Early Charity Law Sources

The purpose of this website is to help users delve into the pre-modern roots of modern charity law and the tax law intertwined with it.

Modern charity law is a complex mixture. The last three centuries or so have yielded a host of difficult and inconsistent court decisions as well as voluminous tax and other statutes dealing with charities.

We ask: How did courts and legislators come up with all this? Where did it come from? What were the original intentions? Who set them down?—and when?—and why?

One problem appears repeatedly: “humptydumptyism”—the practice of insisting or assuming that some word means whatever one wishes it to. The euphemism comes from Lewis Carroll’s Through the Looking-Glass, where Humpty-Dumpty testily declared to Alice when she questioned his meaning: “When I use a word, it means just what I choose it to mean—neither more nor less.” The irony being, of course, that unless you make others aware of what your word means in your head—they might not understand your point.

Lest anyone think this is not a problem today, let me cite what is still the leading modern charity case in Canada, Vancouver Society, [1999] 1 SCR 10, at para 193. There a highly regarded and influential judge, Iacobucci J, writing for the majority, ascribed meanings of his own to the words ”conducive” and ”incidental”. His meanings were not what the Concise OED 9th ed said—he in effect switched them. He then rejected “conducive” as too broad for delimiting a proper charitable purpose. Fortunately, he was speaking in obiter; otherwise literally centuries of earlier charity case law which had no problem with that word would have been undone.

Judges, lawyers, politicians, legislative drafters engage in humptydumptyism all the time in charity law. They tend to presume that their own instinct of what is and isn’t charitable is shared by everybody else in society and is therefore obvious and doesn’t need explaining. So they often write their conclusions and enactments down without telling posterity about the underlying social and legal background that actually influenced, or even dictated, what they decided—which leaves later analysts scratching their heads, “Now where did that meaning come from?”

Even the renowned Lord Macnaghten, in the leading Pemsel case, [1891] AC 531 at 583, appeared to invent the “four heads of charity”. He failed to cite the original thinker, a lawyer arguing a case eighty years before.

Two decades of ferreting about in libraries, archives and websites have allowed me to collect many source documents that illustrate what notions of charity prevailed in the past and how they evolved into modern times.

This website can only be a sampling, of course. One has but one lifetime. Various topic papers are being offered for guidance and a few research tools are also included in this website. These may help some readers take their own deep dive into this fascinating subject.

Most of the source documents collected here are legislative in nature. That may come as a surprise to many modern charity lawyers. They tend to think charity law is largely the creation of the common law courts.

Court decisions on charity originated in modern English legal history with the high court of chancery, the court of the highest judge the lord chancellor. That court had jurisdiction over a branch of law called equity, which included the law of trusts. What had been the church’s jurisdiction over charity under canon law was largely taken over by the king; his chancellor assumed jurisdiction on his behalf over trusts with charitable purposes; and chancery thereby became the prime judicial decision-maker and regulator of charities. It and the modern courts having jurisdiction in equity that succeeded it, slowly produced a trickle of legal precedents, as many as a couple of dozen a year but in recent decades no more than one or two a year, if that. These accumulated over about three centuries so that there is now an ample but somewhat intractable jurisprudence of several thousand judgments.

There are, of course, a number of very thick legal textbooks that survey this modern charity jurisprudence. Lawyers, tax officials and charity workers can acquire those at great expense. This website won’t, or rather can’t, duplicate all that, although some court cases will necessarily be included.

Modern charity lawyers labour under the assumption that this jurisprudence is the whole story. Charity legislation, they think, was limited and much simpler than the case law, and consisted mainly of the preamble of an Elizabethan statute of 1601 which kickstarted the series of court decisions, plus a few subsequent acts that did little more than amplify or supplement the story. The ensuing caselaw, they think, was really where all the charity action happened.

The caselaw is important, of course, but this website will show that the history of charity law has been much more heavily dominated by legislation than most analysts assume. This legislation usually precedes the caselaw, and the caselaw is directly or indirectly derived from, generated out of or inspired by the legislation.

Here is the historiographical sequence of this development:

1. AD 313 and on: Fundamental charitable concepts originated in legislation of the later Roman empire which:
   • after two centuries of wave after wave of brutal persecution, came to tolerate Christianity as one of the many religions it tolerated;
   • then granted the Christian hierarchy the equivalent of corporate status in law along with—
   • extensive tax exemptions on the explicit grounds that the clerics served religion and relieved poverty;
   • put limits on those tax exemptions to reduce the ensuing loss of revenue; and
   • eventually adopted and enforced this organization as the only legal religion, the “established” catholic church. Yes, the church of ancient Rome was literally the original charity—although that word charity would take another millenium to evolve from its original scriptural meaning of platonic love into the modern legal concept of organizations that exist to benefit society.
2. AD 476 and on: Then, as the western Roman empire gradually disintegrated into separate Germanic kingdoms, this catholic church continued to exist. It propagated itself, bringing with it its originally Roman legal features in the guise of canon law, into each successive kingdom and got “established” again therein by its rulers. In particular, the church in each kingdom, and its monastic institutions especially, continued to enjoy similar extensive tax privileges on the grounds of carrying out the same intertwined purposes of advancing the Christian religion and relieving the poor.
3. Circa 1000 to mid-1500s: Mediaeval times added:
   • religious education by church institutions and ministers;
   • donations by wealthy families and groups through “uses” (trusts), not only directly to the church and its institutions, but increasingly to secular groups for parallel purposes similar or additional to those of the church;
   • limits on tax-avoiding donations of land to the church under “mortmain” legislation; and
   • tax legislation that extended the church’s tax exemptions to various secular institutions.
4. Mid-1500s to 1601 and on: The church’s predominant role in charity was heavily reduced in the Reformation and replaced by legislation that:
   • increased the ability of the wealthy to found and support poverty relief and educational institutions by will (1535, 1540);
   • converted what had been monastic poverty-relief institutions to secular control (1544-1555);
   • made the king, in lieu of the church, the guarantor, regulator and paramount owner-trustee of all charities (1545, 1547), a responsibility exercised by his top judge, the lord chancellor, in the high court of chancery, using the law of equity rather than canon law; with the assistance of a system of ad hoc local charity courts and later the attorney general; and
   • greatly extended the scope of charitable purposes (1597, 1601, 1624) to include new types of local schools, public works, hospitals and programs, intending thereby that the local burden of taxes or rates would be alleviated by charitable donations to such community or public benefits.
5. 1660 and on: Royal charters and other legislation included scientific research organizations, libraries, parks and playgrounds within the scope of charity, even though these did not advance religion, relieve poverty or confer tax-alleviating benefits on communities.
6. 1689 to 1855: The established church’s monopoly over religion was diluted in stages by a series of “toleration acts” and “indemnity acts” that allowed for other organizations to be operated in parallel by different denominations. Eventually, and in different stages in different times and places, the idea of advancing an established religion by and through government support and privileges, was subsumed and replaced by “freedom of religion”—the idea that charity includes many voluntary organizations advancing many religions.
7. 1692 to mid-1850s: Legislation in the form of a series of royal proclamations to encourage and enforce morality led to the creation of voluntary associations that did not advance religion, relieve poverty or confer tax-alleviating benefits on communities but were instead accepted as charities to enforce or induce social and moral reforms including, eventually, seeking to abolish slavery, child labour and cruelty to animals.
8. 1725 to after 1800: Legislation established as charities the medical hospitals of the voluntary hospital movement, transforming what had been poverty relief institutions into modern health care.
9. 1799 to now: The advent of income tax legislation (1917 in Canada) not only included a tax exemption for all these types of charities but also (in Canada 1917 to 1920 and then from 1929 on) reduced income tax for their donors, as a purported incentive for their donations.