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Of Masonic Crimes and Punishments
book fourth
the principles of masonic law
Albert Gallatin Mackey
The division of wrongs, by the writers on municipal law, into private
and public, or civil injuries and crimes and misdemeanors, does not apply
to the jurisprudence of Freemasonry. Here all wrongs are crimes, because
they are a violation of the precepts of the institution; and an offense
against an individual is punished, not so much because it is a breach of
his private rights, as because it affects the well-being of the whole
masonic community.
In replying to the question, "what are masonic crimes?" by which is
meant what crimes are punishable by the constituted authorities, our
safest guide will be that fundamental law which is contained in the Old
Charges. These give a concise, but succinct summary of the duties of a
Mason, and, of course, whatever is a violation of any one of these duties
will constitute a masonic crime, and the perpetrator will be amenable to
masonic punishment.
But before entering on the consideration of these penal offenses, it
will be well that we should relieve the labor of the task, by inquiring
what crimes or offenses are not supposed to come within the purview of
masonic jurisprudence.
Religion and politics are subjects which it is well known are
stringently forbidden to be introduced into Masonry. And hence arises the
doctrine, that Masonry will not take congnizance of religious or political
offenses.
Heresy, for instance, is not a masonic crime. Masons are obliged to use
the words of the Old Charges, "to that religion in which all men agree,
leaving their particular opinions to themselves;" and, therefore, as long
as a Mason acknowledges his belief in the existence of one God, a lodge
can take no action on his peculiar opinions, however heterodox they may
be.
In like manner, although all the most ancient and universally-received
precepts of the institution inculcate obedience to the civil powers, and
strictly forbid any mingling in plots or conspiracies against the peace
and welfare of the nation, yet no offense against the state, which is
simply political in its character, can be noticed by a lodge. On this
important subject, the Old Charges are remarkably explicit. They say,
putting perhaps the strongest case by way of exemplifying the principle,
"that if a Brother should be a rebel against the State, he is not to be
countenanced in his rebellion, however he may be pitied as an unhappy man;
and, if convicted of no other crime, though the loyal Brotherhood must and
ought to disown his rebellion, and give no umbrage or ground of political
jealousy to the government for the time being, they cannot expel him
from the lodge, and his relation to it remains indefeasible"
The lodge can, therefore, take no cognizance of religious or political
offenses.
The first charge says: "a Mason is obliged by his tenure to obey the
moral law." Now, although, in a theological sense, the ten commandments
are said to embrace and constitute the moral law, because they are its
best exponent, yet jurists have given to the term a more general latitude,
in defining the moral laws to be "the eternal, immutable laws of good and
evil, to which the Creator himself, in all dispensations, conforms, and
which he has enabled human reason to discover, so far as they are
necessary for the conduct of human actions."96
Perhaps the well known summary of Justinian will give the best idea of
what this law is, namely, that we "should live honestly, (that is to say,
without reproach,)97
should injure nobody, and render to every one his just due."
If such, then, be the meaning of the moral law, and if every Mason is
by his tenure obliged to obey it, it follows, that all such crimes as
profane swearing or great impiety in any form, neglect of social and
domestic duties, murder and its concomitant vices of cruelty and hatred,
adultery, dishonesty in any shape, perjury or malevolence, and habitual
falsehood, inordinate covetousness, and in short, all those ramifications
of these leading vices which injuriously affect the relations of man to
God, his neighbor, and himself, are proper subjects of lodge jurisdiction.
Whatever moral defects constitute the bad man, make also the bad Mason,
and consequently come under the category of masonic offenses. The
principle is so plain and comprehensible as to need no further
exemplification. It is sufficient to say that, whenever an act done by a
Mason is contrary to or subsersive of the three great duties which he owes
to God, his neighbor, and himself, it becomes at once a subject of masonic
investigation, and of masonic punishment.
But besides these offenses against the universal moral law, there are
many others arising from the peculiar nature of our institution. Among
these we may mention, and in their order, those that are enumerated in the
several sections of the Sixth Chapter of the Old Charges. These are,
unseemly and irreverent conduct in the lodge, all excesses of every kind,
private piques or quarrels brought into the lodge; imprudent conversation
in relation to Masonry in the presence of uninitiated strangers; refusal
to relieve a worthy distressed Brother, if in your power; and all
"wrangling, quarreling, back-biting, and slander."
The lectures in the various degrees, and the Ancient Charges read on
the installation of the Master of a lodge, furnish us with other criteria
for deciding what are peculiarly masonic offenses. All of them need not be
detailed; but among them may be particularly mentioned the following: All
improper revelations, undue solicitations for candidates, angry and
over-zealous arguments in favor of Masonry with its enemies, every act
which tends to impair the unsullied purity of the Order, want of reverence
for and obedience to masonic superiors, the expression of a contemptuous
opinion of the original rulers and patrons of Masonry, or of the
institution itself; all countenance of impostors; and lastly, holding
masonic communion with clandestine Masons, or visiting irregular
lodges.
From this list, which, extended as it is, might easily have been
enlarged, it will be readily seen, that the sphere of masonic penal
jurisdiction is by no means limited. It should, therefore, be the object
of every Mason, to avoid the censure or reproach of his Brethren, by
strictly confining himself as a point within that circle of duty which, at
his first initiation, was presented to him as an object worthy of his
consideration.
Having occupied the last chapter in a consideration of what constitute
masonic crimes, it is next in order to inquire how these offenses are to
be punished; and accordingly I propose in the following sections to treat
of the various modes in which masonic law is vindicated, commencing with
the slightest mode of punishment, which is censure, and proceeding to the
highest, or expulsion from all the rights and privileges of the Order.
A censure is the mildest form of punishment that can be inflicted by a
lodge; and as it is simply the expression of an opinion by the members of
the lodge, that they do not approve of the conduct of the person
implicated, in a particular point of view, and as it does not in any
degree affect the masonic standing of the one censured, nor for a moment
suspend or abridge his rights and benefits, I have no doubt that it may be
done on a mere motion, without previous notice, and adopted, as any other
resolution, by a bare majority of the members present.
Masonic courtesy would, however, dictate that notice should be given to
the Brother, if absent, that such a motion of censure is about to be
proposed or considered, to enable him to show cause, if any he have, why
he should not be censured. But such notice is not, as I have said,
necessary to the legality of the vote of censure.
A vote of censure will sometimes, however, be the result of a trial,
and in that case its adoption must be governed by the rules of masonic
trials, which are hereafter to be laid down.
A reprimand is the next mildest form of masonic punishment. It should
never be adopted on a mere motion, but should always be the result of a
regular trial, in which the party may have the opportunity of defense.
A reprimand may be either private or public. If to be given in private,
none should be present but the Master and the offender; or, if given by
letter, no copy of that letter should be preserved.
If given in public, the lodge is the proper place, and the reprimand
should be given by the Master from his appropriate station.
The Master is always the executive officer of the lodge, and in
carrying out the sentence he must exercise his own prudent discretion as
to the mode of delivery and form of words.
A reprimand, whether private or public, does not affect the masonic
standing of the offender.
Exclusion from a lodge may be of various degrees.
1. A member may for indecorous or unmasonic conduct be excluded from a
single meeting of the lodge. This may be done by the Master, under a
provision of the bye-laws giving him the authority, or on his own
responsibility, in which case he is amenable to the Grand Lodge for the
correctness of his decision. Exclusion in this way does not affect the
masonic standing of the person excluded, and does not require a previous
trial.
I cannot entertain any doubt that the Master of a lodge has the right
to exclude temporarily any member or Mason, when he thinks that either his
admission, if outside, or his continuance within, if present, will impair
the peace and harmony of the lodge. It is a prerogative necessary to the
faithful performance of his duties, and inalienable from his great
responsibility to the Grand Lodge for the proper government of the Craft
intrusted to his care. If, as it is described in the ancient manner of
constituting a lodge, the Master is charged "to preserve the cement of the
Lodge," it would be folly to give him such a charge, unless he were
invested with the power to exclude an unruly or disorderly member. But as
Masters are enjoined not to rule their lodges in an unjust or arbitrary
manner, and as every Mason is clearly entitled to redress for any wrong
that has been done to him, it follows that the Master is responsible to
the Grand Lodge for the manner in which he has executed the vast power
intrusted to him, and he may be tried and punished by that body, for
excluding a member, when the motives of the act and the other
circumstances of the exclusion were not such as to warrant the exercise of
his prerogative.
2. A member may be excluded from his lodge for a definite or indefinite
period, on account of the non-payment of arrears. This punishment may be
inflicted in different modes, and under different names. It is sometimes
called, suspension from the lodge, and sometimes erasure from
the roll. Both of these punishments, though differing in their effect,
are pronounced, not after a trial, but by a provision of the bye-laws of
the lodge. For this reason alone, if there were no other, I should
contend, that they do not affect the standing of the member suspended, or
erased, with relation to the craft in general. No Mason can be deprived of
his masonic rights, except after a trial, with the opportunity of defense,
and a verdict of his peers.
But before coming to a definite conclusion on this subject, it is
necessary that we should view the subject in another point of view, in
which it will be seen that a suspension from the rights and benefits of
Masonry, for the non-payment of dues, is entirely at variance with the
true principles of the Order.
The system of payment of lodge-dues does not by any means belong to the
ancient usages of the fraternity. It is a modern custom, established for
purposes of convenience, and arising out of other modifications, in the
organization of the Order. It is not an obligation on the part of a Mason,
to the institution at large, but is in reality a special contract, in
which the only parties are a particular lodge and its members, of which
the fraternity, as a mass, are to know nothing. It is not presented by any
general masonic law, nor any universal masonic precept. No Grand Lodge has
ever yet attempted to control or regulate it, and it is thus tacitly
admitted to form no part of the general regulations of the Order. Even in
that Old Charge in which a lodge is described, and the necessity of
membership in is enforced, not a word is said of the payment of arrears to
it, or of the duty of contributing to its support. Hence the non-payment
of arrears is a violation of a special and voluntary contract with a
lodge, and not of any general duty to the craft at large. The corollary
from all this is, evidently, that the punishment inflicted in such a case
should be one affecting the relations of the delinquent with the
particular lodge whose bye-laws he has infringed, and not a general one,
affecting his relations with the whole Order. After a consideration of all
these circumstances, I am constrained to think that suspension from
alodge, for non-payment of arrears, should only suspend the rights of the
member as to his own lodge, but should not affect his right of visiting
other lodges, nor any of the other privileges inherent in him as a Mason.
Such is not, I confess, the general opinion, or usage of the craft in this
country, but yet I cannot but believe that it is the doctrine most
consonant with the true spirit of the institution. It is the practice
pursued by the Grand Lodge of England, from which most of our Grand Lodges
derive, directly or indirectly, their existence. It is also the regulation
of the Grand Lodge of Massachusetts. The Grand Lodge of South Carolina
expressly forbids suspension from the rights and benefits of Masonry for
non-payment of dues, and the Grand Lodge of New York has a similar
provision in its Constitution.
Of the two modes of exclusion from a lodge for non-payment of dues,
namely, suspension and erasure, the effects are very different. Suspension
does not abrogate the connection between the member and his lodge, and
places his rights in abeyance only. Upon the payment of the debt, he is at
once restored without other action of the lodge. But erasure from the roll
terminates all connection between the delinquent and the lodge, and he
ceases to be a member of it. Payment of the dues, simply, will not restore
him; for it is necessary that he should again be elected by the Brethren,
upon formal application.
The word exclusion has a meaning in England differing from that in
which it has been used in the present section. There the prerogative of
expulsion is, as I think very rightly, exercised only by the Grand Lodge.
The term "expelled" is therefore used only when a Brother is removed from
the raft, by the Grand Lodge. The removal by a District Grand Lodge, or a
subordinate lodge, is called "exclusion." The effect, however, of the
punishment of exclusion, is similar to that which has been here
advocated.
Suspension is a punishment by which a party is temporarily deprived of
his rights and privileges as a Mason. It does not terminate his connection
with the craft, but only places it in abeyance, and it may again be
resumed in a mode hereafter to be indicated.
Suspension may be, in relation to time, either definite or indefinite.
And as the effects produced upon the delinquent, especially in reference
to the manner of his restoration, are different, it is proper that each
should be separately considered.
In a case of definite suspension, the time for which the delinquent is
to be suspended, whether for one month, for three, or six months, or for a
longer or shorter period, is always mentioned in the sentence.
At its termination, the party suspended is at once restored without
further action of the lodge. But as this is a point upon which there has
been some difference of opinion, the argument will be fully discussed in
the chapter on the subject of Restoration.
By a definite suspension, the delinquent is for a time placed beyond
the pale of Masonry. He is deprived of all his rights as a Master Mason—is
not permitted to visit any lodge, or hold masonic communication with his
Brethren—is not entitled to masonic relief, and should he die during his
suspension, is not entitled to masonic burial. In short, the amount of
punishment differs from that of indefinite suspension or expulsion only in
the period of time for which it is inflicted.
The punishment of definite suspension is the lightest that can be
inflicted of those which affect the relations of a Mason with the
fraternity at large. It must always be preceded by a trial, and the
prevalent opinion is, that it may be inflicted by a two-thirds vote of the
lodge.
Indefinite suspension is a punishment by which the person suspended is
deprived of all his rights and privileges as a Mason, until such time as
the lodge which has suspended him shall see fit, by a special action, to
restore him.
All that has been said of definite suspension in the preceding section,
will equally apply to indefinite suspension, except that in the former
case the suspended person is at once restored by the termination of the
period for which he was suspended; while in the latter, as no period of
termination had been affixed, a special resolution of the lodge will be
necessary to effect a restoration.
By suspension the connection of the party with his lodge and with the
institution is not severed; he still remains a member of his lodge,
although his rights as such are placed in abeyance. In this respect it
materially differs from expulsion, and, as an inferior grade of
punishment, is inflicted for offenses of a lighter character than those
for which expulsion is prescribed.
The question here arises, whether the dues of a suspended member to his
lodge continue to accrue during his suspension? I think they do not. Dues
or arrears are payments made to a lodge for certain rights and
benefits—the exercise and enjoyment of which are guaranteed to the member,
in consideration of the dues thus paid. But as by suspension, whether
definite or indefinite, he is for the time deprived of these rights and
benefits, it would seem unjust to require from him a payment for that
which he does not enjoy. I hold, therefore, that suspension from the
rights and benefits of Masonry, includes also a suspension from the
payment of arrears.
No one can be indefinitely suspended, unless after a due form of trial,
and upon the vote of at least two-thirds of the members present.
Expulsion is the very highest penalty that can be inflicted upon a
delinquent Mason. It deprives the party expelled of all the masonic rights
and privileges that he ever enjoyed, not only as a member of the lodge
from which he has been ejected, but also of all those which were inherent
in him as a member of the fraternity at large. He is at once as completely
divested of his masonic character as though he had never been admitted
into the institution. He can no longer demand the aid of his Brethren, nor
require from them the performance of any of the duties to which he was
formerly entitled, nor visit any lodge, nor unite in any of the public or
private ceremonies of the Order. No conversation on masonic subjects can
be held with him, and he is to be considered as being completely without
the pale of the institution, and to be looked upon in the same light as a
profane, in relation to the communication of any masonic information.
It is a custom too generally adopted in this country, for subordinate
lodges to inflict this punishment, and hence it is supposed by many, that
the power of inflicting it is vested in the subordinate lodges. But the
fact is, that the only proper tribunal to impose this heavy penalty is a
Grand Lodge. A subordinate may, indeed, try its delinquent member, and if
guilty declare him expelled. But the sentence is of no force until the
Grand Lodge, under whose jurisdiction it is working, has confirmed it. And
it is optional with the Grand Lodge to do so, or, as is frequently done,
to reverse the decision and reinstate the Brother. Some of the lodges in
this country claim the right to expel independently of the action of the
Grand Lodge, but the claim is not valid. The very fact that an expulsion
is a penalty, affecting the general relations of the punished party with
the whole fraternity, proves that its exercise never could, with
propriety, be intrusted to a body so circumscribed in its authority as a
subordinate lodge. Besides, the general practice of the fraternity is
against it. The English Constitutions vest the power to expel exclusively
in the Grand Lodge.99
The severity of the punishment will at once indicate the propriety of
inflicting it only for the most serious offenses, such, for instance, as
immoral conduct, that would subject a candidate for initiation to
rejection.
As the punishment is general, affecting the relation of the one
expelled with the whole fraternity, it should not be lightly imposed, for
the violation of any masonic act not general in its character. The
commission of a grossly immoral act is a violation of the contract entered
into between each Mason and his Order. If sanctioned by silence or
impunity, it would bring discredit on the institution, and tend to impair
its usefulness. A Mason who is a bad man, is to the fraternity what a
mortified limb is to the body, and should be treated with the same mode of
cure—he should be cut off, lest his example spread, and disease be
propagated through the constitution.
The punishment of expulsion can only be inflicted after a due course of
trial, and upon the votes of at least two-thirds of the members present,
and should always be submitted for approval and confirmation to the Grand
Lodge.
One question here arises, in respect not only to expulsion but to the
other masonic punishments, of which I have treated in the preceding
sections:—Does suspension or expulsion from a Chapter of Royal Arch
Masons, an Encampment of Knights Templar, or any other of what are called
the higher degrees of Masonry, affect the relations of the expelled party
to Symbolic or Ancient Craft Masonry? I answer, unhesitatingly, that it
does not, and for reasons which, years ago, I advanced, in the following
language, and which appear to have met with the approval of the most of my
contemporaries:—
"A chapter of Royal Arch Masons, for instance, is not, and cannot be,
recognized as a masonic body, by a lodge of Master Masons. 'They hear them
so to be, but they do not know them so to be,' by any of the modes of
recognition known to Masonry. The acts, therefore, of a Chapter cannot be
recognized by a Master Masons' lodge, any more than the acts of a literary
or charitable society wholly unconnected with the Order. Again: By the
present organization of Freemasonry, Grand Lodges are the supreme masonic
tribunals. If, therefore, expulsion from a Chapter of Royal Arch Masons
involved expulsion from a Blue Lodge, the right of the Grand Lodge to hear
and determine causes, and to regulate the internal concerns of the
institution, would be interfered with by another body beyond its control.
But the converse of this proposition does not hold good. Expulsion from a
Blue Lodge involves expulsion from all the higher degrees; because, as
they are composed of Blue Masons, the members could not of right sit and
hold communications on masonic subjects with one who was an expelled
Mason."100
Having thus discussed the penalties which are affixed to masonic
offenses, we are next to inquire into the process of trial by which a
lodge determines on the guilt or innocence of the accused. This subject
will be the most conveniently considered by a division into two sections;
first, as to the form of trial; and secondly, as to the character of the
evidence.
Although the authority for submitting masonic offenses to trials by
lodges is derived from the Old Charges, none of the ancient regulations of
the Order have prescribed the details by which these trials are to be
governed. The form of trial must, therefore, be obtained from the customs
and usages of the craft, and from the regulations which have been adopted
by various Grand Lodges. The present section will, therefore, furnish a
summary of these regulations as they are generally observed in this
country.
A charge or statement of the offense imputed to the party is always a
preliminary step to every trial.
This charge must be made in writing, signed by the accuser, and
delivered to the Secretary, who reads it at the next regular communication
of the lodge. A time and place are then appointed by the lodge for the
trial.
The accused is entitled to a copy of the charge, and must be informed
of the time and place that have been appointed for his trial.
Although it is necessary that the accusation should be preferred at a
stated communication, so that no one may be taken at a disadvantage, the
trial may take place at a special communication. But ample time and
opportunity should always be given to the accused to prepare his
defense.
It is not essential that the accuser should be a Mason. A charge of
immoral conduct can be preferred by a profane; and if the offense is
properly stated, and if it comes within the jurisdiction of the Order or
the lodge, it must be investigated. It is not the accuser but the accused
that Is to be put on trial, and the lodge is to look only to the nature of
the accusation, and not to the individual who prefers it. The motives of
the accuser, but not his character, may be examined.
If the accused is living beyond the jurisdiction of the lodge—that is
to say, if he be a member and have removed to some other place without
withdrawing his membership, not being a member, or if, after committing
the offense, he has left the jurisdiction, the charge must be transmitted
to his present place of residence, by mail or otherwise, and a reasonable
time be allowed for his answer before the lodge proceeds to trial.
The lodge should be opened in the highest degree to which the accused
has attained; and the examinations should take place in the presence of
the accused and the accuser (if the latter be a Mason); but the final
decision should always be made in the third degree.
The accused and the accuser have a right to be present at all
examinations of witnesses, whether those examinations are taken in open
lodge or in a committee, and to propose such relevant questions as they
desire.
When the trial is concluded, the accused and accuser should retire, and
the Master or presiding officer must then put the question of guilty or
not guilty to the lodge. Of course, if there are several charges or
specifications, the question must be taken on each separately. For the
purposes of security and independence in the expression of opinion, it
seems generally conceded, that this question should be decided by ballot;
and the usage has also obtained, of requiring two-thirds of the votes
given to be black, to secure a conviction. A white ball, of course, is
equivalent to acquittal, and a black one to conviction.
Every member present is bound to vote, unless excused by unanimous
consent.
If, on a scrutiny, it is found that the verdict is guilty, the Master
or presiding officer must then put the question as to the amount and
nature of the punishment to be inflicted.
He will commence with the highest penalty, or expulsion, and, if
necessary, by that punishment being negatived, proceed to propose
indefinite and then definite suspension, exclusion, public or private
reprimand, and censure.
For expulsion or either kind of suspension, two-thirds of the votes
present are necessary. For either of the other and lighter penalties, a
bare majority will be sufficient.
The votes on the nature of the punishment should be taken by a show of
hands.
If the residence of the accused is not known, or if, upon due summons,
he refuses or neglects to attend, the lodge may, nevertheless, proceed to
trial without his presence.
In trials conducted by Grand Lodges, it is usual to take the
preliminary testimony in a committee; but the final decision must always
be made in the Grand Lodge.
In the consideration of the nature of the evidence that is to be given
in masonic trials, it is proper that we should first inquire what classes
of persons are to be deemed incompetent as witnesses.
The law of the land, which, in this instance, is the same as the law of
Masonry, has declared the following classes of person to be incompetent to
give evidence.
1. Persons who have not the use of reason, are, from the infirmity of
their nature, considered to be utterly incapable of giving
evidence.101
This class includes idiots, madmen, and children too young to be sensible
of the obligations of an oath, and to distinguish between good and
evil.
2. Persons who are entirely devoid of any such religious principle or
belief as would bind their consciences to speak the truth, are incompetent
as witnesses. Hence, the testimony of an atheist must be rejected;
because, as it has been well said, such a person cannot be subject to that
sanction which is deemed an indispensable test of truth. But as Masonry
does not demand of its candidates any other religious declaration than
that of a belief in God, it cannot require of the witnesses in its trials
any profession of a more explicit faith. But even here it seems to concur
with the law of the land; for it has been decided by Chief Baron Willes,
that "an infidel who believes in a God, and that He will reward and punish
him in this world, but does not believe in a future state, may be examined
upon oath."
3. Persons who have been rendered infamous by their conviction of great
crimes, are deemed incompetent to give evidence. This rule has been
adopted, because the commission of an infamous crime implies, as Sir
William Scott has observed, "such a dereliction of moral principle on the
part of the witness, as carries with it the conclusion that he would
entirely disregard the obligation of an oath." Of such a witness it has
been said, by another eminent judge,102
that "the credit of his oath is over-balanced by the stain of his
iniquity."
4. Persons interested in the result of the trial are considered
incompetent to give evidence. From the nature of human actions and
passions, and from the fact that all persons, even the most virtuous, are
unconsciously swayed by motives of interest, the testimony of such persons
is rather to be distrusted than believed. This rule will, perhaps, be
generally of difficult application in masonic trials, although in a civil
suit at law it is easy to define what is the interest of a party
sufficient to render his evidence incompetent. But whenever it is clearly
apparent that the interests of a witness would be greatly benefited by
either the acquittal or the conviction of the accused, his testimony must
be entirely rejected, or, if admitted, its value must be weighed with the
most scrupulous caution.
Such are the rules that the wisdom of successive generations of men,
learned in the law, have adopted for the establishment of the competency
or incompetency of witnesses. There is nothing in them which conflicts
with the principles of justice, or with the Constitutions of Freemasonry;
and hence they may, very properly, be considered as a part of our own
code. In determining, therefore, the rule for the admission of witnesses
in masonic trials, we are to be governed by the simple proposition that
has been enunciated by Mr. Justice Lawrence in the following language:
"I find no rule less comprehensive than this, that all persons are
admissible witnesses who have the use of their reason, and such religious
belief as to feel the obligation of an oath, who have not been convicted
of any infamous crime, and who are not influenced by interest."
The peculiar, isolated character of our institution, here suggests as
an important question, whether it is admissible to take the testimony of a
profane, or person who is not a Freemason, in the trial of a Mason before
his lodge.
To this question I feel compelled to reply, that such testimony is
generally admissible; but, as there are special cases in which it is not,
it seems proper to qualify that reply by a brief inquiry into the grounds
and reasons of this admissibility, and the mode and manner in which such
testimony is to be taken.
The great object of every trial, in Masonry, as elsewhere, is to elicit
truth; and, in the spirit of truth, to administer justice. From whatever
source, therefore, this truth can be obtained, it is not only competent
there to seek it, but it is obligatory on us so to do. This is the
principle of law as well as of common sense. Mr. Phillips, in the
beginning of his great "Treatise on the Law of Evidence," says: "In
inquiries upon this subject, the great end and object ought always to be,
the ascertaining of the most convenient and surest means for the
attainment of truth; the rules laid down are the means used for the
attainment of that end."
Now, if A, who is a Freemason, shall have committed an offense, of
which B and C alone were cognizant as witnesses, shall it be said that A
must be acquitted for want of proof, because B and C are not members of
the Order? We apprehend that in this instance the ends of justice would be
defeated, rather than subserved. If the veracity and honesty of B and C
are unimpeached, their testimony as to the fact cannot lawfully be
rejected on any ground, except that they may be interested in the result
of the trial, and might be benefited by the conviction or the acquittal of
the defendant. But this is an objection that would hold against the
evidence of a Mason, as well as a profane.
Any other rule would be often attended with injurious consequences to
our institution. We may readily suppose a case by way of illustration. A,
who is a member of a lodge, is accused of habitual intemperance, a vice
eminently unmasonic in its character, and one which will always reflect a
great portion of the degradation of the offender upon the society which
shall sustain and defend him in its perpetration. But it may happen—and
this is a very conceivable case—that in consequence of the remoteness of
his dwelling, or from some other supposable cause, his Brethren have no
opportunity of seeing him, except at distant intervals. There is,
therefore, no Mason, to testify to the truth of the charge, while his
neighbors and associates, who are daily and hourly in his company, are all
aware of his habit of intoxication.
If, then, a dozen or more men, all of reputation and veracity, should
come, or be brought before the lodge, ready and willing to testify to this
fact, by what process of reason or justice, or under what maxim of masonic
jurisprudence, could their testimony be rejected, simply because they were
not Masons? And if rejected—if the accused with this weight of evidence
against him, with this infamy clearly and satisfactorily proved by these
reputable witnesses, were to be acquitted, and sent forth purged of the
charge, upon a mere technical ground, and thus triumphantly be sustained
in the continuation of his vice, and that in the face of the very
community which was cognizant of his degradation of life and manners, who
could estimate the disastrous consequences to the lodge and the Order
which should thus support and uphold him in his guilty course? The world
would not, and could not appreciate the causes that led to the rejection
of such clear and unimpeachable testimony, and it would visit with its
just reprobation the institution which could thus extend its fraternal
affections to the support of undoubted guilt.
But, moreover, this is not a question of mere theory; the principle of
accepting the testimony of non-masonic witnesses has been repeatedly acted
on. If a Mason has been tried by the courts of his country on an
indictment for larceny, or any other infamous crime, and been convicted by
the verdict of a jury, although neither the judge nor the jury, nor the
witnesses were Masons, no lodge after such conviction would permit him to
retain his membership, but, on the contrary, it would promptly and
indignantly expel him from the Brotherhood. If, however, the lodge should
refuse to expel him, on the ground that his conviction before the court
was based on the testimony of non-masonic witnesses, and should grant him
a lodge trial for the same offense, then, on the principle against which
we are contending, the evidence of these witnesses as "profanes" would be
rejected, and the party be acquitted for want of proof; and thus the
anomalous and disgraceful spectacle would present itself—of a felon
condemned and punished by the laws of his country for an infamous crime,
acquitted and sustained by a lodge of Freemasons.
But we will be impressed with the inexpediency and injustice of this
principle, when we look at its operation from another point of view. It is
said to be a bad rule that will not work both ways; and, therefore, if the
testimony of non-masonic witnesses against the accused is rejected on the
ground of inadmissibility, it must also be rejected when given in his
favor. Now, if we suppose a case, in which a Mason was accused before his
lodge of having committed an offense, at a certain time and place, and, by
the testimony of one or two disinterested persons, he could establish what
the law calls an alibi, that is, that at that very time he was at a
far-distant place, and could not, therefore, have committed the offense
charged against him, we ask with what show of justice or reason could such
testimony be rejected, simply because the parties giving it were not
Masons? But if the evidence of a "profane" is admitted in favor of the
accused, rebutting testimony of the same kind cannot with consistency be
rejected; and hence the rule is determined that in the trial of Masons, it
is competent to receive the evidence of persons who are not Masons, but
whose competency, in other respects, is not denied.
It must, however, be noted, that the testimony of persons who are not
Masons is not to be given as that of Masons is, within the precincts of
the lodge. They are not to be present at the trial; and whatever testimony
they have to adduce, must be taken by a committee, to be afterwards
accurately reported to the lodge. But in all cases, the accused has a
right to be present, and to interrogate the witnesses.
The only remaining topic to be discussed is the method of taking the
testimony, and this can be easily disposed of.
The testimony of Masons is to be taken either in lodge or in committee,
and under the sanction of their obligations.
The testimony of profanes is always to be taken by a committee, and on
oath administered by a competent legal officer—the most convenient way of
taking such testimony is by affidavit.
The penal jurisdiction of a lodge is that jurisdiction which it is
authorized to exercise for the trial of masonic offenses, and the
infliction of masonic punishment. It may be considered as either
geographical or personal.
The geographical jurisdiction of a lodge extends in every direction,
half way to the nearest lodge. Thus, if two lodges be situated at the
distance of sixteen miles from each other, then the penal jurisdiction of
each will extend for the space of eight miles in the direction of the
other.
The personal jurisdiction of a lodge is that jurisdiction which a lodge
may exercise over certain individuals, respective or irrespective of
geographical jurisdiction. This jurisdiction is more complicated than the
other, and requires a more detailed enumeration of the classes over whom
it is to be exercised.
1. A lodge exercises penal jurisdiction over all its members, no matter
where they may reside. A removal from the geographical jurisdiction will
not, in this case, release the individual from personal jurisdiction. The
allegiance of a member to his lodge is indefeasible.
2. A lodge exercises penal jurisdiction over all unaffiliated Masons,
living within its geographical jurisdiction. An unaffiliated Mason cannot
release himself from his responsibilities to the Order. And if, by immoral
or disgraceful conduct, he violates the regulations of the Order, or tends
to injure its reputation in the estimation of the community, he is
amenable to the lodge nearest to his place of residence, whether this
residence be temporary or permanent, and may be reprimanded, suspended, or
expelled.
This doctrine is founded on the wholesome reason, that as a lodge is
the guardian of the purity and safety of the institution, within its own
jurisdiction, it must, to exercise this guardianship with success, be
invested with the power of correcting every evil that occurs within its
precincts. And if unaffiliated Masons were exempted from this control, the
institution might be seriously affected in the eyes of the community, by
their bad conduct.
3. The personal jurisdiction of a lodge, for the same good reason,
extends over all Masons living in its vicinity. A Master Mason belonging
to a distant lodge, but residing within the geographical jurisdiction of
another lodge, becomes amenable for his conduct to the latter, as well as
to the former lodge. But if his own lodge is within a reasonable distance,
courtesy requires that the lodge near which he resides should rather make
a complaint to his lodge than itself institute proceedings against him.
But the reputation of the Order must not be permitted to be endangered,
and a case might occur, in which it would be inexpedient to extend this
courtesy, and where the lodge would feel compelled to proceed to the trial
and punishment of the offender, without appealing to his lodge. The
geographical jurisdiction will, in all cases, legalize the
proceedings.
4. But a lodge situated near the confines of a State cannot extend its
jurisdiction over Masons residing in a neighboring State, and not being
its members, however near they may reside to it: for no lodge can exercise
jurisdiction over the members of another Grand Lodge jurisdiction. Its
geographical, as well as personal jurisdiction, can extend no further than
that of its own Grand Lodge.
5. Lastly, no lodge can exercise penal jurisdiction over its own
Master, for he is alone responsible for his conduct to the Grand Lodge.
But it may act as his accuser before that body, and impeach him for any
offense that he may have committed. Neither can a lodge exercise penal
jurisdiction over the Grand Master, although under other circumstances it
might have both geographical and personal jurisdiction over him, from his
residence and membership.
Every Mason, who has been tried and convicted by a lodge, has an
inalienable right to appeal from that conviction, and from the sentence
accompanying it, to the Grand Lodge.
As an appeal always supposes the necessity of a review of the whole
case, the lodge is bound to furnish the Grand Lodge with an attested copy
of its proceedings on the trial, and such other testimony in its
possession as the appellant may deem necessary for his defense.
The Grand Lodge may, upon investigation, confirm the verdict of its
subordinate. In this case, the appeal is dismissed, and the sentence goes
into immediate operation without any further proceedings on the part of
the lodge.
The Grand Lodge may, however, only approve in part, and may reduce the
penalty inflicted, as for instance, from expulsion to suspension. In this
case, the original sentence of the lodge becomes void, and the milder
sentence of the Grand Lodge is to be put in force. The same process would
take place, were the Grand Lodge to increase instead of diminishing the
amount of punishment, as from suspension to expulsion. For it is competent
for the Grand Lodge, on an appeal, to augment, reduce or wholly abrogate
the penalty inflicted by its subordinate.
But the Grand Lodge may take no direct action on the penalty inflicted,
but may simply refer the case back to the subordinate for a new trial. In
this case, the proceedings on the trial will be commenced de novo,
if the reference has been made on the ground of any informality or
illegality in the previous trial. But if the case is referred back, not
for a new trial, but for further consideration, on the ground that the
punishment was inadequate—either too severe, or not sufficiently so—in
this case, it is not necessary to repeat the trial. The discussion on the
nature of the penalty to be inflicted should, however, be reviewed, and
any new evidence calculated to throw light on the nature of the punishment
which is most appropriate, may be received.
Lastly, the Grand Lodge may entirely reverse the decision of its
subordinate, and decree a restoration of the appellant to all his rights
and privileges, on the ground of his innocence of the charges which had
been preferred against him. But, as this action is often highly important
in its results, and places the appellant and the lodge in an entirely
different relative position, I have deemed its consideration worthy of a
distinct chapter.
During the pendency of an appeal, the sentence of the subordinate lodge
is held in abeyance, and cannot; be enforced. The appellant in this case
remains in the position of a Mason "under charges."
The penalties of suspension and expulsion are terminated by
restoration, which may take place either by the action of the lodge which
inflicted them, or by that of the Grand Lodge.
Restoration from definite suspension is terminated without any special
action of the lodge, but simply by the termination of the period for which
the party was suspended. He then at once reenters into the possession of
all the rights, benefits, and functions, from which he had been
temporarily suspended.
I have myself no doubt of the correctness of this principle; but, as it
has been denied by some writers, although a very large majority of the
authorities are in its favor, it may be well, briefly, to discuss its
merits.
Let us suppose that on the 1st of January A.B. had been suspended for
three months, that is, until the 1st day of April. At the end of the three
months, that is to say, on the first of April, A.B. would no longer be a
suspended member—for the punishment decreed will have been endured; and as
the sentence of the lodge had expressly declared that his suspension was
to last until the 1st of April, the said sentence, if it means anything,
must mean that the suspension was, on the said 1st of April, to cease and
determine. If he were, therefore, to wait until the 1st of May for the
action of the lodge, declaring his restoration, he would suffer a
punishment of four months' suspension, which was not decreed by his lodge
upon his trial, and which would, therefore, be manifestly unjust and
illegal.
Again: if the offense which he had committed was, upon his trial, found
to be so slight as to demand only a dismissal for one night from the
lodge, will it be contended that, on his leaving the lodge-room pursuant
to his sentence, he leaves not to return to it on the succeeding
communication, unless a vote should permit him? Certainly not. His
punishment of dismissal for one night had been executed; and on the
succeeding night he reentered into the possession of all his rights. But
if he can do so after a dismissal or suspension of one night, why not
after one or three, six or twelve months? The time is extended, but the
principle remains the same.
But the doctrine, that after the expiration of the term of a definite
suspension, an action by the lodge is still necessary to a complete
restoration, is capable of producing much mischief and oppression. For, if
the lodge not only has a right, but is under the necessity of taking up
the case anew, and deciding whether the person who had been suspended for
three months, and whose period of suspension has expired, shall now be
restored, it follows, that the members of the lodge, in the course of
their inquiry, are permitted to come to such conclusion as they may think
just and fit; for to say that they, after all their deliberations, are, to
vote only in one way, would be too absurd to require any consideration.
They may, therefore, decide that A.B., having undergone the sentence of
the lodge, shall be restored, and then of course all would be well, and no
more is to be said. But suppose that they decide otherwise, and say that
A.B., having undergone the sentence of suspension of three months,
shall not be restored, but must remain suspended until further
orders. Here, then, a party would have been punished a second time for the
same offense, and that, too, after having suffered what, at the time of
his conviction, was supposed to be a competent punishment—and without a
trial, and without the necessary opportunities of defense, again found
guilty, and his comparatively light punishment of suspension for three
months changed into a severer one, and of an indefinite period. The annals
of the most arbitrary government in the world—the history of the most
despotic tyrant that ever lived—could not show an instance of more
unprincipled violation of law and justice than this. And yet it may
naturally be the result of the doctrine, that in a sentence of definite
suspension, the party can be restored only by a vote of the lodge at the
expiration of his term of suspension. If the lodge can restore him, it can
as well refuse to restore him, and to refuse to restore him would be to
inflict a new punishment upon him for an old and atoned-for offense.
On the 1st of January, for instance, A.B., having been put upon his
trial, witnesses having been examined, his defense having been heard, was
found guilty by his lodge of some offense, the enormity of which, whatever
it might be, seemed to require a suspension from Masonry for just three
months, neither more nor less. If the lodge had thought the crime still
greater, it would, of course, we presume, have decreed a suspension of
six, nine, or twelve months. But considering, after a fair, impartial, and
competent investigation of the merits of the case (for all this is to be
presumed), that the offended law would be satisfied with a suspension of
three months, that punishment is decreed. The court is adjourned sine
die; for it has done all that is required—the prisoner undergoes his
sentence with becoming contrition, and the time having expired, the bond
having been paid, and the debt satisfied, he is told that he must again
undergo the ordeal of another trial, before another court, before he can
reassume what was only taken from him for a definite period; and that it
is still doubtful, whether the sentence of the former court may not even
now, after its accomplishment, be reversed, and a new and more severe one
be inflicted.
The analogy of a person who has been sentenced to imprisonment for a
certain period, and who, on the expiration of that period, is at once
released, has been referred to, as apposite to the case of a definite
suspension. Still more appropriately may we refer to the case of a person
transported for a term of years, and who cannot return until that term
expires, but who is at liberty at once to do so when it has expired.
"Another capital offense against public justice," says Blackstone, "is the
returning from transportation, or being seen at large in Great Britain
before the expiration of the term for which the offender was sentenced
to be transported." Mark these qualifying words: "before the
expiration of the term:" they include, from the very force of language,
the proposition that it is no offense to return after the
expiration of the term. And so changing certain words to meet the change
of circumstances, but leaving the principle unchanged, we may lay down the
law in relation to restorations from definite suspensions, as follows:
It is an offense against the masonic code to claim the privileges of
Masonry, or to attempt to visit a lodge after having been suspended,
before the expiration of the term for which the offender was
suspended.
Of course, it is no crime to resume these privileges after the term has
expired; for surely he must have strange notions of the powers of
language, who supposes that suspension for three months, and no more, does
not mean, that when the three months are over the suspension ceases. And,
if the suspension ceases, the person is no longer suspended; and, if no
longer suspended he is in good standing, and requires no further action to
restore him to good moral and masonic health.
But it is said that, although originally only suspended for three
months, at the expiration of that period, his conduct might continue to be
such as to render his restoration a cause of public reproach. What is to
be done in such a case? It seems strange that the question should be
asked. The remedy is only too apparent. Let new charges be preferred, and
let a new trial take place for his derelictions of duty during the term of
his suspension. Then, the lodge may again suspend him for a still longer
period, or altogether expel him, if it finds him deserving such
punishment. But in the name of justice, law, and common sense, do not
insiduously and unmanfully continue a sentence for one and a former
offense, as a punishment for another and a later one, and that, too,
without the due forms of trial.
Let us, in this case, go again for an analogy to the laws of the land.
Suppose an offender had been sentenced to an imprisonment of six months
for a larceny, and that while in prison he had committed some new crime.
When the six months of his sentence had expired, would the Sheriff feel
justified, or even the Judge who had sentenced him, in saying: "I will not
release you; you have guilty of another offense during your incarceration,
and therefore, I shall keep you confined six months longer?" Certainly
not. The Sheriff or the Judge who should do so high-handed a measure,
would soon find himself made responsible for the violation of private
rights. But the course to be pursued would be, to arrest him for the new
offense, give him a fair trial, and, if convicted again, imprison or
otherwise punish him, according to his new sentence, or, if acquitted,
discharge him.
The same course should be pursued with a Mason whose conduct during the
period of his suspension has been liable to reproach or suspicion. Masons
have rights as well as citizens—every one is to be considered innocent
until he is proved guilty—and no one should suffer punishment, even of the
lightest kind, except after an impartial trial by his peers.
But the case of an indefinite suspension is different. Here no
particular time has been appointed for the termination of the punishment.
It may be continued during life, unless the court which has pronounced it
think proper to give a determinate period to what was before
indeterminate, and to declare that on such a day the suspension shall
cease, and the offender be restored. In a case of this kind, action on the
part of the lodge is necessary to effect a restoration.
Such a sentence being intended to last indefinitely—that is to say,
during the pleasure of the lodge—may, I conceive, be reversed at any legal
time, and the individual restored by a mere majority vote the of lodge.
Some authorities think a vote of two-thirds necessary; but I see no reason
why a lodge may not, in this as in other cases, reverse its decision by a
vote of a simple majority. The Ancient Constitutions are completely silent
on this and all its kindred points; and, therefore, where a Grand Lodge
has made no local regulation on the subject, we must be guided by the
principles of reason and analogy, both of which direct us to the
conclusion that a lodge may express its will, in matters unregulated by
the Constitutions, through the vote of a majority.
But the restoration of an expelled Mason requires a different action.
By expulsion, as I have already said, all connection with the Order is
completely severed. The individual expelled ceases to be a Mason, so far
as respects the exercise of any masonic rights or privileges. His
restoration to the Order is, therefore, equivalent to the admission of a
profane. Having ceased on his expulsion to be a member of the lodge which
had expelled him, his restoration would be the admission of a new member.
The expelled Mason and the uninitiated candidate are to be placed on the
same footing—both are equally unconnected with the institution—the one
having never been in it, and the other having been completely discharged
from it.
The rule for the admission of new members, as laid down in the
Thirty-nine Regulations, seems to me, therefore, to be applicable in this
case; and hence, I conceive that to reverse a sentence of expulsion and to
restore an expelled Mason will require as unanimous a vote as that which
is necessary on a ballot for initiation.
Every action taken by a lodge for restoration must be done at a stated
communication and after due notice, that if any member should have good
and sufficient reasons to urge against the restoration, he may have an
opportunity to present them.
In conclusion, the Grand Lodge may restore a suspended or expelled
Mason, contrary to the wishes of the lodge.
In such case, if the party has been suspended only, he, at once,
resumes his place and functions in the lodge, from which, indeed, he had
only been temporarily dissevered.
But in the case of the restoration of an expelled Mason to the rights
and privileges of Masonry, by a Grand Lodge, does such restoration restore
him to membership in his lodge? This question is an important one, and has
very generally been decided in the negative by the Grand Lodges of this
country. But as I unfortunately differ from these high authorities, I
cannot refrain, as an apology for this difference of opinion, from
presenting the considerations which have led me to the conclusion which I
have adopted. I cannot, it is true, in the face of the mass of opposing
authority, offer this conclusion as masonic law. But I would fain hope
that the time is not far distant when it will become so, by the change on
the part of Grand Lodges of the contrary decisions which they have
made.
The general opinion in this country is, that when a Mason has been
expelled by his lodge, the Grand Lodge may restore him to the rights and
privileges, but cannot restore him to membership in his lodge. My own
opinion, in contradiction to this, is, that when a Grand Lodge restores an
expelled Mason, on the ground that the punishment of expulsion from the
rights and privileges of Masonry was too severe and disproportioned to the
offense, it may or may not restore him to membership in his lodge. It
might, for instance, refuse to restore his membership on the ground that
exclusion from his lodge is an appropriate punishment; but where the
decision of the lodge as to the guilt of the individual is reversed, and
the Grand Lodge declares him to be innocent, or that the charge against
him has not been proved, then I hold, that it is compelled by a just
regard to the rights of the expelled member to restore him not only to the
rights and privileges of Masonry, but also to membership in his lodge.
I cannot conceive how a Brother, whose innocence has been declared by
the verdict of his Grand Lodge, can be deprived of his vested rights as
the member of a particular lodge, without a violation of the principles of
justice. If guilty, let his expulsion stand; but, if innocent, let him be
placed in the same position in which he was before the passage of the
unjust sentence of the lodge which has been reversed.
The whole error, for such I conceive it to be, in relation to this
question of restoration to membership, arises, I suppose, from a
misapprehension of an ancient regulation, which says that "no man can be
entered a Brother in any particular lodge, or admitted a member thereof,
without the unanimous consent of all the members"—which inherent privilege
is said not to be subject to dispensation, "lest a turbulent member should
thus be imposed upon them, which might spoil their harmony, or hinder the
freedom of their communication, or even break and disperse the Lodge." But
it should be remembered that this regulation altogether refers to the
admission of new members, and not to the restoration of old ones—to the
granting of a favor which the candidate solicits, and which the lodge may
or may not, in its own good pleasure, see fit to confer, and not to the
resumption of a vested and already acquired right, which, if it be a
right, no lodge can withhold. The practical working of this system of
incomplete restoration, in a by no means extreme case, will readily show
its absurdity and injustice. A member having appealed from expulsion by
his lodge to the Grand Lodge, that body calmly and fairly investigates the
case. It finds that the appellant has been falsely accused of an offense
which he has never committed; that he has been unfairly tried, and
unjustly convicted. It declares him innocent—clearly and undoubtedly
innocent, and far freer from any sort of condemnation than the prejudiced
jurors who convicted him. Under these circumstances, it becomes obligatory
that the Grand Lodge should restore him to the place he formerly occupied,
and reinvest him with the rights of which he has been unjustly despoiled.
But that it cannot do. It may restore him to the privileges of Masonry in
general; but, innocent though he be, the Grand Lodge, in deference to the
prejudices of his Brethren, must perpetuate a wrong, and punish this
innocent person by expulsion from his lodge. I cannot, I dare not, while I
remember the eternal principles of justice, subscribe to so monstrous an
exercise of wrong—so flagrant an outrage upon private
rights. footnotes
96. Blackstone, Introd., § i.
97. For so we should interpret the word "honeste."
98. I have treated this subject of expulsion so fully in my "Lexicon of
Freemasonry," and find so little more to say on the subject, that I have
not at all varied from the course of argument, and very little from the
phraseology of the article in that work.
99. In England, ejection from a membership by a subordinate lodge is
called "exclusion," and it does not deprive the party of his general
rights as a member of the fraternity.
100. Lexicon of Freemasonry.
101. Phillips, on Evidence, p. 3.
102. Chief Baron Gilbert.
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