"When the Devil Beat Daniel Webster": Colloquium with KICD Postdoc Rudy Hernandez


Famous merchant and War of 1812 creditor Stephen Girard died in 1831, the wealthiest man in Philadelphia and one of the richest in all of the United States. His relatives assumed a payday was coming, but much to their surprise—and chagrin—Girard had earmarked nearly his entire fortune for the creation and endowment of a boarding school for, his will read, “poor, white, male orphans.” Girard’s relatives hired none other than Daniel Webster to challenge the validity of the bequest, and the case, argued by Nicholas Biddle on the other side, bounced between circuit courts for years before finding its way to the U.S. Supreme Court in 1844.

As Kinder Institute Postdoctoral Fellow Rudy Hernandez noted in setting the stage for his May 3 talk, while a disputed will making it to the nation’s high court might seem a bit odd, Vidal et al. v Girard’s Executors is, in fact, a judicial landmark and a defining moment in church-state history in the U.S. Why? Because of a stipulation in Girard’s will—what John Quincy Adams would later term “the infidel clause”—that no one religiously ordained be allowed on campus. Girard’s logic, Prof. Hernandez outlined, was that banning all clergy would shield the “tender minds” of students from the excitement of clashing sectarian doctrines, leaving them instead to devote their energy to the more vocationally useful study of “facts and things”—geography, navigational science, surveying, Spanish—and to the cultivation of republican virtue and pure morality (see: benevolence, sobriety, industry).

Emblematic of Girard’s devotion to French Enlightenment thought (and also of his freemasonry), the infidel clause was nonetheless at direct odds with the “Nursing Fathers’” belief that republican government required the promotion of religion as well as with the commonly held position that Christianity was part of the common law. And the latter, Prof. Hernandez showed, was true, with Christian doctrine having found its way into common law case history via mid-17th-century blasphemy trials. Webster leaned on this. Though he cited only two cases in his arguments—one of which even held that non-conformity was not tantamount to blasphemy—Webster repeatedly stressed the central place of custom in and to the common law in staking out his anti-Christian claims against Girard: that religious education was customary to living in Pennsylvania; that answers to the fundamental questions of ordered life customarily came from religion; that it had become custom for one to learn accommodation through witnessing the interactions of multiple sects; and ultimately that denying students access to religion until they were 18 would ill-prepare them for the customs of adult life.

Chief Justice Joseph Story, however, was unconvinced. Even in conceding that, yes, Christianity had been part of the common law tradition in Pennsylvania, he raised the question of what positive law one might point to in order to prove that the infidel clause was, as Webster was arguing, openly and illegally hostile to Christianity. Story’s answer: There was no such positive law to hang this argument on. For one, religious liberty accommodated disbelief. More importantly for Story, though, was the fact that banning clergy from campus did not ban Christianity from campus. The Bible could still be taught, and the purest Christian form of morality could still be pursued. This textualist reading of the will, Prof. Hernandez suggested in closing, was a loss of sorts for Girard, whose more radical intent was tempered by it, a clear loss for Webster, and more or less the end of legal arguments built around Christianity and the common law.


Rodolfo (Rudy) Hernandez earned his B.A. in Liberal Arts from St. John’s College in Annapolis, MD, and his Ph.D. in Political Science from Louisiana State University. His work focuses on political theory and American political development, and his dissertation considers the political economy of Abraham Lincoln’s thought, especially as it relates to the principle of equality expressed by the Declaration of Independence. As a graduate student, he was awarded the Huel D. Perkins Fellowship by LSU and the Richard M. Weaver Fellowship by the Intercollegiate Studies Institute. Rudy previously taught as a Visiting Instructor at Louisiana Tech University and as a Senior Lecturer at Texas State University, and he also has prior government experience including serving in Americorps, working as a tax examiner in the U.S. Treasury Department, and eight years in the U.S. Army Reserve. He joins the Kinder Institute as a 2018-2020 Postdoctoral Fellow in Political Thought & Constitutionalism.