Bro. ROSCOE POUND, 33°
Past Master Lancaster Lodge No. 54, A. F. & A. M.
Past Deputy Grand Master, Massachusetts
Carter Professor of Jurisprudence in Harvard University
WASHINGTON, D. C.
THE MASONIC SERVICE ASSOCIATION
OF THE UNITED STATES
My chief purpose in the following lectures is to show the relation of Masonic law to law in general, to point out the universal aspects of Masonic legal problems, and to demonstrate that we have in truth and not merely in name a science of Masonic law well worthy of study as such. In my endeavor to develop the relation of the problems of Masonic law to general legal problems, I may seem to have stressed this universal extra-Masonic element unduly. But it is my belief that here, as in the philosophy of Masonry and in Masonic symbolism, the Masonic scholar may not hope to achieve the best that his task offers unless he goes outside of the purely Masonic materials and perceives their setting, their relation to general human problems and their place in a scheme of human activities.
It remains to say that these lectures were delivered originally before the Harvard Chapter of the Acacia Fraternity in the school-year 1911-1912. Afterwards, at the instance of Most Worshipful Brother Johnson, who had done me the honor of attending the course, they were delivered under the auspices of the Grand Lodge of Massachusetts and printed in its proceedings for 1916. They were also printed in The Builder, from which they are now reprinted. I have added some notes and bibliographies.
Cambridge, Massachusetts, August 26, 1919.
I. THE DATA OF MASONIC JURISPRUDENCE At the outset we may well ask ourselves why do we say Masonic Jurisprudence? Why not simply Masonic Law? Is there a science of Masonic law as distinct from Masonic law itself? For in its original and etymological meaning and in the best usage, jurisprudence means the science of law. It is true there are two other uses of the term. The French use it to mean the course of decision in the courts as contrasted on the one hand with legislation and on the other hand with doctrine or the consensus of opinion of learned writers and commentators. To some extent this French usage has been received with us, particularly in the phrase "equity jurisprudence," signifying the course of decision in Anglo-American courts of equity, which has gained currency through the classical work of Judge Story. But it must be obvious that Masons do not employ the word in this sense. Although the course of decision in Masonic tribunals in the form of rulings of the Grand Masters and action of Grand Lodges thereon and of review of trials in or by Grand Lodges, is an important form of Masonic law, it furnishes but a part, and relatively a modern part, of the materials of what we are wont to style Masonic jurisprudence.
By a not unnatural transition from the French use of the term it has come to be used also, chiefly in this country, simply as a polysyllabic synonym for law. Medical jurisprudence, for the forensic applications of medicine, has much vogue. Dental jurisprudence for the law of interest to dentists, engineering jurisprudence for the law of interest to engineers, architectural jurisprudence for the law of interest to architects, are heard occasionally. These seem quite indefensible. But even if they were not to be criticized, they would not warrant Masonic jurisprudence, for the latter term calls to mind not that part of the general law of the land which has special interest for the Mason, but the internal law of the fraternity itself. We come back, therefore, to our question whether Masonic jurisprudence is simply a grandiose name for Masonic law or whether, on the other hand, there is a science of Masonic law distinct from the law of each Masonic jurisdiction? Is there, in other words, an organized body of knowledge above and behind each particular local Masonic law upon which the latter rests as fully and truly as the particular legal rules of one of our commonwealths rest upon the principles of general legal science and the principles of Anglo-American legal tradition ? For the moment I shall assume that there is, and my purpose in this course will be, not to expound dogmatically the rules of Masonic law which obtain here or elsewhere, but to show, if I may, that there is a science of Masonic law, to examine its material and its methods, and to set forth its principles.
In studying the law of politically organized society we say that it may be expounded dogmatically, that is, the content and application of its several rules and principles may be investigated and set forth, or it may be studied by one of the methods of jurisprudence - analytical, historical, or philosophical. In truth dogmatic study is of little value except as it makes use of and rests upon these methods of legal science. They justify themselves in the end by making for effective understanding and criticism and improvement of the law of each state. But they are methods of legal science generally, while the dogmatic method is applicable not to jurisprudence but to a particular body of law. We may study a particular body of law analytically, that is, we may investigate the structure, subject-matter and rules of a legal system in order to reach by analysis the principles and theories which it logically presupposes. As a method of jurisprudence, however, the analytical method is comparative. It involves a comparative study of the purposes, methods and ideas common to developed systems of law by analysis of such systems and of their doctrines and institutions in their matured forms. Again, a particular body of law may be studied historically. That is, investigation may be made of the historical origin and development of the legal system and of its institutions and doctrines, looking to the past of the law to disclose the principles of the law of today. But here also, as a method of jurisprudence, the historical method must be comparative. It involves a comparative study of the origin and development of law, of legal systems, and of particular doctrines and institutions in order to draw therefrom universal principles of legal science. Finally, a particular body of law may be studied philosophically. That is, investigation may be made of the philosophical bases of the institutions and doctrines of a legal system in order to reach its fundamental principles through philosophical speculation. When this method is pursued comparatively and the philosophical basis of law generally and of general legal institutions and universal legal doctrines is sought, in order to reach universal principles, the philosophical method becomes a method of jurisprudence. Formerly these three methods, the analytical, the historical and the philosophical, contended for the mastery. Today we recognize that no one of them is self-sufficient and that jurisprudence must employ each of them in order to achieve a well-rounded science.
If we apply these ideas to Masonic law, we may say that a dogmatic exposition of the law of any jurisdiction would, indeed, very likely be profitable. But it would be relatively of little value, certainly of little permanent value, unless it made use of and rested upon the analytical, the historical and the philosophical methods. Moreover these methods should be developed comparatively, as methods of a Masonic legal science, if they are to give their best results. On the other hand these methods are not to be pursued for their own sake. In the end they must justify themselves by making the law of each Masonic jurisdiction more scientific, better organized, more easy of comprehension and of application and more effective for the purposes for which it exists. Unless he can give us principles of systematization, of criticism and of improvement in those parts of our law which are subject to change, the jurist has no claim upon the attention of a craft of workmen.
Another preliminary question confronts us. How far are we justified in speaking of Masonic law? Is the body of rules to which we give that name law in any proper sense of the term? Are we warranted in applying to it the methods and in attaching to it the ideas which are appropriate when treating of the law of politically organized society?
There are three common uses of the term "law":
(1) Law as used in the natural and physical sciences; (2) natural law or law of nature as the term has been used by writers on ethics, politics and the philosophy of law; (3) law in the juridical sense. In the sciences, law is used to mean deductions from human experience of the course of events. Thus the law of gravitation is a record of human observation and experience of the manner in which bodies which are free to move do in fact move toward one another. Similarly Grimm's law in philology is a record of the observations of philologists as to the manner in which consonantal changes have taken place in the several Aryan languages. By natural law ethical, philosophical and political writers mean the principles which philosophy and ethics discover as those which should govern human action and the adjustment of human relations, and hence as those with respect to which obligatory rules of human conduct ought to be framed. Law in the juridical sense is said to be the body of rules, principles and standards recognized or enforced by public or regular tribunals in the administration of justice. Obviously there is an idea in common here, namely, the idea of a rule or principle, underlying a sequence of events, whether natural or moral, or judicial. In this wide sense, therefore, we may speak of the rules or principles which underlie a sequence of events in a fraternal organization as law, just as we should so style the rules or principles underlying a sequence of events in a political society. But this wide use of the term law has been the subject of much objection and much dispute and we may put ourselves on firmer ground by looking at certain analogies between the rules which govern the decision of controversies and the adjustment of relations in a politically organized society and those which govern disputes and adjust relations in religious organizations and in fraternal organizations.
At bottom we must rest the whole structure of state and law upon the hard fundamental fact that in a finite world, human demands are infinite. If there were enough material goods to go around and enough room so that each of us might move in the widest orbit his fancy could picture or his desires could dictate without coming into collision with his fellow men, we should not need any elaborate system of balancing conflicting interests nor any elaborate machinery for putting into effect the standards for delimiting and enforcing interests which result from such balancing. Unhappily the material goods of existence do not suffice to give to each everything which he may claim or which he does claim. Hence to conserve the values of life and to eliminate waste men organize themselves and organize or invent rules and standards and principles by which to eliminate waste and make the available stock of values go as far as possible. In the beginning these organizations are simply groups of kindred. Presently religious and fraternal organizations develop. Subsequently political organizations arise. In time trade and professional associations are added. All these seek in one way or another to secure to men values which otherwise might be dissipated. They have their justification in the necessity of conserving what otherwise would be lost in the struggle of individuals to satisfy infinite claims upon a limited store. Accordingly, if we look for a moment at the state, we see that it eliminates waste by means of the law in several ways. For one thing it furnishes a rule of decision in case of dispute and thus obviates resort to private war when controversies arise. One only has to consider what happens today in case of an industrial dispute in order to see what this means.
In an ordinary dispute between man and man today ; we have a measure of conduct which is ascertainable within reasonable limits in advance. If the dispute becomes acute, one party or the other may summon his adversary before a public tribunal and may have the dispute adjudicated upon the basis of settled rules, according to a settled procedure, and with reference to settled modes of redress. When the judgment is pronounced, it is not optional with the defeated party' to adhere to it or not. The whole power of the state is behind it and the force of organized society may be invoked to carry it out. In an industrial dispute on the other hand, we have no clear measure of conduct. Each party is referred to his individual sense of fairness and to the general sense of fairness of the public at large. But in a highly diversified community in which groups and classes with apparently divergent interests understand each other none too well and have conflicting ideas of justice, general public opinion is seldom sufficiently definite and consistent to serve as a restraint upon the partisan notions of justice entertained by the contending parties and hence each is left to be the judge of its own case. With no clear predetermined measure of adjustment of such controversies, with no settled mode of procedure, with no settled mode of redress and no strong, permanent tribunal, backed by the moral sense of the community, long tradition, and the force of the state, to pronounce and give effect to a judgment, there is no way to satisfy or to coerce the disputants and in practice, as like as not, the interests of each and the interests of society suffer equally. Society struggles to maintain its interest in the general security and to prevent waste under such circumstances by seeking peace at whatever sacrifice. It is not a question of equal and exact justice. The paramount demands of peace and good order are to be met first. The policy is not "let justice be done though the heavens fall," but "peace at any ' price." Hence society endeavors to put pressure upon the disputants, directly, indirectly, openly or covertly, to submit to arbitration and to abide the award. A public service company may be threatened with forfeiture of franchise. A private owner may be threatened with extra-legal sequestration of his property. Both parties may be threatened with a report as to the causes of the dispute and the issues involved to be made public after an official inquiry. Press, pulpit and platform may exhort and rebuke. Thus in one way or another compromise or an arbitration may be brought about. But when such a result has been achieved, ho guide has been provided for the next dispute. No precedent has resulted. Nothing has been accomplished beyond averting or terminating a condition of private war in that one case. The whole process is crude and wasteful. Every time that this happens we act over again the inception of law. The Roman magistrate who stepped between the contending litigants and called out, "Let go, both of you," the praetor who pronounced the interdict, "I forbid that violence take place," and the indirect devices whereby a case for arbitration was formulated, not upon direct statement of their claims by the parties but through indirectly inducing or coercing a reference or an arbitration, testify to a general condition of which the special condition that obtains in a modern industrial dispute is perhaps the last remnant. By furnishing a rule for decision and by furnishing a guide to conduct the law enables society to reconcile conflicting interests, to conserve values and to eliminate waste.
This same problem of reconciling conflicting interests, of conserving values and of eliminating waste arises in every group – in religious and fraternal organizations no less than in political organizations. And it is met in the same way. By slow and painful development of customs through experience, followed by deliberate formulation of rules invented for the purpose, men select out of the great mass of possible claims those which seem to call most urgently for security, define them, weigh them against other recognized interests and devise means for giving them effect. This process of recognizing, delimiting and securing interests when carried on by a political society is called law-making and the rules and standards of conduct and rules and principles of decision thereby set up are called law. In like manner the rules and standards of conduct and the rules and principles of decision developed or devised to secure interests and conserve values in the universal medieval church are called the canon law. No less justly may we apply to the rules and standards of conduct and the rules and principles of decision evolved or devised to secure interests and conserve values in our universal fraternal organization the name of Masonic law. For if it is said that we cannot enforce our law as the state enforces its laws – that the sheriff and his posse looms in the background of the latter while the former is but hortatory – the answer must be that our law has behind it the same sanction that was behind the law of the medieval church, namely, excommunication, and that this is essentially nothing else than the sanction of the earlier stages of the law of politically organized society - namely, outlawry. The group in each case casts out the individual who, through defiance of its law, threatens a waste of the values which it seeks to secure.
Assuming, then, that we are justified in speaking of Masonic law, what are the component parts of our Masonic legal system; what are the jural materials with which the Masonic lawyer must work? I venture to distinguish three types of rules: (1) The landmarks; (2) the Masonic common law; (3) Masonic legislation. I cannot deny that in so classifying the jural materials of Masonry I am influenced by our Anglo-American distinction of constitutional rules, common law and legislation. And one should not turn to such an analogy hastily or unadvisedly. For I shall endeavor to show in another connection that Masonic jurisprudence has suffered in this country from over-zealous attempts to mould our law by the analogies of the political law of the time and place and from the hasty assumption that our American legal and political institutions might be relied upon to furnish principles of law for a universal fraternity. Nevertheless the craft has engaged the hearty service of great lawyers for at least two centuries and the revival from which we date the Masonry of today took place in a time and in a country in which certain legal and political ideas were universally entertained and were almost taken to inhere in nature. Hence we have more than analogy – we have, if not a causal relation, at least a relation of great influence.
Presupposing this threefold division, we have first, the landmarks, a small not clearly defined body of fundamentals which are beyond reach of change. They are the prescriptive or unwritten constitution (using constitution in the purely American sense) by which everything must be judged ultimately and to which we must all conform. Second, we have Masonic common law – the body of tradition and doctrine, which falling short of the sanctity and authority of the landmarks, nevertheless is of such long standing, and so universal, and so well attested, that we should hesitate to depart from it and are perforce wont to rely upon it whether to apply our own law or to appreciate the law of our neighbors.
These first two elements of Masonic law rest in tradition and in doctrinal writing. They take the form of: (a) Tradition – the mode of conducting Masonic affairs which has been handed down from master to master, from lodge to lodge for centuries and embodies the experience of countless sincere, zealous, well-informed brothers; (b) treatises, of which Oliver's Institutes of Masonic Jurisprudence and Mackey's Masonic Jurisprudence are the best types; (c) decisions of Grand Masters and review thereof by Grand Lodges, recorded in the published proceedings of Grand Lodges, chiefly in America; and (d) reports of the committees on correspondence of our American Grand Lodges, in which the decisions in other jurisdictions are reviewed and criticized and a comparative and universal element is introduced which is of the highest value to the Masonic jurist. These committees on correspondence have been much kicked at and it cannot be denied that the work of some of them at times has been crude. Yet for the present purpose their work has been invaluable. No one who has studied Masonic jurisprudence attentively can fail to testify to the unifying force exerted by these committees. The stimulus of their criticism, even when ill directed, has made our local Masonic jurists pause to think of the rest of the Masonic world; it has exerted the scientific influence which is always involved in comparison; it has worked everywhere for universality in our welter of independent local jurisdictions each ambitious to make its own law.
The two main elements just enumerated make up the unwritten law of Masonry. A third element, namely, Grand Lodge legislation, of which our American Grand Lodges have been exceedingly prolific, constitutes the written law of Masonry.
A moment's digression is required to explain these terms. As soon as legal systems attain any degree of maturity, they are made up of two elements: A traditional element and an imperative element Following the Roman jurists, the traditional element is generally known in jurisprudence by the name of the unwritten law – jus non scriptum – and the imperative element by the name of the written law – jus scriptum; not that we do not find the principles and rules of each today only in writings, but because the latter was deliberately and authoritatively reduced to writing at its inception.
Our main interest is in the unwritten law – the traditional element – which, except as local decisions interpret or apply local legislation, proceeds or purports to proceed on universal lines and is or seeks to be in principle permanent and general, even as legislation is ephemeral and local.
Let me develop this point a bit. As has been said, a developed legal system is made up of elements, a traditional element and an enacted or imperative element. Although at present the balance in our law is shifting gradually to the side of the enacted element, the traditional element is still by far the more important. In the first instance, we must rely upon it to meet all new problems, for the legislator acts only after they attract attention. But even after the legislator has acted, it is seldom if ever that his foresight extends to all the details of his problem or that he is able to do more than provide a broad, if not a crude outline. Hence even in the field of the enacted law, the traditional element of the legal system plays a chief part. We must rely upon it to fill the gaps in legislation, to develop the principles introduced by legislation and to interpret them. Let us not forget that so-called interpretation is not merely ascertainment of the legislative intent. If it were, it would be the easiest instead of the most difficult of judicial tasks. Where the legislator has had an intent and has sought to express it, there is seldom a question of interpretation. The difficulties arise in the myriad cases with respect to which the law maker had no intention because he had never thought of them – indeed perhaps he could never have thought of them. Here under the guise of interpretation the court, willing or unwilling, must to some extent make the law, and our security that it will be made as law and not as arbitrary rule lies in the judicial and juristic tradition from which the materials of judicial law-making are derived. Accordingly the traditional element of the legal system is and must be used even in an age of copious legislation, to supplement, round out and develop the enacted element, and in the end it usually swallows up the latter and incorporates its results in the body of tradition. Moreover a large field is always unappropriated by enactment, and here the traditional element is supreme. In this part of the law fundamental ideas change slowly. The alterations wrought here and there by legislation, not always consistent with one another, do not produce a general advance. Indeed they may be held back at times in the interests, real or supposed, of uniformity and consistency, through the influence of the traditional element. It is obvious, therefore, that above all else the condition of the law depends upon the condition of this element of the legal system.
Another feature of the twofold composition of developed legal systems is of no less importance. The traditional element rests at first upon the traditional mode of advising litigants on the part of those upon whom tribunals rely for guidance or upon the usage and practice of tribunals. Later it rests upon juristic science and the habitual modes of thought of a learned profession. Thus the ultimate basis of its authority is reason and conformity to ideas of right. On the other hand the imperative element rests upon enactment. It rests upon the expressed will of the sovereign. The basis of its authority is the power of the state.
The parallel with Masonic law is exact. With us, the most important of our jural materials are in the traditional element.
First, we must rely upon the traditional element to meet all new problems, and the normal course of growth in Masonic law is: (1) A new application of a traditional principle by the decision of a Grand Master; (2) review thereof in a Grand Lodge; (3) comment thereon by the various committees on correspondence; (4) the growth of a consensus of opinion on the subject among Masonic jurists; and (5) incorporation in some text book of Masonic law or in declaratory legislation. Secondly, we must rely on the traditional element to fill all gaps in Masonic legislation. Thirdly, we must rely on it to interpret legislation and to develop legislation. Fourthly, above all, as we are a universal institution and ought to legislate cautiously, we must rely on the traditional element to furnish the principles of legislation and a critique of legislation. We are not like a political organization – mere will has no place in any theory of Masonic law-making.
Accordingly it is of the first importance to have a theory of the unwritten law of Masonry and an organized, systematic science of this traditional element of our law – in other words, to have a science of Masonic jurisprudence.
What are the data of this science? What are the materials which we may use in constructing it?
I take it they are five: (1) History; (2) general Masonic tradition; (3) philosophy; (4) logical (or systematic) construction on the basis of history, philosophy and tradition; and (5) authentic modern materials of Masonic common law.
Let me take these up in order. First as to history. Here there are two questions: (a) What materials does Masonic history furnish which are important for Masonic jurisprudence; (b) what is the function of history in Masonic jurisprudence – how and for what purpose should we use history in this connection? On such an occasion one can only speak summarily. In a few words, the historical materials which are important for the Masonic jurist seem to be five:
(1) The manuscript constitutions of British Freemasons – a series of manuscripts the oldest of which go back to the fourteenth century, which are the foundation of authentic Masonic history. These are of especial importance on the subject of the landmarks. Thus, when we trace in the manuscripts the old charge to be true to God and holy church and the new charge of 1738 that if the Mason understands his art aright he will never be a stupid atheist, history reinforces the tradition contained in the master's obligation.
(2) Seventeenth and eighteenth-century notices of English Masonry prior to 1717. From these materials we are able to see how Masons met and what they meant by a lodge prior to the rise of Grand-Lodge Masonry and are enabled to distinguish between the landmarks and the common law as to Masonic organization.
(3) Old lodge records in England and Scotland. These also throw great light upon the organization of the Craft prior to 1717. When we find presidents and wardens and deacons as the highest officers of lodges, we see again what was from the beginning and what is simply common law.
(4) Eighteenth-century writers who had or purported to have access to traditions current among Masons at and prior to the organization of the Grand Lodge of England in 1717 and to old manuscripts not now extant. Even if some or much of the information which they purport to give on the basis of such traditions and such manuscripts is apocryphal, it has entered into the stream of subsequent Masonic tradition and may not be overlooked.
(5) Grand Lodge records, beginning in England in 1723, which show the settled practice of the formative period of Masonry as we know it today.
Of these five classes of historical materials, the fourth calls for some special notice. It is made up of three well-known books which have exerted an almost controlling influence upon our ideas of Masonic history and have largely determined Masonic tradition. These books are: Anderson's Constitutions (1723, second edition 1738), Preston's Illustrations (1742) and Dermott's Ahiman Rezon (1756, second edition 1764). It would be out of place to attempt an appraisal of their historical value here. Moreover the thorough-going critique of Gould, which has overthrown definitely much which had long been accepted on the authority of these books has not wholly destroyed their importance for Masonic jurisprudence. As Hobbes puts it, "authority not truth makes the law." It well may happen that historical mistakes may become fixed in the legal fabric. For example, Lord Coke very likely erred in much that he laid down in his Second Institute as to the history of our Anglo-American constitutional doctrine of the supremacy of law. Yet his writing is the foundation of our public law and his results have amply justified themselves. It is no fatal objection in practical affairs that the conclusions must sustain the premises. Hence if Anderson and Preston and Dermott cannot be vouched for landmarks, they must be read diligently in order to reach the sources of much of our Masonic common law.
Let us turn now to the other question, what are the uses of Masonic history? One use is to correct tradition, as for example, in the case of the apocryphal long list of royal and noble Grand Masters. Another is to hold philosophy in bounds, as for example, in the case of the controversy which raged once in one of our American Grand Lodges as to the wearing of white gloves, on the theory that gloves were unknown at the time of the building of the temple, or, again, in the rejection of the letter G on philosophical grounds by another of our Grand Lodges. Another use is to test doctrinal (systematic, logical) exposition, as in the case of Mackey's twenty-five landmarks. But this correction by history should not be pressed too far. It should not be used as the basis of rejecting settled Masonic common law, shown by universal practice since the end of the eighteenth century. For example, nothing is better settled than the doctrines of territorial jurisdiction in Craft Masonry and the impropriety of invasion of jurisdiction. If there are no landmarks here, there are settled principles of Masonic conflict of laws which are a part of the universal law of the Craft.
Our second main source of law is tradition. Today this is set forth in the form of doctrinal exposition and Grand-Lodge decision. Much of it is declared by Grand-Lodge legislation. It is of the highest value in fixing the principles of Masonic common law. But elsewhere it is dangerous. It must always be corrected by careful historical consideration of whether the tradition in question is authentic, immemorial and pure.
Our third main source of law is philosophy, that is, deduction from principles found by philosophical study of the ends and purpose of Masonry – for example, deduction from the principle of universality, from the principle of organization of the moral sentiments of mankind, from the principle of furthering human civilization. It may be compared with the metaphysical method in jurisprudence which seeks to deduce all legal rules from or correct them by a fundamental principle of human freedom. Philosophy is chiefly useful as a check on Masonic history. For example, if one were to look only to history, he might make a strong argument that the dinner or banquet following the work on important occasions was a landmark. Certainly as far back as we have accounts of Masonic work we find the brethren sitting about the board in this way. But consideration of the purposes and ends of the order shows us at once that we have here but an incident of ordinary human social intercourse. So in the case of the objection to white gloves above referred to. The Masonic philosopher perceives at once that we have here a traditional symbol and that purely historical considerations cannot be suffered to prevail.
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