Kevin Walsh, Author at CIT

Matthew Hale’s “Rules for His Judicial Guidance, Things Necessary to Be Continually Had in Remembrance”

Kevin Walsh

March 10, 2025

Some time after taking judicial office, Matthew Hale wrote up a list of 18 “Rules for his judicial guidance, things necessary to be continually had in remembrance.” The list below is taken from Campbell, The Lives of the Chief Justices of England (3d. ed. 1874, Vol. II).

That in the administration of justice I am intrusted for God, the King, and country; and therefore,
That it be done, 1. uprightly; 2. deliberately; 3. resolutely.
That I rest not upon my own understanding or strength, but implore and rest upon the direction and strength of God.
That in the execution of justice I carefully lay aside my own passions, and not give way to them, however provoked.
That I be wholly intent upon the business I am about, remitting all other cares and thoughts as unseasonable and interruptions. And, while on the bench, not writing letters or reading newspapers.
That I suffer not myself to be prepossessed with any judgment at all, till the whole business and both parties be heard.
That I never engage myself in the beginning of any cause, but reserve myself unprejudiced till the whole be heard.
That in business capital, though my nature prompt me to pity, yet to consider there is a pity also due to the country.
That I be not to rigid in matters purely conscientious, where all the harm is diversity of judgment.
That I be not biased with compassion to the poor, or favour to the rich, in point of justice.
That popular or court applause or distaste have no influence in anything I do, in point of distribution of justice.
Not to be solicitous what men will say or think, so long as I keep myself exactly according to the rule of justice.
If in criminals it be a measuring cast, to incline to mercy and acquittal.
In criminals that consist merely in words, where no more harm ensues, moderation is no injustice.
In criminals of blood, if the fact be evident, severity is justice.
To abhor all private solicitations, of what kind soever, and by whom soever, in matters depending.
To charge my servants, 1. not to interpose in any matter whatosever; 2. not to take more than their known fees; 3. not to give undue precedence to causes; 4. not to recommend counsel.
To be short and sparing at meals, that I may be the fitter for business.

Sir Matthew Hale’s Bible Verses on Judging (1668)

Kevin Walsh

March 7, 2025

Some 1668 entries from Sir Matthew Hale’s diary contain reflections on judging. These reflections are preceded by Hale’s transcription of selected Bible verses from Exodus, Leviticus, Deuteronomy, and 2 Chronicles. The handwritten pages of this diary are in the Beinecke Rare Book and Manuscript Library at Yale University. These were transcribed by Dr. Maija Jansson and published at 37 The Journal of Legal History 201 (1988). Here are the verses:

Exod. 23: 2, 3, 6, 7, 8
[2] Thou shalt not follow a multitude to do evil; neither shalt thou speak in a cause to decline after many to wrest judgment.
[3] Neither shalt thou countenance a poor man in his cause.
[6] Thou shalt not wrest the judgment of the poor in his cause.
[7] Keep thee far from a false matter; the innocent and righteous slay thou not, for I will not justify the wicked.
[8] And thou shalt take no gift, for the gift blindeth the wise and perverteth the words of the righteous.

Deut. 16: 18, 19, 20
[18] Judges and officers shalt thou make thee in all thy gates which the Lord thy God giveth thee throughout thy tribes, and they shall judge the people with just judgment.
[19] Thou shalt not wrest judgment, thou shalt not respect persons neither take a gift, for a gift doth blind the eyes and perverteth the words of the righteous.
[20] But that which is altogether just shalt thou follow, that thou mayest live and inherit the land which the Lord thy God giveth thee.

2 Chron. 19: 5, 6, 7, etc.
[5] And he set judges in the land throughout all the fenced cities of Judah, city by city.
[6] And he said to the judges, take heed what ye do; for ye judge not for man but for the Lord, who is with you in the judgment.
[7] Wherefore now let the fear of the Lord be upon you, take heed and do it for there is no iniquity in the Lord, nor respect of persons, nor taking of gifts.
[9] And he charged them, this shall ye do in the fear of the Lord, faithfully, and with a perfect heart.
[11] Deal courageously and the Lord shall be with the good.

Exod. 18: 21, [22]
[21] Moreover thou shalt provide out of all the people able men such as fear God, men of truth hating covetuousness.
[22] And let them judge the people, etc.

Levit. 19:15
[15] Ye shall do no unrighteousness in judgment, thou shalt not respect the person of the poor nor honor the person of the might, but in righteousness shalt thou judge thy neighbor.

Deut. 13:14
[14] Then shalt thou inquiry and make search and ask and behold if it be truth and the thing be certain, that such abomination is wrought among you.

St. John Paul II on St. Joseph on “Work as an Expression of Love”

Kevin Walsh

February 24, 2025

In the Apostolic Exhortation Redemptoris Custos, of Pope St. John Paul II—On the Person and Mission of Saint Joseph in the Life of Christ and of the Church—we encounter the following:

IV WORK AS AN EXPRESSION OF LOVE

Work was the daily expression of love in the life of the Family of Nazareth. The Gospel specifies the kind of work Joseph did in order to support his family: he was a carpenter. This simple word sums up Joseph’s entire life. For Jesus, these were hidden years, the years to which Luke refers after recounting the episode that occurred in the Temple: “And he went down with them and came to Nazareth, and was obedient to them” (Lk 2:51). This “submission” or obedience of Jesus in the house of Nazareth should be understood as a sharing in the work of Joseph. Having learned the work of his presumed father, he was known as “the carpenter’s son.” If the Family of Nazareth is an example and model for human families, in the order of salvation and holiness, so too, by analogy, is Jesus’ work at the side of Joseph the carpenter. In our own day, the Church has emphasized this by instituting the liturgical memorial of St. Joseph the Worker on May 1. Human work, and especially manual labor, receive special prominence in the Gospel. Along with the humanity of the Son of God, work too has been taken up in the mystery of the Incarnation, and has also been redeemed in a special way. At the workbench where he plied his trade together with Jesus, Joseph brought human work closer to the mystery of the Redemption.
In the human growth of Jesus “in wisdom, age and grace,” the virtue of industriousness played a notable role, since “work is a human good” which “transforms nature” and makes man “in a sense, more human.”(34)
The importance of work in human life demands that its meaning be known and assimilated in order to “help all people to come closer to God, the Creator and Redeemer, to participate in his salvific plan for man and the world, and to deepen…friendship with Christ in their lives, by accepting, through faith, a living participation in his threefold mission as Priest, Prophet and King.”(35)
What is crucially important here is the sanctification of daily life, a sanctification which each person must acquire according to his or her own state, and one which can be promoted according to a model accessible to all people: “St. Joseph is the model of those humble ones that Christianity raises up to great destinies;…he is the proof that in order to be a good and genuine follower of Christ, there is no need of great things-it is enough to have the common, simple and human virtues, but they need to be true and authentic.”(36)

I Bind Unto Myself Today — an arrangement

Kevin Walsh

February 16, 2025

A beautiful hymn based on St. Patrick’s breastplate begins “I Bind Unto Myself Today.” Here is an uplifting arrangement and rendition:

Hey Pope Francis critic! Was that letter addressed to you?

Kevin Walsh

February 13, 2025

On February 10, 2025, the Vatican published a “Letter of the Holy Father Francis to the Bishops of the United States of America.” Reactions to the letter have varied.

From whatever perspective one looks at it, there are parts that perhaps should have been worded differently. But one’s perspective matters, doesn’t it?

Well here’s a perspective that most of us don’t have: explicit addressees of this epistle. Most of us (excluding only the American episcopal readers of this blog) are not “Bishops of the United States of America.” That means the letter is not addressed to us as individuals. It’s an open letter addressed to a particular set of pastors that is also meant to be read by all who are open to reading it.

Why does this matter? It helps to put in perspective one’s criticisms. One of the things I wish had been worded a little differently, for example, was the part in ¶ 3 about “the true ordo amoris.” Portions of this paragraph read rather like writing by one or more of the letter’s addressees rather than to them—which would be weird if true, and in any event is potentially more confusing than clarifying.

As for those of you reading this blog post and wondering if the title is calling you out, all I can say is I am addressing nobody in particular but myself (and the internet in general). Nor do I mean to imply that there are no critics of Pope Francis who are also Bishops of the United States of America. The title is just to grab your attention and hit you with a question.

Enough about the question, though. WHAT’S YOUR ANSWER?

If your answer to the question is no, then the letter is not addressed to you. Don’t read it like it is. And maybe also try not to read it as if it were addressed to anybody else. Consider, instead, how the letter might be read by the various Bishops of the United States.

And if your answer is yes, super (and thanks for reading Ordinatus!). Maybe we even agree on some of the finer points of the letter we wish had been worded differently.

It’s not wrong for any of us to disagree with Pope Francis on many matters. St. Peter’s critics were sometimes right (and forceful, see Galatians 2:11). But one critic in particular tended more toward tenderness. (“Quo vadis, Domine?”)

It is an office not only of the Bishop of Rome, but also of the Bishops of the United States of America and of brother bishops spread throughout this wide world, to teach. A little docility on our part can help this work of the Holy Spirit. And by “our,” I mean to include me. As an American icon of my childhood once put it (though in a seemingly Pelagian key):

I’m starting with the man in the mirror
I’m asking him to change his ways
And no message could’ve been any clearer
If you wanna make the world a better place
Take a look at yourself and then make a change

I’ve been a victim of a selfish kind of love
It’s time that I realize
That there are some with no home
Not a nickel to loan
Could it be really me pretending that they’re not alone?

The Proposed R.A.T. Amendment for Virginia

Kevin Walsh

February 11, 2025

Earlier this year, both houses of Virginia’s General Assembly voted by super-slim majorities to pass through to next year a sweeping proposed amendment to Virginia’s Constitution (HJ1/SJ247). Under Virginia’s process for constitutional amendments, this proposal needs to pass again in the next general legislative session after an intervening election. With all 100 House of Delegates seats up for election this November, the amendment will most likely be voted on again in January 2026.

The amendment’s proponents and many of its opponents tend to describe it as about abortion. But the amendment is about much more than that. To understand why, it is helpful to think about the limits of the analogy I initially reached for in trying to describe this law: the Trojan horse.

The Trojan Horse appeared an apt analogy at first because the amendment smuggles so much into Virginia law and its real intent is hidden beneath its outward appearance. The limit of this analogy is that the smuggling operation of a Trojan Horse is “one and done.” The gift accepted, its innards empty out, the city is ravaged, and then it’s over.

A better analogy for the proposed amendment is a smuggling tunnel. The proposed amendment would put into the law a hidden highway through which all manner of things that could not otherwise make it into the law with the normal border crossing controlled by Virginia’s elected lawmakers.

This Amendment needs a name capable of conveying both what it does and how bad it is. Because the broadest description of what comes through this Tunnel relates to Reproductive Autonomy, an apt moniker for the amendment is the Reproductive Autonomy Tunnel, or R.A.T. Amendment.

The Amendment is written in legalistic jargon and hard to understand without legal training or at least an accurate decoder. Before unpacking what is in the R.A.T. Amendment, though, here’s a little puzzle about what is NOT in there. The full text of the R.A.T. amendment is below. The puzzle is this: What essential words are not in the there that you might expect to be in there if the amendment is primarily about abortion? (Hint: F.R.A.T. or W.R.A.T. would be inappropriately narrow acronyms.)

Section 11-A. Fundamental right to reproductive freedom.
That every individual has the fundamental right to reproductive freedom, including the ability to make and carry out decisions relating to one’s own prenatal care, childbirth, postpartum care, contraception, abortion care, miscarriage management, and fertility care.
An individual’s right to reproductive freedom shall not be, directly or indirectly, denied, burdened, or infringed upon unless justified by a compelling state interest achieved by the least restrictive means.
Notwithstanding the above, the Commonwealth may regulate the provision of abortion care in the third trimester, provided that in no circumstance shall the Commonwealth prohibit an abortion (i) that in the professional judgment of a physician is medically indicated to protect the life or physical or mental health of the pregnant individual or (ii) when in the professional judgment of a physician the fetus is not viable.
The Commonwealth shall not discriminate in the protection or enforcement of this fundamental right.
The Commonwealth shall not penalize, prosecute, or otherwise take adverse action against an individual based on such individual’s own exercise of this fundamental right or such individual’s own actual, potential, perceived, or alleged pregnancy outcomes, including miscarriage, stillbirth, or abortion. The Commonwealth shall not penalize, prosecute, or otherwise take adverse action against any individual for aiding or assisting another individual in exercising such other individual’s right to reproductive freedom with such other individual’s voluntary consent.
For the purposes of this section, a state interest is compelling only if it is for the limited purpose of maintaining or improving the health of an individual seeking care, consistent with accepted clinical standards of care and evidence-based medicine, and does not infringe on that individual’s autonomous decision making.
This section shall be self-executing. Any provision of this section held invalid shall be severable from the remaining portions of the section.

Ross Burgess, CC BY-SA 3.0 http://creativecommons.org/licenses/by-sa/3.0/, via Wikimedia Commons ↩︎

John Marshall Day at 124

Kevin Walsh

February 4, 2025

February 4, 2025 marks the 124th anniversary of “John Marshall Day.” This was a nationwide celebration on February 4, 1901 of the 100th anniversary of the February 4, 1801 accession of John Marshall to the bench as Chief Justice of the United States.

February 4 is an auspicious day to launch Ordinatus, as John Marshall is one of the chief exemplars of the judicial virtues. The judiciary does not typically get the same attention as the political branches, which is all to the good for American self-government. As Chief Justice Roberts once pointed out, “[n]obody ever went to a ball game to see the umpire.”

Lawyers, law students, law professors, judges, and other juristically inclined individuals are not the general public. We have particular roles to play, and in doing so, we ought to pay close attention to the lawyerly and judicial virtues.

There is rich material to mine in the life, character, and services of John Marshall. Consider, for instance, how the time of those who served in the Continental Army at Valley Forge (e.g. Washington, Hamilton, and Marshall) shaped their views of the Union, in contrast with those who were not there (e.g. Jefferson and Madison). In any event, here’s a little character sketch of John Marshall from his bunkmate at Valley Forge:

“Nothing discouraged, nothing disturbed [Marshall].… If he only had bread to eat, it was just as well; if only meat, it made no difference. . . . John Marshall was the best tempered man I ever knew. . . . He was an excellent companion and idolized by the soldiers and his brother officers, whose gloomy hours were enlivened by his inexhaustible fund of anecdote.”

(For sources, see Kevin C. Walsh, Glimpses of Marshall in the Military, 50 U. Rich. L. Rev. 69, 73 n.12 (2016), available at Columbus Law School Scholarship Repository.)

Happy John Marshall Day to all who celebrate!

The Jay Papers at Founders Online

Kevin Walsh

January 30, 2025

One of the best resources for studying various Founders and their times through primary sources is Founders Online. One unfortunate choice made in deciding which Founder to feature for his connection with the federal judiciary was to include the Papers of John Jay, rather than the Papers of John Marshall (which remain behind a paywall at present, though we are hopeful that will change soon).

Jay was the first Chief Justice, serving from 1789 until he resigned in 1795 to take a more prestigious job as Governor of New York. Jay’s replacement was John Rutledge, whom George Washington appointed with a recess appointment but failed to receive Senate confirmation. A leading reason for opposition to Rutledge was his support for an unpopular treaty negotiated by John Jay. Rutledge’s successor was Oliver Ellsworth, who served until 1801. Ellsworth’s resignation left the lame-duck President John Adams with few options, so he turned back to John Jay, mailing him a commission to be the Chief Justice. In a famous letter refusing and returning the commission, Jay wrote to Adams that he had left the Bench in 1795

“perfectly convinced that under a System so defective, it would not obtain the Energy Weight and Dignity which are essential to its affording due support to the national Government.; nor acquire the public Confidence and Respect, which, as the last Resort of the Justice of the nation, it should possess.”

The same day Jay sent a less-well-known letter to the man who would be his successor, John Marshall, who was then serving as Secretary of State. It was under Marshall’s long leadership as Chief Justice (1801-1835) that the Supreme Court took on the “Energy, Weight, and Dignity” that Jay despaired of the Court achieving. Perhaps this is why people often mistakenly think Marshall was the first Chief Justice. Though he wasn’t the first, he was the best, and it would have been more fitting for the judicial branch to have been represented by John Marshall rather than John Jay at Founders Online.

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Kevin Walsh