettling titles. The mere fact that people have abstained from making gifts for masses on the faith of these decisions is no ground for not disturbing them. A decision which removes a disability stands on a different footing from a decision which imposes one, and is not within the theory of the rule of non-disturbance, which is that more mischief would arise from setting aside doubtful cases than from allowing them to stand. Colls v. Home and Colonial Stores(3) and G. and C. Kreglinger v. New Patagonia Meat and Cold Storage Co.(4), referred to by Earl Loreburn in National Society for the Prevention of Cruelty to Children v. Scottish National Society for the Prevention of Cruelty to Children(5) are strong authorities in the appellants' favour on this point.

The House took time for consideration.

June 3, 1919. LORD BIRKENHEAD L.C. My Lords, this is a difficult and an extremely important case. Your Lordships cannot in my view escape the duty, anxious as it undoubtedly is, of overruling decisions which have been treated as binding for generations.

(1) L. R. 5 H. L. 304, 319.

(2) 2 My. & K. 684.

(3) [1904] A. C. 179.

(4) [1914] A. C. 25.

(5) [1915] A. C. 207, 212.

The question is whether, by the law of England to-day, bequests of personalty to be applied to masses for the dead can be supported. I have reached the conclusion, and I am bound to state it, that they can. Unwilling as I am to question old decisions, I shall be able, if my view prevails, to reflect that your Lordships will not within a short period of time have pronounced to be valid legacies given for the purpose of denying "some of the fundamental doctrines of the Christian religion"(1) and have held to be invalid a bequest made for the purpose of celebrating the central sacrament in a creed which commands the assent of many millions of our Christian fellow-countrymen. In the second place, and in the event supposed, your Lordships will have the satisfaction of deciding that the law of England corresponds upon this important point with the law of Ireland, of our great Dominions, and of the United States of America. A decision based, as I believe this to be based, upon a sound view of the law may reasonably appeal to these two powerful considerations of policy as against the admitted impolicy of disturbing old conclusions.

The judge of first instance and the Court of Appeal took the view that so far as they were concerned the matter was covered by authority which could only be reviewed and reversed by your Lordships' House.

The facts upon which your Lordships have to pronounce are shortly as follows:-

On November 29, 1916, Edward Egan, of 15, Alderly Street, Pimlico, London, made a will on a printed form which contained (inter alia) the following bequests:-

"To the Cathedral for Masses 200l.

"To the Jesuit Fathers, Farm Street, 200l. for Masses.

"To the Dominican Fathers, Black Abbey, Kilkenny, 100l. for Masses.

"To the Franciscan Fathers, Walking Street, Kilkenny, 100l. for Masses.

"What money remains after all expenses I wish to be given to the Jesuit Fathers, Farm Street, for Masses."

(1) Lord Parker of Waddington in Bowman v. Secular Society [1917] A. C. 406, 445.

He died on December 29, 1916, and his executors proved the will on January 23, 1917.

The originating summons was issued on May 24, 1917, but the only questions in issue in this appeal are the latter parts of No. 3 and Nos. 4, 5 and 7.

The only evidence as to the legatees is contained in paras. 13 and 14 of James Keane's affidavit. Para. 13 is mainly concerned with the identification of the expression "the Cathedral," but no question now arises upon that. Para. 14 says: "The Dominican Fathers are a religious body or association comprising in Ireland several hundred members. The Community of them at Black Abbey comprises 12 members or thereabouts of whom the Rev. James Alphonsus O'Reilly is prior. The Jesuit Fathers are a religious body or association comprising several hundred members in Great Britain and Ireland. The Community of them at Farm Street comprises some 30 members of whom .... the Rev. Terence Donnelly is the Superior."

For some reason the similar gift to the Franciscan Fathers was not questioned, and no evidence as to their identity was adduced. It is not stated, but I assume, that the Dominican, Jesuit and Franciscan Fathers are communities of Roman Catholic priests, with or without laymen, professing the Roman Catholic doctrines.

It is not necessary to consider in minute detail the sacrament commonly called the mass. Evidence, both informing and complete, as to its exact nature was given in the Irish case Attorney-General v. Delaney(1), and there was produced to the House in the course of this debate the Ordinary of the Holy Mass, consisting of a print of the service with an English translation.

At the date of the death of Henry VIII. no uniform rite was followed by all persons in communion with Rome; and the ceremonies of ritual varied in the different parishes, dioceses and countries of Christendom. They all had the common characteristic that in one form or another there was a ritual oblation, and the sacrament of the mass was,

(1) I. R. 10 C. L. 104.

and is, a sacrifice propitiatory of the whole Church, both living and dead. The celebration of mass, according to Roman Catholic doctrine, is by no means a benefit entirely confined to the soul or souls of the persons for whom it is directly designed; it benefits (such is the conception) the whole of the living community as well as the dead.

The common law recognized the vaildity of gifts to establish masses. It would, indeed, have been strange if it had discouraged gifts in reinforcement of a religion recommended by its own doctrines. Two common law forms of tenure were recognised under which the duty of the landholder was to say masses. Co. Litt. s. 135 states that tenants in frankalmoigne "are bound of right before God to make orisons, prayers, masses, and other divine services, for the souls of their grantor or feoffor, and for the souls of their heires" (quoere ancestors) "which are dead, and for the prosperity and good life and good health of their heires which are alive. ...." Coke's comment is that notwithstanding the changes in the liturgy, "the tenure in frankalmoigne remaineth; and such prayers and divine service shall be said and celebrated, as now is authorized: yea, though the tenure be in particular, as Littleton hereafter saith, viz., to sing a masse, etc., or to sing a placebo et dirige, yet if the tenant saith the prayers now authorised, it sufficeth."

And so, too, s. 137: "But if an abbot, or prior, holds of his lord by a certaine divine service, in certaine to be done, as to sing a Masse everie Friday in the week, for the soules, ut supra, or every yeare at such a day to sing a placebo et dirige, etc., or to finde a chaplain to sing a Masse, etc., or to distribute in almes to an hundred poor men an hundred pence at such a day; in this case if such divine service be not done, the lord may distreyne, etc. .... And such tenure shall not be said to be tenure in frankalmoigne, but is called tenure by divine service."

Your Lordships may also consider s. 169: "Also, by such custome a man may devise by his testament, that his executours may alien and sell the tenements that he hath in fee simple, for a certaine sum, to distribute for his soule."

The editor's note is to the effect that the distribution here meant probably a grant of money to the church to endow

masses for the testator's soul, a superstition very common in the time of Littleton, and then not inconsistent with any law. He then proceeds to discuss 23 Hen. 8, c. 10, and conjectures that, apart from this statute, such gifts would now be void under the Statutes of Mortmain, or if not within such Acts would be deemed superstitious by the Courts of Equity. Sect. 383 deals with a case, Lib. Ass. 38 Edw. 3, which turned on the conduct of an executor who had failed to sell land in order to distribute the money for the testator's soul.

It is curious that neither Coke nor Hargrave and Butler deemed it necessary to discuss 1 Edw. 6, c. 14 in this connection, and also that Coke did not treat such tenures as extinct but merely changed in the nature of the services. If he had held the view attributed to him upon the strength of his report of Adams & Lambert's Case(1), it would naturally have occurred to him (or so it would seem) to mention it in this connection.

Although the statute law contained many provisions restricting the right to give property for ecclesiastical purposes, and also defining or restricting the powers and privileges of the Pope and the clergy, Christianity was of course the established religion, and the validity of gifts for masses is abundantly proved by the terms of statutes, e.g., 31 Edw. 3, st. 1, c. 11, which provides that if a man dies intestate the ordinary shall appoint administrators who can sue for debts due to the deceased "for to administer and dispend for the soul of the dead," and also by the institutions of the common law.

No fundamental changes in doctrinal matters were made during the reign of Henry VIII. His disputes with the Pope were mainly on questions of jurisdiction, and, whatever powers may have been claimed by him or vested in him by statute, it is certain that the mass during the last year of his reign was in all essentials the same as that now observed by Roman Catholics. He himself in his will directed masses to be said for his soul (Froude's History of England, iv., p. 527). There is no sufficient ground for impeaching the authenticity of this

(1) 4 Rep. 104b.

will. Reference may be made to the note at p. 350 of the fourth volume of Lingard's History of England: to the corresponding treatment of the subject in Froude (vii., p. 482), and to the observations upon the same point in the Political History of England, in the volume 1547-1603, p. 5. It is noteworthy that one of the first steps taken in the reign of Queen Mary to restore Roman Catholicism was the passing of the Act 1 M., sess. 2, c. 2, which replaced the mass in the position which it filled during the last year of the reign of Henry VIII.

When Edward VI. came to the throne the mass was still a recognized religious institution in England. On September 22, 1547, special injunctions to the Dean and Chapter of Canterbury were issued containing directions as to the singing of masses.(1) On November 4, 1547, the first Parliament of Edward VI. opened, in accordance with ancient practice, by the celebration of the Mass of the Holy Ghost.(2) The first Act passed in that session was an Act against persons who speak irreverently "against the Sacrament of the body and blood of Christ, commonly called the Sacrament of the Altar,"(3) which really combined two measures, one Bill being directed against the prevalent and increasing practice of reviling the mass in an indecent manner, and the other requiring Communion to be administered in both kinds. No Act had been passed which altered in any fundamental particular the law on the subject of masses at the date when the Chantries Act (1 Edw. 6, c. 14) obtained the Royal sanction. The subsequent history of the mass abundantly proves this. On March 8, 1548, appeared the Order of the Communion, which provided "The time for the Communion shall be immediately after the Priest himself has received the Sacrament without the varying of any other rite or ceremony in the Mass (until other order shall be provided), but as heretofore usually the Priest hath done with the Sacrament of the Body." This Order relates to the rite of Communion to be administered during the celebration of mass, and in no way can it be said

(1) Gasquet & Bishop: Edward VI. and the Book of Common Prayer, p. 56.

(2) Gasquet & Bishop, p. 64.

(3) Gasquet & Bishop, pp. 69, 71, 77.

to condemn or supersede the mass. Indeed, inasmuch as before then Communion could take place at any celebration, public or private, the requirements of notice, and of communication only at a public service, tended to diminish the opportunity of communicating afforded to the laity.(1) The Latin Mass, according to the various rites then in use in England, still remained intact.(2)

The contemporary evidence in support of this proposition is quite clear. Lord Protector Somerset wrote to Bishop Gardiner on June 28, 1548, a letter(3) which contains the sentence: "The questions and controversies concerning the Sacrament of the Altar and the Mass rest at present in consultation," and again in a letter to the Vice-Chancellor of Cambridge University dated September 4, 1548, he refers to the form of mass in use in the Royal Chapel.(4)

The Order of the Communion was a mere temporary measure, and steps were taken almost immediately to provide new services. The First Prayer Book of Edward VI. was drawn up in 1548, and was the subject of debates in both Houses of Parliament. Sweeping changes were made in the form of the mass. The fourth rubric made the wearing of the chasuble (which was the sacrificial vesture) optional, and the entire portion of the mass which constitutes the act of formal oblation, together with the prayers which accompany it, were omitted.(5) It may be argued that this omission marks the point where the mass ceased to exist and the service became Holy Communion, but it is most highly disputable whether its authors so intended it. The name "mass" was retained both in the title and also where it is mentioned in the preamble to the Act of Uniformity, 1549 (2 & 3 Edw. 6, c. 1), and the general acquiescence of the clergy and laity also point to the conclusion that the new rite was a form of mass. The Book of Common Prayer came into force on Whitsunday, June 9, 1549, and, as this was by the Act of Uniformity the only form allowed by law, it follows that if,

(1) Gasquet & Bishop, p. 91.

(2) Gasquet & Bishop, p. 90.

(3) Gasquet & Bishop, p. 129.

(4) Gasquet & Bishop, p. 147.

(5) Gasquet & Bishop, pp. 189, 194, 196.

contrary to the view which I respectfully urge upon your Lordships, this service was not a form of mass, then the celebration of mass was thenceforth forbidden.

There were many who refused to obey the new book, and accordingly further provision to compel its adoption was made by the Act 3 & 4 Edw. 6, c. 10, which recites the establishment of this book and refers to the "old accustomed superstitious service" and requires (inter alia) all obnoxious images and books to be destroyed.

My Lords, this First Prayer Book was a compromise which pleased neither party, and which was obnoxious to the Protestants for many reasons, but principally because it used words in the Communion Service which were generally understood to denote the sacrifice of the mass. The title reads: "The Supper of the Lord and the Holy Communion commonly called the Mass." What became in the Second Prayer Book the Prayer for the Church Militant here on Earth, is in the earlier volume a prayer for the Church, including both living and dead, and it contains the words: "We commend to Thy mercy, O Lord, all other Thy servants which are departed hence from us with the sign of faith and now do rest in the sleep of peace: grant unto them, we beseech Thee, Thy mercy and everlasting peace," a passage which is almost the same as that in the Ordinary of the Mass, but which is entirely omitted in the Second Prayer Book, published in 1552 under sanction of the statute 5 & 6, Edw. 6 c. 1. There can be no doubt that this service was a Communion Service pure and simple, and that the mass had disappeared for the time being from the Book of Common Prayer.

On the death of Edward VI. this country became reconciled to Rome, but on the accession of Queen Elizabeth the statutes of Mary were repealed, thus restoring the Acts of Henry VIII. and Edward VI. (1 Eliz. c. 1). By the Act of Uniformity, 1559 (1 Eliz. c. 2), the Second Book of Common Prayer of Edward VI., as altered, was again made obligatory, and s. 4 of the Act prohibited the use of any other form in any place.

The effect was to render celebration of mass illegal, and there are many instances of people being arrested for attending

mass (e.g., see Strype, Ann. vol. 1, p. 365), and even the services at the ambassador's chapels were interfered with in order to prevent the attendance there of English subjects. It was not however until 23 Eliz. c. 1 that the saying or singing of masses was expressly declared to be a criminal offence.

From 1559, or at latest from 1581, the mass was an illegal service, and it remained so until 31 Geo. 3, c. 32, but, as was pointed out by Grant M.R. in Cary v. Abbot(1), that Act contained a proviso that all dispositions of property before considered unlawful should continue to be so, and it was not until the Catholic Relief Act, 1829, and the various Roman Catholic Charities Acts, the first of which was passed in 1832, that Roman Catholics obtained anything like the degree of indulgence which had been conceded to Protestant Dissenters.

It has been necessary to discuss the history of the mass in England in order to consider the true interpretation of the Chantries Act, 1547 (1 Edw. 6, c. 14); but, before that Act is dealt with, it is convenient (if only to avoid misunderstanding) to refer to the statute 23 Hen. 8, c. 10, which is entitled: "An Act for feoffments and assurances of lands and tenements made to the use of any parish church, chapel, or such like." This Act recites the practice of feoffments and other assurances of land to the use of "parish churches, chapels, churchwardens, guilds, fraternities, commonalties, companies, or brotherhoods" whereby "there groweth and issueth to the King our Sovereign Lord, and to other Lords and subjects of the realm, the same like losses and inconveniences, and is as much prejudicial to them, as doth, and is, in case where lands be aliened into mortmain," and provides that all such uses, intents and purposes declared or ordained after March 1 in the same regnal year should be void, but also contains a proviso that any such uses for terms not exceeding twenty years shall be valid. The Act is general in its terms, and its object, on the face of it, is to extend the law of mortmain because of the economic evils which resulted from the obnoxious uses. Even if it be true that, in spite of

(1) 7 Ves. 494.

the express words of the Act, its real object was spoliatory, there is nothing in it which can be relied upon in impeachment of the validity of gifts for masses for the souls of the dead. The Act was repealed by the Mortmain and Charitable Uses Act, 1888.

We are therefore left with the Chantries Act, 1547 (1 Edw. 6, c. 14), as the only Act upon which the respondents can, or do in fact, rely in their attempt to establish the illegality of gifts for masses for the dead. It is necessary to consider its terms in detail.

The title is "An Act whereby certain Chauntries Colleges Free Chapels and the possessions of the same be given to the King's Majesty," and there is a lengthy preamble which sets out in detail the evils which it is intended to remedy. The words are: "Considering that a great part of superstition and errors in Christian religion hath been brought into the minds and estimations of men, by reason of the ignorance of their very true and perfect salvation through the death of Jesus Christ, and by devising and phantasing vain opinions of purgatory and masses satisfactory to be done for them which be departed, the which doctrine and vain opinion, by nothing more is maintained and upholden, than by the abuse of trentals, chantries, and other provisions made for the continuance of the said blindness and ignorance. ...."

And in the enacting sections the Act vests in the King, firstly, by s. 2,(1) all manner of colleges free chapels and chantries in existence within five years before the first day of that Parliament except those in the actual possession of Henry VIII. or Edward VI. and those excepted from the Act of Henry VIII. dissolving chantries and not altered by the Commissioners in the manner prescribed, and all manors, lands, rents, tithes, pensions, portions or other hereditaments belonging to them, and also all manors etc., by any assurance, conveyance, will, devise or otherwise had, made, suffered, acknowledged or declared, given, assigned, limited or appointed to the finding of any

(1) Note. - These sections are numbered as in Pickering's edition of the Statutes at Largo, Cambridge, 1763. In the Statutes of the Realm, s. 1 includes Pickering's s. 2.

priest to have continuance for ever or wherewith or whereby any priest was sustained or found within that period of five years, and also any annual rents, profits and emoluments within the same period employed, paid or bestowed towards or for the maintenance, support or finding of any stipendiary priests intended by any act or writing to have continuance for ever.

The same is enacted by s. 3 as to lands, hereditaments, etc., given to the finding of a priest or priests for terms of years subject to the rights of reversioners at the expiration of such terms.

The Act then proceeds, by s. 4, to forfeit to the King all lands rents or other hereditaments at any time theretofore given, etc., to be employed wholly for the finding or maintenance of any obit or anniversary or other like thing, intent or purpose for ever or for the finding or maintenance of any light or lamp in any church or chapel to have continuance for ever; and generally the Act vests in the King all property held for such purposes or belonging to the foundations thereby vested in him.

Except in s. 17, which deals with personalty belonging to such foundations, the Act only deals with realty, chattels real, or money arising out of, or charged upon, realty. It only applies to existing colleges, free chapels and chantries in existence within the five years mentioned, and with one exception does not purport to deal with the future, and indeed by s. 37 it clearly recognizes the existence of obits not annihilated by its provisions. There is not a word in the enacting parts which prohibits such gifts in the future, and it seems certain that the Act was not so construed at the period when it came into operation.

Bishop Gardiner, preaching before Edward VI and his Council on June 29, 1548, said:(1) "And if ye ask concerning the Masses that were wont to be said in monastries that, if the Masses had been good, the monastries had not been put down, to that, I say that when the number of the monastries went away there was no prejudice to the Mass, no more think I now that the Chantries be gone. Though the Chantries be

(1) Gasquet & Bishop, p. 83, n.

transposed to another use, yet the Mass is not condemned." Had the Act been believed to invalidate gifts for masses, it is hardly conceivable that it should have escaped the repealing energy of Queen Mary, during whose reign many Roman Catholic foundations were restored or established. On the accession of Queen Elizabeth all such were vested in the Crown by the Act 1 Eliz. c. 24, which also provided that all lands, sums of money, etc., given since the death of King Edward VI, for a priest to say masses or for obits or lights should be vested in the Crown. This Act did not, however, prohibit such gifts in the future.

An argument, apt for the purpose of the respondents, upon the Chantries Act, 1547, must, therefore, be based either on the preamble, or on some peculiar construction of the words of the Act other than the plain natural meaning.

The preamble is an important part of a statute, and plays a definite part in the construction of the enacting part; but it is not itself the enacting part and cannot have that effect. As was said by Tindal C.J., in his opinion in the Sussex Peerage Case:(1).) "The only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe mean of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which, according to Chief Justice Dyer (Stowel v. Lord Zouch(2), is 'a key to open the minds of the makers of the Act, and the mischiefs which they intended to redress.'" Applying that principle to the present Act, it is clear that the existence of chantries was abhorrent to the framers of the measure, and that they intended to destroy them. They might have chosen many ways of effecting their purpose, but the method which they

(1) (1844) 11 Cl. & F. 85, 143.

(2) (1569) Plowd, 353, 369.

did adopt makes it clear that in their view the evil could be corrected by confiscating the peccant foundations and their property. There is no trace of an intention to prohibit such gifts in the future; and the preamble cannot be construed so as to enact what Parliament did not in fact enact, whether the omission was deliberate or by inadvertence.

Nor can any forced or strained construction be put upon the Act itself. If the cases are carefully considered they do not lead to the conclusion that the Act, either by express words or by necessary implication, prohibited such gifts in the future. Many cases were decided on the Act, but the one upon which reliance is chiefly placed is Adams & Lambert's Case.(1) This was an action of ejectment, and raised the question of the effect of the Act upon a devise of one John Barton the elder, dated June 5, 1431, of certain tenements in the town of Buckingham, to relatives of his on condition of finding a priest to say masses for the souls of himself and others. The report is not a report in the modern sense, but rather a dissertation upon the construction of the statute. Lord Ellesmere said of it that "he" (Coke) "hath so darkened the case by many intricate differences, whereof the Court that argued the same, did never dream." The point in dispute was whether the whole lands or only so much of the issues thereof as were devoted to the purpose mentioned were given to the King, and the instructiveness of the case is drawn from the discussion of the circumstances which affect the application of the Act. All the various devises and uses which Coke discusses are dealt with in the present tense, so that it is quite easy to imagine that he is laying down principles and distinctions as to such gifts which might then or thereafter be made; but it is clear from the dates of the gifts in the cases he cites and comments upon that they are all prior in date to the Act, and the present tense is not intended to mean that any gifts not then made are governed either by the Act, or by the reason of the Act, or by some principle of law which is not expressed but must lie implicit in its terms. This explanation also applies to his general statements upon

(1) 4 Rep. 96a and 104b.

the intent of the Act, as, e.g., the statement on fo. 109b, that the intent of the Act was to prohibit all "superstitious uses, which were public in churches for the general prejudice which might accrue by them; for malum quo communius eo pejus, and not to prohibit private prayers in their chambers, or other private places, which could not tend to so dangerous an example," and on fo. 111b, "the intention of the Act (as hath been said, and so it ought to be expounded) was to take away all such superstition."

It appears from the report of the same case in Moore(1) that there was no question raised in the case as to any uses which were or might be created after the Act. This case, therefore, is one of several decided during the reign of Elizabeth on the construction of the statute, and its application to chantries existing during the period mentioned by the statute is plainly not an authority for the proposition that the Act or any principle deducible from the Act has a prospective operation.

The real author of this construction of the statute appears to have been Duke, who in his work on Charitable Uses (1st ed., 1676, p. 106; Bridgman's ed., p. 350), ch. 7, s. 1, says: "If any manors, lands, tenements, rents, annuities, pensions, profits, hereditaments, goods, chattels, money or stocks of money, have been, or shall be given," etc., "to have continuance for ever, or for a time only, towards, or for the finding, or maintenance of a stipendiary priest; or for the maintenance of an anniversary or obit, or of any light or lamp in any church or chapel, or any like intent; these, and such like gifts and dispositions as these, are not to be accounted charitable uses (intended by the purview of this statute) but superstitious uses intended by the statute of 1 Edw. 6, c. 14. What is disposed and settled in any such course, is forfeit, and given to the King.

"And therefore, if at any time heretofore, any such thing hath been given, or hereafter shall be given by any man, by his last will, at his death, or by act executed in his lifetime to any person, sole or corporate, in fee simple, fee tail for life or years, to the intent, or upon condition to find a chaplain,

(1) Moo. K. B. 648.

and have the service of a priest or other man to say Mass, or to have a priest or other man, to pray for the soul of any dead man in such a church or other place; or to have or maintain perpetual obits, lamps, or torches, etc., to be used at certain times to help to save the souls of men, out of the supposed purgatory, these, and such like uses as these are not, nor shall they be said to be charitable uses within the intendment of the statutes, made and provided for the preservation and execution of such uses. For these are looked upon, and accounted in law, for superstitious uses. And therefore all these and such like uses as these are void. And the lands so given to such superstitious use, are by other statutes given and forfeited to the King, and he shall have them. And yet so, that if there be any charitable use intermixed with the superstitious use, and they may be distinguished, there the King shall have only so much as is given to the superstitious use, and not that which is given to the charitable use also. And for this, see Cook 4, 104 Adams & Lambert's Case; 15 Rich. 2, c. 5; 37 Hen. 8, c. 4; 1 Edw. 6, c. 14; Crook, 1 Part 180; Bridgm. Rep. 105; Crook, 2 Part, 51, 52. Where (to our present purpose) these things are agreed upon, 1 Edw. 6, c. 14."

Sir Francis Moore, in his Expositions on the Act 43 Eliz. (printed as an Appendix to Duke, 1676 ed.), at pp. 131-2 states that such gifts are not within that Act, and were deliberately omitted lest such gifts should, on change of times, find their way into the King's Treasury: "For religion being variable, according to the pleasure of succeeding princes, that which at one time is held for orthodox, may at another, be accounted superstitious, and then such lands are confiscate, as appears by the Statute of Chanteryes, 1 Edw. 6, c. 14." It seems therefore, according to this view, that Parliament, in order to prevent the risk that the pious intentions of donors might be defeated by possible confiscation, determined with grave irony that if the donors expressed such intention confiscation should become inevitable.

My Lords, I think that the plain truth of the matter is that when the Reformation became an accomplished fact the

general notion was that only one form of religion could be safely allowed, and, therefore, there was an instinctive feeling that such gifts should not be permitted. Lawyers accordingly sought for a juridical basis, and Duke's statement is one of the attempts to find such a basis. The absence of a statute expressly in point or of any satisfactory ancient precedent led to uncertainty, and to a desire to support the doctrine on some undoubted authority, appealed to because, though not precisely in point, it had some show of relevance.

Quite apart from this attempt to justify the principle that such a rule was the law, the Courts early in the reign of James I. placed the law as to superstitious uses on a sound juridical footing, and the attempt above referred to appears to have remained without any substantial effect until the decision in West v. Shuttleworth(1) in 1835.

No survey of this important subject would be complete which failed to examine, however, shortly the authorities upon these and cognate subjects which were delivered between the legislation of Queen Elizabeth and the decision in West v. Shuttleworth.(1)

Boyle on Charities, p. 242, thus defines a superstitious use: "A superstitious use may be defined generally to be one which has for its object the propagation or the rites of a religion not tolerated by the law." This is not exhaustive, but will serve as a working definition.

The Chantries Act, 1547, had terminated all chantries at the date of its passing. Those which had been restored or newly established during the reign of Queen Mary were confiscated by 1 Eliz. c. 24, practically at the same moment as the reversal of the Marian religious legislation. During the reign of Queen Elizabeth statutes had been passed making it clear that the celebration of mass was illegal, but no statutes had been passed making it clear that dispositions such as those under discussion were void. Indeed it would seem that 43 Eliz. c. 4 had been drawn so as to avoid any legislative pronouncement.

In these circumstances two cases fell to be decided in

(1) 2 My. & K. 684.

1606. The first was Croft v. Evetts(1). The date of the assurance is not given, but the settlor is described as a popish recusant, which indicates that the assurance was made after the penal laws of Queen Elizabeth. The facts were, shortly, that one William Evetts before his death in order to disinherit the plaintiff (his heir at law) conveyed certain lands to divers popish recusants upon trust after his own and his wife's death to apply the revenues "upon poor scholars in Oxford and Cambridge, or elsewhere, such as study and profess or shall hereafter intend to profess and study Divinity, and enter into holy orders according to the true intent and meaning of the said William Evetts." On the case coming for hearing before Lord Ellesmere, the Lord Chancellor, he directed it to be reargued before himself, the Master of the Rolls, and the two chief justices. The King's counsel were also present, and, after full argument, it was decided that conveyances made on such trusts were pernicious and dangerous to the State, and that if the profits of the lands could be so applied they would be bestowed upon traitors, Jesuits, seminary priests and others being enemies to the State, and that the precedent would be too pernicious and dangerous an example to be tolerated, and, as such trusts were void and repugnant to law, and there was no intention that the feoffees should take anything to their own use, the lands were declared to belong to the plaintiff after the death of the settlor's widow, and the feoffees were ordered to convey the lands accordingly.

The other case was Lady Egerton's Case.(2) A fine had been levied by a recusant to another in Queen Elizabeth's time in trust that the profits might be employed upon a hospital of religious persons which should be renewed "when the times should serve"; and in the meantime the profits were to be employed to the relief of poor people "by the discretion of the conusee and his heirs to the intent of the conusor." The Court decreed the land to the heir at law on the ground that it was apparent that the donor was a recusant, and that the employment of the money must be according to his intent,

(1) (1606) Moo. K. B. 784.

(2) (1605) Duke on Charitable Uses (Moore's Exposition), p. 133.

which could be no other than the relief of poor recusants, and that such a disposition, not being agreeable to the law, the use could not be charitable within the meaning of statute 43 Eliz.

The principle of these cases is that no disposition of property for purposes which are contrary to the law can effect the intended purposes, even if the statutes merely prohibit the purpose and do not in terms prohibit the settlement of property for such purpose.

My Lords, I have on the whole formed the opinion that it is upon this principle that the subsequent cases are to be supported. No justification for refusing to uphold the settlements of Dissenters, Jews, and others who do not believe in the doctrines of the mass, can be founded upon a statute which was only aimed at certain practices and ceremonies of the Roman Catholic Church. When it is borne in mind that the Church of England was the only lawful form of religion until the Toleration Act, the all-embracing scope of this principle can readily be understood. It explains indeed the series of cases following. The decision in Attorney-General v. Baxter(1) turned upon the validity of a devise in favour of sixty poor ejected ministers to be named by Baxter. The Attorney-General argued that it was void because it tended to encourage and perpetuate schism, and the Lord Chancellor held the bequest void. It appears from the note 2 Vern. at p. 105, where the case is mentioned as Attorney-General v. Hughes, that in 1689 the Lords Commissioners reversed this decision. Lord Eldon, in delivering judgment in Moggridge v. Thackwell(2), said, on the authority of Lord Hardwicke's notes in De Costa v. De Pas(3), that the reversal was on the ground that the bequest was a mere legacy.

Attorney-General v. Guise(4), is an extreme example of the principle. Objection was taken to a charity to educate and ordain Scots to go to Scotland in order to propagate the Church of England there. The ground was that, inasmuch

(1) (1684) 1 Vern. 248.

(2) (1803) 7 Ves. 36, 76.

(3) (1754) Amb. 228; 2 Swans. 487n.

(4) (1692) 2 Vern. 266.

as by statute Presbyterianism was the established religion in Scotland, the trust had thereby become illegal. Lord Somers upheld the objection and made a decree for a scheme (which is printed in 2 Collyer at p. 670). This case came before more than one Lord Chancellor - e.g., Lord Hardwicke in 1744(1), Lord Henley in 1759(2), and was cited in a case which also arose on the scheme Glasgow College v. Attorney-General.(3) Episcopacy had been almost forbidden in Scotland. See Greenshield's Case(4), which led to the Act 10 Anne, c. 7, being passed to enable Episcopalians in Scotland to worship in their own proper fashion.

Jones' Case(5) was decided on an information alleging that a lease and release of lands covered an intention to pass the estate for the benefit of Roman Catholic priests in England. This was filed in the reign of James II., and alleged that the purpose was unlawful and superstitious. The lands were adjudged to the King in Trinity Term, 1688. The Lords dismissed the appeal, which claimed that the lands being given to a superstitious use, should go to the next of relation or in the alternative that a charity should be appointed consonant with the Protestant religion.

Lady Portington's Case(6) was decided on an absolute devise, but the jury on an inquisitio post mortem found for the King on the ground that the devise was in fact for superstitious uses. The case was, it would appear, decided in the Exchequer(7) and in the King's Bench(8). The Exchequer held that the lands went to the King, and the King's Bench that they did not. The report in 1 Salk. assigns as the ground of the decision that "the King, as the head of the commonwealth, is obliged by the common law .... to see that nothing be done to .... the propagation of a false religion."

The report at 3 Salk. 334 sets out several propositions

(1) 9 Mod. 407.

(2) 2 Coll. 672.

(3) (1848) 1 H. L. C. 800, 820.

(4) 19 Lords' Journal 240.

(5) (1690) reported [1893] 2 Ch. 49, n, and cited as Gates & Jones' Case in 2 Vern. 266.

(6) (1693) 1 Salk. 162; 3 Salk. 334: 12 Mod. 31.

(7) 1 Salk. 163.

(8) 3 Salk. 334.

which appear to afford a headnote. The first of them is as follows:-

"1. All superstitious uses are void, and given to the King by the Statute of Ed. 6., which extends only to such uses as were made before that time, so that all superstitious uses since that statute was made, though they are void, yet they are not forfeited to the King." It is however clear from the terms of the report and the authority cited in the judgment of Holt C. J., namely, Croft v. Evetts(1), that the decision was based not on the statute but on the common law principle, and indeed if anything it suggests the view that the Act of Edward VI. has no application at all to such cases.

De Costa v. De Pas(2) was a bequest to a trustee to invest and apply the income in maintaining an assembly for daily reading the Jewish law and for advancing and propagating the Jewish religion. The report in Ambler was said by Lord Eldon in Moggridge v. Thackwell(3) not to be very accurate, and he cited Lord Hardwicke's notes. The report in Swanston is taken from Cox's notes in Lincoln's Inn Library. Lord Hardwicke was of opinion that the cases had gone further than the statute of Edward VI., and it would indeed be very difficult to attack this bequest on the words of that Act. If the principle of Croft v. Evetts(1) is applied then the case becomes clear and intelligible.

De Garcin v. Lawson(4) arose upon a codicil giving legacies to several Roman Catholic establishments both in England and abroad. The legacies were considered void, those to foreign establishments as being contrary to the policy of this country, the others because they were given either to individuals in characters with respect to which they could not claim, or to an illegal establishment. The argument against the Crown was that, as the Act 1 Edw. 6, c. 14, gave to the Crown only such superstitious uses as were then subsisting, subsequent superstitious uses were merely void. The case did not proceed to judgment as it was very doubtful

(1) Moo. K. B. 784.

(2) Amb. 228; 2 Swans. 487n.

(3) 7 Ves. 81.

(4) (1798) 4 Ves. 433n.

whether there would prove to be sufficient funds to pay these legacies.

Smart v. Prujean(1) concerned a devise by a Roman Catholic priest on trusts which were held not to have been sufficiently incorporated in the will and therefore to have failed. Lord Eldon expressed the view that, if a legacy were given for such purpose as the superior of a convent or her successor should judge most expedient, the fact that it was given in that character was sufficient to show that the gift was for a superstitious use.

In Cary v. Abbot(2) a bequest for the education and maintenance of poor children in the Roman Catholic faith was considered. Sir William Grant M.R. pointed out that although the Roman Catholic religion had received a considerable degree of toleration from the statute 31 Geo. 3, c. 32, yet that Act contained a provision that all dispositions before considered unlawful should continue to be so. He continued: "There is no statute making superstitious uses void generally. The statute of Edward VI. relates only to superstitious uses of a particular description then existing. The statute of Henry VIII. (23 Hen. 8, c. 10) relates only to assurances of land to churches and chapels; which, if for a longer term than twenty years, it declares absolutely void. The statute 1 Geo. 1, c. 55, was only temporary."

Doe v. Hawthorn(3), was an action construing the lease of a dissenting meeting house. It was held that the lease was void either as a superstitious use within 23 Hen. 8, c. 10, or as a charitable use within 9 Geo. 2, c. 36. Both of these Acts are now repealed.

In De Themmines v. De Bonneval(4), it was decided that a trust to apply the dividends of certain securities to the printing and publishing a book which inculcated the absolute and inalienable supremacy of the Pope in ecclesiastical matters was void, as being contrary to the policy of the law and in the nature of a superstitious use. Sir John Leach M.R. distinguished this trust from the case of a treatise inculcating

(1) (1801) 6 Ves. 560, 567.

(2) 7 Ves. 490, 495.

(3) (1918) 2 B. & Ald. 96.

(4) (1828) 5 Ruse. 288, 292.

the general doctrines of the Roman Catholic Church. It was (in his view) against the policy of the country to encourage any work which asserts the absolute supremacy of the Pope in ecclesiastical matters over the sovereignty of the State.

Such, my Lords, was the case-law at the date of the passing of the Catholic Relief Act, 1829. It is convenient now to refer to two statutes: 1 Geo. 1, c. 50, and 31 Geo. 3, c. 32. The former Act was intended to raise money at the expense of Roman Catholics, and it approached this object among other roads by appointing commissioners to find out what lands, etc., were then held for superstitious uses and to confiscate them to the King for the public use. This Act did not profess to have any operation beyond the existence of the commission and has long since undergone exhaustion. 31 Geo. 3, c. 32, permitted religious worship according to the tenets of the Roman Catholic Church, but it was very closely guarded by exceptions and precautions. Sect. 17 provided that no change was authorized in the holding of land, etc., so that neither Act can be relied upon as altering the law in any relevant particular. The Catholic Relief Act, 1829 (10 Geo. 4, c. 7), is a much wider measure, and subject to certain exceptions allows full freedom of worship to Roman Catholics. The provision of the Act 31 Geo. 3, c. 32, as to the disposition of property was not repeated. It was now impossible to apply the doctrine of Croft v. Evetts(1) to the full extent, and as Roman Catholicism had become a religion recognized by the law, the Courts were thereafter constrained to consider later cases from a new angle.

Bradshaw v. Tasker(2) is really a case before the Act. The testator, who died in 1823, had made bequests for Roman Catholic schools. Lord Brougham held that the case did not come within s. 3 of the Roman Catholic Charities Act, 1832, that this Act was retrospective, and therefore that the bequests were valid. It follows that he was of opinion that, apart from the 1832 Act, the bequests were invalid.

The Roman Catholic Charities Act, 1832 (2 & 3 Will. 4, c. 115), is entitled: "An Act for the better securing the charitable

(1) Moo. K. B., 784.

(2) (1834) 2 My. & K. 221.

donations and bequests" of Roman Catholics. After reciting the Toleration Act and other Acts for the relief of Dissenters and the expediency of removing doubts respecting the right (of Roman Catholics) to acquire and hold property necessary for religious worship, it provides that Roman Catholics shall be on the same footing as Protestant Dissenters in respect to their schools and places for religious worship, education and charitable purposes, and not further or otherwise; but by s. 4 the sections (28-36) of the Act of 1829 against Roman Catholic religious orders were maintained, and by s. 5 the then existing Mortmain Acts were affirmed.

The position, therefore, was that the Roman Catholic religion was recognized as one which could be practised without any penal consequences or breach of the law. The first case after the last-named Act in which the doctrines with which your Lordships are concerned were examined was West v. Shuttleworth(1), decided by Sir Charles Pepys, afterwards Lord Chancellor Cottenham. This decision (not the old cases) is the real foundation for the proposition that bequests of the kind now under consideration are invalid.

The question was as to the validity of provisions of the will of a testatrix who had given bequests to priests for prayers and masses and directed the residuary estate to be applied in providing funds for the ministers of certain named Roman Catholic chapels for prayers for the souls of the testatrix and her dead husband and, so far as not required for such purposes, in promoting the knowledge of the Roman Catholic religion among the poor and ignorant of certain named districts. The Master of the Rolls held that the bequests to the priests and ministers of chapels were void, but that the ultimate residuary gift was valid. The desire of the testatrix to benefit her soul was indeed defeated; but her desire to have others taught that such a desire was in accordance with true religion was, not without paradox, upheld. The case was fully argued, but the arguments afforded little foothold to those who contend that gifts to superstitious uses, not within the statute of Edward VI., were void as being contrary to the policy

(1) 2 My. & K. 684.

of the law. The argument for the validity of the bequests was put upon the ground that, admitting such gifts to have been invalid, they had ceased to be so by reason of the Catholic Relief Act, 1829, as explained by the Act of 1832. The rule (so it was contended) was then to be taken as laid down in the well-known judgment of Lord Eldon in Attorney-General v. Pearson.(1) The earliest case cited in argument was De Costa v. De Pas(2), and learned counsel do not appear to have cited, or examined, any of the earlier authorities in order to unfold the dubious genesis of the rule. Sir C. Pepys' judgment on the superstitious uses(3) assumes that the rule is one which is binding, unless altered by the statute of 1832, and taking the view that a bequest to a priest or the minister of a chapel, although for religious purposes, was not a gift to "schools, places for religious worship, education and charitable purposes," naturally came to the conclusion that the gifts were invalid. It is not clear upon what authority he made the statement that the statute of Edward VI. "has been considered as establishing the illegality of certain gifts"; but the reference to Duke on Charitable Uses suggests that he had consulted Duke's treatise and there found an explanation of certain cases, which did not fall within the terms of the statute, and for which he could not find any satisfactory reason. This case is really the earliest authority. Lord Cottenham, in 1841, had occasion to deal with a will which came into force before 1 Edw. 6. He held that the gift would have been void under the authority of Adams & Lambert's Case(4), and the cases cited in Coke's Reports, but for letters patent and a statute which cured the defect: (Attorney-General v. Fishmongers' Company (Kneseworth's Will.)(5)

The case of Attorney-General v. Todd(6) was concerned with the estate of a testatrix who in 1680 devised her lands subject to a rent charge and by a memorandum directed the devisee and the holder of the rent charge to carry out certain trusts

(1) (1817) 3 Mer. 353, 409.

(2) Amb. 228.

(3) 2 My. & K. 697.

(4) 4 Rep. 104b.

(5) 5 My. & Cr. 11.

(6) (1837) 1 Keen, 803.

(inter alia) for a Roman Catholic priest. Lord Langdale M.R. held that as litigation was pending at the date of the passing of the 1832 Act, that statute, by s. 3, did not apply, and held the trust invalid without giving reasons.

Heath v. Chapman(1) was a decision of Kindersley V.-C. He was sitting as a judge of first instance and, as the question was as to the validity of certain trusts created inter vivos for the purpose (inter alia) of paying annuities to certain named Roman Catholic churches in England and abroad for masses and requiems for the souls of certain named persons, and the poor dead, he was bound by West v. Shuttleworth.(2) He examined however the reasons for the rule and said: "It is quite clear that, at all events before the 2 & 3 Will. 4, it was commonly assumed to be the law .... that a gift to a priest for masses for the repose of the testator's soul, or a gift to a priest to say masses generally, was superstitious and void. The way in which this came to be the law is this: at the time of the passing of the statute of Edward 6 such gifts were void. That statute declares, as to certain uses, not that they are void - it assumes that - but that the property given to such uses is to belong to the Crown; and the Courts of law have subsequently put this interpretation on that statute, not that it actually declares such trusts to be void, but that it stamps on all such trusts, whether created before or subsequently to the statute, the character of illegality, on the ground of being superstitious; it gives to the Crown certain property devoted to such uses, but it stamps all such uses as superstitious and void. That has been the view of the Courts of law; and Lord Cottenham, when Master of the Rolls, in referring to the cases collected in Duke, refers to the cases where that is stated." The Vice-Chancellor does not appear to have realized that Adams & Lambert's Case(3) was a decision on the statute itself, and, apart from his erroneous assumption that at the date of the passing of the Chantries Act masses were illegal, he seems to have assumed further that the cases could only have been decided on the strained interpretation of the

(1) 2 Drew. 417, 423, 424.

(2) 2 My. & K. 684.

(3) 4 Rep. 104b.

Act which he stated in the terms cited above. My Lords, this reasoning cannot be supported. The Vice-Chancellor then discussed the Act of 1832 and its effect upon such trusts, and came to the conclusion that, though the statute was intended to place Roman Catholics on the same footing as Dissenters, as to their places of worship, that does not apply to the purposes to which such places are devoted. "No doubt, if property is given for the use of a place of worship, that is good; but the statute leaves quite untouched the case, where property is given for superstitious uses." He ended by stating his entire concurrence with the reasoning of Lord Cottenham in West v. Shuttleworth.(1) It is not doing Kindersley V.-C. an injustice to say that his decision adds nothing to the earlier case which he followed.

In 1860 a new Act was passed to amend the Act of 1832, providing that where property was held as trust for purposes of the Roman Catholic religion, part of which were valid and part invalid, as being for superstitious uses, then so much as was held applicable to the void uses should be applied under a scheme to be settled by the judge for purposes of the Roman Catholic religion.

At one period of the debate the suggestion was thrown out that the "superstitious trusts" referred to in the Act of 1860 must mean trusts of the kind which were condemned by the decision in West v. Shuttleworth(1), and the intention was therefore indicated that Parliament had stamped upon such trusts the character attributed to them in that much-discussed case. My Lords, I am not able to accept this view. When the Act says, "trust or provision deemed to be superstitious" I am of opinion that it means a trust or provision rightly and lawfully so deemed. Holding the view which I have formed upon the merits of the decision in West v. Shuttleworth(1), I necessarily conclude that these trusts were not superstitious, and I therefore leave the words of the Act to operate in other ways. Alternatives were suggested to us during the argument, and I think an ingenious person could multiply instances in which even to-day dispositions connected

(1) 2 My. & K. 684.

with relics, the veneration of saints or the sustenance of miracle producers might be held to be invalid. But I do not find it necessary to attempt a conclusion upon any of these matters, because, in my view Parliament simply intended e cautela to give to Roman Catholics this advantage, that if any trusts hereafter purporting to benefit Roman Catholics should be held superstitious the property so disposed should be applied cy-pr�s.

The Act of 1860 was not referred to in the case of In re Blundell's Trusts(1), which arose in the following way. Romilly M.R. had decided a point arising on trusts for Jewish purposes (In re Michel's Trust(2)), and in the course of his judgment had expressed obiter the view that since the recent legislation as to Roman Catholics the old cases upon superstitious uses were no longer law, but when the point arose in In re Blundell Trusts(1) he considered the authorities, and found that he was bound by West v. Shuttleworth(3), and accordingly followed it. This course was adopted in the subsequent cases of In re Fleetwood(4) and In re Elliott(5), and the late Lord Parker of Waddington in his judgment in Bowman v. Secular Society(6), quite recently uttered a dictum, obiter without hearing argument on the point, to the effect that it was unlawful to procure masses to be said for the testator's soul.

My Lords, this series of authorities has led me, after the most anxious consideration, to several conclusions:-

(1.) That at common law masses for the dead were not illegal, but on the contrary that dispositions of property to be devoted to procuring masses to be said or sung were recognized both by common law and by statute.

(2.) That at the date of the passing of 1 Edw. 6, c. 14, no Act or provision having the force of an Act had made masses illegal.

(3.) That 1 Edw. 6, c. 14, did not itself make masses illegal, or provide that property might not thereafter be given for the purpose of procuring masses to be said or sung. It merely

(1) 30 Beav. 360.

(2) 28 Beav. 39.

(3) 2 My. & K. 684.

(4) 15 Ch. D. 594, 609.

(5) [1891] W. N. 9.

(6) [1917] A. C. 437

confiscated property then held for such and similar purposes. Subsequent legislation was passed to confiscate property afterwards settled to such uses. This is certainly true of 1 Eliz. c. 24, and may be true of 1 Geo. 1, c. 50.

(4.) That, as a result of the Acts of Uniformity, 1549 and 1559, masses became illegal. The saying or singing of masses was a penal offence from 1581 to 1791, and no Court could enforce uses or trusts intended to be devoted to such uses.

(5.) That neither contemporaneous exposition of the statute 1 Edw. 6, c. 14, nor any doctrine closely related to it in point of date, placed upon it the construction adopted in West v. Shuttleworth.(1) The principle of that decision is certainly affirmed in Duke and in Roper on Legacies, but the authorities cited on its behalf not only do not support it, but in some cases contradict it.

(6.) That the substratum of the decisions which held such uses and trusts invalid perished as a consequence of the passing of the Catholic Relief Act, 1829, and thereafter your Lordships may give free play to the principle cessante ratione legis cessat lex ipsa.

(7.) That the current of decisions which held that such uses and trusts are ipso facto superstitious and void begins with West v. Shuttleworth(1), and is due to a misunderstanding of the old cases.

If there were, in fact, an unbroken line of authorities dating back 300 years, then it would have been a matter for grave discussion whether this House, in accordance with well recognized principles, would consent to break that chain. The authorities, however, are only uniform in result. Some depend upon statutes, some on the principle that no religion other than that by law established can be recognized and protected by the Courts, while others depend upon a misunderstanding of the ancient decisions.

West v. Shuttleworth(1) is not such a decision. The nearest analogy is that of Sion College v. London Corporation(2), which was reversed in Associated Newspapers v. London

(1) 2 My. & K. 684.

(2) [1901] 1 K. B. 617.

Corporation(1), because it was considered that the old decisions upon which the Court of Appeal relied in the Sion College Case had not the effect attributed to them in the Court of Appeal.

I have carefully and respectfully considered the authorities collected by my noble friend Lord Wrenbury in his judgment. The principle upon which he founds his conclusion is perhaps stated in its widest terms by Jessel M.R. in Ex parte Willey(2), where he says: "The judge .... must not allow any number of dicta, or even dicisions which are not binding on him, to affect his judgment, except in one peculiar case .... Where a series of decisions of inferior Courts have put a construction on an Act of Parliament, and have thus made a law which men follow in their daily dealings, it has been held, even by the House of Lords, that it is better to adhere to the course of the decisions than to reverse them, because of the mischief which would result from such a proceeding. Of course, that requires two things, antiquity of decision, and the practice of mankind in conducting their affairs."

In Hebbert v. Purchas(3), Lord Hatherley L.C. in delivering the judgment of the Board on another question raised as to the Reformation settlement said: "Through the researches .... a clear and abundant expositio contemporanea has been supplied, which compensates for the scantiness of some other materials for a judgment. It is quite true that neither contrary practice nor disuse can repeal the positive enactment of a statute, but contemporaneous and continuous usage is of the greatest efficacy in law, for determining the true construction of obscurely framed documents. In the case of The Attorney-General v. Mayor of Bristol(4) Lord Eldon observes: 'Length of time (though it must be admitted that the charity is not barred by it) is a very material consideration, when the question is, what is the effect and true construction of the instrument? Is it according to the practice and enjoyment which has obtained for more than two centuries, or has that practice and enjoyment been a breach of trust?' We may ask in

(1) [1916] 2 A. C. 429.

(2) 23 Ch. D. 127.

(3) L. R. 3 P. C. 605, 650.

(4) (1820) 2 Jac. & W. 294, 321.

like manner what is the true construction of the Act of 1662 and of the Rubric which it sanctioned? Is it according to the practice of two centuries, or was the practice a continual breach of the law, commanded and enforced by the Bishops, including the very Bishops who aided in framing the Act?"

In Morgan v. Crawshay(1) Lord Westbury stated the rule in these terms: "If we find a uniform interpretation of a statute upon a question materially affecting property, and perpetually recurring, and which has been adhered to without interruption, it would be impossible for us to introduce the precedent of disregarding that interpretation. Disagreeing with it would thereby be shaking rights and titles which have been founded through so many years upon the conviction that that interpretation is the legal and proper one, and is one which will not be departed from."

Lord Herschell's judgment in Tancred, Arrol & Co. v. Steel Co. of Scotland(2), applied the rule to the law of contract. He said: "I think that that doctrine having been laid down so long ago, whether it rests upon any sound basis or not, it would be most improper to depart from it now, because one would be really altering the contract between the parties; for we have a right to suppose that they have entered into it upon the basis of that which for nearly a century has been understood to be the law."

In West Ham Union v. Edmonton Union(3), a case relating to the settlement of paupers, Lord Loreburn L.C. said: "I ought to say that, in my opinion, the cases which governed the decisions in the Courts below do lead to the conclusion which they reached. .... Great importance is to be attached to old authorities, on the strength of which many transactions may have been adjusted and rights determined. But where they are plainly wrong, and especially where the subsequent course of judicial decisions has disclosed weakness in the reasoning on which they were based, and practical injustice in the consequences that must flow from them,

(1) L. R. 5 H. L. 320.

(2) 15 App. Cas. 125, 141.

(3) [1908] A. C. 1, 4, 5.

I consider it is the duty of this House to overrule them, if it has not lost the right to do so by itself expressly affirming them."

In my view it is undoubtedly true that ancient decisions are not to be lightly disturbed when men have accepted them and regulated their dispositions in reliance upon them. And this doctrine is especially deserving of respect in cases where title has passed from man to man in reliance upon a sustained trend of judicial opinion.

But this, my Lords, is not the present case. If my view is well founded citizens of this country have for generations mistakenly held themselves precluded from making these dispositions. I cannot conceive that it is my function as a judge of the Supreme Appellate Court of this country to make error perpetual in a matter of this kind. The proposition crudely stated really amounts to this, that because members of the Roman Catholic faith have wrongly supposed for a long period of time that a certain disposition of their property was unlawful, and have abstained from making it, we, who are empowered and bound to declare the law, refuse to other members of that Church the reassurance and the relief to which our view of the law entitles them. My Lords, I cannot and will not be a party to such a proposal.

The conclusion therefore, so far as I am concerned, is that a gift for masses for the souls of the dead ceased to be impressed with the stamp of superstitious use when Roman Catholicism was again permitted to be openly professed in this country, and that thenceforth it could not be deemed illegal. This is not to say that there are now no superstitious uses, or that no gift for any religious purpose, whether Roman Catholic or other, can be invalid. Such cases may arise and will call for decision when they do arise.

A third point remains, and this may be briefly dealt with. The respondents contend that all the gifts, except that to the Westminster Cathedral, were bad, as being to orders bound by monastic vows: Catholic Relief Act, 1829, s. 28; Roman Catholic Charities Act, 1832, s. 4; and Roman Catholic Charities Act, 1860, s. 7.

I do not think it necessary to examine this contention or the cases which were cited to us for two reasons:-

(1.) The respondents do not raise the point in their case, though they certainly would have done so had they placed substantial reliance upon it;

(2.) They have not placed before us, as was their duty, any evidence sufficient to establish the facts which are necessary in order to found her contentions of law.

My Lords, in my opinion the cumulative effect of the various Emancipation Acts is to remove from the doctrines of the Roman Catholic faith every stigma of illegality. Gifts inter vivos or by will to build a Roman Catholic church or to erect an altar have long been allowed. I am content that my decision should not involve your Lordships in the absurdity that a Roman Catholic citizen of this country may legally endow an altar for the Roman Catholic community, but may not provide funds for the administration of that sacrament which is fundamental in the belief of Roman Catholics, and without which the church and the altar would alike be useless.

My Lords, I am of opinion that this appeal must be allowed with costs, and I move your Lordships accordingly.

LORD BUCKMASTER (read by LORD PARMOOR). My Lords, Edward Egan was an Irishman, domiciled in England, who lived and died in the consolations of the Roman Catholic faith. He made his will on November 29, 1916, and thereby, among other bequests, gave 200l. to the cathedral for masses and 200l. and the residue of his estate to the Jesuit Fathers, Farm Street, for masses. He also made certain bequests to the Dominican and the Franciscan Fathers. He died on December 27, 1916, and the question raised on this appeal is as to the validity of the gifts to the cathedral and the Jesuit Fathers. They have been declared invalid by Eve J. and by the Court of Appeal, but in neither case did the judgments depend upon any investigation of the law. Both Courts accepted and followed the authority of certain decisions dependent upon the case of West v. Shuttleworth(1), to which

(1) 2 My. & K. 684.

I will make more particular reference hereafter. The bequests are open to challenge on the ground: first, that they are for a superstitious and unlawful purpose; and secondly, so far as the gift to the Jesuit Fathers is concerned, that they are made to a monastic body. It is on the first of these grounds that the gifts have been held to fail.

It is important at the outset to disentangle the consideration of this question from that connected with the cases where money has been left to purposes which the law would declare to be illegal, but associated with what the law would regard as a charitable intent.

If a general charitable purpose be expressed, and a particular method of carrying it out directed which the law would not recognize, the failure of the particular method in which that charitable intention is to be effected does not destroy the charity, and the law substitutes by the doctrine of cy-pr�s another method of devoting the property to charitable uses. The unlawful purpose is in such cases regarded as a means of disappointing the principal intention of the will, notwithstanding that in the result property has frequently been devoted to something which was the exact opposite of what the testator desired.

It is unnecessary to multiply references to authorities upon this point; they are to be found referred to in the case of Moggridge v. Thackwell(1), and the distinction mentioned is well illustrated in the case of Cary v. Abbot.(2)

In that case a gift had been made for the purpose of educating poor children in the Roman Catholic faith, and the next of kin sought to have the gift declared illegal and void, but the Attorney-General claimed that a general charitable intent being disclosed, the residue ought to be applied to such purposes as the Crown should please to direct. The Master of the Rolls said that: "To entitle the heir or next of kin it is requisite, not only, that the devise is to a superstitious use, but to such as is made void by statute. There is no statute making superstitious uses void generally. The statute of Edward VI. relates only to superstitious uses of a particular

(1) 7 Ves. 36.

(2) 7 Ves. 490, 494.

description, then existing," and holding that the use was clearly charitable, though vitiated by the provisions that the poor children were to be educated in the Roman Catholic religion, he directed that the property should go to such use as the King should direct.

In the present case no general charitable intention is disclosed, the gift is either void or it passes to the persons and for the purposes defined. There is, therefore, no doctrine of equity affecting this gift: if void, it must be so by common law or statute. Now the principles of the common law do not change, though their application is capable of indefinite variation with the changing habits and customs of mankind. If void by the common law, therefore, it must always have been so. It cannot, however, be successfully contended that a gift to provide masses for the souls of the dead was at all times contrary to the common law. Until the reign of Edw. 6, masses for the souls of the dead were a recognized method of intercession for the departed, and there still remain scattered over the country chantries and chapels which were built and endowed for this very purpose. The common law of Ireland does not differ from the common law of England, and Palles C.B., in a judgment in a case of O'Hanlon v. Logue(1), showed with great distinctness that in Ireland such a gift is good. I do not think that the common law upon this point needs any further investigation. It therefore becomes necessary to examine what statute law affects the question, and in this respect only one statute is relied upon, that of 1 Edw. 6, c. 14. It is one of those statutes that cumber the Statute Book long after their purpose has been fulfilled, and the reason why it remains unrepealed is probably because it is completely obsolete. It was prefaced by a preamble which runs in these words: "Considering that a great part of superstition and errors in Christian religion has been brought into the minds and estimations of men, by reason of the ignorance of their very true and perfect salvation through the death of Jesus Christ, and by devising and phantasing vain opinions of phurgatory and masses

(1) [1906] 1 I. R. 247.

satisfactory, to be done for them which be departed; the which doctrine and vain opinion, by nothing more is maintained and upholden, than by the abuse of trentals, chantries, and other provisions made for the continuance of the said blindness and ignorance."

It then proceeded to enact that chantries and lands for the maintenance of any anniversary or obit or other like thing intent or purpose or of any light or lamp in any church or chapel which had been kept or maintained within five years then next preceding should be forfeited to the Crown. It also provided by s. 38 that it should not be lawful to any person by reason of any remainder, use or condition, to claim any lands for the non-doing or non-finding of any obit, anniversary, light or lamp, from thenceforth to be founded or done.

The only part of the statute dealing with personal property is s. 7, which avoids certain gifts made within the said period of five years. These are the material parts of the statute, and from them it is perfectly plain that there was no general declaration avoiding the gifts then existing or thereafter to be made in support of masses for departed souls, but that in the case, and only in the case, of then existing trusts of lands and in certain limited cases money given for such purposes operative within five years before the passing of the Act, the King should be at liberty to enter and enjoy the same, and that for the future if any lands were given for similar purposes the persons in remainder should not be entitled to enter if the conditions were not performed. This last provision is of consequence, for if the statute had intended that all gifts for such uses were to be declared superstitious and bad, it would not have been possible to make express provisions merely preventing re-entry by the remaindermen in cases where such gifts were subsequently established.

Shortly after the passage of this Act the Act of Uniformity 2 & 3 Edw. 6, c. 1, established the "Book of Common Prayer" and imposed penalties upon any people who should use any other rite, ceremony, form or manner of masses openly or privily and, as has been pointed out, the Book of Common Prayer so established contained as part of the Communion

Service a solemn and appealing supplication for the souls of the dead. The form of Common Prayer was altered in 1552, and these services were omitted. In 1581 by 23 Eliz. c. 1, s. 4, which was directed against the Roman form of worship, penalties of fine and imprisonment were imposed both upon any person who celebrated and any who attended the service of the mass according to the Roman ritual.

The next step in the history is the case of Adams and Lambert's Case.(1) It was a decision upon the statute of Edward VI. The only point that then arose for determination was as to whether certain estates for life and intail were within the statute, and it was decided that they were; so far, therefore, as the decision is concerned it does not affect the question. It is, however, true that in the long and tangled report of this authority there are to be found scattered statements of far wider significance. For example at p. 113a, where it is said that the equity of the said Act "intended to extirpate all praying for souls"; but whether this was part of the judgment or part of the comments upon it is not plain; in any case I find it difficult to understand what is meant by the equity of any Act, nor, whatever is the meaning of the phrase, how the equity is to be ascertained apart from plain language and reasonable inference. The purpose of the Act was limited and there is no means by which it can be extended.

In this connection a statement made in the case of Phillpotts v. Boyd(2) as to the effect of 3 & 4 Edw. 6, c. 10, intituled "An Act for the abolishing and putting away divers books and images," is peculiarly appropriate. This statute provided that any person who then had or thereafter should have in his custody images taken out of any church or chapel or yet standing in any church or chapel should destroy them, but it was held that this did not render images on a reredos illegal, and Lord Hatherley says that "the efficacy of the Act of Edward was spent upon the definite purpose to which it was directed, and that the Legislature did not thereby make, or intend to make, provision in respect of the subsequent use or abuse of any other images."

(1) 4 Rep. 104b.

(2) (1875) L. R. 6 P. C. 435, 462.

Following in point of date are cases such as Cary v. Abbot(1), where the illegality of gifts in support of Roman Catholic teaching is discussed and applied. But the illegality is nowhere stated to be due to the statute of Edward VI., and is more probaby referable to the statute of 23 Eliz.

In the reported cases these gifts are associated with charitable purposes and they were not declared void. But had a gift been made in the terms of the present will, it would, owing to this illegality, have been bad. This is indeed stated in exact language by Lord Mansfield in his speech in the case of Harrison v. Evans(2) in 1767.

The question that there arose for decision was remote from that in the present case. A Protestant Nonconformist was chosen sheriff of London, and he refused to serve upon the ground that he was disqualified since he had not, in accordance with the provisions of the Corporation Act, qualified himself by taking the sacrament according to the usage of the Church of England within a year before his election. He refused to serve, and proceedings were taken against him to recover fines in accordance with the bye-laws of the City. It was held that the proceedings would not lie. Lord Mansfield's speech is certainly worthy of a more important place in the law reports than that hitherto assigned. So far as I can ascertain it is fully reported only in Furneaux's Letters to Blackstone and Cobbett's Parliamentary History (vol. xvi.). In the former it is to be found in the second edition published in 1771 at p. 249, and in the latter in columns 313-327. Its importance lies in its strong declaration of the liberty accorded to every man for freedom of religious opinion in this country, except so far as such right has from time to time been limited and invaded by Acts of Parliament. The Toleration Act had then been passed, and in dealing with its effect upon Dissenters, Lord Mansfield said: "Dissenters, within the description of the Toleration Act, are restored to a legal consideration and capacity; and one hundred consequences

(1) 7 Ves. 490.

(2) Furneaux's Letters to Blackstone, 2nd ed. (Appendix), p. 249; Parliamentary History, vol. xvi., pp. 313-327.

will from thence follow, which are not mentioned in the Act. For instance, previous to the Toleration Act, it was unlawful to devise any legacy for the support of dissenting congregations or for the benefit of dissenting ministers; for the law knew no such assemblies, and no such persons; and such a devise was absolutely void, being left to what the law called superstitious purposes. But will it be said in any Court in England, that such a devise is not a good and valid one now? And yet there is nothing said of this in the Toleration Act."

The question asked by Lord Mansfield to which he thought there was only one possible reply is the question your Lordships are called upon to answer in the present case.

The statement has no special application to Nonconformity, it applies with equal force to a gift for Roman Catholics when once the disabilities imposed upon them have been removed as by the Toleration Act they were removed from Dissenters.

Now Roman Catholics were not within the privilege of the Toleration Act, but by 31 Geo. 3, c. 32, the effect of the statute of Elizabeth was modified, by the Catholic Relief Act, 10 Geo. 4, c. 7, civil disabilities were removed, by 2 & 3 Will. 4, c. 115, after reciting the Toleration Act 1 W. & M. c. 18, it was provided that Roman Catholics in respect to schools, places for religious worship, education and charitable purposes and property held therewith and the persons employed in and about the same should in respect thereof be subject to the same laws as the Protestant Dissenters, and by 7 & 8 Vict. c. 102, the penal statute of Elizabeth was repealed, and there remained no illegality in the Roman Catholic faith.

The next and by far the most important authority in this case is West v. Shuttleworth.(1) It was decided in 1835. The gift under consideration provided that whatever was left to priests or chapels "I desire the benefit of their prayers and masses," and the gift was held to be void by Lord Cottenham, who was then Sir C. Pepys M.R. He was under no misapprehension as to the enactment of 1 Edw. 6,

(1) 2 My. & K. 684.

but he said that by the preamble it was generally regarded that all such uses were superstitious and were consequently void, and in support of this he quoted the authority of Duke's "Charitable Uses," and uses words which suggest reference to Adams and Lambert's Case.(1) It is difficult to understand how these authorities supported the conclusion. The cases quoted in Duke's Charitable Uses are all of them cases relating to the special application of the section in 1 Edw. 6, which forfeited then existing gifts in favour of the Crown. They are of no assistance for the purpose of showing that it was intended by that statute to declare all such uses superstitious and void, nor, as already shown, does the case of Adams v. Lambert(1) carry the matter any further.

In Attorney-General v. Fishmongers' Co.(2) Lord Cottenham again took the same view of the Statute of Chantries, but added nothing to the reasons already given.

In Heath v. Chapman(3) the question came before Kindersley V.-C. He acted on the assumption that before 2 & 3 Will. 4 it was clearly admitted to be the law, that a gift of money for the welfare of a testator's soul was superstitious and void, and he says that this was due - not to the law effected by the statute of Edward VI., but because the law assumed that the gifts are void and that it stamps such trusts with illegality, and he holds that the statute of William IV. did not alter the law in this respect.

I find it difficult to understand why, if the statute of Edward VI. assumed all the gifts to be void, there should have been a limited provision covering those made within a limited time and forfeiting those only in favour of the Crown. And if it be true that the law subsequently assumed the gifts to be bad, it is explained upon the grounds already referred to that the worship had become illegal by statute.

The learned Vice-Chancellor had not before him the statement I have quoted from Lord Mansfield, which would, I think, have provided an answer to his conclusions as to the limited operation of the statute of William IV.

(1) 4 Rep. 104b.

(2) 5 My. & Cr. 11.

(3) 2 Drew. 417.

In In re Michel's Trust(1), a case which related to the Jewish religion, Lora Romilly expressed his doubts as to the validity of West v. Shuttleworth(2) and Heath v. Chapman(3) in these words: "So far as relates to their places for religious worships and the property held therewith, Roman Catholics and Jews are now placed in the same position as Protestant Dissenters; and if it be part of the forms of their religion, that prayers should be said for the benefit of the souls of deceased persons, it would be difficult to say that, as a religious ceremony practised by a dissenting class of religionists, it could be deemed superstitious in the legal sense in which these words were used prior to the passing of the statutes in question, which practically have authorized them."

But he refrained from expressing any definite opinion as the case did not arise. In the case of In re Blundell's Trusts(4) the same learned judge reiterates his opinion: "I think the decided cases too strong, and that the House of Lords alone can alter the settled law. It is clear that I must act on West v. Shuttleworth(2), which I cannot overrule."

But in In re Fleetwood(5) as late as 1880, Hall V.-C., following West v. Shuttleworth(2), expressed his judgment in these words: "As regards the intended gift of 10l. for masses it seems to be void on the authority of West v. Shuttleworth(2)" and the subsequent cases to which he refers. Language of strange and uncertain import if the learned judge was administering a well-recognized and well-established principle of law.

Finally, in Yeap Cheah Neo v. Ong Cheng Neo(6) and in Bowman v. Secular Society(7), West v. Shuttleworth(2) is referred to by way of illustration without any expression of doubt as to the soundness of the decision, which indeed was in neither of the cases brought up for review.

There remains only the consideration of the effect of the statute of 23 & 24 Vict. c. 134. This statute clearly proceeds upon the hypothesis that there are purposes connected with

(1) 28 Beav. 39, 42.

(2) 2 My. & K. 684.

(3) 2 Drew. 417.

(4) 30 Beav. 360, 362.

(5) 15 Ch. D. 609.

(6) (1875) L. R. 6 P. C. 381.

(7) [1917] A. C. 437.

the Roman Catholic faith which may be treated as superstitious, and, at the same time, it may well be that the decision in the case of West v. Shuttleworth(1) was regarded as an illustration of such uses. It was intended as an enabling statute; its purpose was to prevent the destruction of an entire gift if, associated with gifts that were charitable, were others that would be held to be void. This statute was passed some twenty years after the decision in question; but it appears to me that its interpretation would be the same had it been passed immediately after the decision. In such a case it would be impossible to rely on the antiquity of the authority for its support; and, to my mind, it would have been equally impossible to prevent your Lordships' House from declaring it unsound had the matter then arisen. The fact that the statute was passed twenty years afterwards cannot, it seems to me, affect its construction, and it would indeed have been an unfortunate result, if, after other objections to this gift were shown to be untenable, an Act of Parliament passed with an obviously remedial purpose were found to have effected the exact opposite of its real intent.

I am of opinion that West v. Shuttleworth(1) was wrongly decided. A preamble to a statute may be of great service in determining the nature of doubtful and ambiguous language in its clauses, but it is impossible to legislate by a preamble, and the facts to which I have referred are to my mind clear for the purpose of showing that the statute did not, and did not intend to, have any such wide and general application. It remains only to be considered whether in these circumstances your Lordships ought to act on the view that West v. Shuttleworth(1) was erroneous. I see no reason why, if that opinion be clearly and positively held, hesitation should be felt in giving it effect. There could have been no principles known to Lord Cottenham that are not equally open to your Lordships. Had his decision depended upon the doubtful words of an ambiguous statute more difficulty might have arisen, but indeed it does not. Until that decision, and apart from certain

(1) 2 My. & K. 684.

dicta in Adams and Lambert's Case(1) there is nothing in the whole course of authority to which the error can be traced, nor can it be said that to alter this decision now would affect the title of existing estates. Obedience to the authority would have led to no other result than that such gifts would have been excluded from testator's wills, and that in consequence valid dispositions may have been made in favour of beneficiaries which would not have been effected had the law been accurately explained. In other words, it is the Roman Catholic religion which may have suffered by the effect of the authority, and I see no reason why what I regard as a misstatement of the law should be perpetuated in violence to the convictions of those who accept the teachings of the Roman Church.

In this respect I have the great misfortune to differ from one of your Lordships who has come to the contrary conclusion, and I have anxiously examined the authorities on which he relies - authorities some of which are binding upon this House - for the purpose of seeing that my opinion does not overstep the limits which those authorities have laid down. They are numerous, but the ones that I have selected enunciate the doctrine in sufficiently clear and unmistakable terms.

In the case of Rex v. Inhabitants of Sedgley(2), Lord Tenterden said with regard to a construction of a doubtful rating statute: "The rule of construction has been established and acted upon for a long time, and ought to be adhered to, unless we could say positively that it is wrong, and productive of inconvenience."

In Nicol v. Paul(3), in considering certain old decrees of valuation, Lord Westbury said: "My Lords, the suit, and the determination of it, are matters of very great concern generally to the heritors in Scotland. No doubt, the payments made by them and the value of their estates have for a long period of years been calculated upon the belief that these decrees of valuation would not be lightly disturbed. And I think it very desirable that the principle should be established

(1) 4 Rep. 104b.

(2) (1831) 2 B. & Ad. 65, 73.

(3) (1867) L. R. 1 H. L. Sc. 127, 131.

that a very liberal interpretation should be given to the language of these decrees, so as to support long usage, and the conclusions that fairly may be derived from the acquiescence of persons who had an interest in disturbing them if not well founded."

In Morgan v. Crawshay(1), a question arose as to whether iron mines were rateable for poor relief under the statute of 43 Eliz. c. 2. This statute in terms made coal mines rateable, and there had been decisions for upwards of 200 years that other mines were not; these decisions were followed, and Lora Westbury, who, it appeared, was not satisfied with their correctness, said: "We must bow to the uniform interpretation which has been put upon the statute of Elizabeth, and must not attempt to disturb the exposition which it has received."

Lord Cairns, in Inland Revenue Commissioners v. Harrison(2), says, with regard to disturbing established decisions on fiscal statutes: "I think that a course of proceeding of that kind is one which your Lordships never have adopted. It appears to me that it would be a most dangerous course for this House to adopt; and if it could be more dangerous in one case than in another, it would be so in a case in which your Lordships are dealing with one of the fiscal Acts of the country, as to which the object must be, above that of all other Acts, to maintain them and to expound them in a manner which will be consistent, and which will enable the subjects of this country to know what exactly is the amount of charge and burden which they are to sustain. I think that with regard to statutes of that kind, above all others, it is desirable, not so much that the principle of the decision should be capable at all times of justification, as that the law should be settled, and should, when once settled, be maintained without any danger or vacillation or uncertainty."

Sir George Jessel in the Court of Appeal in Ex parte Willey(3), in construing a Bankruptcy Act, said: "Where a series of

(1) L. R. 5 H. L. 304, 319.

(2) (1874) L. R. 7 H. L. 1, 8.

(3) 23 Ch. D. 118, 127-8.

decisions of inferior Courts have put a construction on an Act of Parliament, and have thus made a law which men follow in their daily dealings, it has been held, even by the House of Lords, that it is better to adhere to the course of the decisions than to reverse them, because of the mischief which would result from such a proceeding. Of course, that requires two things, antiquity of decision, and the practice of mankind in conducting their affairs."

Lord Herschell in his speech in London County Council v. Churchwardens, etc., of Erith(1), after stating that he could not regard as satisfactory the grounds upon which the Court of Queen's Bench had rested the non-rateability of certain sewers, "and that the law on the subject could not be said to be upon a sound and consistent basis" went on to say: "My Lords, I entirely concur with the learned judge in deeming it inexpedient to interfere in such a matter as this with a long course of practice supported by decisions which are not of very recent date. Therefore, even if it be not possible to rest upon grounds altogether satisfactory the exemption of these sewers, yet the case being, as I have said, a very particular one, I could not advise your Lordships to depart from a practice which has prevailed for a very long period, and which has been sanctioned by judicial authority."

In Tancred, Arrol & Co. v. Steel Co. of Scotland(2) a question arose as to the effect of an arbitration clause agreeing to refer disputes to an unnamed arbitrator designated only by his filling a particular office. By the law of Scotland such agreements are inoperative, and Lord Herschell, in support of the view that such an agreement did not oust the jurisdiction of the Courts, said: "I think that that doctrine having been laid down so long ago, whether it rests upon any sound basis or not, it would be most improper to depart from it now, because one would be really altering the contract between the parties; for we have a right to suppose that they have entered into it upon the basis of that which for nearly a century has been understood to be the law."

In Associated Newspapers v. London Corporation(3),

(1) [1893] A. C. 562, 593, 599.

(2) 15 App. Cas. 125, 141.

(3) [1916] 2 A. C. 429.