textfiles/magazines/STB/stb-1934-03.txt

SHORT TALK BULLETIN - Vol.XII   March, 1934   No.3

FOUNDATIONS OF MASONIC LAW

by: Unknown

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!”