Charity - Education - Research - Gift to Francis Bacon Society Incorporated to be applied towards finding Bacon-Shakespeare manuscripts - Object of society to study evidence in favour of Bacon's authorship of plays ascribed to Shakespeare - Whether for advancement of education - Whether beneficial to community
By her will a testatrix gave one-third of her residuary estate to "the Francis Bacon Society Incorporated... to be earmarked and applied towards finding the Bacon-Shakespeare manuscripts". One of the main objects of the society at the date of the will and at the date of the testatrix's death was "to encourage the general study of the evidence in favour of Francis Bacon's authorship of the plays commonly ascribed to Shakespeare". The society was registered as a charity under the Charities Act, 1960. The court found that the degree of improbability of discovering manuscripts of the plays was not so great as to justify rejecting the trust as wholly impracticable or futile. On the question whether the expressed purpose of the gift was in law a valid charitable purpose,
Held: (i) the trusts on which the gift was to be held were, on the true construction of the bequest, to use the money to search for manuscripts of plays commonly ascribed to Shakespeare believed by the testatrix and the society to have been written by Bacon.
(ii) approaching the question whether these were valid charitable trusts on the basis that the court had to decide each particular case as best it could on the evidence available as to public benefit, the purposes of search or research for original manuscripts of England's greatest dramatist was within the law's conception of charitable purpose either as being for education or as being for other purposes beneficial to the community within the classification in Pemsel's case ([1891-94] All ER Rep 28; [1891] AC 531), for it was a gift for the improving of the country's literary heritage.
Per Cur: in order that a gift for research should be charitable the research either must be of educational value to the researcher or must be so directed as to lead to something which will pass into the store of educational material, or so as to improve the sum of communicable knowledge in an area which education (including in this last context the formation of literary taste and appreciation) may cover.
Cases considered:
Shaw Re. Public Trustee v Day [1957] 1 All ER 745, [1957] 1 WLR 729, 101 Sol Jo 408
Compton Re. Powell v Compton [1945] Ch 123, [1945] 1 All ER 198, 114 LJ Ch 99, 89 Sol Jo 142, 172 LT 158, 61 TLR 16
Cranstoun, Re, National Provincial Bank v Royal Society for the Encouragement of Arts, Manufactures and Commerce [1932] 1 Ch 537, 101 LJCh 152, 146 LT 568, 8 Digest (Repl) 351, 309.
National Anti-Vivisection Society v Inland Revenue Comrs [1947] 2 All ER 217, [1948] AC 31, [1947] LJR 1112, 177 LT 226, sub nom Inland Revenue Comrs v National Anti-Vivisection Society, 28 Tax Cas 311, 8 Digest (Repl) 313, 3.
Pinion, Re, Westminster Bank Ltd v Pinion [1963] 2 All ER 1049, [1963] 3 WLR 778, rvsd CA, [1964] 1 All ER 890, [1964] 2 WLR 919.
Royal Choral Society v Inland Revenue Comrs [1943] 2 All ER 101, 112 LJKB 648, 169 LT 100, 25 Tax Cas 263, 28 Digest (Repl) 318, 1400.
Shakespeare Memorial Trust, Re, Lytton (Earl) v A-G, [1923] All ER Rep 106, [1923] 2 Ch 398, 92 LJCh 551, 130 LT 56, 8 Digest (Repl) 330, 122.
Whicker v Hume (1858), 7 HL Cas 124, 28 LJCh 396, 31 LTOS 319, 22 JP 591, 11 ER 50, 8 Digest (Repl) 330, 121.
Applied:
Principle stated by Lord Simonds in National Anti-Vivisection Society v Inland Revenue Comrs [1947] 2 All ER at p 233, and Re British School of Egyptian Archaeology [1954] 1 All ER 887
Cases cited in argument:
Re Macduff, Macduff v Macduff [1895-99] All ER Rep 154, [1896] 2 Ch 451, Re Mellody, Brandwood v Haden [1916-17] All ER Rep 324, [1918] 1 Ch 228, Re Hummeltenberg, Beatty v London Spiritualistic Alliance [1923] All ER Rep 49, [1923] 1 Ch 237, Re The Trusts of the Arthur McDougall Fund, Thompson v Fitzgerald [1956] 3 All ER 867, Re Endacott (decd), Corpe v Endacott [1959] 3 All ER 562, [1960] Ch 232, Caffoor v Income Tax Comr, Colombo [1961] 2 All ER 436, [1961] AC 584.
Notes:
As to educational purposes which are charitable, see 4 Halsbury's Laws (3rd Edn) 218, 219, paras 496, 497; and for cases on the subject, see 8 Digest (Repl) 326-331, 91-126.
As to other public purposes which are charitable, see 4 Halsbury's Laws (3rd Edn) 226-232, paras 506-513; and for cases on the subject, see 8 Digest (Repl) 342-352, 235-312.
For the Mortmain and Charitable Uses Act, 1888, see 2 Halsbury's Statutes (2nd Edn) 910.
For the Charities Act, 1960, see 40 Halsbury's Statutes (2nd Edn) 121.
This was an application by originating summons dated 28 June 1963, by Charles Thomas Martin Naish and Anthony John Frederck Lewis Holley, the trustees of the will dated 21 November 1957, of Evelyn May Hopkins, deceased, ("the testatrix") for the determination of the following question: (i) whether on the true construction of the testatrix' will, the one-third share of the residuary estate of the testatrix bequeathed by cl 4 (iii) of the will to the Francis Bacon Society Incorporated was (a) bequeathed to the society absolutely free of any trust; or (b) bequeathed to the society on trust to be earmarked and applied towards finding the Bacon-Shakespeare manuscripts; (ii) if the answer to question (i) were in sense (b) whether the share was held (a) on valid charitable trusts; or (b) on valid but not charitable trusts; or (c) was undisposed of by the will. The defendants were the Francis Bacon Society Incorporated, Philip Guy Oban Willoughby, who represented the next of kin of the testatrix and Her Majesty's Attorney-General. The facts appear in the judgment.
NCH Browne-Wilkinson for the plaintiffs.
CJ Slade for the society.
MJ Fox for the second defendant, who represented the next of kin.
The Attorney General was not represented.
Cur adv vult
8 July 1964. The following judgment was delivered.
WILBERFORCE J
This summons is brought to determine the validity of a gift made by the will of Miss Evelyn May Hopkins, deceased. She died on 7 April 1961, having by her will disposed of one-third of her residue as follows:
"As to one equal one-third part thereof for the Francis Bacon Society Incorporated of 50A Old Brompton Road, London, S.W.7, to be earmarked and applied towards finding the Bacon-Shakespeare manuscripts and in the event of the same having been discovered by the date of my death then for the general purposes of the work and propoganda of the society ... ".
The sum in question is about £6,500.
The Francis Bacon Society Incorporated, as it has been called since 1950, is a society limited by guarantee. It was formed in 1903 and Miss Hopkins was a member of it for many years. Its main objects, as at the date of the will and the date of the testatrix' death, were these:
"(1) To encourage the study of the works of Francis Bacon as philosopher, lawyer, statesman and poet; also his character, genius, and life; his influence on his own and succeeding times, and the tendencies and results of his writings. (2) To encourage the general study of the evidence in favour of Francis Bacon's authorship of the plays commonly ascribed to Shakespeare, and to investigate his connexion with other works of the Elizabethan period."Some minor amendments were made to these objects in 1963 and with these amended objects the society is registered as a charity under the Charities Act, 1960; so it is conclusively presumed to be a charity.
Miss Hopkins could have given the money to the society during her life and the society under its constitution could have spent it for the purposes stated in the will; but the validity of her testamentary disposition is questioned. The basis for the challenge is that this is a gift to the society not absolutely but on a stated trust, so that it is necessary to see whether the trust is valid. It cannot be upheld as a gift on valid but non-charitable trusts, and the society does not seek so to uphold it. It can only be supported if it is a valid charitable trust. Whether it is so is what the court has to decide.
The first step is to construe the bequest. What is meant by "finding the Bacon-Shakespeare manuscripts"? Mr Naish, who is one of the plaintiffs and executors, states in his affidavit what, after enquiries, he believes the bequest to mean; but, except to the extent that he provides evidence of facts or circumstances proper to be considered on a question of construction, the meaning of the words used in the will is not a matter for him. There have been two main alternatives suggested. For the society it is said that the words mean "towards finding manuscripts of the plays commonly ascribed to Shakespeare but which I, and other members of the society, believe to have been written by Bacon". For the next of kin it is suggested that, if the words are not wholly uncertain in meaning, they refer to any manuscripts (not necessarily confined to manuscripts of the plays) which will support the case of the society that Bacon wrote the "Shakespeare" plays. The distinction between these alternatives is that, according to the society's construction, the gift is one for a piece of research into the authorship of "Shakespeare" plays; according to the next of kin, it is for work directed towards the reinforcement of the Baconian case. If the society's interpretation is the correct one, it may be easier to establish the gift's charitable character.
To assist the choice between the alternatives, there are certain facts which should be considered. Although William Shakespeare died in 1616, the first folio was not published until 1623 and it contained a number of plays not published during his lifetime. This seems to show that manuscripts of some plays, later published under Shakespeare's name, must have been in existence, probably at the place where the first folio was produced, in or shortly before 1623. Then there is the fact, of which there is evidence, that members of the society, to which the testatrix herself belonged, believe that it was Francis Bacon who wrote, that is composed, "the plays" which I take to mean all or some of the plays published under Shakespeare's name. The wording of the society's second object supports this: it is to encourage study of the evidence in favour of Francis Bacon's authorship of "the plays commonly ascribed to Shakespeare". So we have the plays and we have manuscripts of the plays possibly existing at some time after Shakespeare's death; these plays commonly stated to have been composed by Shakespeare, believed by the testatrix to have been composed by Bacon. With this I return to the gift, to the Francis Bacon Society as trustee, of a share of residue, to be used towards "finding the Bacon-Shakespeare manuscripts".
The definite article here is evidently significant. What does it signify? In the context of the society's objectives, it must surely indicate that the search is to be for some real object believed to exist. Counsel for the next of kin described it as a wild goose chase; but wild geese can, with good fortune, be apprehended. This search is to be for real manuscripts, once in existence, of existing plays, believed to be capable of being found. The latter part of the bequest fits in with this interpretation. It deals with the possibility that the manuscripts may have been discovered by the date of the testatrix' death - again suggesting that the search is one for definite objects which can be found. So that it seems to me that the trusts on which this gift is to be held are to use the money to search for the manuscripts of the plays commonly ascribed to Shakespeare believed by the testatrix and the society to have been written by Bacon, and it is these trusts which, if they are to be valid, must be shown to be charitable in the legal sense.
Before I come to the legal question whether this is so, it is convenient to deal with an argument put forward on behalf of the next of kin that the bequest is made for a purpose so manifestly futile that it does not even qualify for consideration as a possible charitable gift. This argument is relevant, and is similar in substance whichever of the two interpretations of the bequest is correct. Its validity depends on the evidence which has been filed, which I will now examine. Let me say at once that no determination of the authorship of the "Shakespeare" plays, or even of any subsidiary question relating to it, falls to be made in the present proceedings. The court is only concerned, at this point, with the practicability, and later with the legality, of carrying the testatrix' wishes into effect, and it must decide this, one way or the other, on the evidence of the experts which is before it.
The authorship of "Shakespeare's" plays, as one would expect, has been the subject of extensive enquiry over many years. The evidence before the court is of an economical character; it does not enter in any detail into the facts for or against the authorship of the various pretenders (I use this expression though the pretensions are those of their supporters and might well have been repudiated by the candidates themselves); it merely states, in some cases dogmatically, the outline of the contentions which have been made. The court cannot go outside this evidence. I summarise it as follows: (i) The orthodox opinion, which at the present time is unanimous, or nearly so, among scholars and experts in sixteenth and seventeenth century literature and history, is that the plays were written by William Shakespeare of Stratford-on-Avon, actor. (ii) The evidence in favour of Shakespeare's authorship is quantitatively slight. It rests positively, in the main, on the explicit statements in the first folio of 1623 and on continuous tradition; negatively on the lack of any challenge to this ascription at the time. The form in which scholars express the result of this evidence is, not that it proves Shakespeare's authorship, but that there is no reason to doubt it. (iii) There is a number of difficulties in the way of the traditional ascription. There is no existing manuscript of any of the plays or poetry. There is no mention of any manuscript or of anything to do with the plays in Shakespeare's will. Some find difficulty in understanding how a man with the antecedents and known character of William Shakespeare of Stratford could have developed the literary qualities required to compose the plays. There are a number of known facts which are difficult to reconcile with William Shakespeare's authorship; some of these are referred to in Commander Pares' affidavit. Moreover, as Professor Trevor-Roper of Oxford points out, so far from these difficulties tending to diminish with time, the intensive search of the nineteenth century has widened the evidentiary gulf between William Shakespeare the man and the author of the plays. (iv) A number of alternative authors has been suggested by evident cranks, or supported by intelligent amateurs, but none of these has been accepted by scholars, little solid fact has been found to support any of them, and serious objections must be overcome before any of them can be considered as possible candidates. (v) As regards Bacon's own claims, the evidentiary material before the court is somewhat unsatisfactory. Commander Pares, the president of the society, says that he and many subscribers believe on the evidence at present available that the plays were written by Francis Bacon, but, with one exception, he does not specify of what that evidence consists. That exception is Bacon's personal notes, by which I take the Commander to be referring to the Promus of Formularies in Bacon's handwriting, which appear to have been used or paralleled to a considerable extent in the plays [Extracts from the "Promus of Formularies and Elegancies" are published in the Works of Francis Bacon (1859), Vol 7, at pp 197 et seq]. The Commander also regards it as significant that whereas Bacon and Shakespeare were almost exact contemporaries and living together in London, no reference is made by Bacon to Shakespeare either as author or as actor even in his remarks on stage plays - in fact, an argumentum a silentio. I was told by counsel for the society that the society had not in fact thought it necessary or right to set out in their affidavit the full evidence at their disposal. Its solidity is therefore difficult to appraise.
On the other side, the two experts, Professor Muir and Mr Crow, without traversing Commander Pares' evidence in detail, consider it "certain" that Bacon could not have written the "Shakespeare" plays and poems. They base this on consideration of the literary style, temperament, cast of mind and attitude to life of Francis Bacon. Professor Trevor-Roper, in a judicious affidavit, takes a more cautious line. While keeping his own position firmly in the ranks of the orthodox and stating that he definitely does not believe that the works of Shakespeare could have been written by Francis Bacon, he also considers that the case for William Shakespeare rests on a narrow balance of evidence and that new material could upset it; that, though almost all professional scholars accept Shakespeare's authorship, a settled scholarly tradition can inhibit free thought, that heretics are not necessarily wrong. His conclusion is that the question of the authorship cannot be considered as closed. I read this to mean at least that new material might show some person other than Shakespeare to have written the plays and poems, and it may mean that it is conceivable, though unlikely, that Francis Bacon may turn out to be the author.
What, then, of the practical possibility of discovering any manuscripts, Shakespearian, Baconian, or of other authorship? The experts who have given evidence on the side of the next of kin are not encouraging, but are also not very specific. Professor Muir says that it is very remotely possible that a manuscript of one of Shakespeare's plays may be discovered, but that wide search has been made in all probable places and he is at a loss to imagine where any useful search could now be made. Mr Crow also says that search has been vigorously made since the eighteenth century and all other "probable places for their possible finding" have long since been examined. Both experts direct specific attention to the prospects of finding a manuscript in Shakespeare's or some other person's grave, but summarily dismiss this both on the ground that it is extraordinary to suggest that any manuscript should ever have been placed in a grave and because if it had it would long ago have disintegrated - Shakespeare's grave in particular being close to the banks of the River Avon. The latter point is challenged, with some authority and with the use of some scientific terminology, by Mr Edward Pyddoke, Fellow of the Society of Antiquaries, and the more general issue, as to the utility of a further search for manuscripts, is taken up by Mr Roderick Eagle, by profession a marine insurance adjuster, but evidently an enthusiastic amateur of Shakespearian questions of Baconian inclination, who witnessed an abortive attempt to excavate Spenser's tomb in 1938. He strongly disagrees with the views of the experts that all likely places have been searched and gives a list of six unexplored monuments where manuscripts of the plays might be found. He adds that there are many chests of documents in country houses which have never been properly examined, though as to these he limits his hopes to the discovery of private correspondence which might prove the identity of the author of the plays and poems. Commander Pares refers to the establishment in 1962 of a Shakespeare Action Committee which hoped before the quarter-centenary to investigate Shakespeare's tomb and monument at Stratford-on-Avon. On this evidence, should the conclusion be reached that the search for the Bacon-Shakespeare manuscripts is so manifestly futile that the court should not allow this bequest to be spent on it as on an object devoid of the possibility of any result? I think not. The evidence shows that the discovery of any manuscript of the plays is unlikely; but so are many discoveries before they are made. (One may think of the Codex Sinaiticus, or the Tomb of Tutankhamen, or the Dead Sea Scrolls.) I do not think that that degree of improbability has been reached which justifies the court in placing an initial interdict on the testatrix' benefaction.
I come, then, to the only question of law: is the gift of a charitable character? The society has put its case in the alternative under the two headings of education and of general benefit to the community and has argued separately for each. This compartmentalisation is derived from the accepted classification into four groups of the miscellany found in the Statute of Elizabeth (43 Eliz 1, c 4). That statute, preserved as to the preamble only by the Mortmain and Charitable Uses Act, 1888, lost even that precarious hold on the Statute Book when the Act of 1888 was repealed by the Charities Act, 1960, but the somewhat ossificatory classification to which it gave rise survives in the decided cases. It is unsatisfactory because the frontiers of "educational purposes" (as of the other divisions) have been extended and are not easy to trace with precision, because, under the fourth head, it has been held necessary for the court to find a benefit to the public within the spirit and intendment of the obsolete Elizabethan statute. The difficulty of achieving that, while at the same time keeping the law's view of what is charitable reasonably in line with modern requirements, explains what Lord Simonds accepted as the case to case approach of the courts (see National Anti-Vivisection Society v Inland Revenue Comrs [1947] 2 All ER 217 at p 233; [1948] AC 31 at p 65). There are in fact examples of accepted charities which do not decisively fit into one rather than the other category. Examples are institutes for scientific research (see National Anti-Vivisection Society 2 All ER at p 220;), museums (Re Pinion, Westminster Bank Ltd v Pinion), the preservation of ancient cottages (Re Cranstoun, National Provincial Bank v Royal Society for the Encouragement of Arts, Manufactures and Commerce), and even the promotion of Shakespearian drama (Re Shakespeare Memorial Trust, Lytton Earl v A-G). The present may be such a case.
Accepting, as I have the authority of Lord Simonds for doing, that the court must decide each case as best it can, on the evidence available to it, as to benefit; and within the moving spirit of decided cases, it would seem to me that a bequest for the purpose of search, or research, for the original manuscripts of England's greatest dramatist (whoever he was) would be well within the law's conception of charitable purposes. The discovery of such manuscripts, or of one such manuscript, would be of the highest value to history and to literature. It is objected, against this, that as we already have the text of the plays, from an almost contemporary date, the discovery of a manuscript would add nothing worth while. This I utterly decline to accept. Without any undue exercise of the imagination, it would surely be a reasonable expectation that the revelation of a manuscript would contribute, probably decisively, to a solution of the authorship problem, and this alone is benefit enough. It might also lead to improvements in the text. It might lead to more accurate dating.
Is there any authority, then, which should lead me to hold that a bequest to achieve this objective is not charitable? By counsel for the next of kin much reliance was placed on the decision on Bernard Shaw's will, the British alphabet case (Shaw Re. Public Trustee v Day [1957]). Harman J held that the gift was not educational because it merely tended to the increase of knowledge, and that it was not within the fourth charitable category because it was not itself for a beneficial purpose but for the purpose of persuading the public by propaganda that it was beneficial. The gift was very different from the gift here. But the learned judge did say this (1 All ER at p 752):
"... if the object be merely the increase of knowledge, that is not in itself a charitable object unless it be combined with teaching or education"and he referred to the House of Lords decision in Whicker v Hume where, in relation to a gift for advancement of education and learning, two of the learned lords read "learning" as equivalent to "teaching", thereby in his view implying that learning, in its ordinary meaning, is not a charitable purpose.
This decision certainly seems to place some limits on the extent to which a gift for research may be regarded as charitable. Those limits are that either it must be "combined with teaching or education", if it is to fall under the third head, or it must be beneficial to the community in a way regarded by the law as charitable, if it is to fall within the fourth category. The words "combined with teaching or education", though well explaining what the learned judge had in mind when he rejected the gift in Re Shaw, are not easy to interpret in relation to other facts. I should be unwilling to treat them as meaning that the promotion of academic research is not a charitable purpose unless the researcher were engaged in teaching or education in the conventional meaning; and I am encouraged in this view by some words of Lord Greene MR in Re Compton, Powell v Compton. The testatrix there had forbidden the income of the bequest to be used for research, and Lord Greene MR treated this as a negative definition of the education to be provided. It would, he said ([1945] 1 All ER at p 200; [1945] Ch at p 127), exclude a grant to enable a beneficiary to conduct research on some point of history or science. This shows that Lord Greene considered that historic research might fall within the description of "education". I think, therefore, that the word "education" as used by Harman J in Re Shaw must be used in a wide sense, certainly extending beyond teaching, and that the requirement is that, in order to be charitable, research must either be of educational value to the researcher or must be so directed as to lead to something which will pass into the store of educational material, or so as to improve the sum of communicable knowledge in an area which education may cover--education in this last context extending to the formation of literary taste and appreciation: (compare Royal Choral Society v Inland Revenue Comrs [1943] 2 All ER 101). Whether or not the test is wider than this, it is, as I have stated it, amply wide enough to include the purposes of the gift in this case. As regards the fourth category, Harman J is evidently leaving it open to the court to hold, on the facts, that research of a particular kind may be beneficial to the community in a way which the law regards as charitable, "beneficial" here not being limited to the production of material benefit (as through medical or scientific research) but including at least benefit in the intellectual or artistic fields. So I find nothing in this authority to prevent me from finding that the gift falls under either the third or fourth head of the classification of charitable purposes.
On the other side there is Re British School of Egyptian Archaeology, Murray v Public Trustee, also a decision of Harman J in a case much closer to the present. The trusts there were to excavate, to discover antiquities, to hold exhibitions, to publish works and to promote the training and assistance of students - all in relation to Egypt. Harman J held that the purposes were charitable, as being educational. The society was one for the diffusion of a certain branch of knowledge, namely, knowledge of the ancient past of Egypt; and it also had a direct educational purpose, namely, to train students. The conclusion reached that there was an educational charity was greatly helped by the reference to students, but it seems that Harman J must have accepted that the other objects--those of archaeological research--were charitable too. They were quite independent objects on which the whole of the society's funds could have been spent, and the language ([1954] 1 All ER at p 891) "the school has a direct educational purpose, namely, to train students" seems to show that the learned judge was independently upholding each set of objects.
Counsel for the next of kin correctly pointed out that in that case there was a direct obligation to diffuse the results of the society's research, and said that it was this that justified the finding that the archaeological purposes were charitable. I accept that research of a private character, for the benefit only of the members of a society, would not normally be educational - or otherwise charitable - as did Harman J ([1954] 1 All ER at p 890), but I do not think that the research in the present case can be said to be of a private character, for it is inherently inevitable, and manifestly intended, that the result of any discovery should be published to the world. I Think, therefore, that Re British School of Egyptian Archaeology supports the society's contentions.
A number of other authorities was referred to as illustrating the wide variety of objects which have been accepted as educational or as falling under the fourth category; but, since none of them is close to the present, I shall not refer to them. They are well enough listed in the standard authorities.
One final reference is appropriate, to Re Shakespeare Memorial Trust [1923] All ER Rep 106; [1923] 2 Ch 398. The scheme there was for a number of objects which included the performance of Shakespearian and other classical English plays and stimulating the art of acting. I refer to it for two purposes, first as an example of a case where the court upheld the gift either as educational or as for purposes beneficial to the community - an approach which commends itself to me here - and secondly as illustrative of the educational and public benefit accepted by the court as flowing from a scheme designed to spread the influence of Shakespeare as the author of the plays. This gift is not that, but it lies in the same field, for the improving of our literary heritage, and my judgment is for upholding it.
Declaration accordingly.
Solicitors: Hewitt, Woollacott & Chown agents for Arthur Palmer, Holley & Co Bristol (for the plaintiffs); Thorold, Brodie, Bonham-Carter & Mason (for the society); Preston, Lane-Claypon & O'Kelly agents for Pye-Smith & Pepler, Bath (for the second defendant).
Report by Jenifer Sandell Barrister.
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