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Article # 224
The Principles of Masonic Law-Book-4

Author: Bro. Dr.Albert Gallatin Mackey    Posted on: Friday, September 8, 2006
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[ The Fourth Book, the concluding portion of The Principles of Masonic Law is posted herein. Index at the end of this Book has been omitted. Footnotes have been incorporated in the main text and at the appropriate places]

  The Principles Of  Masonic Law- Book Fourth

Bro.Albert Gallatin Mackey

Book Fourth --Of Masonic Crimes and Punishments.

Chapter I. --   Of What Are Masonic Crimes

                                 Chapter II. -- Of Masonic Punishments

                                                   Section I.               Of Censure

Section II.               Of Reprimand

                         Section III.           Of Exclusion from the Lodge

              Section IV.            Of Definite Suspension

                    Section V.           Of Indefinite Suspension

                                         Section VI.           Of Expulsion

                                   Chapter III. -- Of Masonic Trials

Section I.        Of the Form of Trial

                       Section II.      Of the Evidence in Masonic Trials

                       Chapter IV. --    Of the Penal Jurisdiction of a Lodge

                                   Chapter V.  --     Of Appeal

                                    Chapter VI. --     Of Restoration

 

Chapter I.--Of What Are Masonic Crimes.

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 cognizance 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, conformsand which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions."[ Blackstone, Introd., § i.] 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,) should injure nobody and render to every one his just due."[ For so we should interpret the word "honeste."]

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 subversive 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.

Chapter II.---Of Masonic Punishments.

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.

Section I.--Of Censure.

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.

Section II.--Of Reprimand.

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.

Section III--Of Exclusion from the Lodge.

Exclusion from a lodge may be of various degrees.

1. A member may for indecorous or un Masonic 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.

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 a lodge, 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.

Section IV.---Of Definite Suspension.

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.

Section V.--Of Indefinite Suspension.

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.

Section VI.--Of Expulsion.

[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.]

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.  [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.]

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."   [. Lexicon of Freemasonry.]

  Chapter III.---Of Masonic Trials.

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.

Section I.--Of the Form of Trial.

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.

 

Section II.---Of the Evidence in Masonic Trials.

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.[ Phillips, on Evidence, p. 3.]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, that "the credit of his oath is over-balanced by the stain of his iniquity."[Chief Baron Gilbert.]             

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 in competency 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 sub served. 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 un Masonic 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.

Chapter IV.--Of the Penal Jurisdiction of a Lodge.

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.

Chapter V.--Of Appeals.

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."

Chapter VI.--Of Restoration.

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 insidiously 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.

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[Bro.Dr.Albert Gallatin Mackey. M.D., the distinguished Author, graduated from the Medical College in Charleston in South Carolina and took the M.D, degree. He was initiated in St.Andrews Lodge (No.10), which later affiliated with Solomon’s Lodge (No.1), of which he was installed as the W.M in 1842. The same year he joined the South Carolina Encampment (No.1) of which he was installed as the Commander in 1844.On joining the Scottish Rite, he was crowned as the Sovereign Grand Inspector General and later he assumed the post of Secretary General of the Ancient and Accepted Scottisn Rite of the Southern Jurisdiction and functioned as such till he died in 1881. Bro.A.G.Mackey was an eminent scholar. He had held many senior posts in the Grand Lodge, including the posts of the Grand Lecturer. He was the Grand Secretary of The Grand Lodge of South Carolina, from 1844 to 1867. His famous publications include, "The Lexicon of Freemasonry," "The Mystic Tie," "Legends and Traditions of Freemasonry" ,“The History of Freemasonry” and “The Encyclopedia of Freemasonry”, about which the eminent Masonic writer and Historian Bro.R.F.Gould has observed that, “ Dr.Mackey, whose admirable Encyclopedia seems to contain the substance of everything of a Masonic character that had yet been published”, then. The other books authored by him will be posted shortly.]


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