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Legacy Of Stephen Girard
Wills are forever— or so we like to think. But what happens when they offend the changing public interest? Consider the curious
June/July 1978 | Volume 29, Issue 4
Webster first argued that the city had no power to accept the trust; that the city had no power to maintain a college, and that endowment of such an institution as a college did not constitute a charitable use of money. In this, Mr. Webster was making an exactly opposite argument from the one he had used to win his most famous case, that of Dartmouth College, but it seldom matters to a lawyer which side of an argument he pleads; whichever side it is, he will argue it to the best of his ability. Webster further said that “the objects of the charity (poor, male, white orphans) were altogether indefinite, vague, and uncertain and therefore the trusts were incapable of execution or of being cognizable in law or in equity.”
He then argued in ringing terms that to deny the clergy access to the college grounds was “derogatory to the Christian religion, contrary to sound morals and subversive of laws”—and was therefore inimical to public policy.
Horace Binney’s reply, monumentally erudite, traced the origin of charitable trusts from their remotest beginnings in Roman and English law; his pleading remains authoritative to this day. The city had every right to accept the trust, he said; it had the power to execute it, and the orphans were very sufficiently described. Then, turning to the question of whether the denial to the clergy of access to the college was inimical to the public interest, Mr. Binney said that Mr. Webster’s oratory—“foreshadowed to us by a solemnity of manner, by awful forebodings of a race of coming atheists, who are to dishonor their Creator, and by a pungent allusion to the marble palace, and the infidel training, as unfatherly gifts of a stone for bread, and of a serpent for a fish”—was nothing but oratory; wonderful oratory, he said, but it was not law. The will did not assail the Christian religion, it did not exclude Christianity from the school; it simply forbade petty sectarianism on campus.
The Supreme Court agreed with Mr. Binney. The effect of the attack upon the Girard will was, as one judge wrote, to leave it “fixed, firm, and immovable as a rock.”
There matters stood for more than a century until, in February, 1954, two poor, black, male, Philadelphia orphans applied for admission to Girard College, and were refused solely because they were black. In their appeal to the city’s orphans court, the boys had the powerful advocacy of two distinguished Philadelphia lawyers, Raymond Pace Alexander and William T. Coleman, Jr. Alexander was to become a judge; Coleman was to become a member of the Warren Commission in its investigation of the assassination of President Kennedy, and later Secretary of Transportation in the Ford Administration. Joining them were lawyers representing the commonwealth of Pennsylvania and the city of Philadelphia, all of them suing the Board of City Trusts, demanding that the boys be admitted to Girard College. Their basic argument was that the power of the state cannot be used to deprive a citizen of his constitutional rights, and they cited the famous Supreme Court ruling in the school segregation case Brown v. Board of Education as the controlling one. The orphans court in effect held that the ruling in Brown did not apply. An appeal was taken to the Pennsylvania supreme court, which in November, 1956, upheld the orphans court.
“While it may seem unfortunate that the court is obliged to sanction the exclusion of any child from even a private school or orphanage because of race, creed or color if otherwise entitled to admission,” the Pennsylvania supreme court said, ”… the beneficiaries of the charity of Stephen Girard are not being determined by the State of Pennsylvania nor by the City of Philadelphia, nor by this Court, but solely by Girard himself.”
As to that, the Pennsylvania supreme court said, “Subject, of course, to compliance with all applicable laws, it is one of our most fundamental legal principles that an individual has the right to dispose of his own property… as he sees fit; indeed this right is so much protected that a testator’s directions will be enforced even though contrary to the general views of society,… and however arbitrary, unwise, intolerant, discriminatory, or ignoble his exercise of that right may be.” Quoting decisions in earlier Pennsylvania cases, the court said, ”… we must remember that under the law of Pennsylvania” a man’s prejudices are a part of his liberty. “He has a right to the control of his property while living, and may bestow it as he sees fit” at his death.
The Pennsylvania supreme court went on to say that Stephen Girard “naturally must have realized” that he could not create an orphanage large enough to shelter and educate all orphans born in Philadelphia, Pennsylvania, New York, and New Orleans, and so he had specified poor, male, white ones.
The real question, the court said, was whether Girard’s exclusion of nonwhite orphans, “although undoubtedly lawful at the time of the execution of his will… has become invalid as a result of the adoption of the Fourteenth Amendment which prohibited any State from denying to any person … the equal protection of the laws.”
No such question was involved here, the court said, because private trusts for charitable purposes, “not being subject to or controlled by ‘State action,’ are wholly beyond the orbit of the Fourteenth Amendment.…