In this edition we go back as far as we can, to the very beginnings of planned giving, and investigate how organised giving began, where the notion of perpetual foundations came from, and how things have changed.
We know that charitable giving existed in ancient times; in the 23rd century BC, the Egyptian governor Harkhuf had a record of his charitable acts inscribed on the wall of his tomb. The first known example of a regulation governing charitable giving is the Code of Hammurabi. Created in ancient Mesopotamia sometime around 1760 BC, the Code is a set of laws laid down by King Hammurabi of Babylon and including a direction to ensure protection of “widows, orphans and the poor”. Charitable giving is a major part of many religious traditions including Judaism, Islam and Christianity.
|The Code of Hammurabi - detail of decoration (top) and detail of inscription (bottom). Created in ancient Mesopotamia sometime around 1760 BC, the Code is a set of laws laid down by King Hammurabi of Babylon and including a direction to ensure protection of “widows, orphans and the poor”. Images care of Wikimedia Commons.|
In mediaeval England, social welfare was generally provided by the lords of feudal manors, the merchant and craft guilds, extended family and the Church. Priests and monks were obliged to spend part of their revenue on doles and education for the poor, and the Church also provided hospitals. Wealthy donors were permitted to entrust property for charitable purposes, usually to the Church. The situation changed with the dissolution of the monasteries by Henry VIII, and the transfer of power from the Church to the Crown. The dissolution of the monasteries removed a vital source of charity, and a sense that providing charity was a responsibility of society as a whole, rather than merely a duty of the Church, began to spread.
At roughly the same time, the expansion of foreign trade was beginning to create a wealthy merchant class, many of whom preferred to give their money to secular rather than religious purposes. Educational facilities were being founded and endowed, sometimes with the stipulation that they should provide teaching to the poor. By the end of the Tudor period, the Court of Chancery had taken over the role of the enforcement of charitable gifts.
The charitable law of Australia, in common with many other Commonwealth countries, has its origins in the 1601 Statute of Charitable Uses, also known as the Statute of Elizabeth or the Charitable Uses Act. The preamble to the Statute defines 21 charitable purposes:
Whereas Lands, Tenements, Rents, Annuities, Profits, Hereditaments, Goods, Chattels, Money and Stocks of Money, have been heretofore given, limited, appointed and assigned, as well by the Queen’s most excellent Majesty, and her most noble Progenitors, as by sundry other well disposed Persons; some for Relief of aged, impotent and poor people, some for Maintenance of sick and maimed Soldiers and Mariners, Schools of learning, Free Schools, and scholars in universities, some for Repair of Bridges, Ports, Havens, Causeways, Churches, Sea-banks and Highways, some for education and Preferment of Orphans, some for or towards Relief, Stock or Maintenance for Houses of Correction, some for Marriages of poor Maids, some for Supportation, Aid and Help of young Tradesmen, Handicraftsmen and persons decayed, and others for Relief or redemption of prisoners or Captives, and for Aid or ease of any poor Inhabitants concerning payments of Fifteens, setting out of Soldiers and other taxes; which Lands, Tenements, Rents, Annuities, profits, Hereditaments, Goods, Chattels, Money and Stocks of Money, nevertheless have not been employed according to the charitable Intent of the givers and Founders thereof, by reason of Frauds, Breaches of Trust, and Negligence in those that should pay, deliver and employ the same: For Redress and Remedy whereof, Be it enacted.
This Act was part of an overall reordering of the way the poor and dependent were provided for in England. The Poor Relief Act, also passed in 1601, made municipal authorities responsible for the administration of relief for the “deserving poor”. The Charitable Uses Act was designed to ensure that charitable funds were applied to the uses specified by donors, to designate what purposes were legally charitable, and to delegate authority for supervising the administration of charitable gifts. However, even in 1601 this was not an exhaustive list of charitable purposes; some obvious omissions are trusts for religious purposes, or for educational institutions, which were considered to be adequately provided for at the time.
By the mid-1800s, the courts has ruled that charitable purposes had to be for the public benefit, as well as being within the intentions of the Preamble to the Statute of Elizabeth. Although the Charitable Uses Act was repealed in England by the Mortmain and Charitable Uses Act 1888, the statute therefore continues to influence our definition of charity today, and therefore the purposes for which charitable trusts and bequests can be applied. In 1891, Lord Macnaghten delivered a judgement which classified the categories of charitable purposes under four heads:
trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community not falling under any of the preceding heads.
It is this which has been used since that time in Australia and other commonwealth countries as guidance on what constitutes a charitable purpose.
Kutner, Maureen Anne "From Feudalism to Foundations: A (Very) Short History of Poverty and Philanthropy" in Philanthropy, Issue 6, Spring 1990
Leat, Diana & Lethlean, Esther Philanthropy monograph #2, Philanthropy Australia, 2000
Report of the Inquiry into the Definition of Charities and Related Organisations, Commonwealth of Australia, 2000
Apr. 05, 2007
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