Feb
4
Professor Roger Clark on the Alms Trade
February 4, 2008 |
Ian Williams
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Ian Williams’s wittily written work on the “Alms Trade” is a tour de force of history, sociology, social policy and the law in action. It examines a myriad of issues in the English history of charitable works from around “time immemorial” (the reign of Richard the Lionheart or thereabouts) until the reign of Margaret Thatcher. In the course of this delightful romp he addresses cosmic questions like “what is a charity”? One might reasonably ask “who cares?” The answer is that all sorts of functional matters hinge
on the answer – like the validity of testamentary dispositions and tax liability (the immunity from such liability being a great generator of contributions).
What to class as a charity still turns in English law (and in many parts of the Commonwealth and the United States) on what to make of the preamble to the 1601 Statute of Charitable Uses, adopted towards the end of the reign of Elizabeth the First to rationalize the area. Its language was largely plagiarized from William Langland’s Piers the Plowman written in the late 1300s – not the last time the law messed up great literature. Applying it to the testamentary wishes of ordinary people (if such there be) leads inexorably to disaster and incoherence.
Among the many legal disasters that Williams discusses is Chichester Diocesan Fund v. Simpson a 1944 decision of the House of Lords that caused me nightmares as a law student nearly five decades ago. Caleb Diplock left a sizeable estate to “such charitable institution or institutions or charitable or other benevolent objects in England” as his trustees should select. That ugly little “or” in there doomed the bequest to be “void for uncertainty”. “Charitable” was something that any competent trustee or judge could work out, but “benevolent” was too much for an Englishman to fathom. (One of their Lordships found it “disconcerting” that the disposition might have been perfectly intelligible in Scotland – as it had been to the trustees until the gold-diggers and the litigators got to work.) Distant heirs were able to get the money back from the trustees (one of whom committed suicide) and from the 139 charitable beneficiaries who had been cheerfully spending it on good works. The latter, having received it under a “mistake of law” had to disgorge. (The lawyer’s moral of that one is to be well-insured against malpractice!) There are lots of other sad stories like that one in here.
A great read!
Roger Clark, Board of Governors Professor, Rutgers Law School, Camden, New Jersey
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