This week I again turn my blogticle to expiscate the eristic historical context of the tax advantaged treatment enjoyed by charitable institutions. In the previous blogticle on the Common Law history of charity law, we examined English history from the period 1536-1739. Now I turn my attention to the period of the United States’ colonial period until 1860.
The Colonies inherited the English common law and its history discussed in my previous blogticle on this subject, but without the 1736 Mortmain Act. In addition to the common law, the colonialists also inherited the English distrust of perpetual land restriction, the power exercised by the Catholic Church because of its substantial land holdings, and the distrust of the Anglican Church because it was an organ of the English government.
During the early period after the War of Independence, some states legislatures and courts exercised this inherited distrust by voiding the establishment of charitable trusts, denying the grant of charters for charitable corporations, and constricting transfers to both. Seven states, being Maryland, Michigan, Minnesota, New York, Virginia, West Virginia, and Wisconsin, voided charitable trusts. In contrast, many states, in their constitutions and well as by statute, borrowed from Elizabeth I’s 1597 statute to protect incorporation for charitable purposes. Charitable incorporations included churches, charities, educational institutions, library companies, and fire companies. The policy behind the charitable statutes included promotion of freedom of religion, easing legislative workloads, and easing of incorporation procedures.
But not all states had charitable incorporation statutes. Some states, such as Virginia, denied granting charters to charitable corporations for several years. Of the states with charitable incorporation statutes, all contained restrictions regarding maximum income, expenditure for charitable purpose, as well as reporting rules to guard against the accumulation of property.
Post Colonial: Universal Property Taxes Crystallize the Tax Exemption Debate
By the middle of the century, the Supreme Court of the United States, by examination of the Statute of Charitable Uses and common law applicable in the U.S., derived a broad definition for charity. The Court upheld contributions to “charitable” institutions based upon the factors of the institutions’ public purpose and freedom from private gain. In 1860, upholding a devise and bequest for establishing two education institutions, the Court stated
“a charity is a gift to a general public use, which extends to the rich, as well as to the poor” and that “[a]ll property held for public purposes is held as a charitable use, in the legal sense of the term charity.”
In 1877, upholding a devise to an orphan’s hospital, the Court presented that:
“A charitable use, where neither law nor public policy forbids, may be applied to almost any thing that tends to promote the well-doing and well-being of social man . . . . ‘Whatever is given for the love of God, or the love of your neighbor, in the catholic and universal sense, — given from these motives and to these ends, free from the stain or taint of every consideration that is personal, private, or selfish.’ ”
Until the mid 1850s, many state statutes allowed incorporation for charitable purposes but did not necessarily exempt these corporations from state tax. Before the 1830s, the states did not have a universal tax system and thus, while tax exemption expressed government favoritism, it was not practically significant. However, the 1830s enactment of universal property tax regimes brought the issue of exemption to the fore. During the remainder of the century, several states enacted limited tax exemption for churches and educational institutions. By example, many states exempted from property tax the land upon which a church stood, but taxed the church’s income, including ministerial, rental, and endowment. The Massachusetts statutory tax exemption for religious, educational, and charitable organizations, applying to Harvard University, did not include an exemption for real estate or businesses held for purposes of revenue.
Tax Policy Debate
Supporters and critics of exemption debated three primary policies concerning the granting of limited tax exemption for churches. From a public policy perspective, the general community felt that the church served as the communal epicenter. Church supporters also put forward that churches provide the benefits of encouragement of personal morality, public spiritedness, and democratic values. Critics countered that from an equity standpoint, exemption inequitably expressed state favoritism for religious groups over non-religious property owners. Also, exemption critic James Madison warned that the accumulation of exempt Church property would eventually result in religion influencing the political process.
Supporters provided a tax policy justification that the limited exemptions applied only to the charitable institution’s property that produced insignificant income, such as cemeteries, the church, the school, thus the exemption’s revenue effect would be slight. Critics responded that whereas both exempt and non-exempt persons used the state’s services, only non-exempt persons paid for them with resultant increased burdens upon them. Supporters retorted to this argument of an inequitable burden with a government benefit argument that the churches provided public services, such as orphanages and soup kitchens, not performed by non-exempt payers.
From an economic policy justification, supporters forwarded that because many of these exempt institutions did not produce much revenue, the tax could not be collected, leading to unpopular land seizure. Critics responded that the exemption primarily benefited wealthy churches with valuable property and significant income rather than the humble ones with low land value and de minimis income. Again employing the subsidy argument, supporters argued that all church income, regardless of church size, went to provide charitable services, such as religious activity and caring for the poor.
Prof William Byrenes (www.llmprogram.org)
After the revolution, the colonialists felt the same distrust for the Church of England as that for Rome. See
James J. Fishman, The Development of Nonprofit Corporation Law and an Agenda for Reform
, 34 Emory L.J. 617, 624 (1985) (commenting on the ongoing anti-charity-anti-clerical atmosphere of the post-colonial period); Note, The Enforcement of Charitable Trusts in America: A History of Evolving Social Attitudes
Va. L. Rev. 436, 443-44 (1968) (same). This distrust of the Catholic Church reached into the late nineteenth century, creating opponents of tax exemption for religious institutions. See
Stephen Diamond, “Of Budgets and Benevolence: Philanthropic Tax Exemptions in Nineteenth Century America”, 17 (Oct., 1991) (Address at the N.Y.U. School of Law, Program on Philanthropy, Conference on Rationales for Federal Income Tax Exemption, Oct. 1991), http://www.law.nyu.edu/ncpl/abtframe.html
(last visited Jul. 9, 2003); see also
Erika King, Tax Exemptions and the Establishment Clause
, 49 Syracuse. L. Rev. 971, 1037 n.8 (1999) (quoting James Madison’s statement that “[t]here is an evil which ought to be guarded [against] in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations.”)
 See Evelyn Brody, Charitable Endowments and the Democratization of Dynasty, 39 Ariz. L. Rev. 873, 906-10 (1997); Fishman, supra at 623-25; John Witte, Jr., Tax Exemption of Church Property: Historical Anomaly or Valid Constitutional Practice?, 64 S. Cal. L. Rev. 363, 384-85 (1991).
 4 Austin Wakeman Scott, The Law of Trusts § 348.3 (3d ed. 1967). Some states, such as Virginia in 1792, repealed the pre-independence English statutes, including the Statute of Charitable Uses. The lack of the Statute of Charitable Uses consequence, as argued by the States and agreed by the Supreme Court in Trustees of Philadelphia Baptist Ass’n v. Hart’s Executors, 17 U.S. 1, 30-31 (1819), was that charitable trusts without stated beneficiaries were void because of the lack of common law precedent for establishing a trust without a beneficiary. Nina J. Crimm, An Explanation of the Federal Income Tax Exemption for Charitable Organizations: A Theory of Risk Compensation, 50 Fla. L. Rev. 419, 427 (1998) (noting that this decision and ones following it led to the establishment of charitable corporations instead of trusts to receive donations).
 Fishman, supra at 623 (noting that Massachusetts, Pennsylvania, Vermont, and New Hampshire constitutionally protected charities).
 Fishman, supra at 631-32; see also Christine Roemhildt Moore, Comment, Religious Tax Exemption and The “Charitable Scrutiny” Test, 15 Reg. U. L. Rev. 295, 299 (2002-2003) (noting that most new states had an established state church, which took over the former role of the Church of England as an organ of the state, and that, after disestablishment from the state, tax exemption continued as a matter of course).
 See Fishman, supra at 632-33.
 See Witte, supra at 385; Brody, supra at 906-07; Nina J. Crimm, A Case Study of a Private Foundation’s Governance and Self-Interested Fiduciaries Calls for Further Regulation, 50 Emory L.J. 1093, 1099 (2001); Fishman, at 631 n.70 (noting that corporate charters were granted to only 355 businesses during the eighteenth century).
 See Fishman, supra at 634; see also Brody, at 909 (noting that a few state statutes still constrict the ability to devise to, or the holdings of, charitable corporations).
 See Lars G. Gustafsson, The Definition of “Charitable” for Federal Income Tax Purposes: Defrocking the Old and Suggesting Some New Fundamental Assumptions, 33 Hous. L. Rev. 587, 609-610 (1996).
 Perin v. Carey, 65 U.S. 465, 494, 506 (1860).
 See Gustaffson, supra, at 610.
 For a historical summary of nineteenth century American policy regarding the ad hoc to infrequent granting of tax exemption for charitable institutions, see Diamond, supra at 12. For a description of colonial church exemptions and taxation of certain income producing properties, see Witte, supra at 372-74.
 See Diamond, supra at 8-9.
 See Id. at page 10; Witte., supra at 385-86.
 See Diamond, supra at 12.
 Chas. W. Eliot, The Exemption from Taxation of Church Property, and the Property of Educational, Literary and Charitable Institutions, Appendix to the Report of The Commissioners Appointed to Inquire into the Expediency of Revising or Amending the Laws Related to Taxation and Exemption Therefrom 367, 386 (1875) (stating that Harvard paid tax on its various business holdings in Boston, save one specifically exempted from tax in its Charter).
 See Witte, supra at 374-75. The underpinnings of this public policy to exempt the church drew from the historical exemption justified by two causes. Most states had an official church established by government as an organ of the state government, continuing the English tradition. Id. Second, the Churches acted as the community services center of most townships, thus providing the local government services that otherwise it should undertake. See id. at 375. This second justification foreshadowed the government benefit analysis employed by Dr. Eliot. See infra Part VI(C).
 John W. Whitehead, Church/State Symposium Tax Exemption and Churches: A Historical And Constitutional Analysis, 22 Cumb. L. Rev. 521, 539-40 (1991-1992).
 Witte, supra at 381.
 Id. at 382. This criticism of exemption, reiterated by President Ulysses Grant, most influenced the Walsh Commission’s perspective on industrialists’ foundations as well as that of the Reece Commission. See infra Parts VIII, IX(D).
 See Diamond, supra at 14. In 1873, James Parton countered this justification, alleging examples of such charitable institutions producing extraordinary income. See infra Part VI.
 See Witte, supra at 381.
 Whitehead, supra at 540. Dr. Eliot further enunciated the government benefit, also known as the tax subsidy, argument that the state ought to grant exemption for the charitable provision of public service.
 See Diamond, supra at 14. In 1873, James Parton proffered a liberal argument of land distribution efficiency that could only be achieved through such unproductive property being seized and auctioned back into commerce.
 See Witte, supra at 382.
 See Whitehead, supra at 539-40.