Since the seventeenth century, English and American courts have continually taken it for granted that charitable uses of property are lawful and shall be enforced according to the intentions of the donor absent fraud or other violation of fundamental law.
Development of the Right in America
From the earliest settlements in Jamestown and Plymouth through the present day, American civic and religious leaders have emphasized the importance of helping those in need. Indeed, before he even stepped foot in America, John Winthrop preached a sermon aboard the Arbella entitled “Christian Charity: A Model Hereof” (1630), wherein he reminded his fellow Puritans that relations between the rich and the poor must be governed by the rules of “justice and mercy.” Notably, he specifically encouraged his fellow believers to “deale thy bread to the hungry and to bring the poore wander into thy house, when thou seest the naked to cover them.”
Exhortations by early American political and religious leaders to care for the poor may be multiplied almost indefinitely, and we give numerous examples in our full-length article. But here we want to focus on ways that legislators protected the right to make charitable uses. Early Americans of European descent were very religious people, specifically Christian, and even more specifically Protestant. Many were committed to following biblical admonitions, including the Fourth Commandment: “Remember the Sabbath day, to keep it holy.” But colonial officials, from north to south, did not rely on citizens to voluntarily keep the Sabbath; they required them to do so.
Virtually all colonies and later states had laws protecting the Christian Sabbath, and almost without exception they exempted from these statutes works of “charity” or “mercy” (the two terms are interchangeable in this context). So, for instance, the colonies of Massachusetts, Rhode Island, and South Carolina exempted from Sabbath legislation works of “necessity and charity,” Maryland “Works of absolute necessity and Mercy,” New Hampshire “works of Necessity and Mercy,” and Delaware “Works of Necessity, Charity, and Mercy.” Later, the states of Massachusetts, Georgia, North Carolina, Rhode Island, New York, New Jersey, Delaware, Virginia, Georgia, Florida, Alabama, Mississippi, Tennessee, Kentucky, Missouri, Ohio, and Michigan exempted acts of “necessity and charity” and Pennsylvania, Connecticut, and New Hampshire exempted acts of “necessity and mercy.” Requiring respect for the Christian Sabbath was very important for early American legislators, but not important enough to prohibit charitable acts on the Lord’s day.