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 of court decisions and legislation. There are several centuries of difficult and sometimes inconsistent court decisions as well as voluminous and sometimes incomprehensible tax and other statutes.
We ask: How did courts and legislators begin to conceive of these modern ill-explained precedents and legal gibberish? Where did they come from? What were the original intentions? Who set them down?—and when?—and why?
One problem appears repeatedly: “humptydumptyism”—the practice of insisting that a word means whatever one wishes it to. In Lewis Carroll’s Through the Looking-Glass, Humpty-Dumpty says “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 terms they can understand, your point will be lost.
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”. These meanings were not in the Concise OED 9th ed—he in effect switched them. He then rejected “conducive” as too broad for a charitable purpose. He thereby unknowingly overturned literally centuries of earlier case law which had no problem with that word.
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 has allowed me to collect many documents that illustrate what notions of charity prevailed in the past and how they evolved into modern complexity.
This website can only be a sampling, of course. One has only one lifetime. Several research tools are included in this website that may help some readers take their own deep dive into this fascinating subject.
Most of the documents collected here are legislative in nature. That may come as a surprise to many modern charity lawyers who tend to think charity law is largely the creation of case law.
Court decisions on charity are of a type that originated in modern English legal history with the High Court of Chancery once it evolved into the prime judicial decision-maker for charities. That court, 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. Most of them are old and seriously difficult to understand.
There are, of course, a number of very thick legal textbooks that go through all of this, which lawyers, tax officials and charity workers can acquire at great expense. This website won’t duplicate those surveys of modern charity case law, although some court cases will necessarily be included.
Modern charity lawyers labour under the assumption that this body of case law is the whole story. The legislation, they think, was limited and much simpler than the caselaw, 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:
- AD 313 and on: Fundamental charitable concepts originated in legislation of the later Roman empire which:
- first tolerated Christianity;
- then granted the Christian hierarchy the equivalent of corporate status in law along with extensive tax exemptions on the explicit grounds that they relieved poverty;
- put limits on those tax exemptions to reduce the loss of revenue; and
- made and enforced this organization as the only legal religion, the “established” catholic church. That was literally the original charity—although that word would not be invented as a legal concept for many more centuries.
- AD 476 and on: Then, as the western Roman empire gradually disintegrated into separate kingdoms, this catholic church continued to exist as the only established church under each kingdom’s Germanic rulers. It, 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.
- Circa 1000 to mid-1500s: Mediaeval times added:
- education by church institutions and ministers;
- wealth donations through “uses” (trusts) for parallel purposes similar to the church’s purposes that operated not under canon law but under the law of “equity”, outside the catholic church’s hierarchy;
- limits on tax-avoiding donations of land to the church under “mortmain” legislation; and
- tax legislation that extended the church’s tax exemptions to certain of the new charities outside the church.
- 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); and
- greatly extended the scope of charity purposes (1597, 1601, 1624) to include new types of local schools, public works and programs so that donations to such served to reduce the local tax burden.
- 1660 and on: Royal charters and other legislation included scientific research organizations, libraries, parks and playgrounds within the scope of charity, even though they did not advance religion, reduce poverty or confer tax-relieving benefits on communities.
- 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 separate organizations to be operated in parallel by other denominations and religions for their similar charitable purposes.
- 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, reduce poverty or confer tax-relieving benefits on communities but were instead accepted as charities to induce social and moral reforms including, eventually, seeking to abolish slavery, child labour and cruelty to animals.
- 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.
- 1799 to now: The advent of income tax legislation not only extended the tax exemption for all these new types of charities but also (in Canada from 1929 on) reduced income tax for their donors.