Early Charity Law Sources

Statutes of England, 43 Eliz 1 c 4, An Acte to redresse the Misemployment of Landes Goodes and Stockes of Money heretofore given to Charitable Uses.

The 1601 “statute of charitable uses” is the usual name given to this famous law. In 1888 it was also given an official short title, the Charitable Uses Act, 1601. You sometimes see it called simply the “Statute of Elizabeth”, especially by charity law enthusiasts. (This is a misnomer of course, as many other statutes were made by this renowned queen).

Here’s a PDF edition showing the official text in Elizabethan English plus a French translation: https://earlycharitylawsources.com/wp-content/uploads/2023/08/16011219SEngc4_CharitableUses.pdf

This is the most important law in charity legal history. It is a key moment. Many intertwined lines of events fed into it and from it many new ones emerged. There were twists and turns, so this explanatory note has turned out longer than I originally intended. Here is a table of contents:

• Original purpose
  • Effects of the Reformation
  • Implicit purpose of charity reform
  • Bishops as regulators of non-church charities
  • Replaced by local quasi-judicial charity commissioners
  • Operation of the charity commissioner system
  • Eventual disappearance of the charity commissioner system
• The 1601 preamble
  • “Charitable uses”
  • “Impotent” or “decayed” people
  • “Soldiers and mariners”
  • Repair of “bridges”
  • Repair of “ports” and “havens”
  • Repair of “causeways”
  • Repair of “churches”
  • Repair of “seabanks”
  • Repair of “highways”
  • “Orphans”
  • “Houses of correction”
  • “Marriages of poor maids”
  • “Relief of prisoners”
  • “Redemption of captives”
  • “Fifteenths”
  • “Setting out of soldiers”
  • Separate legislation for poor relief hospitals
  • Separate regulation of universities and colleges
  • Institutions of religion excluded from 1601 act
• The 1601 preamble’s immortal after-life in modern charity caselaw
• Its subsequent fate in the UK
• Reception in Canada
  • In Ontario
  • In Manitoba

Original purpose

The 1601 act was a revised version of an act of 1597. The purpose of both acts was to better regulate and increase the secular charities of the Elizabethan era.

Further background can be found in:

• The Political Use of Private Benevolence: The Statute of Charitable Uses by James J Fishman (Pace Law Faculty Publications paper 487, 2008);
• History of the Law of Charity 1532-1827 by Gareth Jones (Cambridge UP, 1969), chapter 3;
• a summary in English of Sir Francis Moore’s 1607 Reading on the 1601 statute of charitable uses, as printed in
  • The Law of Charitable Uses by George Duke (London: Henry Twyford, 1676), pp 129-186;
  • Duke’s Law of Charitable Uses by Richard W. Bridgman (London: W. Clarke and Sons, 1805), chapter 7, pp 122-191;
  • A Practical Treatise of the Law of Charities by William R. A. Boyle (London: Saunders and Benning, 1837), appendix, pp 465-505.

Effects of the reformation

Here’s a potted summary of what led to both the 1597 and 1601 acts and how they worked.

Before the Reformation, much of what we would call the welfare system or social safety net of England was provided by mediaeval church institutions, especially monasteries. The Reformation totally transformed this picture. In turbulent years from 1535 on, the Roman Catholic church of England was taken over and made into a department or branch of the king’s government. Depending on your point of view, it was either forced, or chose, to break from the Roman Catholic church and turn Protestant. Its monasteries were all dissolved. Most of their properties and revenues were seized and sold off. Most of their religious trust funds were expropriated. This included many of the church’s schools and most of its poor-relief hospitals. These were almost entirely abandoned or destroyed.

Later governments, especially the government of Queen Elizabeth 1, in a series of complicated legislative fits and starts, built a new social safety net for England, the so-called “Poor Law”. This new system had to be funded by new municipal taxes. These taxes are usually called “rates”. But imposing them was profoundly resented and aggressively resisted by the locals. The government evidently turned to charities as a solution.

Implicit purpose of charity reform

There is no choice, we have to put a modern gloss on this. People in this era did not talk the way we do and they assumed things without stating them straightforwardly, so that today we don’t necessarily understand. Often we have to guess or winkle out what they meant indirectly from their actions and results.

In essence, the thinking seems to have been this: The new tax burden could be reduced by convincing the wealthy to dig into their pockets. What their ancestors had formerly given to the church, they would give to an enlarged secular charity sector instead. The mediaeval church’s monasteries’ poor relief and schooling were mostly gone—but let them be replaced by secular charities supervised not so much by the church but by the state.

By “secular” charities we mean those founded not by the church but by the king or other noble families or groups with means. Some secular charities already existed in the form of universities, colleges, hospitals, poorhouses, guilds, even bridges and other public works. In the latter centuries of the mediaeval era there had grown a tradition amongst noble or well-to-do families of writing pious wills bequeathing substantial legacies for such purposes not just to the church itself but also to non-church trustees.

Indeed, the idea of doing this was supported by one of the “bestsellers” of this era: The Vision of Piers Plowman, a religious allegorical poem attributed to William Langland that took final form about 1376-77. It contained wording that merchants—meaning the rich—who otherwise had great difficulty getting to heaven, could still get there if they used their profits to support charitable purposes. Here’s a modern translation:

“But under his secret seal Truth [i.e. God] sent them [merchants] a letter,
And bade them buy boldly whatever they liked best,
And soon after sell it again and save the profit,
And therewith mend shelters for poor and sick and help folk in misery,
And quickly mend troublesome roads,
And repair bridges that are broken to pieces,
Pay for marriages of maidens, or make them nuns,
Poor people and prisoners, find them their food,
And send scholars to school, or to some other crafts,
Relieve the religious, and endow them better”

There are many modern editions of this famous poem; see for example The Vision of Piers Plowman, by A. V. C. Schmidt (1978), pp 77-79. The above passage is noticeably similar to the list of example charitable purposes in the 1601 preamble, more than two centuries later (see further below). Some modern scholars have suggested that the legislative drafters of 1601 literally copied the poem. More likely, both the poem and the preamble reflected mainstream thinking about charities throughout this era.

Apart from this poem, the idea that secular charitable purpose trusts were to be expanded does not seem to have been explicitly enunciated. But in the end, that’s what happened. This new thinking must, in all logic, have involved the following elements lurking unspoken in the minds of government ministers:

• Invoking, or rather re-invoking ancient religious dogma that the rich could still get to heaven by giving to charity.
• Adding to this a more impious hope that giving to charity might reduce the tax burden.
• This could re-invigorate and enlarge the charity sector—thanks to newly motivated, rich, God-fearing Protestant tax-avoiders.
• It would be a charity sector mainly based on secular trust law as devised in the chancery court, in lieu of church dogma.
• The state would guarantee to both wealthy donors and the communities being served that the donated funds would be used for the public good.
• It would do this by creating new legal mechanisms to safeguard and regulate the donated charitable resources.

Bishops as regulators of non-church charities

Safeguarding and regulating charitable resources was a challenge, for the state did not yet have an official regulator or administrative entity empowered to do this. There was only the costly and extremely time-consuming “high court of chancery”. That was the court of the lord chancellor, the highest official in the realm below the monarch. He was a combination of the monarch’s right hand man, speaker of the house of lords in parliament, head of the judiciary and top administrator and policy maker. The chancery court was in charge of a branch of law called “equity”. Only it had jurisdiction in equity over trusts—charitable trusts in particular. But it could only receive cases from those who had standing to claim an equitable interest in a charity’s funds (that is, wanted the money for themselves). Chancery could not receive cases from charitable beneficiaries (i.e. the poor) wanting the charity to be distributed or enforced. Charitable beneficiaries in that sense had no equitable interest in the charity’s funds and therefore no standing to bring suit.

At first, bishops were fingered to be the regulators. Queen Elizabeth and her ministers might not have been aware of a certain irony here. But they intitially imposed a non-church, secular job upon the local religious prelate, the bishop in each diocese (i.e. county) of the by then Protestant church of England—really meaning, no doubt, his staff:

• This had already been tried, in part, more than a century before, in Roman Catholic times, by the visitation of hospitals act of 1414 (UK 2 H 5 St 1). In this era, “hospitals” were poor-relief hospitals, not medical. This will be discussed more fully later. Under canon law, bishops were already responsible for supervising the many hospitals that had been in the church then, mainly in the monasteries. This 1414 law had tasked bishops with also investigating and reforming hospitals that were secular, that is of royal or other foundation and not part of the church; but this function had apparently lapsed into disuse.
• One of the early poor relief acts in 1555 (UK 2 & 3 Ph & M c 5) s 6 revived this idea. It tasked bishops to investigate moneys that had been allocated for poor relief by King Henry 8.
• This act was continued in 1558 under Queen Elizabeth 1’s government soon after she acceded to the throne (UK 1 Eliz c 18 s 2)—
• until it was replaced by a 1563 poor relief act (UK 5 Eliz 1 c 3 s 9). Here, bishops had to regulate not just poor-relief moneys but highway and bridge moneys as well—and they could be fined £20 for each failure to do so!
• This was then replaced by a more comprehensive vagabonds and poor relief act of 1572 (UK 14 Eliz 1 c 5):
  • s 22 required every bishop to yearly visit and regulate all hospitals (those which were not already regulated by “visitors”). Upon complaint or suspicion of wrongdoing, and with the assistance of justices of the peace (local magistrates), a bishop could require accounts from hospital trustees and had power to fine them if uncooperative.
  • s 27 similarly required the bishop acting with justices of the peace to investigate any other moneys for poor relief or highways and bridges, require accounts and reform or regulate them; and then report thereon to the chancery court.
• This act was continued in 1585 (UK 27 Eliz 1 c 11 s 1)—
• and again in 1593 (UK 35 Eliz 1 c 7 s 1).

Replaced by local quasi-judicial charity commissioners

Four years later, regulation by bishops was fundamentally transformed. What had been imposed upon them as a proactive supervisory duty was reinvented as a court-like procedure reactive in nature to complaints from communities. It still included the bishop and local leaders. But they were to be appointed and controlled by the lord chancellor of England as head of the judiciary (or, in parallel, the lord chancellor of the duchy of Lancaster, then a separate part of England with its own court system).

• This was done by the first statute of charitable uses, passed in 1597 (UK 39 Eliz 1 c 6).
• It empowered the lord chancellor to set up from time to time a new type of ad hoc temporary local court or tribunal in a county, called the “commissioners of charitable uses”.
• These commissioners normally included the bishop, his (the bishop’s) “chancellor” (i.e. administrative deputy) and other prominent men of the county such as the justices of the peace.
• They were to be appointed when government ministers learned of problems happening with charities in a county, usually by petition or information from the communities aggrieved.
• The appointment was done by commission from the lord chancellor in largely the same manner as judges were appointed in those days.
• A commission would operate in a county for a period. The commissioners would conduct an “inquisition” to investigate charities in the county brought to their attention. Like ordinary judges, they could use the sheriff to summon juries and witnesses and require documents, accounts and answers. For any charity where they found a problem, they could reform, protect or enforce it by issuing a binding “decree”.
• The court of chancery (i.e. the lord chancellor’s court) acted as a supervisory appeal court.
• The 1597 act was followed by a revised version in the above Charitable Uses Act, 1601 (UK 43 Eliz 1 c 4).

Operation of the charity commissioner system

This new legal system of “commissioners for charitable uses” operated for more than a century and a half. The number of commissions/inquisitions conducted eventually attained 1,846; that was, on average, about 10 per year during the period 1597-1649; increasing to 21 per year during 1649-1688; declining back to 10 per year during 1689-1714; and then to fewer than 3 per year from 1714 to 1787 when the last commission occurred (Jones, op. cit., p 252). There were 4,746 decrees issued during this history (Jones, ibid., p 256)—all indexed in the List of Proceedings of Commissioners for Charitable Uses by the UK Public Record Office, HMSO, 1899, available elsewhere in this website.

Eventual disappearance of the charity commissioner system

The system was cumbersome, time-consuming and expensive. It had largely become defunct decades before 1787. In fact, that last case was by then an unusual rarity. The 1601 act remained technically in force as an unrepealed statute for another century until 1888. But its commissions appear to have stopped being regularly asked for and issued before 1750. As a method of charity regulation, the system was superseded by another new procedure at the level of the court of chancery itself. In that procedure, the government’s top lawyer, the attorney general, automatically had standing to file an “information” about a problematic charity brought to his attention by a witness called a “relator” and seek relief on the king’s, that is the public’s, behalf from the lord chancellor’s court directly. Why go to the trouble of lower-level commissioners when you could solve your charity issue by going directly to the top? But that top process was soon even more cumbersome, time-consuming and expensive, and the chancery court became a by-word for utter paralysis.

Nevertheless, as we will next see, depite becoming effectively obsolete, the 1601 act cast a long and important shadow afterwards—in the form of its preamble.

The 1601 preamble

The 1601 act is of lasting importance to us. The reason is kind of strange. Its importance did not come from its enacted provisions while they were still in use. It came from how its preamble was transfigured by the courts much later on. Normally, preambles are legally unimportant. But this preamble listed examples of typical (and almost entirely secular) “charitable uses”. This list became the origin of centuries of charity case law to this day. Using modern spelling, and underlining certain expressions to be discussed, the list of example charitable uses was:—

“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, seabanks 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 payment of fifteenths, setting out of soldiers and other taxes”.

One can see that many of these purposes don’t come within the usual concept of charity—either then or now. Yet section 1 of the act specifically referred to these as “the charitable and godly uses before rehearsed”.

Let’s take a closer look at some of the things mentioned, and unmentioned, in this remarkable preamble.

“Uses“, specifically “charitable uses“

“Impotent” or “decayed” people

In the 1601 preamble, poor relief in general was covered by “relief of aged, impotent and poor people” and “supportation, aid and help of . . . persons decayed”. The word “impotent” meant feeble in body as through illness or old age. Similarly, the word “decayed” meant to have lost health and strength of body or faculties through disease or old age. (See the OED.) Also, however, in the English summary of Sir Francis Moore’s 1607 Reading, he included as “decayed” persons, those who suffered financial losses not their own fault. He listed imprisoned bankrupts, victims of negligence or fraud, and casualties of fire. Under the Poor Law, unfortunates like the impotent, decayed and these others were entitled to receive support from their home parishes at the cost of local ratepayers. So setting up charities to do this instead could, in theory, result in less taxes. See further discussion under “Soldiers and mariners” and Separate legislation for poor relief hospitals below.

“Soldiers and mariners“

These were what we think of today as veterans. Relief of veterans was actually a nearly-new concept when it was put in the 1597 charitable uses statute as the “the Charitable Releife of . . . maymed Soldyers”, and again in 1601, the “Maintenance of sicke and maymed Souldiers and Marriners”. Prior to this, i.e. for most of Queen Elizabeth’s reign, and for centuries before, English society had no concept of veterans benefits. Ex-soldiers were seen as no more than a particularly reprehensible part of the poor.

• In this era, most soldiers and mariners were poor rural labourers “impressed” (conscripted) by county leaders (justices of the peace) acting on instructions from the royal government. See further discussion on this under “Setting out of soldiers” below. When the war, invasion or need ended, they were supposed to be discharged from service by their superior officers usually at the port where they returned. The officers were supposed to pay them their arrears of pay, and provide them with a document, often called a “passport”, permitting them to leg it back home. For those who were maimed or sick, this included written permission to beg on the way. (Begging was otherwise a serious offence.) Upon arrival, they were to resettle in the parish or locality from which they had been levied. If necessary, they were to resort to the justices of the peace to decide what community was responsible to receive them back. Once they were resettled there, whoever had been their employers or “masters” before would be required to re-employ them. If that was not possible, they were to be simply included as part of the poor of the community and maintained under the Poor Law. See for example the language of the royal proclamations of 22 July, 24 August and 13 November of 1589 (Steele 815, 817, 818; Hughes and Larkin vol 3 no 712, 715, 716) which sets out a lot of this.
• This system, minimal though it was, did not work even minimally. Arrears of pay were usually meagre or nothing. Worse, the discharging officers often kept the limited funds for themselves, and often neglected to issue the required documents. Thus, many ex-soldiers were left destitute, unable to prove their service, and had to travel home illegally, and beg illegally on the way. On arriving home, if there was no employment available, they found themselves excluded from poor relief, because under the Poor Law, only the poor who had lived in the community for three years were eligible—a requirement which a person absent on service obviously could not fulfil.
• Thus, during Queen Elizabeth’s reign (which saw a series of onerous wars), there accumulated populations of homeless and destitute men, chiefly in and around London and other southern ports. They several times banded together to seek redress of grievances—only to have their efforts condemned as lawless by an outraged queen and her government. The penalties for such “vagabonds” were increased. They could be whipped, branded, imprisoned and even hanged. See, for example, the royal proclamation of 5 November 1591 (Steele 840; Hughes and Larkin vol 3 no 740).
• After about 36 years of this disgrace, wiser analysts seem to have prevailed with the queen. Providing for those who had been disabled while serving the nation came to be seen as not just a matter of poor relief but a matter of moral indebtedness. See the 1988 thesis “The English Privy Council and Relief of Disabled Soldiers, circa 1558-1625” by Geoffrey L. Hudson, which gives a detailed account of this neglected bit of early veterans history.
• What may be the first act dedicated entirely to veterans was passed in 1593: An Acte for Relief of Souldiers (UK 35 Eliz 1 c 4), later retitled An Act for the necessary Relief of Soldiers and Mariners and sometimes called the disabled soldiers act. Its preamble eloquently revealed the new thinking (spelling modernized):—

“For as much as it is agreeable with Christian Charity, Policy and the Honor of our Nation, that suche as have since the twenty fifth Day of March, Anno 1588, adventured their Lives and lost their Limbs or disabled their Bodies, or shall hereafter adventure their Lives & lose their Limbs or disable their Bodies, in the defence and service of her Majesty and the State, should at their return be relieved and rewarded, to the end that they may reap the Fruits of their good deservings, and others may be encouraged to perform the like Endeavours”

• What this act did was set up a separate layer of the Poor Law for disabled soldiers. A brief review of how the ordinary Poor Law as it then stood may be helpful at this point. So, the Poor Law essentially required the local leadership of each community—the churchwardens of every parish, the mayor, reeve, aldermen or councillors of every city, town, township and urban ward, or their appointees the “overseers of the poor”—to identify the poor and decide which of them were valid residents who were the legal responsibility of the community. If so, they were to register and class them as a) unable to work, b) able to work or c) able but idle and unwilling to work. Then they a) decided what and how much subsistence would be given to support those unable to work, b) determined what menial work would be imposed on those able to work and what support and resources would be provided for that, and c) arranged (and funded) sending those stigmatized as idle to a house of correction (see further below). There were of course costs to these arrangements. The local leaders had to bear them (while in office), but they were authorized to recover the costs from their fellow property owners of the community in the form of property taxes known as “rates”. Each community, through its leaders, decided the type, level and formula of the rates, which in turn determined what each individual within the community had to pay as part of this tax burden. So, in short, those in charge of taking care of the local poor were also in charge of getting the local revenue needed for the purpose. This was all under the nominal supervision of leaders at the county level, the justices of the peace, to whom persons with complaints could in theory appeal. But the reality under the ordinary Poor Law was that it was in large part wholly unenforced and neglected. Local leaders were loath to tax themselves and their friends and relatives. The levels of support, as well as the levels of rates supposedly funding the support, were entirely arbitrary and varied widely from community to community—from inadequate to nothing at all.
• The 1593 disabled soldiers act attempted to fix this by assigning broader “program responsibility” for veterans to the higher level, the county justices of the peace, and by dividing revenue from spending. The justices of the peace were to impose a separate rate of not less than one penny nor more than six pennies (per pound of assessed property value, apparently; so between 0.4% and 2.5%). They set this rate for each community in the county. It was over and above what rates the communities might impose on themselves under the regular Poor Law. This new money had to be collected in the community but it would not be spent by the community’s leaders. It was to be remitted to the central collector for the whole county. On application from a disabled veteran and on receipt of military documents certifying his service and disability, the justices of the peace were to award (or continue) relief (also called pension). The amount was to be “accordinge to the nature of his Hurte and Commendacion of his Service”; paid quarterly; subject to reconsideration by the justices; and limited to ten pounds for non-officers, fifteen pounds for officers below lieutenant, twenty pounds for lieutenants. (The language of the act is a tad obscure here but these appear to be lifetime limits. If the veteran lived too long and exceeded his limit, his relief would end. Per capita GDP for England in 1593 is estimated to have been about £6, while per capita GDP for Canada in 2023 is about $70,000; so these lifetime limits might be roughly comparable to $117,000, $175,000 and $233,000 today.)
• The 1593 act was temporary, set by s 10 to expire at the end of the next session of parliament. In that next session of 1597, two acts were passed, one (UK 39 Eliz 1 c 18 s 2) extending the act again to expire at the end of the further next session, and another (UK 39 Eliz 1 c 21) making amendments to the original act which we do not need to look into. Then, in the 1601 session of parliament, a new disabled soldiers relief act was passed (UK 43 Eliz 1 c 3), more elaborate but in so far as this review is concerned substantially similar to the first act as amended. This too was set to expire at the end of the next session of parliament, but was re-extended in 1604 by UK 1 James 1 c 25 s 1; in 1624 by UK 21 James 1 c 28 s 1; in 1628 by UK 3 Ch 1 c 5 s 3; in 1640 by UK 16 Ch 1 c 4 s 31. England then descended into civil war; after which, in 1662, the same 1601 act was again re-extended with amendments by UK 14 Ch 2 c 9.
• What happened to veterans benefits after that is way beyond the scope of this review. The key point for us is, under this special part of the Poor Law, sick and maimed veterans were entitled to receive supportive relief or pensions from the county level of government—at the cost of local ratepayers. So, again, setting up charities to relieve them instead could, in theory, result in lower taxes.

Repair of “Bridges“

The 1601 preamble included in its list of charitable uses those for “Repaire of Bridges Portes Havens Causwaies Churches Seabankes and Highewaies”. This appears to encompass almost every kind of public work known to the Tudors that we today would call infrastructure (except sewers and navigational aids such as lighthouses).

Bridges, including the storied London Bridge, had a long and complicated history in England from Roman times through the Anglo-Saxon and mediaeval eras to the Reformation, covered in detail by Bridges, Law and Power in Medieval England, 700-1400 by Alan Cooper (Boydell Press, 2006).

• London Bridge itself was supported by a bridge trust endowed by King Edward 1 in 1282, apparently the first “bridge charity”.
• But most bridges did not have trusts. By the end of the middle ages, most bridges had become neglected, and sometimes even dangerous ruins. This was because the common law said the legal responsibility to maintain a bridge rested with the heirs or successors of the original builder or property-owner long ago—legal history that was usually impossible to determine or verify. So, the issue of who was responsible was often mired in repeated intractable litigation, and maintenance did not happen.
• The problem was eventually solved by the statute of bridges of 1530 (UK 22 H 8 c 5). This act gave our old friends the county justices of the peace another unenviable job of imposing unwanted taxes. If they could not determine who was legally responsible to maintain or rebuild a derelict bridge, they were empowered to impose rates on the parishes or localities served by the bridge or on the county as a whole. So, again, the 1601 charitable uses statute, by recognizing charitable uses for the repair of bridges, was seeking to reduce an unwanted tax burden.

Repair of “Ports” and “havens“

Today, ports are established and regulated by extensive modern legislation. We typically see publicly controlled “port authorities”, each a combination or hybrid of government agency and profit-making commercial business. In the mediaeval and early modern eras there was very little such legislation. Ports were governed mostly by the common law, in particular the branch of the common law known as the royal prerogative—the king’s legal rights, powers and privileges. For a summary of this early legal background of ports, see Halsbury’s Laws of England, 4th ed reissue (London: Butterworths, 1999), vol 36(1) under title Ports and Harbours, para 607-609 at pp 363-365. For a more extensive survey of this subject, a still valuable source is A Treatise relative to the Maritime Law of England by Sir Matthew Hale (1609-1676), part 2 De portibus maris, printed in A Collection of Tracts relative to the Law of England by Francis Hargrave (1741-1821) (London: Wright, 1787), pp 45-113. Briefly,—

• The king had a general jurisdiction to regulate who, where and when anyone could enter or leave the kingdom, and what taxes they should pay, i.e. “customs”.
• This was done by designating certain places as ports and requiring all travellers to enter or leave only through them. These places would of course be bays, inlets, rivers and creeks convenient for shipping. The property involved, both ashore and waterbed, would usually be privately owned, either by the local feudal landlord or more often by a city or town at the place or nearby.
• The royal designation of a port took a variety of forms. Second, the duty of collecting the royal customs was imposed as a separate matter when required. A third matter was about funding the operation of the port including the maintenance of its piers, anchorages, warehouses and facilities:—
  • If no funding arrangement was established by law, then it was up to the owners of the port to maintain it from their own resources. They should and would have been willing to do so in most cases, since having a port in your town was obviously good for business.
  • More usually, the royal designation of a port would come with a royal franchise to collect tolls and fees from the public who needed to use the port. The rates and amounts were apparently set by ancient custom. These may have been originally adequate to keep the port in operation. But they were locked in; inflation then reduced their actual value; and they typically had become inadequate to fund major repairs and expansions.

Repair of “Causeways“

Repair of “Churches“

Repair of “Seabanks“

Repair of “Highways“

“Orphans“

“Houses of correction“

These were workhouse-jails for the idle—i.e. the undeserving poor, “vagabonds”, those deemed able but unwilling to work.

• There had been earlier laws that forced people to work. But the specific idea of tax-funded houses of correction was invented as a key enforcement component of the Poor Law, by an act in 1575 (UK 18 Eliz 1 c 3) s 4, 5.
• Each county’s justices of the peace were authorized to require a town to operate an “abiding house or place” where the idle poor, including vagabonds, vagrants and unlicenced beggars, were to be confined and forced to work while subject to corporal punishment (i.e. whipping).
• The justices of the peace were also given another nasty authority to impose rates on the county’s communities to set up and operate these institutions. But . . . this meant taxing themselves and their friends and relations in the county’s elite! It just didn’t happen often or adequately. (When legislatures enact provisions requiring people to do something but without imposing a penalty for not doing it, it is often not done! We can call such ineffective enactments “hortatory”.)
• To lessen the taxes to be raised for the new houses of correction, the 1575 act also resorted to inviting charity from the wealthy. A provision in s 9 authorized a new kind of charitable gift. Landowners had become allowed under the 1540 statute of wills (UK 32 Hen 8 c 8) to devise properties by will to relatives and other persons. But the mortmain laws still governed: Landowners were still not allowed to give property to the church or other ongoing corporations such as the towns required to operate houses of correction, without an expensive mortmain licence from the king. The new type of charitable gift in 1575 allowed the wealthy to donate properties to support the building of houses of correction or provide them with “stock and store and implements”—without having to deal with the mortmain laws.
• But no surprise, few houses of correction were initially set up. The first one was apparently Bridewell Prison, which was an old palace beside the Thames that was given to the city of London originally to be a poor-relief hospital and then converted to this punitive purpose.
• Two decades later, the concept was re-enacted by another act in 1597 (UK 39 Eliz 1 c 4 s 1). This included a new provision (s 13) authorizing the lord chancellor to issue commissions to inquire into what had been done with the donations that had supposedly been given for houses of correction since 1575. (This inquisitional power was therefore not included in the 1597 statute of charitable uses passed at the same time. However, both the inquisitional power and the right to donate support were re-affirmed in the 1601 statute of charitable uses by recognizing houses of correction as charities in the preamble.)
• In the English summary of Sir Francis Moore’s 1607 Reading, he noted that houses of correction were places where corporal punishment could be inflicted. Therefore, they could not be established by donors on their own authority, only by parliament. Once established by a county’s justices of the peace under parliament’s statutory authority, donors could then donate funds and properties for their construction and support.
• The List of Proceedings of Commissioners for Charitable Uses (op cit) lists six proceedings on trusts established to support houses of correction. These cases occurred mostly during the early 1600’s .
• In subsequent history, houses of correction began from the late 1600’s to be seen as no longer features of the Poor Law system but as adjuncts to the prison system in general.
  • Prevailing attitudes to lower classes became much more moralistic, intolerant, strict and vindictive.
  • A Society for the Reformation of Manners began in 1691. “Manners” then meant “morals”. And the “reformation” of people—including children!—meant sadistic punishment, not the social conditioning and vocational training we associate with the prison system today.
  • This society quickly grew into a coalition of many upper class associations and groups dedicated to using the cruelties of the criminal law to suppress loose-living, profanity, petty lawlessness, vice, immorality, brothels and prostitution.
  • Since these crimes were essentially victimless, the society had to build an empire of paid informers to reveal offenders to the courts.
  • At the same time, and in sympathy with the society’s aims, Parliament enacted new petty offences that were punishable not by death, transportation or long terms of imprisonment but by short painful stints of days or weeks in houses of correction.
  • The society and its allies funded or obtained funding for the building and operation of many more houses of correction all over Britain. They were commonly called “bridewells”.
• By the mid-1700’s, the original let’s-force-the-idle-to-work meaning of houses of correction seems to have been largely forgotten. The term had come to mean a category of county jail to which petty offenders could be sentenced to short terms of days or weeks that often included being whipped.

“Marriages of poor maids“

“Relief of prisoners“

“Redemption of captives“

“Fifteenths“

The last description of example charitable uses in the 1601 preamble is most unusual to modern eyes. It talked about charitable uses “for aid or ease of any poor inhabitants concerning payment of fifteenths, setting out of soldiers and other taxes”.

The “relief of . . . poor people” was already mentioned earlier in the preamble. Thus, it appears a distinction was being made between poor relief in the ordinary sense, providing necessities and shelter—versus helping “poor inhabitants” pay taxes. The two mentioned taxes, “fifteenths” and “setting out of soldiers”, no longer exist, while the third, “other taxes”, was a catch-all that could mean literally any tax; but it appears (based on Moore) that what was meant was any tax that the poor might have to pay despite being poor. To understand the “fifteenth”, we need to take a superficial look at some features of mediaeval and subsequent taxation.

We don’t need to delve into the various types of taxes that existed prior to the invention of parliament. Parliament took shape from roughly 1300 on. By that time, the royal government in England found that the normal tax revenues under feudalism were insufficient to fund the king’s wars. The solution that was developed was that the king had to summon parliaments to agree to what were then considered to be special temporary or emergency taxes called either “subsidies” or “fifteenths”. Sometimes one was imposed, sometimes the other, and sometimes both were imposed at the same time. Since wars, invasions and emergencies were endemic, the subsidy and the fifteenth quickly evolved into the primary sources of revenue for the governments of those times. They were seen as, quite literally, “gifts” by the commons to the king; and so the royal budget was quite dependent on the political machinations of the house of commons. These parliamentary taxes were passed in the form of temporary acts that lasted only during the fiscal year for which they were imposed, and therefore had to be re-enacted anew for later years.

Both the subsidy and the fifteenth appear to have been more or less the same tax in theory: what we would call a wealth tax. The basic idea was, “The king needs financial help from us the common people. Let’s all dig into our pockets to provide it.” Specifically, each was a tax on a person’s “movables” or goods, that is, his or her personal possessions, including stored produce, rents and money, but not minor household goods needed for day-to-day living. Sometimes the tax was also applied to the assessed value of the person’s land, and the person would be liable to pay the larger of the amount based on goods or land, but not both. The rate of the tax was usually one-fifteenth (6.67%) of the person’s assessed wealth; or one-tenth (10%) if the person lived in a city or town. There was an exemption for the poor; if your goods or lands were assessed at below a certain amount (which varied but was usually a middle class level of wealth), then, in legal theory, under the terms of tax statute itself, you would owe neither the subsidy nor the fifteenth.

That was the intention but definitely not the reality. The difference between the “subsidy” and the “fifteenth” lay in the way it was collected.

• In the case of the subsidy, its collection lay in the hands of a hierarchy of tax collectors appointed for the purpose by the central government in all the subdivisions of the realm. They, their servants and agents, were responsible to assess the value of the goods (or goods and land) of every person in the community, charge and collect the tax from each of them as an individual, and remit it all, with a detailed accounting, to the exchequer office in London. This meant that the exemption for the poor would be actually applied, and the subsidy was therefore commonly viewed as a tax that could never be charged on the poor.
• Accordingly, in the English summary of Sir Francis Moore’s 1607 Reading, he declared that relief from paying subsidies was not a charitable use within the meaning of the 1601 act. Such relief would be unneeded by the poor, by definition, and would instead unnecessarily benefit the very people who were well-to-do enough to pay the tax.
• Collection of the fifteenth was different. Starting in 1334, this tax was imposed at the community level, collectively not individually. Each parish, township, town and city was informed of the global amount of the fifteenth tax it had to pay, based on amounts collected from it in previous taxations. It was left up to the leadership of the community—parish churchwardens, mayor, reeve, aldermen, councillors—to determine what each individual had to pay as part of the tax burden. While they were supposed to observe the rules of the tax act, in fact they did not: “since there was now no supervision to ensure that the poorest were exempted from taxation, those in charge of assessing and collecting the tax within each township, being the wealthier and more influential members of the community, tended to exempt or undervalue their own property and shift a larger proportion of the tax onto the shoulders of the poor, who had previously enjoyed some protection.” (Jurkowski & al, 1998, p xxxiii)
• There was, of course, no appeal. The assessment and collection process of “fifteenths” was thus exceedingly unfair. This tax was accurately perceived in Queen Elizabeth’s time for what it actually was—a tax that fell disproportionately on those least able to pay, the poor.
• The fifteenth method of taxation expired towards the end of the reign of James 1: “. . . after 1624 the commons refused to grant any more fifteenths and tenths because they were too burdensome to the poor.” (Jurkowski & al, 1998, p xxxiv)
• England then descended into chaos, civil war, the execution of King Charles 1, and religious dictatorship, in which new types of taxes were tried. After the 1660 restoration of King Charles 2, further changes led to land taxes and others and, eventually (1799), income taxes.

“Setting out of soldiers“

Separate legislation for poor relief hospitals

Several important matters seem to be missing from the 1601 preamble. Let us begin with what we think of as the main institutions of poor relief, the hospitals. “Almshouses”, “measondews” and “poorhouses” were other names for the same thing—buildings set up originally by the church, later by secular founders, to provide refuge and necessities to the poor. Where were they in the 1601 preamble? Short answer: Though not directly mentioned, they were there in somewhat hidden form. Here’s a brief look at the history:

• In the mediaeval era, hospitals were not the health care institutions that we know today. Modern medicine did not yet exist. Ancient Greek and Roman medicine was thought of as a branch of philosophy.
• What churches and monasteries provided to poor, disabled and aged people was food and shelter—as well as much in the way of prayer. They used the Latin word hospitalarium for the building or quarters where they did this, but that simply meant accommodation or lodgings for guests or visitors.
• The original Latin word for an actual health-care institution was not hospitalarium but valetudinarium. It was in such valetudinaria, more than a thousand years before, in the era of the Roman empire, where wounded soldiers, disabled veterans and even gladiators and valuable slaves could be provided something resembling surgery and medicine. (See Mending Bodies, Saving Souls—A history of hospitals by Guenter B Risse, Oxford UP, 1999, pp 38-56, 64-67; and “Three Questions about the Ancient Hospital” by William V Harris, in Late Antique Studies in Memory of Alan Cameron, Leiden & Boston: Brill, 2021, chapter 12, pp 233-246.)
• Sometimes, and in apparent ignorance of this ancient concept, mediaeval monks provided a separate, slightly less uncomfortable room in their hospital where poor guests were placed or sequestered when sick. They invented a Late Latin word for this, the infirmarium, based on Latin infirmus meaning disabled.
• As mentioned earlier, all the monastic hospitals in England were lost in 1535-1541. It was realized even at the time that this was an unintended disastrous side-effect of the religious break from Rome. King Henry 8 was petitioned for relief in 1538, and after some very mean-minded reluctance he or his successors refounded a series of originally monastic hospitals as secular hospitals:
  • St. Bartholomew’s, originally founded as a monastic institution in 1123, refounded in 1546;
  • St. Mary’s Bethlam, originally founded in 1247, refounded 1546;
  • St. Thomas, founded 1213, refounded 1551.
  • Two new secular hospitals were also founded: Bridewell in 1552; Christ’s in 1553. (See To do the sick no harm—A study of the British voluntary hospital system to 1875 by John Woodward, London & Boston: Routledge & Kegan Paul, 1974, pp 2, 167.)
• These refoundings, all in London, were an obviously inadequate solution to a national poverty problem. So, at about this time, the government began its policy, described earlier, of creating a new social safety net in the form of the municipally-funded Poor Law; trying to induce the rich to donate more to secular charities; and making bishops the regulators and guardians. Hospitals started being specifically identified as charities in statutes: see
  • the early poor relief act of 1555 (UK 2 & 3 Ph & M c 5) s 6;
  • the preamble of the Earl of Leicester’s Hospital Act, 1571 (13 Eliz 1 c 17);
  • the vagabonds and poor relief act of 1572 (14 Eliz 1 c 5) s 8;
  • the preamble of the hospitals for the poor (gifts and property) act of 1572 (14 Eliz 1 c 14);
  • the preamble of The Hospitals for the Poor Act, 1597 (39 Eliz 1 c 5, see further below); and
  • the preamble of the first statute of charitable uses of 1597 (39 Eliz 1 c 6).
• Over those four decades (and here I’m reasoning backwards from the solutions that were enacted in 1597), it seems that several problems must have become apparent:
  • The bishops might have been unwilling, or more likely, simply unable to regulate the new secular charities adequately. They might not have had sufficient staff to do the job. Remember, this was a church that had lost most of its wealth. The structure, procedures and powers of the ecclesiastical courts may have been unsuited to receiving and settling a myriad of complaints from the poor.
  • The pressing need was, obviously, to create or re-create many more institutions of poverty relief. But mere regulation of a few already existing or refounded hospitals by the bishops could not stimulate the founding of new hospitals in anything like the numbers needed.
  • The wealthy seem to have found the process of founding a new hospital too vexing and expensive. A poor-relief hospital was intended to be a property-owning institution. Its operations and benefits for the poor were to be funded by rental revenues from the properties given to it. In order to be legally able to own property in this way, the persons entrusted to do the job required two very expensive royal documents: a charter of incorporation, to give the group “perpetual succession”; and a mortmain licence, to give them the right to own land without paying feudal taxes. In one example, a prominent nobleman resorted to getting an act of parliament to do both things: Earl of Leicester’s Hospital Act, 1571 (UK 13 Eliz 1 c 17).
• Whatever the rationales were, new reforms occurred in 1597. Queen Elizabeth’s government got parliament to pass,
  • first, the 1597 statute of charitable uses described earlier, which took a new quasi-judicial and community-based approach to regulating charities in lieu of the bishops; and
  • second, The Hospitals for the Poor Act, 1597 (39 Eliz 1 c 5), briefly mentioned earlier. This act cut the Gordian knot for all who wanted to create new hospitals. They could do so by themselves, by will or deed, without petitioning the government or parliament for a charter of incorporation, a mortmain licence or a special act. This new 1597 hospitals act provided for those legal privileges automatically.
• So, it was not necessary to specifically mention hospitals four years later in the preamble of the 1601 statute of charitable uses. Poor relief in general was covered by the 1601 preamble’s mention of “relief of aged, impotent and poor people” and “supportation, aid and help of . . . persons decayed”. But poor-relief hospitals as distinct institutions had already been recognized as charities for at least four decades and by 1601 were governed by their own act, The Hospitals for the Poor Act, 1597.
• That act was temporary. It was originally scheduled to last twenty years, and so expired 9 February 1618. However, this was seen as an oversight. In 1624 it was revived and made perpetual by another statute (UK 21 James 1 c 1). It lasted another 324 years before it was finally repealed in 1948 when the National Health system was established in the UK.
• Over the course of roughly the period 1540 to 1720, the meaning of the word hospital gradually changed. Medicine began to grow as an empirical science instead of an archaic philosophical and religious dogma. The hospitals that began to be founded or refounded after 1540 turned increasingly to trying to cure people as opposed to merely subsisting them, and they came to be run, supported or staffed by more in the way of physicians, surgeons and nurses. (See “The Dissolution and the Revolution in London Hospital Facilities” by Barry G Gale, Medical History, vol 11(1) 1967, pp 91-96.)
• Eventually, the government founded hospitals for wounded soldiers (Chelsea, in 1682) and mariners (Greenwich, in 1694) that were oriented to curing their veteran patients and turning them into “out-patients” who were much less costly to maintain.
• Then in 1720, private benefactors founded Westminster Hospital. This is considered the first of many hospitals of what is called the voluntary hospital movement. These were recognizable medical hospitals, also sometimes called infirmaries, intended to provide health care (i.e. doctors, surgeons, nurses, beds, medicines) to people in general, not just the poor. They were called “voluntary” because they were founded and supported by voluntary associations of well-to-do “subscribers” who signed up to pay regular yearly donations in return for a vote in the hospital’s management. More than thirty of these voluntary hospitals were established in the rest of the 1700’s. (See To do the sick no harm, op cit, chapter 2, pp 12-16, and appendix 1, pp 147-148; also “The gift relation: philanthropy and provincial hospitals in eighteenth-century England” by Roy Porter, in The Hospital in History, Lindsay Granshaw and Roy Porter, eds, London & New York: Routledge, 1989, pp 150-151.)
• Voluntary hospitals were charities, often specifically identified as such in the preambles of the acts of parliament confirming their rights. As well, charity case-law recognized medical hospitals as charitable as early as 1740 if not earlier: see Attorney-General v Peirce, Barn C 208, 27 ER 615, a case that allowed a legacy to the Westminster Hospital as a valid charitable purpose trust.
• The voluntary hospital movement of the 1700’s transformed the meaning of the word “hospital” from the poverty relieving institution of old to the medical health care institution we think of today.

Separate regulation of universities and colleges

Universities and colleges were intentionally and specifically excluded from the 1597 and 1601 acts, but later made subject to the same rules as other charities.

• The 1601 preamble covered “scholars in universities”—but the charitable targets that were apparently meant here were those who attended such organizations of higher learning in order to learn: the students (“scholars”) and their scholarships, tuition, allowances, room and board, and so on.
• The preamble’s words were not taken to mean the support of those who actually did the teaching, namely the members or professors in the two universities of Oxford and Cambridge and other colleges of higher learning; nor to the requisite buildings and lecture halls where they did their work.
• These were excluded by s 2 of both the 1597 and 1601 statutes. This was because they were already governed by a separate system or tradition of regulation consisting of appointed “visitors”—regulators usually appointed by the lord chancellor under different authorities from the 1597 and 1601 charitable uses statutes.
• Nevertheless, in 1605 King James 1 issued a proclamation that the universities and colleges, and their visitors, were to closely follow the rules laid down in the 1601 act.

Institutions of religion excluded from 1601 act

Where was the church of England in the new charity regulation system? It had lost its monasteries and all of the charities they had operated, but it still had its hierarchy of churches, chapels and cathedrals and the properties and privileges that supported them; and these still carried on poor-relief houses, schools and other charities, albeit much fewer and smaller. However, aside from the preamble’s brief mention of “repair of . . . churches” mentioned earlier, religious institutions were conspicuously absent from the 1601 act’s protection of charities. In fact, cathedrals as well as the “jurisdiction of the ordinary” were specifically excluded by s 2 and 4 of the 1601 act. The “ordinary” was another name or title for the bishop of the county or diocese. His jurisdiction included all charities operated directly by the church hierarchy reporting to him. Thus by safeguarding or grandfathering his jurisdiction, all church operated charities were put beyond the controls of the new system.

It appears that the legislative intention was to exclude religion from the charities covered by the 1601 act—but not from charity in general. Let us look at why this was and why and how it took a long time to change.

• Today, the modern legal concept of charities very much includes religious institutions.
• But back in 1601, the church of England was the state religion, the only legal religion, and in effect a parallel self-funded order of government under very close control by royal ministers.
• Gifts of lands to the church were forbidden without mortmain licences. Nonetheless the church had its own revenues both from already being a landlord in every parish, thanks to centuries of donors and mortmain licences in the past; and from collecting tithes from its congregations. Tithes are voluntary gifts in theory but in those days they were effectively compulsory, a form of taxation in reality.
• The church had this key privilege in the secular common law: Like the castles of feudal lords, keeping all churches in repair was the legal responsibility of the local parishioners.
• The church had its own ecclesiastical law code, its own courts and its own elaborate hierarchy of ministers, prelates and officials to govern itself.
• The same church courts also were in charge of approving all wills (i.e. probate). Thus, it was the church’s courts that controlled the front door, at least, of all charitable donations by will.
  • In mediaeval times it was usually only the wealthy who made wills, since only they would be likely to have enough personal property and money to be worth bequeathing.
  • When wealth took the form of revenue-producing land, as most wealth did in those times, then, under feudal law, the wealthy landowners could not make “devises” of their lands. That is, they were not allowed to dispose of their land by will to whomever they chose as heirs. Succession of land was strictly governed by feudalism.
  • The statute of uses of 1536 (UK 27 Hen 8 c 10) added to this restriction by attempting to prevent landowners from making “uses” (now trusts) to give their land to whomever they chose as equitable beneficiaries under trust law.
  • The era of major restrictions on testamentary gifts of land ended in 1540. By the statute of wills (UK 32 Hen 8 c 8), landowners were given the right to devise lands by will to others outside the rules of feudalism. Under the still-existing mortmain laws, this new ability could not be used to give lands to the church or other corporations without a mortmain licence from the king. It seems, however, that the statute of uses could not prevent landowners from using their new ability to devise lands to non-church non-corporate trustees for “secular” charitable uses, since these were “purposes” which could not be equitable beneficiaries caught by the statute under the law of uses then.
  • Bottom line: In the Elizabethan era, a) the wealthy could make wills bequeathing money to relatives and others, or to the church itself, or to legacies in trust for secular charitable uses; and b) they could as well make wills devising their revenue-producing lands to relatives and others, and probably to charitable uses too. But they could not make any of those gifts to the church or any other corporation caught by the mortmain laws—not without a royal mortmain licence or an act of parliament. Eventually that changed. These matters will be discussed in more detail elsewhere in this website.
• So, when in 1597-1601 the time came to invent a new system to protect and regulate charities in general, the church and its charities were simply not thought of as needing any of that.
• More important, the 1601 act’s purpose was to establish locally-based community courts, presided over and run by local leaders, to protect what we today would call secular charities. The last thing the country’s leadership wanted was for these local courts to have power over religious institutions. In this era of history, England was in religious ferment—ferment that led eventually to civil war. Local communities and their leaders were resisting the “established” church everywhere. Giving them authority to decide what was or was not a valid religious charity would have subverted the “top-down” methods which the central government used to enforce religious conformity—the bishops, the court of high commission, the lord chancellor’s court of chancery and the law of mortmain. It was the royal ministers in charge of these central institutions, primarily the lord chancellor, directly exercising his general jurisdiction in equity—and not the local charity commissioners under the 1601 act—that regulated charities with religious purposes.
  • Thus, in the English summary of Sir Francis Moore’s 1607 Reading, he expressly excluded all support for religion, other than the parishioners’ repair of churches, from the ambit of the 1601 act.
  • Very few examples of religious charities survive in the skimpy case law reports that we have from this era. Most, probably all, of these cases seem to have been decided by the lord chancellor under his inherent chancery jurisdiction, and not under the 1601 act; consistent with Moore’s opinion.
  • A couple of decades later, in 1629, King Charles 1 even made a proclamation forbidding the issuance of licences for charitable collections for the routine repair of churches—on the express grounds that this was the parishes’ legal obligation. There could only be charitable collections to replace churches destroyed by fire or other extraordinary disasters beyond the local community’s means to deal with.
• Cases under the 1601 act rose and peaked and then died out after about 150 years. This was because changes in chancery procedure led to charity cases being taken directly to the lord chancellor under his general chancery jurisdiction. That jurisdiction had always included dealing with charitable uses with religious purposes. But this meant that the exclusion of charity commissioners under the 1601 act from religious purposes simply became irrelevant, died out with that act, and was forgotten.
• Religious purposes continued to mean only the state, or “established”, religion, the church of England. All other religions, and their charities, remained illegal. As well, the mortmain laws still existed to prevent or heavily limit the giving of wealth in the form of revenue-producing land even to the established church (except for the repair of churches). A century would go by before legislation first appeared that permitted broader charitable support for religion.
  • The Queen Anne’s Bounty Act, 1703 (UK 2 & 3 Anne c 20) s 4 allowed charitable gifts of land to be made, without having to obtain mortmain licences, for the purpose of funding “poor livings”—churches with insufficient revenue to pay a minister.
  • This foot-in-the-door was gradually expanded in stages over the next century and a half (after 1703) by a series of toleration, relief and income tax acts, to allow giving to more church institutions than just poor livings and to more denominations and religions than just the established state church of England.
  • By 1862, the case of Thornton v Howe, 31 Beav 14, 54 ER 1042 (Rolls) accepted that literally any religion, no matter how eccentric, may be charitable if it is neither contrary to all religious principles nor subversive of all morality.
  • In 1891 the Pemsel case (see below) recognized the “advancement of religion” in general as the third “head” or broad category of charitable purposes.
  • This future could not have been imagined by the writers of the 1601 preamble.

The 1601 preamble’s immortal after-life in modern charity caselaw

After the 1601 act had become unused and obsolete, the chancery and later courts in England and other common-law countries including Canada (and even, though rarely, some courts in the United States) seized upon the examples in the preamble as a kind of technical description of charity. The leading case saying this was Morice v Durham (Bishop of) (March 26, 1804), 9 Ves Jun 399, 32 ER 656, Rolls; affirmed (March 20, 1805), 10 Ves Jun 522, 32 ER 947, [1805] EngR 97, Lord Chancellor. Thanks to this and many other court cases, the 1601 preamble became the core on which development of charity law has been based ever since.

In 1891, a further development occurred in the all important Pemsel case. This case will be discussed in more detail elsewhere in this website. For now, its proceedings are cited as follows:

• The Queen on the prosecution of J F Pemsel v Commissioners of Income Tax (October 27, 1888), 59 LTNS 832, Queen’s Bench Division;
• appeal allowed (December 21, 1888), 22 QBD 296, 58 LJQB 196, 60 LTNS 446, 53 JP 198, 37 WR 294, 33 Sol Jo 138, Court of Appeal;
• affirmed sub nom Commissioners for Special Purposes of the Income Tax v Pemsel (John Frederick) (July 20, 1891), [1891] AC 531, [1891-4] All ER Rep 28, 61 LJQB 265, 65 LTNS 621, 55 JP 805, 3 TC 53, 7 TLR 657, [1891] WN 142, 35 Sol Jo 640, House of Lords.

In the final affirming decision, one of the judges (“law lords”), Lord Macnaghten (speaking in obiter at [1891] AC 583, [1891-4] All ER Rep 56), distilled the many types of charitable purposes recognized by the 1601 preamble, and by much case law since, into his famous “four heads of charity” as a convenient classification of charitable purposes. These were: relief of poverty, advancement of education, advancement of religion, and a catch-all, other (charitable) purposes beneficial to the community.

The result of all this is, yes, the legal concept of charity that prevails in the common-law world is not only voluminous and complicated but quite arcane, compared to what most people think when they use the word; largely thanks to the 1601 preamble.

Subsequent fate in the UK

The 1601 act eventually disappeared from the statutes in force in the UK:

• A major legal reform, the Mortmain and Charitable Uses Act, 1888 (UK 51 & 52 Vict c 42), s 13(1), Sch, 6th item, finally repealed the 1601 act and also all the so-called mortmain acts—but s 13(2) re-enacted and preserved the 1601 act’s preamble.
• That 1888 act (with its re-enacted 1601 preamble) was itself repealed in England by the Charities Act, 1960 (UK 8 & 9 Eliz 2 c 58), s 38(1), 39(1), 48(2), 7th Sch, Part I A.
• Thus the 1601 preamble is gone from the body of UK legislation in force—but its legal effect remains as strong as ever simply because the courts had adopted it as the origin of their legal concept of charitable purposes.
• This has been slightly superseded in England by new legislation, the Charities Act 2006 (UK 2006 c 50) in which s 2(2) enacted a new definition of charity with thirteen categories. This is now located in an even newer consolidating act, the Charities Act 2011 (UK 2011 c 25) s 3(1). But this modern “reform” is acknowledged (by many, including some courts) to be no more than a superficial distillation of the charity examples originally listed in the 1601 preamble, as categorized by the “four heads of charity” in the 1891 Pemsel case, and as elucidated and expanded by much more subsequent jurisprudence.
• So the 1601 preamble, though repealed, lives on deathlessly in England, hidden beneath incrustations of case law and a new statutory form.

Reception in Canada

The 1601 act of the UK was arguably received in and became part of the law of all the British colonies in North America that later combined into modern Canada—with the exception of what is now the province of Quebec.

How English laws became incorporated or absorbed into colonial laws is a complicated story, canvassed in The Reception of English Law Abroad by the late Bruce H McPherson (1936-2013) (Brisbane: Supreme Court of Queensland Library, 2007). See pp 401-404 concerning the 1601 act and other related charity and mortmain laws.

• The 1601 act seems to have been accepted by virtually all common law courts as having been “received” everywhere English law was received.
• But the story is different for mortmain laws, especially one that was passed in 1736 commonly if misleadingly known as another statute of mortmain but later given an official short title The Charitable Uses Act, 1735 (UK 9 Geo 2 c 36). This particular mortmain law has had a tortured history of being not received in most places yet received in others; see further below.

The 1601 act was not and could not have been received in Quebec because:

• Quebec retained its civil law system derived from French law and that system did not then have the same legal concept of trusts, nor of charitable purpose trusts in particular.
• An English law of 1601 on the subject was therefore obviously inapplicable there.

Aside from Quebec, then, the 1601 preamble is still capable of being applied in Canada. It is in fact applied or cited in many if not most modern Canadian charity law cases.

• The first repeal in the UK in 1888 was not made applicable to Canada by express words or necessary intendment as required by the Colonial Laws Validity Act, 1865 (UK 28 & 29 Vict c 63) s 1, 5th para.
• The second repeal in the UK in 1960 was not requested or consented to by Canada and so did not apply in Canada, under the Statute of Westminster 1931 (UK 23 & 24 Geo V c 4) s 4.
• Likewise, the new categories of charity invented in the UK by their legislation in 2006 and 2011 do not apply in Canada under the Canada Act 1982 (UK 1982 c 22) s 2.
• Other than in Ontario, no Canadian legislation, federal or provincial, has repealed the 1601 preamble. So it is still technically in force in Canada (other than Quebec), though as a preamble only. The rest of the 1601 act became unused and obsolete in the UK before it ever reached the stage of being applied, used or copied in the chancery courts or courts of equity eventually established in the Canadian colonies.

The 1601 preamble therefore continues to play the seminal role in Canadian charity law as it did and perhaps still does in the UK.

The 1601 preamble’s fate in Ontario

That’s in effect the situation in Ontario too although the 1601 preamble has been technically repealed there.

• In early Victorian times, the courts in what is now Ontario ruled that English mortmain laws had been received in and were in force in that province.
  • The leading case was Doe d Anderson v Todd (June 14, 1845), 2 UCQB 82, [1845] OJ No 19, 1846 CarswellOnt 6, Upper Canada Queen’s Bench.
  • As a result, unlike other provinces and colonies in the British empire where the UK’s mortmain laws had been ruled inapplicable, mortmain had become a key part of Ontario law—including especially the UK statute of mortmain of 1736 which placed serious limits on giving to charities.
• In 1892, the Ontario legislature decided to emulate the British charity and mortmain reform that was passed in 1888. The ensuing Ontario legislation took a long time and came in stages.
• The second stage was an Ontario mortmain reform act in 1902 (SO 2 Edw 7 c 2) (repassed later in 1902 as part of the RSO 1897 vol 3, c 333). It did in Ontario what the British had done in 1888: It repealed in Ontario all previous charity and mortmain laws, including the 1601 act, but re-enacted the text of the 1601 preamble in slightly modernized form.
• Then, in a third stage in 1909, the Ontario legislature made a new Mortmain and Charitable Uses Act (SO 9 Edw 7 c 58). In this version, the clause that set out the 1601 preamble was replaced with one (s 2(2)) that set out the four Pemsel heads instead. This was the language from the courts mentioned above that recategorized charity in terms of four broad classes.
• Thus, in Ontario, the 1601 preamble, as first “received” from the UK in colonial times, and as re-enacted in 1902, was technically repealed and replaced by a Pemsel-based definition in 1909.
• This was repeated in all subsequent versions of Ontario’s Mortmain and Charitable Uses Act: RSO 1914 c 103 s 2(2); 1927 c 132 s 1(2); 1937 c 147 s 1(2); 1950 c 241 s 1(2); 1960 c 246 s 1(2); 1970 c 280 s 1(2); 1980 c 297 s 1(2).
• In 1982, the provincial government adopted a policy recommendation by a royal commission to bring Ontario charity law into line with most of the rest of the common-law world and abolish the law of mortmain in Ontario. The Mortmain and Charitable Uses Act was finally repealed (SO 1982 c 12).
• However, several of its provisions, including the Pemsel-based definition of charitable purposes, were transferred to Ontario’s Charities Accounting Act (SO 1982 c 11). It remains in force in today’s version of that Act, RSO 1990 c C.10 s 7.
• Through this legislative trail, the 1601 preamble’s legal effect in Ontario remains as strong as ever, despite being repealed, simply because, as in the UK, the courts adopted it as the origin of their legal concept of charitable purposes.

The 1601 preamble’s fate in Manitoba

The province of Manitoba narrowly avoided having to go down Ontario’s path.

• In a case called Law v Acton (1902), 14 Man R 246, a lower-level Manitoba judge ruled that, as in Ontario, the UK statute of mortmain of 1736 had been received in Manitoba.
• However, this conclusion was rejected by the highest Manitoba court in another case about two decades later:
  • Re Fenton Estate (March 13, 1920), [1920] 2 WWR 34, 51 DLR 694, 1920 CarswellMan 17, Manitoba King’s Bench; this lower-level court followed the precedent in Law v Acton;
  • but was promptly reversed (May 11, 1920), [1920] 2 WWR 367, 30 Man R 246, 53 DLR 82, 1920 CarswellMan 28, Manitoba Court of Appeal.
• Thus, Manitoba did not have to pass mortmain reform legislation like Ontario’s that would likely have involved repealing the 1601 preamble. That therefore remains in force in Manitoba as one of its received English laws inherited from history.