June/July 1978 | Volume 29, Issue 4
Wills are forever— or so we like to think. But what happens when they offend the changing public interest? Consider the curious
When Stephen Girard died in 1831, he was perhaps the richest man in America, possessed of more than $6,000,000. With the exception of a few comparatively niggling bequests, he left his entire fortune in trust to the city of Philadelphia. This utterly astonished everyone who knew him, and it particularly astonished his outraged relatives, who at once attacked the will on the ground that its provisions were against the public interest.
The Supreme Court of that day ruled against the relatives, and there matters remained for well over a century, until the Supreme Court of 1957 decreed that Stephen Girard’s principal bequest not only was against the public interest, but was in violation of the Constitution of the United States.
Throughout the long story of Stephen Girard and his will, which spans almost the entire history of our republic, the central issue has always been one of prejudice. The somewhat sinister moral at the end of it is that you and I have no rights today that may not be taken away from us tomorrow by due process of law. The law of our land is an infinitely flexible instrument, designed to serve the needs of a society that may wish at any time to change its mind as to what its fundamental principles are. Here, the fundamental principle at issue was the one asserting that a man has a right to bestow his property as he sees fit. This principle now has been put aside, partly on the ground that times have changed since 1831, and partly because of wishful thinking.
“Given everything we know of Mr. Girard,” the ultimate Court opinion said, “it is inconceivable that in this changed world he would not be quietly happy that his cherished project has raised its sights with the times and joyfully recognized that all human beings are created equal.”
No one doubts that a court should search the mind of a dead man in order to construe his intentions, but never has such a search led to a more improbable conclusion. Unless the Justice wrote those lines with deliberate irony, he must have been totally ignorant of the mind and character of Stephen Girard.
Girard was born in a suburb of Bordeaux on May 20,1750, the eldest son and second of ten children of a merchant mariner. The boy lost the sight in his right eye in infancy, and was halforphaned at twelve when his mother died. He was a solitary and imperious child given to fits of temper, and was unmercifully teased for his poor vision, ugliness, and awkwardness by the neighborhood children. He was not sent to school but was put to work in his father’s countinghouse when he was twelve. There is reason to believe that he found such happiness as he knew only in this work—despite the fact that his father was a man-grinding taskmaster. Then, because every male Girard since 1642 had gone to sea, nothing was more natural than for fourteen-yearold Stephen to sign on as a pilotin , or apprentice officer, on a ship trading to Haiti. He received his master’s license when only twenty-three, and three years later, in 1776, he arrived in Philadelphia—chased into port by storms, and a blockading British fleet, whereupon the rebellious Americans commandeered his ship for the Pennsylvania navy.
As a Frenchman, Girard might have claimed personal neutrality in the war then in progress between Great Britain and her American colonies. But he knew that neither side paid much attention to such claims, and he could not have returned to France, in any case, for he had defaulted on debts owed to Bordeaux commission merchants and would have been arrested the moment he touched French soil. All things considered, then, Girard decided to remain ashore in Philadelphia. While awaiting better times, he opened a store in Water Street on the proceeds of the forced sale of his ship and of its cargo, which he traded for an inventory of rum, cider, salt, turpentine, whiskey, flour, tobacco, black cotton handkerchiefs, sugar, lumber, lard, butter, beef, and wheat.
Girard’s character had by this time been formed. It was basically that of a lonely, work-driven cynic. As a young sailor, he knew the value of wine and women. He knew it was more profitable to sell wine than drink it. He knew that women were necessary for purposes of hygiene, as he put it, but that their company was expensive. The expense, however, could be offset by having the woman keep house in addition to performing her function as a hygienic device. Acting on this knowledge, he sold wine in his shop while drinking only a glass a day himself, and he married a penniless orphan servant. He spoke only broken English; she, no French; but then he had not married for purposes of conversation.
No one can say what kind of man Stephen Girard might have become had he not proved sterile and had his young wife not soon gone insane. By all accounts, she was a sluttish, boy-crazy eighteen-year-old when he married her, and it shortly appeared that nymphomania was the least of her mental problems.
The next year, Stephen Girard became a citizen of Pennsylvania. Just as it could not be said he married for love, so it could not be said he swore his allegiance out of love for his new country. He became a citizen because he was ordered to become one if he intended to continue to do business in Pennsylvania. His one contribution to the cause of freedom took the form of his hiring an armed crew of ruffians to steal slaves from Tories so that he could sell them to patriots. As matters turned out, his ruffians stole from the wrong side, and a court ordered the slaves returned to their owners.
Philadelphias knew Stephen Girard, mariner and merchant, to be a miser and a misanthrope. They despised him for a cheat, and when he put his wife away in an insane asylum, they despised him for making a mistress of his housekeeper. Girard never sought a place in Philadelphia society, and he would not have been accorded one if he had, but then it would seem that he was virtually friendless by choice. He went to his business before dawn and stayed there into the night. “My love of work is the greatest pleasure that I have upon this globe,” he wrote. Girard made his money by smuggling; by bribery; by profiteering in scarce commodities during the Revolution; by shipping wrongly labeled cargoes in ships supplied with false papers; by running opium into China; by being glacially slow in paying his creditors and instantaneous in dunning his debtors; by cheating his own brother; by selling cheap French vin ordinaire as expensive port because, he said, Philadelphias could not taste the difference. As one of his biographers wrote, Girard was “undisturbed by fine-spun theories of strict obedience to law.”
By such means he soon and greatly prospered, becoming something of an early-day diversified multinational corporation all in himself, sending ships to trade around the world while running a real estate business, a banking business, and a commission merchant business out of the countinghouse in the rear of his store. His experience led him to judge his fellow men harshly. The French, he said, were grasping and dishonest. The English were “worthless and contemptible,” and not to be trusted. The Germans were worse than the English, while the Dutch would “sell their fathers to make two percent.” And as for the Chinese, they “cheated like Infidel Jews.” His view of himself was that he was punctual, honest, reputable, and industrious.
If Girard’s view of himself seems somewhat inaccurate, it was nevertheless relatively correct; he did nothing that other businessmen did not do; he simply did it better. The morality of the business world was not of his making; he accepted it for what it was, and no one who reads today’s newspapers can think that the international business houses of the eighteenth century were any less moral than those of our own day. In any case, Girard worked hard and all day long; he paid derisive wages to his staff and his sailors, nothing at all to his mistress-housekeeper, and he spent almost nothing on himself. By all accounts, he was a businessman of genius, keeping in his head a running knowledge of all the world’s fluctuating currencies and of every nation’s current and future resources and needs as affected by the changing political situations in a century of wars and revolutions. He was curt and demanding; his orders were detailed and meticulous, and he required absolute and unthinking obedience to the very last letter of his instructions. He left no room for, doubt that he meant every word he said, and this, as we shall see, was a matter of importance in the construction of his will.
In the summer of 1793, yellow fever broke out in Philadelphia. George Washington and many of the other Founding Fathers raced out to Germantown to escape it. Girard did not. “Perhaps you have heard it said that the plague has broken out in Philadelphia,” he wrote to a New York business associate. “I beg you will not believe this. It is only a malignant fever which, by the pernicious treatment of our doctors, has sent many of our citizens to another world.” To one business correspondent, he wrote that “Our Board of Health, our College of Physicians, or rather, jackasses … have created an unparalleled state of alarm” by calling the fever contagious. No more than anyone else did Girard know what caused yellow fever, but he did observe that the doctors’ advice to fire off muskets and wear garlic did nothing to abate it. He had a strong suspicion that the disease was not highly contagious but he knew it was bad for business, so he joined two other brave men in establishing a hospital where they personally bathed victims, fed them liquids, made them as comfortable as possible in a cool and scrupulously clean establishment—and hoped for the best. Evidently his concern was not entirely self-serving. He gave money to the hospital, he gave his time, and he was deeply disturbed by the plight of 194 children orphaned by the fever. Many were put to work by the families who adopted them. Girard protested that the commonwealth should establish an orphanage, but no action was taken on his suggestion.
As Stephen Girard grew older and richer, his character seemed to change. No one knows precisely why, but he gradually became less reclusive, even began to take part in political affairs. As his least friendly biographer wrote, “Mr. Girard discharged his [civic] duties with exemplary zeal, fidelity, and rigour. He was repeatedly elected a member of Councils; and gave his time, which, to him, was always money, to the improvement of the city. … He held it as a maxim that no man had a right to decline public stations if his fellow citizens called him to fill them: the public interest being always paramount to individual convenience. A more orthodox and practical republican never lived than Stephen Girard.”
Girard now exempted Americans from his general condemnation of humanity. Rather like the convert who is more Catholic than the pope, Girard viewed his adopted country as the best in the world, populated with people who were polite, unaffected, affable, ready to help one another. Only in America, he believed, could any man who was willing to work hard improve himself so readily. Girard meanwhile improved himself so readily that, in 1813, when the U.S. government failed to sell $16,000,000 worth of bonds to recover its expenses in the disastrous war of the prior year, Girard was able to j oin a consortium with John Jacob Astor of New York and David Parish, an English financial adventurer, to underwrite $10,000,000 worth of the issue. He made a rousing profit out of this, but a measure of public service seems to have been among his motivations.
Two years later, Girard bought a farm in what is now a part of south Philadelphia, but which was then three miles from town. He was sixty-five, but he walked to his farm each afternoon, no matter what the weather, and worked in the fields alongside the Irish immigrants he had hired to tend the European crops he introduced. He was seriously interested in agricultural experiment and planted artichokes, cabbage, cauliflower, wine grapes, tarragon, French fruit and nut trees, sweet Lisbon oranges, figs, and medlars. In time, people came from everywhere in the seaboard states to see his farm and his flower gardens. He fenced his property, but he made his woodlots.free to the poor in winter, and when he trudged out to his farm, he is said to have carried a long pole over his shoulder, festooned with children’s shoes of sundry sizes. When the old man met a barefoot child, he would stop, select a pair of shoes from his pole, and give them to the child.
For all that Stephen Girard played a part in civic affairs, he remained essentially withdrawn from intimate association with others. There was no son to inherit his name and estate. He despised most of his French relatives as lazy ne’er-do-wells. He was afraid he would die before his crazy wife did, for under Pennsylvania law his property would pass to her, no matter that she was incompetent, and the law would not permit him to divorce her simply because she was mad. Twice, the state legislature refused to make an exception in his case. Fortunately for him, and perhaps for his wife, she at last perished in the asylum, leaving Girard to wonder whom he should endow with his great wealth.
Girard’s correspondence indicates that work began on his will in 1826. He was then seventy-six years old. The first draft was prepared by lawyer Horace Binney. Four years later the will was revised by William J. Duane, who like Binney was a distinguished member of the Philadelphia bar. Duane later said that he and Girard worked together behind locked doors for between five and six weeks, their conversations ranging over law, politics, religion, and architecture. Duane’s point was that there was nothing wrong with Girard’s mind, despite his advanced years, nor was Girard the subject of anyone’s undue influence. The will they produced was thirty-seven pages long, bound in leather, and, Duane said, “The outlines, the bones and muscle of the Will, were all Mr. Girard’s.” He, Duane said, had merely given “flesh and color” to Girard’s creation. At the end of their labor, Girard asked Duane if the will would stand up in court. Duane shrugged and said it probably would not. Perhaps Duane’s legal experience told him that whenever a fortune was involved, some lawyer could be found who would be clever enough to undo the work of any other.
The will left Girard’s entire fortune in trust to the city of Philadelphia. First, $366,000 was to be divided among various charities, pensioners, and Girard’s French relatives. But the vast bulk of the estate, more than $6,000,000, was to be used for public purposes. The state of Pennsylvania would receive $300,000 to improve canal navigation. The city of Philadelphia received $500,000 for the development and paving of Water Street and Delaware Avenue. This bequest was contingent upon the city’s demolishing all wooden buildings, replacing them with brick or masonry ones, and prohibiting frame construction in the future. It is for this reason that there are no frame buildings in Philadelphia today.
Then, $2,000,000 was earmarked for construction of a home for orphans on a tract of land that Girard owned in the city. Girard did not insist that this institution bear his name, but he was specific enough in virtually all other respects. He spelled out the dimensions of the wall that should encircle the property, the dimensions of the building, the fireproof materials to be used, the size of the rooms, the heights of the ceilings, the size and placement of the windows and the manner in which their sashes would open.
The income from the residue of his estate was to provide for the care and education of orphans who were to live in the home- and what was not needed for their care and for the maintenance of the establishment was to be spent upon the police and fire services of the city, in order to reduce the taxes the people would otherwise have to pay for them. The will left no doubt as to what Girard’s primary purpose was:
“I am particularly desirous to provide for such a number of poor male white orphan children, as can be trained in one institution, a better education as well as a more comfortable maintenance than they usually receive from the application of public funds.”
It would thus almost seem that Girard’s decision as to what to do with his money was to leave it to himself. He had been a halforphan, he had married an orphan, he had seen what happened to orphans in Philadelphia. Evidently, it never crossed his mind to adopt an orphan; he seemed to have been unable to open his heart to any particular person. Better than most men of his time, Girard seems to have understood the advisability of educating girls; he had paid for the education of two of his nieces. But his will did not endow female orphans, only males. He had also given money to a school for black children, but his will did not endow black orphans. Nor was his specification of poor, male, white orphans a general one: the selection was to be made first from Philadelphia orphans, next from Pennsylvania ones, third from those born in New York City, and finally from those born in New Orleans. In sum, he first endowed those born in the city and state where he had made his fortune, and from the two American cities into which he had first traded as a young sea captain. His choice of beneficiaries may thus be seen as an act of selfbenevolence: he would live forever, generation after generation, in the likeness of himself.
Like many self-made men with little education, Stephen Girard held strong opinions as to what a proper curriculum should be. The boys who lived in his college, as he called it in his will, would undergo an eight-year program of “reading, writing, grammar, arithmetic, geography, navigation, surveying, practical mathematics, astronomy, natural, chemical and experimental philosophy, the French and Spanish language (I do not forbid, but I do not recommend the Greek and Latin languages)—and such other learning and science as the capacities of the several scholars may merit or warrant.”
“I would have them taught facts and things, rather than words or signs,” the old man wrote in his will, adding that his desire was “that all the instructors and teachers in the college shall take pains to instill into the minds of the scholars the purest principles of morality , so that, on their entrance into active life they may, from inclination and habit, evince benevolence towards their fellow creatures, and a love of truth, sobriety and industry , adopting at the same time such religious tenets as their matured reason may enable them to prefer.”
He otherwise required that the boys be fed “with plain but wholesome food, clothed with plain but decent apparel (no distinctive dress ever to be worn) and lodged in a plain but safe manner.” The latter provision left the way open for segregation by age and size, so as to avoid the evils of the barracks and fag system then common to boarding schools. Girard went on to say that these sober, hard-working, plain-living and pragmatically educated young republican replicas of himself were to be educated by teachers chosen “on account of their merit, and not through favour or intrigue,” and that they not be churchmen.
“I enjoin and require,” he said, “that no ecclesiastic missionary, or minister of any sect whatsoever, shall ever hold or exercise any station or duty whatever, in the said college, nor shall any such person ever be admitted for any purpose, or as a visitor, within the premises.” The reason for this prohibition, he said, was to ensure that the boys’ young minds “be free from the excitement which clashing doctrines … are so apt to produce.”
In all, the will was the explicitly detailed work of a strongminded man of definite opinions, set forth in clear, unambiguous language. No one who knew the mind and character of Stephen Girard, and who read his will, could doubt that he meant every word, and that he meant no more, and no less, than what he wrote. All that remained to be seen was whether the will could withstand attack, and attack was instantly forthcoming.
In the last few years of Girard’s life, a rumor spread that the old man intended to leave his fortune to a school of some sort, and word of this reached his always importunate French relatives. Two of them happened to be in Philadelphia when Girard died, at age eighty-one, the year after the final draft of the will was written. In somewhat unseemly haste, they demanded that Mr. Duane tell them what the will contained even before Stephen Girard was buried. We can imagine Mr. Duane’s contemptuous amusement as he read, and the fury of the French Girards. Such small provision for themselves was scandalous, they said, it was unnatural—and they hastened off to hire a lawyer.
Their suit eventually reached the United States Supreme Court in 1844, with Daniel Webster appearing for the relatives, and Horace Binney on behalf of “The Mayor, Aldermen and Citizens of Philadelphia, the Executors of Stephen Girard.…”
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.…
“The question… finally narrows down, then, to the contention … that the trust for the orphanage or college created in Girard’s will is not a private trust, but that it comes under the principle of ‘State action’ within the compass of the Fourteenth Amendment because of the fact that it is the City of Philadelphia which is the trustee appointed by Girard and which has ever since administered the trust.”
But, the court said, the engines of the “State” were in no way brought into play because the college was self-supporting and privately operated. The city was simply a trustee like any other, with no more or less power than any private person, acting as a trustee, would have—and like any other trustee, the Board of City Trusts was obliged to carry out Girard’s will.
The petitioners appealed again, this time to the United States Supreme Court, and in April, 1957, they won their major point. The Supreme Court ruled that “The Board which operates Girard College is an agency of the State of Pennsylvania. Therefore, even though the Board was acting as a trustee, its refusal to admit [the boys] to the college because they were Negroes was discrimination by the State. Such discrimination is forbidden by the Fourteenth Amendment.” The judgment of the Supreme Court of Pennsylvania was reversed.
Many lawyers believed this decision was just so much logicchopping to accommodate prevalent current opinion. A lawyer for the Board of City Trusts said “there is no longer the same certainty at law that once there was—no certainty in anything, for that matter. Nobody can say what the United States Supreme Court will do at any time. Pragmatism seems to be the order of the day.” He believed that racial segregation was an issue of the day, and he did not believe there should be racial segregation. But he did not believe that “State action” was truly involved in this case, whereas something else was: the right of a man to leave his money to whomever he wished—within the limits of the law. If the Girard will could be upset on some pretext, however popular at the moment, then anyone’s will might be overturned on some other pretext. Civil libertarians, however, rejoiced at the ruling, reading into it the principle that racial discrimination cannot be condoned, wherever it might be found.
If logic-chopping could be seen in the Supreme Court decision, the same thing might be said of the next series of events. Since the Supreme Court had not ordered the two black orphans admitted forthwith to Girard College, but had only required “proceedings not inconsistent” with its opinion, the Philadelphia orphans court responded by dismissing the Board of City Trusts from its trusteeship, and appointed thirteen private citizens, who held no city or state positions, to be the successor trustees of the Girard estate. The orphans court relied on the legal principle, already announced in an earlier contest of the Girard will, that a trust cannot fail for want of a trustee; if the city could not legally administer the trust, the thirteen private citizens certainly could. The successor trustees could refuse to admit the black orphans; in fact, they were required to do so if they were to be faithful to Girard’s will.
An appeal was again taken to the Pennsylvania supreme court, this time protesting the orphans court appointment of the successor trustees, and again—in January, 1958—the court ruled against the black orphans and their lawyers.
“The appellants’ efforts to make a ‘segregation’ issue out of Stephen Girard’s private charity … serves only to confuse and obscure the real issue involved as to the right of a private individual to bequeath his property for a lawful charitable use and have his testamentary disposition judicially respected and enforced,” said the Pennsylvania supreme court, in ruling that Girard’s college was a private charity, not a public one; that it was capable of being lawfully administered by private trustees; that the orphans court action was legal and proper, and not inconsistent with the United States Supreme Court ruling. Furthermore, the court added, no one not named as a beneficiary in a will has any constitutional right, or any other right, to share in the bequest. Therefore, no one who was not a poor, male, white orphan of Philadelphia, Pennsylvania, New York, or New Orleans was being denied anything to which he had any legal right.
An appeal was taken from this ruling to the United States Supreme Court, but this time, to the dismay of civil libertarians, but to the joy of those who may here be called traditionalists, the Supreme Court refused to review the case. So it seemed that the latest series of assaults on the Girard will had ultimately failed, and that the will remained “immovable as a rock.”
Nine years later, however, a new lever was found and was applied to the rock. In the meantime, the United States Supreme Court had heard another case, Evans v. Newtown . In Evans, a parcel of land had been left to the mayor and city council of Macon, Georgia, to be used as a public park for whites only, under the control of a white Board of Managers. The city, however, desegregated the park—and the Board of Managers sued the city and the trustees, asking for the appointment of private trustees to enforce the racial limitations of the will. A Georgia court accepted the city’s resignation as trustee, and appointed three new private trustees. The Georgia supreme court upheld this decision, and the United States Supreme Court then ruled against the Georgia courts.
Justice Douglas, for the majority, said the park had a “public character” that required it to “be treated as a public institution subject to the command of the Fourteenth Amendment, regardless of who now has title under state law.” He said the park had acquired a “momentum” as a public facility that was “certainly not dissipated ipso facto by the appointment of ‘private’ trustees.” He also thought it fair to “assume” that the Georgia courts would not have approved of the appointment of successor trustees if the courts had not thought that private trustees would have been able, legally, to keep blacks out of the park. So, in effect, Justice Douglas and the majority of the Supreme Court held that state action was being used to enforce racial discrimination, which is prohibited by the Fourteenth Amendment.
Seven black male Philadelphia half-orphans, represented by their mothers, by William T. Coleman, Jr., and by a galaxy of lawyers representing the commonwealth of Pennsylvania and the city of Philadelphia, now used the Evans case as their primary tool in a suit brought against the thirteen private trustees of the Girard estate. The trustees were as brilliantly represented by counsel, and others of the Philadelphia bar joined the case as friends of the court. The battle was fought out not in a Pennsylvania court, but in the Federal District Court having jurisdiction in Philadelphia.
Briefly, the appointment of private trustees to administer the Girard estate was attacked as being nothing but a device to keep black orphans out of Girard College. Other points were raised, but this was the crucial one: state action was being employed to ensure racial discrimination.
District Judge Joseph S. Lord III agreed. He said that Girard himself “entwined the State” in the administration of the college; that this “entanglement persisted for over a century and a quarter”; that this entanglement “was overtly removed by the unilateral action of a State agency, the Orphans Court, which thereupon uniquely swore in the successors, binding them under State oath to carry out the founder’s discriminatory policies—and then officially thanked them for doing so”; that the state legislature periodically received reports from Girard College, “implicit in which is the perpetuation of discrimination”; that the state of Pennsylvania had oversight over the quality of education offered in the college, and that the school therefore had a public character and a public function.
So, Judge Lord said, “we … find it logically and legally impossible to escape the conclusion that racial exclusion at Girard College is so afflicted with State action, in its widened concept, that it cannot constitutionally endure. Since the strictures of the Fourteenth Amendment apply to the administration of the institution, it may no longer deny admission to applicants simply because they are not ‘white.’ ”
The struggle was not yet over; in 1968 the private trustees appealed Judge Lord’s decision to the United States Court of Appeals, Third Circuit—but only to be sharply turned down. Judge Gerald McLaughlin wrote the majority opinion, and while his colleagues agreed with it, one of them observed that “This appeal is being decided on the basis of the present decisions of the United States Supreme Court in a field where the ‘federal role’ is more ‘pervasive’ and ‘intense’ today than it was several years ago.” The private trustees appealed the Court of Appeals ruling, but the Supreme Court of the United States refused to review the case, and the long struggle was at an end.
Black orphans are now admitted to Girard College, no matter that Stephen Girard did not include black orphans among those to whom he wished to offer bed, board, clothing, and education. The question of whether girls may be admitted to Girard’s bounty has not yet been raised. In time, it may turn out that the entire bequest to Girard College will fail for the want of any sort of orphans, for the institution is now operating well below its capacity. In 1973 the college admission’s policy was changed further to admit motherless as well as fatherless boys, and just last August a common pleas judge ruled that the school might also admit “functional orphans”—boys whose living parents were unable or unwilling to care for them. These days, a college official said, public welfare funds enable a mother to raise her children at home, and institutional life is not popular among today’s children or their parents.
However this may be, the effects of the final ruling in the Girard will case are still disturbing to many lawyers who see a connection between “the present decisions” of the United States Supreme Court and the “federal role” in civic life. A more generous view might be that the law is always responsive to society; that the law is really nothing more than whatever a majority wishes it to be at any particular time; if the laws are not changed by acts of the legislature, they may be changed by a judicial view of their meaning. As the principal victor in the Girard case, William T. Coleman, Jr., is fond of saying, “Just tell me the argument; don’t tell me the evidence, because you can always find evidence to support your argument.”
And argument is persuasive: our law is an adversary proceeding, with each adversary seeking to persuade the court that his opinion should prevail. Each lawyer is looking more for advantage than for j ustice; it is up to the j udge to arrive if not at j ustice, at least at a modus vivendi . In the Girard case, an argument for one fundamental legal principle was eventually held to be more persuasive than an argument for another, and it seems fair to suppose that if the case had come before the courts fifty years ago, its conclusion would have been quite different. As a result of the Girard case, it would now appear that a man’s prejudices are no longer a part of his liberty; a more positive construction of this might be to say that no man is free except within the context of his responsibility to others.
However long this will continue to be true remains to be seen. As the Girard case implies, a principle that seems liberating one day may be seen as restrictive tomorrow, and if a man is free only with respect to his responsibility to others, all would seem to depend upon who the others are.