HISTORY OF EDUCATION

2020, VOL. 49, NO. 1, 4–17

https://doi.org/10.1080/0046760X.2019.1674932

The charitable status of elite schools: the origins of a national

scandal
Roy Lowe
University of Swansea, Swansea, UK

ABSTRACT ARTICLE HISTORY

The origins of the charitable status of elite schools in England is Received 16 February 2019
a neglected topic. This article reconstructs the debate on the fund- Accepted 27 September 2019
ing of schools which led to the establishment of the Charity KEYWORDS
Commission in 1853 and argues that it was the obdurate refusal Elite schools; charitable
of the Anglican Church to surrender its control of secondary educa- status; private education
tion which first delayed reform and then forced the compromise
which resulted in the major public schools remaining outside the
direct control of the new Commission. In conclusion, it argues that
decisions which were taken in the mid-nineteenth century continue
to resonate today, allowing elite schools catering for some of the
richest families in the land to continue to operate as registered
charities and benefit from significant financial support from the
State. The article carries the implicit suggestion that this is but
one of several controversial contemporary issues which might ben-
efit from more detailed historical contextualisation.

A neglected issue
Although the private sector, and the public schools in particular, have been for many years
of interest to historians of education, and much had been written, the question of exactly
how charitable status evolved into a shield against the taxman for the most privileged in the
land has never been fully pursued. When historians have touched on the charities, they have
stopped short of this issue. Yet a host of issues relating to the public schools have been
explored. A quick glance at the extant literature makes clear this lacuna.
The only book to address this question at all is Richard S. Tompson’s The Charity
Commission and the Age of Reform.1 This dismisses completely, without much evidence, the
links between earlier investigations and the setting up of a permanent body in 1853 (which
I seek to establish in the body of this article as being central), and misses completely the
question of the exceptionalism of elite schools, which was the main concession enabling the
establishment of a permanent Charity Commission (see below). His other work, better-
known to historians of education, Classics or Charity,2 is focused on an earlier period.
Beyond this, the legion of outstanding scholars who have written on the public
schools, have all seen this issue as irrelevant, or not worthy of comment. Among the

CONTACT Roy Lowe roylowe@hotmail.co.uk

1
Richard S. Tompson, The Charity Commission and the Age of Reform (London: Routledge and Kegan Paul, 1979).
2
Richard S. Tompson, Classics or Charity: The Dilemma of the Eighteenth Century Grammar School (Manchester: Manchester
University Press, 1971).
© 2019 Informa UK Limited, trading as Taylor & Francis Group
 HISTORY OF EDUCATION 5

most important, Newsome,3 Bamford,4 Honey,5 Mangan,6 Heward7 and Gathorne-

Hardy8 all made significant statements on one aspect or another of the public school
phenomenon, but remained silent on the subject of their charitable status. There is also
a long tradition of historical accounts which eulogise these schools, often in the form of
reminiscences. The most recent example is Martin Stephen’s The English Public School:
An Irreverent History.9 Hardly surprisingly, this genre fails completely to touch on the
charitable status of these schools, although it has furnished much useful material on their
working. In brief, the precise question of exactly how the private sector of education came
to benefit massively from its charitable status remains a neglected issue.

Charitable status
There are roughly 2,300 private schools in the United Kingdom. Of these over 1,300 are
registered charities.10 For many commentators, this is seen by many as an unjustifiable
tax break which the state gives to schools which educate some of the most privileged
young people in Britain. Yet the questions around how this situation arose, how it has
survived and how it has been justified over time have all been neglected by historians of
education, even those most critical of the ways in which the State has operated in the
educational arena. This article is an attempt to open a much needed discussion and to
encourage further explorations by historians of the unique way this phenomenon evolved
in Britain.
The use of a perjorative term like ‘tax break’ makes it necessary to specify at the outset
what those benefits are. Under the terms of the 1988 Taxes Act (section 505), registered
charities do not pay income tax on investment income, provided their functions are
exclusively charitable. Secondly, they are entitled to relief of 80% on the business rates
payable on the buildings they use. Further, under the terms of the 1992 Taxation of
Chargeable Gains Act (clause 256) they are not required to pay Capital Gains Tax on the
disposal of assets. However, they are subject to Value Added Tax on the same terms as
everyone else. Even so, these are not inconsiderable benefits.

Origins
A significant number of grammar schools (possibly as many as 300) had been established
during the Middle Ages. They were, without exception, founded as the result of
a charitable bequest, either by an individual or by one of the medieval trade guilds.
Thus, from the outset, these schools were seen as charities, whose function was to provide
3
David Newsome, Godliness and Good Learning (London: John Murray, 1961).
4
Thomas W. Bamford, Thomas Arnold (London: Cresset Press, 1960).
5
James A. Mangan, Athleticism in the Victorian and Edwardian Public School: The Emergence and Consolidation of an
Educational Ideology (Cambridge: Cambridge University Press, 1981); James A. Mangan The Games Ethic and Imperialism:
Aspects of the Dissemination of an Ideal (New York: Viking Penguin, 1986).
6
John R. de S. Honey, Tom Brown’s Universe: The Development of the Public School in the Nineteenth Century (London:
Millington, 1977).
7
Christine Heward, Making a Man of Him: Parents and their English Sons’ Education at an English Public School (London:
Routledge, 1988).
8
Jonathan Gathorne-Hardy, The Public School Phenomenon (Harmondsworth: Penguin, 1977).
9
Martin Stephen, The English Public School: An Irreverent History (London: Metro Publishing, 2018).
10
House of Commons, ‘The Charitable Status of Independent Schools’, Briefing Paper, 19 September 2017, 05222, 7.
6 R. LOWE

schooling for the poor. This convention was reinforced by the dissolution of the
Chantries under Edward VI in 1547. Although the Chantries did not have the wealth
of the recently suppressed monasteries, they were widespread and their closure was not
only a critical step in the process of divorcing England from Rome, but did also generate
considerable sources of income across the country which had to be redeployed. The 1547
Chantries Act identified the ways in which the funding must be used. These were ‘to
assign monies to the poor’ and ‘to appoint lands for the support of grammar school
masters’.11 These funds were to be devoted ‘in succession to teacher or preacher forever,
for and toward the keeping of grammar schools’.12 The legislation went on to specify that
two Commissioners would be appointed to oversee this, and they began work in
July 1548 with the brief to instruct the parish priest to oversee the establishment of
a school in the parishes they investigated. The foundation of many new schools at this
time was to make the grammar schools a familiar part of the communal life of towns and
villages, and ensured that they remained under the control of the Church of England. It
meant, too, that their function was seen as being charitable, the provision of a classical
education to poor scholars. From the outset, at the moment it first took on the char-
acteristics of a system, schooling was being construed as a charitable act rather than the
responsibility of the State. In this lie the origins of our present controversies.
This was confirmed and regularised by the 1601 Charitable Uses Act, which was to
determine what constituted charitable activity until it was superseded by the Mortmain
and Charitable Uses Act of 1888. But, significantly, that Victorian legislation confirmed
that the preamble to the 1601 legislation still stood, and it was in this preamble that what
constituted charitable activity was first defined. The list included ‘schools of learning’,
‘free schools and schools in universities’ and ‘the education and preferment of orphans’.
It specified too that for any institution to be recognised as a charity it ‘must exist for the
benefit of the public’ and ‘must be exclusively charitable’.13 This had gone unchallenged,
without clarification, for two hundred years, until in an important Test Case in 1805,
which still holds some sway (Morice versus the Bishop of Durham), Sir Samuel Romilly
established that ‘the advancement of learning’ was one of the sufficient definitions of
what constitutes charitable activity. A further Test Case in 1891 (Commissioners of
Income Tax v. Pemsel) confirmed Romilly’s definition. This involved a vagueness and
generality which has served well those working in the education system who wish to
shelter behind legal precedent.
The appearance of charity schools for the poor during the eighteenth century, many of
them funded by the Society for Promoting Christian Knowledge, had the effect of
universalising the concept of education as a charity and certainly did nothing to under-
mine it. These schools were ‘charitable’ under the third definition laid down in 1601, in
that they catered, initially at any rate, for ‘the education and preferment of orphans’. As
the Evangelical Movement took hold in the Anglican Church at the end of the century
and ‘good works’ came to rank high among the Christian virtues, it became very fashion-
able to become involved in one way or another in this kind of activity. It is probably to
this period that we can look for the deep embedding in the British psyche of the view that

11
Alan Kreider, English Chantries: The Road to Dissolution (Cambridge, Mass: Harvard University Press, 1978), 198.
12
David Sylvester, Educational Documents, 800–1816 (London: Methuen, 1970), 83–90.
13
Nuzhat Malik, ‘Defining Charity and Charitable Purposes in the United Kingdom’, International Journal of Not-for-Profit
Law 11, no. 1 (2008), http://www.icnl.org/research/journal/vol11iss1/special_2.htm (accessed May 20, 2019).
 HISTORY OF EDUCATION 7

involvement in popular education and schools for the poor was essentially a charitable
activity. It is the persistence of this world-view which goes a long way to explain why the
existing arrangements have met with so little public challenge.
The check to this thinking in the early nineteenth century was provided by Thomas
Malthus, whose ideas (in particular the perceived threat of over-population) were to lead
Victorians towards the concept of ‘the deserving poor’. As it has been summed up by Dan
Ritschel: ‘The great Malthusian dread was that “indiscriminate charity” would lead to
exponential growth in the population in poverty, increased charges to the public purse to
support this growing army of the dependent, and, eventually, the catastrophe of national
bankruptcy’.14 In this lay the origins of the 1869 Charity Organisation Society whose
commitment was towards far better-targeted charitable works. Most of its members saw
fecklessness and the absence of self-restraint as the prime causes of poverty.15
But during the early nineteenth century this was never more than a minority view. Far
more representative was the strong case made to the House of Commons in 1807 by
Sturges Bourne, Lord of the Treasury, who argued that it was only through the vigorous
encouragement of charitable activity that the State could avoid becoming the main
funder of a quickly-growing education system: ‘I disprove entirely of compulsion. It
might considerably check the spontaneous charity of many individuals . . . It was teaching
the persons relieved to look on as a right that which they ought to regard as a favour’.16
This was echoed by the rather complacent view of Richard Ellison, MP for Lincoln, who
was convinced that ‘the operation of the poor laws and the public charitable schools
already in existence were fully adequate to ameliorate the condition of the poor’.17
In this debate, Whitbread, one of the main sponsors of the Bill, underlined the links
between Evangelicalism and charity, stressing ‘the benefits which would result from the
diffusion of the truths of the Gospel’. He also anticipated a situation in which the Church
might be supported by the State in providing education, rather than supplanted: ‘If, in
a large parish, 6,000 were educated by charitable contributions and 10,000 not educated
at all, this Bill, passing over the former, would apply only to the latter’.18 It seems that
something along the lines of the ‘Dual System’ which developed later in the century was
already in the minds of Churchmen and women at the moment they began to contem-
plate State involvement in education. The impulse to emphasise the charitable nature of
education was in part an attempt to maintain the grip held by the Anglican Church on all
aspects of the provision of schooling.
But, as the pressure for more widespread popular education grew during the nine-
teenth century, it became increasingly clear that all was not well. The book which did
most to publicise the ways in which the educational charities were being abused was the
very comprehensive review of the endowed schools of England and Wales made by
Nicholas Carlisle in 1818.19 Whilst he made it clear that in many of the better-known
schools such as Christs’ Hospital and Shrewsbury, the application of the endowments

14
Dan Ritschel, ‘Outcast London and the late-Victorian Discovery of Poverty’, https://www.jtrforums.com/showthread.
php?t=1132&styleid=1 (accessed January 20, 2019).
15
Rosemary Rees, Poverty and Public Health, 1815–1949 (London: Heinemann, 2001).
16
House of Commons, Proceedings, July 21, 1807. https://api.parliament.uk/historic-hansard.
17
Ibid.
18
Ibid.
19
Nicholas Carlisle, A Concise Description of the Endowed Grammar Schools in England and Wales (London: Baldwin,
Cradock and Hoy, 1818).
8 R. LOWE

was exemplary, in many other schools he identified shocking abuses. In Taunton, for
example, he found it ‘extraordinary that in so large and opulent a town . . . this once
celebrated school should have been suffered to go to decay, for many years past there
have been no scholars’.20 In this case he did not specify what use was being made of the
charitable endowment, but we do know that in many parishes the Anglican vicar, who
had control of the school, was using it to supplement his own stipend. At Brewood, in
Staffordshire (which happens to be the school which the author attended), Carlisle
publicised the Bill of Complaint made in 1638 against the Gifford family of Chillington
(the local squires) who had ‘received great sums of money for the use of the said school’
but had ‘concealed the original deeds and all other evidences’ to use the charitable trust
for their own family.21 Similar cases were exposed elsewhere. His work deserves to be
better known and provides a full and well-documented account of abuses of this nature
taking place, both historically and at the time he wrote, across the country. Carlisle was
well-placed to uncover these abuses. From the outset he had worked part-time as
secretary to Brougham’s early enquiries, being known already as an antiquarian and
the under-librarian of the Kings’ Library (soon to be merged into the British
Museum).22 Interestingly, Carlisle also went on to write an authoritative account of
the origins and working of Brougham’s enquiries into the charities which has recently
been reprinted.23
Lord Henry Brougham of Vaux was a well-known Whig reformer, closely involved in
the 1832 Reform Act and the abolition of slavery. In Scotland, as a young man, he had
founded the Edinburgh Review. On moving to London he worked to establish the Society
for the Diffusion of Useful Knowledge as well as University College London. It was
during his second stint in the Commons, from 1816, that he turned his attention in
earnest to education. It was his Reports into The Education of the Lower Orders in the
Metropolis and Beyond that first brought the abuse of charities to Parliament’s attention.
In his first report, in 1816, he called for an enquiry into ‘the mismanagement of the
charitable donations . . . for the instruction of the poor in this country’. Two years later,
he underlined the point, emphasising that it was not simply ‘ignorance, carelessness and
mismanagement’ which caused the problem since ‘misappropriation’ was a more sig-
nificant factor.24
In 1818 Brougham broadened his initiative by introducing a Bill to establish
a Charitable Trusts Commission, to investigate first, the educational charities, and
afterwards the charities generally. Although this was intended to function for only two
years, it was repeatedly renewed, and by 1837 had compiled 32 reports and investigated
all of the charities in the country. Significantly, in our context, six schools were excluded
from Brougham’s investigations from the outset: Eton, Westminster and Winchester (all
three Anglican foundations), Harrow, Rugby and Charterhouse. Already the paradoxical
term ‘public school’ (a term that continues to puzzle international researchers) was being
used to categorise them, and the view was taken that, as institutions of national

20
Ibid., 432.
21
Ibid., 472.
22
Tompson, The Charity Commission and the Age of Reform, 120.
23
Nicholas Carlisle, An Historical Account of the Commission Appointed to Enquire Concerning Charities in England and Wales
(London: Ulan Press, 2012).
24
John Stuart Maclure, Educational Documents, England and Wales, 1816–1967 (London: Methuen, 1968), 18–22.
 HISTORY OF EDUCATION 9

significance they should not be made subject to whatever might follow from Brougham’s
investigations.25
Two important points emerge in the context of this article. First, although charitable
activity covered a range of activities (such as the administration if the Poor Laws and the
running of almshouses), it was the condition of the educational charities which led to
demands for proper supervision at national level (the Charities Commission was estab-
lished in 1853 as a direct result of Brougham’s findings). Secondly, a fascinating exchange
between Robert Peel and Henry Brougham in the Commons on 23 June 1819 raises the
possibility that, from the outset, the national bodies which oversaw the administration of
charities were dominated by members sympathetic to the best schools and the ancient
universities. Brougham began with an excoriating attack on the educational charities: he
described ‘the almost universal abuse of the free grammar schools, which the masters
generally regard as a perfect sinecure. Good houses, gardens and glebe lands, and often
ample salaries, are enjoyed by masters who teach no free scholars’. Peel intervened,
accusing Brougham of extending his enquiries beyond their brief by investigating
national institutions such as Eton, Westminster and the universities. He then solemnly
began to read out a list of the names of the eighteen nominated commissioners. Peel
identified three groups of nominees, most of them he listed as friends of Brougham who
would back his every move. Only three, he claimed, had any interest in the ancient
universities, and none of these were likely to argue for the strong support the universities
needed against an interfering State (he did not use these words, but that was the import of
his argument). Brougham responded angrily, accusing Peel of sarcasm.26 The debate was
a lengthy one, but the compromise which emerged was to be of enormous significance
because, in a nutshell, the major schools (Eton, Westminster and Christs’ Hospital were
all mentioned in the debate) were permitted to continue operating as charities; but it was
made crystal clear that too close an oversight of how they operated would result in howls
of protest from the Tory establishment (who were the very people whose sons attended
those institutions). To this end, the question of precisely who would have oversight of the
operation of the charities was to become a major issue.
It was, though, the impact of the 1832 Reform Act which led, ultimately, to the State
assuming regulatory powers over the charities, rather than being limited to the power to
enquire and recommend. The householder franchise resulted in the election of a new
kind of Member of Parliament representing the larger towns. For the most part they were
Dissenters and representatives of the newly developed urban elites. Whig in affiliation,
they pressed a new kind of radical politics. Among the most influential were the
businessmen and industrialists who attended the Cross Street Unitarian chapel in
Manchester. Several of them became MPs for some of the new south Lancashire con-
stituencies (the 1832 Act had created 132 new seats).
The Bill they introduced in 1833 was to have a direct impact on the development of
policy, even though it was unsuccessful. Although they have been largely ignored by
previous historians, the four brief discussions on education which this group initiated
deserve close attention, because the views put forward at this time, and the attitudes to
which they gave voice, go a long way towards explaining not only how elementary

25
John Roach, A History of Secondary Education in England, 1800–1870 (London: Longman, 1986), 212.
26
House of Commons, Proceedings, https://api.parliament.uk/historic-hansard, June 23, 1819.
10 R. LOWE

education was to be governed throughout the rest of the century, but also why legal
oversight of the charities became a real prospect at this time.27
The first took place on 15th February, when Richard Potter presented a petition on behalf
of the Cross Street Unitarian Chapel in Manchester calling for a national system of education.
Potter was already an influential figure. He had been a founding member of the Manchester
Chamber of Commerce. The ‘Little Voice’ movement, which had been a prime mover in the
lobbying which led to the 1832 Reform Act, met originally in his premises in Manchester.
Now, newly elected as Wigan’s first MP and speaking for the new urban elite, his argument
went to the heart of the discontents about the conduct of the educational charities. Reflecting
deep-seated and widespread suspicions about the advisability of direct governmental involve-
ment in the provision of schooling, he argued that there was already ample funding available
to establish a national system of education if only it were properly deployed. The device he
used to illustrate this was a swingeing attack on the Manchester Grammar School. He said:
‘Many charitable foundations are much mismanaged, to say the least . . . Rich private charities
are misdirecting funds which, in equity, are available towards the education of the labouring
classes. I would mention the Manchester Free Grammar School, the income of which is
upwards of £4,400 yet only 150 boys are educated, many of them not on the foundation, but
paying for their tuition. If the bequest were properly managed at least 3,000 might be
taught’.28 His close friend and fellow worshipper at Cross Street, Joseph Brotherton, newly
elected to represent Salford, stepped up to second him. He pressed the need for ‘an extensive
system of education as means of suppressing crime’. But it was not to be done through
taxation: ‘Taxes produce poverty, and poverty produces crime’. He pointed out that across the
country the revenue of the Endowed Schools was upwards of three million pounds annually.
If this were properly applied ‘ample means of education might be provided without additional
taxation’.29 By focusing on the reform of the charitable endowments, this newly powerful
local pressure group had brought into the public domain an issue to which Parliament was to
return. Reticence about direct state funding of education was, therefore, another key driver of
the moves towards regulatory control of the charities.
This, then, was the context in which lobbying developed to establish proper State
supervision of the charities. It originated in concerns about the funding of schools for the
poor and the misuse of charities which had been set up with precisely that intention. But
the outcomes were to be far from the intentions of those who fought for a Charity
Commission. How then did what emerged come to work for quite different ends from
those of the planners? Why was it that the rich, rather than the poor, came to be the
beneficiaries of public charity? The answer to this conundrum is to be found in the
particular historic context in which the reform of the charities was undertaken.

Towards systematisation: the establishment of the Charity Commission

The first of a succession of Bills which were intended to establish proper oversight of the
educational charities was presented to Parliament in 1835. From the outset the under-
lying issue was clear: whilst the largely Dissenting Whig element in the Commons was

27
See also, House of Commons debates for the period at https://api.parliament.uk/historic-hansard.
28
Ibid., February 15, 1833.
29
Ibid.
 HISTORY OF EDUCATION 11

determined to right a historic wrong, the Anglican establishment, which dominated the
Tory Party, was equally determined to minimise any measure which might weaken their
control of the charities. Thus, in the Commons, on 11 June 1835, Daniel Harvey, the
radical founder of the Sunday Times and Member of Parliament for Southwark, called for
a Select Committee, to ‘report their opinion by what means the Charity funds may be
most efficiently, promptly, and economically managed’.30 He went on to mount a vitriolic
attack on the House of Lords, which, he claimed had crippled Brougham’s enquiries from
the outset: ‘It suited the wisdom of the hereditary council of the nation [the House of
Lords] to restrict the enquiry to those charities which only made reference to the
education of the poor – taking especial care to exclude from investigation all those
institutions and endowments, whose profligate perversion and mismanagement, criminal
in some and censurable in most, originally suggested and justified the enquiry’. The 1818
legislation was, he claimed, ‘crippled, in the other House of Parliament, by the introduc-
tion of a clause forbidding all enquiry into the universities and public schools’.31 Harvey
had put his finger on the issue which has hung over the administration of the educational
charities down to the present; namely that the institutions which educated the most
powerful in the land were to continue to be seen as charities and were to be treated lightly
by the State.
It was certainly this issue which explains why Bills in 1835 and 1836, as well those
brought forward by Lord John Russell in 1844, 1845, and 1846 all foundered, as did those
presented by Lord Cottenham in 1847, 1848, 1849, 1850 and 1852. This catalogue serves
only to illustrate the determination of the Radicals and the obduracy of the Anglican
interest on this issue. It was only in 1853 that a compromise was reached which enabled
the establishment of the Charity Commission.
The Parliamentary debates lay bare the essentials of the problem. As early as 1835, the
Tory Party had conceded that reform of some kind was necessary (the case established by
Brougham was incontrovertible). But they managed to mitigate what might have been for
them the most damaging impact of this particular Whig reform by making the question of
who precisely should oversee the educational charities their sticking point. So it was that on
19 July 1836, Sir Robert Peel made it crystal clear that he was firmly against the suggestion
that the new Municipal Corporations, introduced in 1835 as a central element in the Whig
reform programme, should be given control and oversight of the Charities, as the Whigs
were now proposing.32 Peel was, in reality, employing a variant of the argument he had first
put before the Commons in 1819 when he was attacking Brougham’s proposals. It enabled
the Tories to delay reform for a further seventeen years, and, when that reform became
irresistible in 1853, to determine the form it was to take.
Underlying the obduracy of the Anglican interest was not only a fear of losing control
of the educational charities, but also that their powers might be subsumed by the
emerging civic elites which were being generated by social and economic change. It
was in this spirit that Peel argued that popularly elected bodies were unfit to assume such
heavy responsibilities: ‘if they once vested these reversionary interests in a popular
body . . . they would be making an arrangement to place them practically beyond the

30
Ibid., June 11, 1835.
31
Ibid.
32
Ibid., July 19, 1836.
12 R. LOWE

means of control’. He claimed that ‘placing the management of the charitable estates in
the hands of individuals chosen by popular election afforded no check to practices all
must condemn’.33 The Whigs were quick to seize on this as evidence that Peel and those
around him had not understood the implications of the 1832 reforms. Sir James Graham
responded that Peel was defending the ‘abuse of charities for Tory purposes’.34 When, at
the second reading, Peel proposed that only the Freemen of the new Boroughs should
oversee the charities. Lord John Russell was quick to step in and rule out any such
provision. On 29 July 1836 several Tories reverted to delaying measures, proposing a six-
month postponement. Among them was Arthur Trevor, who argued that the reform of
the educational charities ‘would inevitably tend to injure the interests of the Established
Church’.35 A few days later the battle switched to the House of Lords. There, Charles
Pepys (Lord Cottenham), the Whig Lord Chancellor, pointed out that a considerable
portion of the charitable funds available in Exeter, Truro, Cambridge, Ipswich and
Winchester was ‘devoted to purposes of bribery and corruption in elections’, rather
than their intended purposes, which were mostly educational.36 But even such strong
advocacy as this, from one of the nation’s most experienced and respected lawyers, was
not enough to silence the Tories. Immediately, Lord Falmouth countered that in his
constituency there was ‘no comparison between the late corporation and that which had
been called into existence by the new law’. The old one, he claimed, ‘had property,
education and the qualifications for good government’, all of which he clearly thought
were lacking in the newly elected council. The Marquess of Lansdowne commented
glumly that the Bill, as it stood, did nothing more nor less than ’vest the rights and
patronage of the Church of England in Dissenters’.37
But these exchanges did slowly wear down the Anglican resistance and it was under
the Peelite Aberdeen government that the Charity Commission was eventually estab-
lished. The key compromise was suggested in 1846 by a leading Tory, John Copley, Baron
Lyndhurst, during his third term as Lord Chancellor. On 18 May, after recounting the
recent history of this issue, he declared himself ‘disposed to make great concessions’.38
But the compromise he came up with was to have enormous implications for the
education system down to the present. His suggestion was, simply, that some institutions
were of such size and significance that they should be treated as exceptions by the new
Commission that was to be appointed. After naming some of the major London
Companies he went on to list the other group of institutions which he thought appro-
priate for special treatment: ‘In that schedule I except the universities, the great colleges,
the schools of royal foundation, and extensive establishments of that description’.39 In
a nutshell, what he was suggesting (and soon to become reality under the new
Commission) was that the major public schools (the very schools that were attended
by the sons of the English power elite) were to be treated with a very light brush by the
Charity Commission. In brief, they were to be allowed to continue operating as charities
but their financial governance would be exempt from direct oversight by the State. The
33
Ibid.
34
Ibid.
35
Ibid., July 29, 1836.
36
Ibid., August 4, 1836.
37
Ibid.
38
Ibid., May 18, 1846.
39
Ibid.
 HISTORY OF EDUCATION 13

argument that was deployed to justify this was that the larger charities could afford to use
the Court of Chancery (whose costs were beyond the means of smaller charities). It was
the smaller charities which needed protection through a body to oversee them. The
justification may have sounded generous, but its consequences were far from beneficent.
The route to this ‘great concession’ was the appointment in 1849 of a Special
Commission by Royal warrant which went so far as to draft potential legislation. This,
too, was initially rejected by Parliament, but a diluted version of its proposals was
eventually enacted in 1853 following a change of government.40

The formative years of the Charity Commission

It was probably the rapprochement between the Peelites and the Whigs following the
repeal of the Corn Laws which made a resolution of this long-standing controversy over
the charities possible. Even so, Aberdeen’s Peelite government, which in 1853 presided
over the establishment of a permanent Charity Commission, manoeuvred to ensure that
it had only limited powers in order to minimise the damage it could do to Anglican
control of the secondary schools. The number of Commissioners was to be strictly
limited (only three were to be paid and a degree of control was established by specifying
that the fourth was to be a Member of Parliament). Dissenters were not to be allowed to
serve as Commissioners, and, most significantly in our context, it was made clear that
Eton and Winchester were given ‘special status’, meaning that they were exempt from
scrutiny by the new Commission. When the Whigs returned to office in 1855 they
immediately introduced an Amendment Act which increased the number of
Commissioners and regularised their pay, but the clause exempting the major public
schools was left unchanged and Oxford and Cambridge Universities were given similar
exemption. As Palmerston explained to the House of Commons, ‘with regard to Eton,
Winchester, and other public schools of that description, it rested entirely with the
masters and the governors to determine that . . . improvements should be made’.41
Thus, from the outset, it was deemed appropriate that educational institutions which
were of national significance (i.e. those which educated the sons of the most powerful
Tory Anglican families) were to be treated with a light brush.
This proved to be no mere transient quirk. For example, when, over fifty years later, on
30 September 1909, the Socialist MP Philip Snowden asked for a root-and-branch
enquiry into the sources of funding of all schools which came under the Charitable
Trusts Act, he mentioned particularly Eton and Winchester. Walter Runciman, the then
President of the Board of Education, told him solemnly, and without apology, that ‘Eton
and Winchester are, by section 49 of the Charitable Trusts Amendment Act of 1855,
outside the jurisdiction of the Board, and are also exempt under section 8(i) of the
Endowed Schools Act of 1869. Thus, no return is possible for them’.42 The legislation of
the 1850s and 1860s has cast a long shadow.
Runciman’s reference to the 1869 legislation draws our attention to the developments
which ensured that the major schools were to be treated differently from the rest in
40
Peter R. Elson, ‘The Origin of the Species: Why Charity Regulations in Canada and England Continue to Reflect Their
Origins’, International Journal of Not-for-Profit Law 12, no. 3 (May, 2010):, 75–89.
41
House of Commons, Proceedings, https://api.parliament.uk/historic-hansard, March 8, 1855.
42
Ibid., September 30, 1909.
14 R. LOWE

perpetuity. Whether this happened by accident or design is for others to judge, but the
events are incontrovertible and illustrate neatly the ongoing struggle by the Anglican
Church to maintain control of what it saw as its schools.
In a nutshell, when it was decided to use the increasingly fashionable device of a Royal
Commission to help determine the future direction of policy towards the secondary
schools, a distinction was immediately made between the public schools, which were seen
as the first concern, and the rest. Accordingly, the Clarendon Commission, after
a contretemps on precisely which schools should be included, reported on nine in 1864
(St. Paul’s, Merchant Taylor’s and Shrewsbury were now added to the list). The Public
Schools Act which followed from this in 1868 commanded the establishment of reformed
governing bodies and then went on to give these bodies unprecedented powers: ‘The new
Governing Body of any School to which this Act applies may, by Statute, consolidate and
amend any existing Statutes or Regulations relating to such School’.43 The Act took these
schools out of any direct control by the Crown, the Established Church or the govern-
ment, giving the governors complete independence over their administration. In other
words they would continue to benefit from their charitable endowments without having
to justify to the State how that was being done. In fairness, several of them chose to
establish a ‘subordinate school’, as the Rugby governors phrased it in 1878 when they
were founding the Lawrence Sherriff school to provide schooling for town boys, but they
were not being obliged to do this by government.
In contrast, the other schools (classified as the ‘endowed schools’) were subject to their
own Royal Commission and this had a quite different outcome. The 1868 Taunton
Report called for a root-and-branch restructuring of secondary education in three tiers,
first, second and third grade. The Endowed Schools Act which resulted a year later had
two central clauses which were to determine the administration of educational charities
down to the present. First, it specified clearly (clause 8) that ‘nothing in this Act shall
apply to any school mentioned in section 3 of the Public Schools Act 1868’. (This was the
clause that Runciman was to refer to in 1909). It went on to exclude the Anglican choir
schools too. It then went on, as Taunton had recommended, to instruct that commis-
sioners were to be appointed whose powers were to be draconian. ‘They shall have power,
in such manner as may render any educational endowment most conducive to the
education of boys and girls, to alter, add to any existing, and to make new directions
and provisions’, including the ability to ‘alter the constitution, rights and powers of any
governing body’. In brief, they were given the right to oversee and control how the
charitable funds of the grammar schools were distributed across the length and breadth
of the land. And, as has been shown by a succession of historians,44 that is precisely what
they went on to do. So, in the late 1860s, much of the obfuscation and filibustering of the
Anglican establishment, which had been going on for fifty years, paid off in a settlement
which meant ultimately that the charities of the common schools were brought under
State control, and those of the best known schools were allowed to continue without let or
hindrance. There was one further detail which meant that, perhaps unwittingly, the
Endowed Schools Commissioners cemented this anomaly by the way they dealt with

43
Clause 7, Public Schools Act, 1868.
44
See in particular David Allsobrook, Schools for the Shires (Manchester: Manchester University Press, 1968); Brian Simon,
Studies in the History of Education, 1780–1870 (London: Lawrence and Wishart, 1960).
 HISTORY OF EDUCATION 15

the smaller endowments of many of the grammar schools. Their policy became one of
redeploying these funds to provide scholarships and free places, initially for poor pupils,
but, increasingly, under the pressure of examinations and parental ambitions, for the
academically outstanding. Thus the schools themselves became, by a steady process of
evolution, part of the State system of schooling, and effectively no longer charities, whilst
their charitable funds were deployed for purposes which could be construed as being in
the spirit of the original donors. Meanwhile, by contrast, the major schools found
themselves under no such constraint.
It was in the House of Commons, too, that a further twist to this narrative was
anticipated by Wingfield Digby, on 15 March 1869. He pointed out that

‘there were many schools which were now gradually rising – schools that were almost equal
to the excepted schools, both in the character of the education they imparted and the
number of scholars they educated; and considering the admirable management under
which those schools were placed; he could not see why the Legislature should violently
interpose its interference. He would first refer to one of those schools of which he had
particular knowledge, as he was one of its governing body – he meant the King’s School at
Sherborne. That school had attracted the attention of the Commissioners, who stated that
the character of the education there was as good as that at any Public School, and they also
spoke highly of the school discipline, arrangements, and nature of the building. The school
promised to become one of the great Public Schools of the country. There were many other
schools which he might include in the same category, including Uppingham, Bromsgrove,
Highgate, Tunbridge, Ipswich, Leeds, and Manchester’.45

In brief, what he was suggesting, was that the advantages which Parliament had bestowed
on the seven major public schools should be more widely shared among a much larger
group of elite schools. He was, of course, only anticipating what actually happened during
the succeeding century.
The benign judgement on all this might be that the charitable status of the elite schools
emerged from a series of historical accidents and coincidences. The more severe judge-
ment would be that many of those in positions of power and privilege, particularly within
the Anglican Church, fought tooth-and-nail to ensure that the advantages they gained
from educational charities were not dissipated. The evidence points more towards
the second conclusion.

Long-term implications
What makes these mid-nineteenth-century developments so significant today is that the
outcomes which resulted, and the assumptions underlying the advantageous treatment by
the State of elite schools, have never been seriously challenged. Calls for reform have always
been channelled into schemes to alleviate one or other consequence of this system rather
than its complete abandonment. The details of those debates also deserve far closer scrutiny
by historians of education than they have received so far. There have been, particularly in
recent years, a succession of Acts of Parliament seeking to reform the charities: in 1960,
1992, 1993, 2006, 2011 and 2016. But none has addressed the central issue.

45
House of Commons, Proceedings, https://api.parliament.uk/historic-hansard, March 15, 1869.
16 R. LOWE

Instead, the public schools continue to enjoy massive advantages as a direct conse-
quence of State involvement. The business firm, CBS, reported recently that ‘our analysis
of government data suggested that on 2,707 properties classified as private schools there
would be a business rates bill of around £1.16bn over the next five years. Extrapolating
from the data received from councils, £634m would be paid, with £522m saved through
the schools’ charitable status’. Among the beneficiaries are Eton, whose bill for business
rates would have been in excess of four million pounds, but is, in fact, only £821,000.
Dulwich College and Leeds Grammar School (now, like many of the better-known
schools, outside the State system and registered as a charity) are among those who
enjoy similar benefits.46
At the apex of the system is Eton, which retains its excepted status and now has over
twenty recognised charities, including its Fives club. In 1999 it was, for the first time, listed
by Charity Finance and Barclays Bank among the top one hundred charities in the United
Kingdom with an annual turnover in that year of almost thirty million pounds per annum,
most of it drawn from fees and grants. It pays no Corporation Tax. Charitable Gift Aid
legislation adds a further 28% to parental donations. The school claims that, in this way,
a fifth of their pupils receive a discount on fees. It has been commented that this is merely
‘window dressing’ for the Charity Commissioners. Thus, in return for a limited number of
free bursaries for less privileged students, the State is subsidising the better-off parents to
the tune of almost £7,000 per annum.47 This is an extreme example, but it illustrates how
decisions made a century ago continue to resonate today.
Attempts to bring the independent schools into line have frequently been challenged
successfully in the courts. For example, when, the 2006 Charity Act demanded that
these schools would be obliged to demonstrate ‘public benefit’ to continue working as
charities, the Charity Commission set about explaining the kind of bursary schemes it
would accept. When this was challenged by the independent schools, the High Court
judgement, in 2011, was that the Charity Commission was being too prescriptive.
Instead, the schools were to be required to ‘generate a meaningful amount of public
benefit’, but it was to be left to individual schools to determine how they set about
doing this.48
If anything, the current trend is towards the reinforcement of the charitable status of
schools. In 2010 it was announced that the new academies which were being opened as
part of the Government’s educational initiatives, since they were being made ‘indepen-
dent’ of local control, would have the right to register as charities. Many have taken
advantage of this. Unsurprisingly, this has met with resistance from within the estab-
lished private sector. When Neil McIntosh delivered his leaving speech after 22 years as
chief executive of the education charity CfBT (the Education Development Trust) in
2017, he used the occasion to highlight his concerns about the charitable status of
academy schools. McIntosh, who had worked in management roles in the charity sector
for more than 30 years, argued that, as charities, the academies potentially compromised
46
Hilary Osborne, ‘Private Schools to Save £522m in Tax Thanks to Charitable Status’, Guardian, June 11, 2017 https://www.
theguardian.com/education/2017/jun/11/private-schools-tax-charitable-status-eton-dulwich-college (accessed January 20,
2019).
47
Third Sector, ‘Analysis: Academy Schools – Charities, But Not as we Know Them’, Third Sector, February 5, 2013, https://www.
thirdsector.co.uk/analysis-academy-schools-charities-not-know/governance/article/1169415 (accessed 25 April 2016).
48
How Charities Work, ‘Why Are Universities, Churches and Private Schools Charities?’ https://howcharitieswork.com/about-
charities/what-is-a-charity/why-are-universities-churches-and-private-schools-charities/ (accessed January 20, 2019).
 HISTORY OF EDUCATION 17

‘the essential distinctiveness of the third sector’.49 He argued that they were set apart from
the voluntary sector since they had been set up by the public sector, were totally funded
by the government and were subject to a regulatory regime with political oversight. He
contended that academies ‘are, at their weakest, agencies that are independent in name
only. And perhaps not even in that’.50 It was an argument which found some traction
among supporters of the private sector, echoing a defensiveness which has persisted over
centuries.
In a blistering attack on the charitable status of elite education the author David
Kynaston wrote recently: ‘the private schools . . . enjoy the passive support of the Church
of England, which is distinctly reluctant to draw attention to the moral gulf between the
aims of ancient founders and the socioeconomic realities of the present; and . . . they have
no qualms about using all possible firepower . . . to block anything they find
threatening’.51 Given the evidence deployed in this article, it is a judgement which
might have been made at any point in the most recent two centuries.

Disclosure statement
No potential conflict of interest was reported by the author.

Notes on contributor
Roy Lowe is a well-known historian of education who has for 56 years been researching various
aspects of schooling in modern Britain. His books include The English School, 1870-1970 (with
Malcolm Seaborne), Education in the post-War years, Schooling and social change, 1964-1990,
The death of progressive education and The origins of higher learning (with Yoshihito Yasuhara).
He is currently working on a social history of schooling in England since 1760. The research
reported in this article developed from that project.

49
Third Sector, ‘Analysis: Academy Schools’.
50
Ibid.
51
Francis Green and David Kynaston, ‘Britain’s Private School Problem: It’s Time to Talk’, Observer, The New Review,
January 13, 2019, 13.