FOUNDATIONS OF MASONIC LAW
The history of law and law making is the history of civilization. As
man’s sense of justice developed with increasing needs and
responsibilities, his ideas of legal enactments altered and changed.
What was lawful in one age became crime in the next; what was
criminal in one age was sanctioned by legislation in the next, in a
thousand periods, climes and countries. Within the memory of men now
living in the west it was permissible to hang a horse thief with no
more legal basis than common necessity; today we name it lynching and
make it illegal. Similarly, it was once illegal for a man to run
away from his employer (slaves, prior to the Civil War) whereas now
any man may travel where he will.
Masonic law, also, has seen developments during the nearly two and a
quarter centuries since the formation of the Mother Grand Lodge;
Some acts right in one age are wrong in this, and certain wrongs of
one century become right in the next. For instance, the power to
make a Mason at sight is now denied by some Grand Lodges to their
Grand Masters; the ancient right of all Lodges to be represented in
Grand Lodge by both Master and Wardens is not now universal.
In the narrower sense, Masonic law rest upon the Old Constitutions,
the Old Charges and the Landmarks; the superstructure is made up of
the Constitutions and By-Laws of Grand Lodges; the decisions of Grand
Lodges on appeals; the edicts of Grand Masters; the decisions of
Grand Masters, sometimes standing without review, more often reviewed
and confirmed by Grand Lodges.
But in the wider sense, Masonic law is based upon English law - which
goes back to Roman law - so that it is within the facts to say that
Masonic law is a development of the ideas of equity, and the
administration of justice, of the days of ancient Rome.
From the time of the reign of Diocletian (284-305 A.D.) on political
theory the Roman State was republic. Ultimate sovereignty was in the
Roman people. The Emperor was the First Citizen, to whom the Roman
people had delegated their sovereignty for the time being, by act of
legislative authority. As time went on, the Emperor became thought
of as the ultimate repository of sovereignty, the source of law. His
powers began when he welded the authority which the sovereign Roman
people delegated to him. But inasmuch as the people, through their
legislative assembly, could lawfully enact a law, the Emperor, having
been delegated their authority, came to be thought also to have the
power to enact a law. Law thus enacted by the Emperor, by virtue of
legislative authority vested in him, was called “Constitution,” or in
our language, Constitution. Actually enacted by the Emperor, such
laws were considered rules established by legislative act.
A second medium by which the Roman Emperor made law was by decisions
in cases taken before him on appeal, or cases adjudicated directly by
him. The Emperor filed his opinion or judgment, which when rendered
was called a decree. Under the Roman system. a Roman magistrate had
no power to render a decision of judgment; such decisions were
rendered only by judges or arbitrators chosen for the case. A
magistrate, however, could decide certain matters and render a
decree; these powers also were delegated to the Emperor at his
accession.
Power to make or declare law by edict originally belonged to the
magistrates of the Roman Republic, and was exercised by the Praetors
or judicial magistrates. In the beginning edicts were pronouncements
by a magistrate of a course which he proposed to take in the
administration of his office, to the end that the citizen might know
what to expect. In time these pronouncements easily became
authority, and had the force and effect of law which governed the
administration of the official who made the pronouncement. When the
power of the magistrate was delegated to the Emperor, the power of
issuing an edict also passed to him. The Emperor was thus given
authority to issue general orders governing matters of
administration, which had the full force and effect of law. In the
Roman Empire an edict was a general administrative law, as
distinguished from a judicial order, prescribing the conduct of some
matter of administration.
The Roman Emperor also made or declared law by “rescripts”; letters
or answers which he made to questions put to him by judges or
magistrates. In the judicial system of Rome, a judge, having a cause
for adjudication, was advised by the expert opinion of a person
learned in the law, known as the Jurisconsult. As the Emperor was
the Jurisconsult of highest authority, the practice of submitting
questions of law to him for his opinion was but natural; having all
the sovereign power of the Roman people vested in him, his
determination was final.
“The Constitutions of the Free-Masons” published in 1723 contains the
“History, Charges, Regulations, & etc.” of the Craft. This volume is
the foundation stone of our Masonic law. But it is not the only
“Constitution” of Freemasonry.
At the end of the eighteenth century the people of this country
constituted themselves the sovereign, and as much the highest earthly
power, fixing as the frame work of the Government then formed what we
call the Constitution, the object being to limit the several organs
of Government set up. Proceeding from the highest earthly power,
this is our superior law, to which the several legislatures and
departments of the Government must yield.
In the same way, the Constitution of a Grand Lodge, whether called by
that name or another, is the superior law of that Grand Lodge; the
act of the supreme legislative authority of all Masons in that
Jurisdiction, acting through their legally authorized
representatives. Whatever the Grand Lodge establishes and
promulgates as its fundamental law becomes its Constitution.
In the early part of the eighteenth century, a Constitution in this
sense was unknown; Anderson’s Constitutions was but a reducing to
writing of existing usage and customs. So, in speaking of Masonic
Constitutions, we must distinguish between Anderson, whose work was
fundamental Masonic law, and the Constitution or governing instrument
of an individual Grand Lodge, devised and adopted by it to fit its
own particular needs. Anderson’s Constitutions belong to the Craft
as a whole; a Grand Lodge’s Constitution is its alone, and has no
force or effect beyond its Jurisdictional limits of authority.
The similarity between the law of Rome and the modern conception of
Masonic law is striking. To the Roman Emperor was delegated the
powers of the sovereign Roman people. To the Grand Master is
delegated many (not all) of the powers of the sovereign Craftsmen.
Thus, in Landmark 3, in the “Constitution, By-Laws, General
Regulations and Edicts of the Grand Lodge of New Jersey,” we read:
“The Grand Master is elected by the Craft, and holds office until his
successor is duly installed. He is the “Ruler” of the Craft and is,
of right, the presiding officer of every assemblage of Masons as
such. He may, within his Jurisdiction, convene a lodge at any time
or place and do Masonic work therein; may create lodges by his
warrant, and arrest the warrant of any lodge. He may suspend, during
his pleasure, the operation of any rule or regulation of Masonry not
a “Landmark.” He may suspend the installed officers of any lodge,
and reinstate them at his pleasure and is not answerable for his acts
as Grand Master. He may deputize any brother to do any act in his
absence which he himself might do if present.”
This excerpt has been chosen because it sets forth certain powers of
the Grand Master more plainly than is done in some other
Jurisdictions, but his fundamental powers are rarely questioned in
any Jurisdiction. Particular attention is called to two statements:
the Grand Master is the “Ruler” of the Craft, and, he is not
answerable for his acts as Grand Master. These two powers over the
Roman people were inherent in the Roman Emperors.
The Roman Emperor made law by decisions in cases taken to him on
appeal, or in those which he adjudicated directly. The Grand Lodge
hears appeals from those involved in Masonic trials, and affirms or
reverses the decision of the Lodge (or trial commission); Grand
Lodges adjudicate directly in trials involving Masons who are members
of Grand Lodge. The modern conception of justice is bound up in our
belief in the right of appeal from a lower authority to a higher, and
finally to the highest, that fallible human justice may be made as
infallible as possible. The brother in Lodge cannot appeal from the
decision of his Master, but can appeal to the Grand Master or the
Grand Lodge. The brother tried, convicted and punished, may not
appeal to the Lodge that tries him, but may appeal to the highest
authority, the Grand Lodge.
The Roman Emperor made law by “rescript”; by letters of answer to
questions put to him by a judge or magistrate. All Grand Masters are
called upon to make decisions on questions asked by Masters of Lodges
or individual Craftsmen. Like those of the Emperor, these decisions
are law for the time being, and usually (not invariably) become part
of the written law when Grand Lodge receives the Grand Master’s
report of the decisions he has made during the year. The Grand Lodge
either affirms the decision, or, if its legality has been questioned
by the Committee on Jurisprudence, mat adopt the Committee’s report,
thus determining that the law in the future is contrary to what the
Grand Master decided.
The roman Emperor made law by edict. An edict was initiated by the
Emperor; the decision came as a response to an appeal. the Grand
Master may issue an edict as an initiatory act of law making, it
stands as law until repealed or affirmed by Grand Lodge.
The development of law making in modern times is divided by Dean
Roscoe Pound into four stages:
1. Unconscious legislation, when dealing with common law
principles. The facts of the case before the Court may differ
from those of a former case, to which the Court has applied a
common law principle. Notwithstanding the difference in the
facts, the Court may extend the common law principle to cover
the case at the bar; the legal effect of this is to extend the
common law doctrine to new limits. This was described by the
late Justice Harlan, of the Supreme Court, as “Judicial
Legislation,” because in law the latest application of a
doctrine establishes the law of jurisdiction.
2. Declaratory legislation, or reducing the unwritten law to
written law. This does not result in new law, but only gives
written authoritative expression to already existing common law.
3. Selection and amendment, when by the political union of peoples
with divergent customs, it becomes necessary. A new State
resulting from a combination of peoples of different customs,
requires selecting and amending laws and customs of the
different peoples to fit the needs of the new State.
4. Conscious legislation; law making to meet existing exigencies or
new conditions.
Here also we find distinct parallelism with Masonic law. The law of
a certain Jurisdiction states that no man may be made a member of the
Craft who is “engaged in the manufacture or sale of intoxicating
liquor.” By “unconscious legislation” a Grand Master extended this
to mean, also, a book-keeper employed by a man who sold liquor. A
later Grand Master extended this enactment to mean a stockholder in a
hotel company who countenanced the sale of liquor by that hotel. As
these decisions were confirmed by Grand Lodge, they became
constitutional law in that Jurisdiction.
Masonic declaratory legislation, reducing the unwritten to written
law, first took place in London in 1723, when Anderson’s
Constitutions were published. But the process has by no means been
completed. Many Grand Jurisdictions have local customs which have
grown up through the years; it occurs to someone, or the need arises,
to have this reduced to writing and made a part of the constitution
of the Grand Lodge By-Laws. It is properly put before Grand Lodge,
and becomes law.
In a certain Jurisdiction the ancient custom of opening the V.S.L. at
definite passages of Scripture during the three degrees was thought
by some to be more honored in the breach than in the observance.
Grand Lodge decided that what its prophets contended was the common
practice, should prevail. It is now law in that Jurisdiction that
the Bible may be opened “at Random.”
Selection and amendment takes place Masonically when a new Grand
Lodge is formed, or an old one splits in two. When the States of
North and South Dakota were formed from the Territory of Dakota, the
Grand Lodge of the Territory became two Grand Lodges. The Grand
Lodge of North Dakota selected and amended the law of the Mother
Grand Lodge to form its own Constitution.
Conscious legislation in Masonic bodies is similar to that in all
other legislative bodies. In almost every Grand Lodge meeting some
amendment to existing law is offered, to lie over for a year, or
having been proposed the previous year, it is acted upon and accepted
or rejected.
Grand Masters and Grand Lodges today have far more despotic power
than any ruler or national legislative assembly in any modern body
politic. That such despotic authority has learned to rule wisely and
well; that Grand Masters under-emphasize rather than over-use their
powers; that the Craft as a whole is well, sanely and soundly
governed, are tributes to the gentle influence of the principles of
Masonry, too great for even headstrong men to oppose. Truly,
Masonic leaders have well learned the ancient truth:
“O, ‘tis excellent To have a giant’s strength, but it is tyrannous
To use it like a giant!”
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