Making the Nonprofit Sector in the U. S.: A Readerby David C Hammack (Editor), David C. Hammack (Introduction)
Unique among nations, America conducts almost all of its formally organized religious activity, and many cultural, arts, human service, educational, and research activities through private nonprofit organizations. This reader explores their history by presenting some of the classic documents in the development of the nonprofit sector along with important
Unique among nations, America conducts almost all of its formally organized religious activity, and many cultural, arts, human service, educational, and research activities through private nonprofit organizations. This reader explores their history by presenting some of the classic documents in the development of the nonprofit sector along with important interpretations and critiques by recent scholars. Each selection has been chosen to define or illuminate important questions in the development of the nonprofit sector in the United States, beginning with early 17th-century documents and ending with a 1991 Supreme Court decision.
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Making the Nonprofit Sector in the United States
By David C. Hammack
Indiana University PressCopyright © 1998 David C. Hammack
All rights reserved.
The Statute of Charitable Uses, 1601
In 1601, just before the end of her reign, Elizabeth I accepted two laws that put into effect key elements of the new relationship between church and state. These laws continued in effect throughout the colonial period, and they continued to affect both legislation and court decisions long after the American Revolution.
The Statute of Charitable Uses addressed problems familiar to modern American readers despite its old-fashioned language (it was written at a time when Shakespeare was still producing new plays in London and when scholars were completing the King James translation of the Bible) and its use of bishops to enforce civil law. The complex description of legal authorities in its fourth paragraph reflects the intricate complexities of British government, in which distinct legal officials served in effect as Lord Chancellor for separate parts of the realm, playing the part that an attorney general plays in the government of a state in the United States. The last three paragraphs of the act reflect a phenomenon not unknown in modern America: the granting of exceptions to favored institutions, in this case Oxford and Cambridge, several notable secondary schools, and certain churches, cities and towns, etc.
The Statute of Charitable Uses is important to students of America's nonprofit sector for several reasons. It reflected the dominant position of the established church in Britain and hence (in theory at least) in the American colonies: consider, for example, the implications for religious dissenters (Presbyterians, Congregationalists, Dutch Reformed, Quakers, Baptists) of the provision that a bishop of the Church of England head every investigation into allegations — including allegations of religious irregularity — against charitable boards and directors. Many colonists found this power of the established church oppressive and were glad to get rid of religious establishment after the American Revolution.
The Statute of Charitable Uses included, in its second paragraph, a list of the legitimate objects of charity that continued to influence U.S. courts and legislatures into the twentieth century. Even more generally, the Statute acknowledged the fact that the trustees and officials of charitable institutions sometimes misused assets under their care and established a means by which they could be forced to be accountable to the public.
QUEEN AND PARLIAMENT OF GREAT BRITAIN
The Statute of Charitable Uses
AN ACT TO REDRESS THE MISEMPLOYMENT OF LANDS, GOODS, STOCKS, AND MONEY HERETOFORE GIVEN TO CHARITABLE USES
Whereas lands, tenements, rents, annuities, profits, inheritances, 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 marines, 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 support, 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 inhabitant concerning payment of Fifteens [a tax], setting out of soldiers and other taxes.
Which land, tenements, rents, annuities, profits, inheritances, goods, chattels, money, and stocks of money nevertheless have not been employed according to the charitable intents of the givers and founders thereof, by reason of fraudulant breeches of trust and negligence in those that should pay, deliver, and employ the same:
For redress and remedies whereof, be it enacted by authority of this present Parliament, that it shall and may be lawful to and for the Lord Chancellor or keeper of the great seal of England for the time being, and for the Chancellor of the Duchy of Lancaster for the time being for lands within the county Palantine of Lancaster, from time to time to award commissions under the great seal of England, or the seal of the county, Palatine, as this case shall require, into all or any part or parts of this realm respectively, according to their several jurisdictions as aforeside, to the Bishop of every several Diocesse and his Chancellor, in case there shall be any bishop of that Diocesse at the time of awarding of the same commissions, and to other persons of good and sound behavior.
Authorizes them thereby, or any fewer or more of them, to inquire, as well by the oathes of twelve lawful men or more of the counts as by all other good and lawful ways and means, of all and singular such gifts, limitations, assignments, and appointments aforeside, and of the abuses, breaches of trust, negligences, misemployments, not employing concealing, defrauding, misconverting, or misgovernments, of any land, tenements, rents, annuities, profits, inheritances, goods, chattels, money, stocks of money heretofore given limited appointed or assigned, to or for any the charitable and godly uses before rehearsed.
And after the said commissioners or any fewer or more of them, upon calling the parties intrested in any such lands, tenement, rents, annuities, profits, goods, chattels, money, and stocks of money, shall make inquiry by the oaths of twelve men or more of the said county, whereunto the said parties interested shall and may have and take their lawful challenge and challenges.
And upon such inquiry hearing and exchanges thereof set down such orders, judgements, and decrees, as the said lands, tenements, rents, annuities, profits, goods, chattels, money, and stocks of money may be duly and faithfully employed, to and for such of the charitable uses and intents before rehearsed respectively, for which they were given limited assigned or appointed by the donors and founders thereof.
Which orders, judgements, and decrees, not being contrary or repugnant to the orders, statutes, or decrees of the donors or founders, shall by the authority of this present Parliament stand firm and good according to the tenor and purport thereof, and shall be executed accordingly, until the same shall be undone or altered by the Lord Chancellor of England or lord keeper of the great seal of England, or the Chancellor of the county, Palatine of Lancaster, respectively within their several jurisdictions, upon complaint by any party grieved, to be made to them.
Provided always, that neither this act, nor any thing therein contained, shall in any way extend to any land, tenements, rents, annuities, profits, goods, chattels, money, or stocks of money, given, limited, appointed, or assigned, or which shall be given, limited, appointed, or assigned, to any college hall or house of learning within the Universities of Oxford or Cambridge, or to the College of Westminster, Eton, or Winchester, or any of them, or any cathedral collegiate church within this realm.
And provided also, that neither this act nor anything therein shall extend to any city or town corporate, or to any of the land or tenements given to the uses aforesaid within any such city or town corporate, where there is a special governor or governors, appointed to govern or direct such land, tenements, or things disposed to any the uses aforesaid; neither to any college hospital or free school which special visitors or governors or overseer appointed them by their founders.
Provided also and be it enacted by the authority aforesaid, that neither this act nor anything therein contained shall be anyway prejudicial or hurtful to the jurisdiction or power of the ordinary; but that may be lawful in every cause, execute, and perform the same as though this act had never been made.CHAPTER 2
The Elizabethan Poor Law, 1601
The Elizabethan Poor Law, which dates from the same year as the Statute of Charitable Uses, attempted to deal with one of the great social problems of its time, the massive relocation of people from long-established rural communities. Driven from ancient homes by the conversion of common lands into "enclosed" fields for the local lord's sheep and by the increase of population, and attracted to rapidly growing port towns and cities by the opportunity for work, thousands of English families found themselves at the beginning of the seventeenth century far from their places of birth and unable to support themselves. To a modern reader one of the striking features of the Poor Law is the fact that it treated church parishes as agencies of the national government and empowered parish officials to secure court orders to enforce their decisions.
The Poor Law stated that church parishes must care for those who were unable to care for themselves. In the first instance, the churchwardens and overseers of the poor were to place them at work, in service or in an apprenticeship. If sufficient work was lacking, or if a person was unable to work, the law (section VII) required that he or she be placed under the care of relatives. In the last resort, the law required that the taxpayers of each parish must pay what was necessary, or be liable to have their property seized and sold (section IV).
The Poor Law also stipulated that each parish was responsible only for those who were "settled," usually by birth, within its borders. In effect, church authorities enforced a system of residential permits. It seemed practical to assign this task to the churches, because they also served as public records offices: each Church Register was supposed to note every christening, marriage, and death that occurred in the parish.
QUEEN AND PARLIAMENT OF GREAT BRITAIN
The Elizabethan Poor Law
Be it enacted by the authority of this present Parliament, that the church-wardens of every parish, and four, three or two substantial householders there, as shall be thought meet, having respect to the proportion and greatness of the same parish and parishes, to be nominated yearly in Easter week, or within one month after Easter, under the hand and seal of two or more justices of the peace in the same county, whereof one to be of the Quorum, dwelling in or near the same parish or division where the same parish cloth lie, shall be called overseers of the poor of the same parish: And they, or the greater part of them, shall take order from time to time, by, and with the consent of two or more such justices of peace as it aforesaid, for setting to work the children of all such whose parents shall not by the said churchwardens and overseers, or the greater part of them, be thought able to keep and maintain their children: And also for setting to work all such persons, married or unmarried, having no means to maintain them, and use no ordinary and daily trade of life to get their living by: And also to raise weekly or otherwise (by taxation of every inhabitant, parson, vicar and other, and of every occupier of lands, houses, tithes impropriate, propriations of tithes, coal-mines, or saleable underwoods in the said parish, in such competent sum and sums of money as they shall think fit) a convenient stock of flax, hemp, wool, thread, iron, and other necessary ware and stuff, to set the poor on work: And also competent sums of money for and towards the necessary relief of the lame, impotent, old, blind, and such other among them, being poor, and not able to work and also for the putting out of such children to be apprentices, to be gathered out of the same parish, according to the ability of the same parish, and to do and execute all other things as well for the disposing of the said stock, as otherwise concerning the premisses, as to them shall seem convenient:
II. Which said churchwardens and overseers to be nominated, or such of them as shall not be let by sickness or other just excuse, to be allowed by two such justices of peace or more as is aforesaid, shall meet together at the least once every month in the church of the said parish, upon the Sunday in the afternoon, after divine service, there to consider of some good course to be taken, and of some meet order to be set down in the premises; (2) and shall within four days after the end of their year, and after other overseers nominated as aforesaid, make and yield up to such two justices of peace, as is aforesaid, a true and perfect account of all sums of money by them received, or rated and assessed, and not received, and also of such stock as shall be in their hands, or in the hands of any of the poor to work, and of all other things concerning their said office, (3) and such sum or sums of money as shall be in their hands, shall pay and deliver over to the said churchwardens and overseers newly nominated and appointed as aforesaid; (4) upon pain that every one of them absenting themselves without lawful cause as aforesaid, from such monthly meeting for the purpose aforesaid, or being negligent in their office, or in the execution of the orders aforesaid, being made by and with the assent of the said justices of peace, or any two of them before-mentioned, to forefeit for every such default of absence or negligence twenty shillings.
III. And be it also enacted, that if the said justices of peace do perceive, that the inhabitants of any parish are not able to levy among themselves sufficient sums of money for the purposes aforesaid; that then the said two justices shall and may tax, rate and assess, as aforesaid; any other of other parishes, or out of any parish, within the hundred where the said parish is, to pay such sum and sums of money to the churchwardens and overseers of the said poor parish, for the said purposes, as the said justices shall think fit, according to the intent of this law: (2) And if the said hundred shall not be thought to the said justices able and fit to relieve the said several parishes not able to provide for themselves as aforesaid; then the justices of peace, at their general quarter-sessions, or the greater number of them, shall rate, and assess as aforesaid, any other of other parishes, or out of any parish within the said county, for the purposes aforesaid, as in their discretion shall seem fit.
IV. And that it shall be lawful, as well for the present as subsequent churchwardens and overseers, or any, of them, by warrant from any two such justices of peace as is aforesaid, to levy as well the said sums of money and all arrearages, of every one that shall refuse to contribute according as they shall be assessed, by distress and sale of the offenders goods, as the sums of money or stock which shall be behind upon any account to be made as aforesaid, rendering to the parties the overplus, (2) and in defect of such distress, it shall be lawful for any such two justices of the peace, to commit him or them to the common gaol of the county, there to remain without bail or mainprize, until payment of the said sum, arrearages and stock: (3) And the said justices of peace or any one of them, to send to the house of correction or common gaol, such as shall not employ themselves to work, being appointed thereunto as aforesaid: (4) And also any such two justices of peace to commit to the said prison every one of the said churchwardens and overseers, which shall refuse to account, there to remain without bail or mainprize, until he have made a true account, and satisfied and paid so much as upon the said account shall be remaining in his hands.
V. And be it further enacted, that it shall be lawful for the said churchwardens and overseers, or the greater part of them, by the assent of any two justices of the peace aforesaid, to bind any such children, as aforesaid to be apprentices, where they shall see convenient, till such man-child shall come to the age of four and twenty years, and such woman-child to the age of one and twenty years, or the time of her marriage; the same to be as effectual to all purposes as if such child were of full age, and by indenture of covenant bound him or her self. (2) And to the intent that necessary places of habitation may more conveniently be provided for such poor impotent people; (3) Be it enacted by the authority aforesaid, that it shall and may be lawful for the said churchwardens and overseers, or the greater part of them, by the leave of the lord or lords of the manor, whereof any waste or common within their parish is or shall be parcel, and upon agreement before with him or them made in writing, under the hands and seals of the said lord or lords, or otherwise, according to any order to be set down by the justices of peace of the said county at their general quarter sessions, or the greater part of them, by like leave and agreement of the said lord or lords in writing under his or their hands and seals, to erect, build, and set up in fit and convenient places of habitation, in such waste or common, at the general charges of the parish, or otherwise of the hundred or county, as aforesaid, to be taxed, rated and gathered in manner before expressed, convenient houses of dwelling for the said impotent poor; (4) and also to place inmates, or more families than one in one cottage or house; one act made in the one and thirtieth year of her majesty's reign, intitled, An Act against the erecting and maintaining of Cottages, or any thing therein contained, to the contrary not withstanding: (5) Which cottages and places for inmates shall not at any time after be used or employed to or for any other habitation, but only for impotent and poor of the same parish, that shall be there placed from time to time by the churchwardens and overseers of the poor of the same parish, or the most part of them, upon the pains and forfeitures contained in the said former act made in the said one and thirtieth year of her majesty's reign.
Excerpted from Making the Nonprofit Sector in the United States by David C. Hammack. Copyright © 1998 David C. Hammack. Excerpted by permission of Indiana University Press.
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