Law, Civil, and Masonry
When in 1799, and to be amended and increased in 1800, the Parliament of Great Britain enacted a law to forbid secret societies (and which was a classic example of " legislation of desperation " blindly and hurriedly concocted as a dike against the French revolutionists on the east and the Irish rebels on the west) it would have abolished the Fraternity along with the secret societies had not the Grand Masters of the Modern and the Ancient Grand Lodges, and at the last moment, appeared in person to give Parliament pledges and assurances and to make themselves (members of the nobility) personally responsible for the good behavior of Freemasonry--an impossibly humiliating position for the Fraternity, and an ambiguous position for them. A clause was inserted in the Bill to exclude Freemasonry, but it was so vaguely worded that for some years Grand Lodges chartered no new Lodges.
Thirteen years later when the Moderns and Ancient united it was discovered, as any intelligent man could long before have seen, that in many instances property and funds said to be Masonic are often not wholly so but are a part of, or interlock with, private property and funds, as when the owner of an inn had gone to great expense to remodel a Lodge room, or the income from an endowment was divided; when Modern and Ancient Lodges united the often bitter, and sometimes large, property claims had to be settled in court, and the Craft found itself without rules and laws governing its own possession of funds and property.
When after the Revolution, the clergy of New England followed the lead of the ineffable Rev. Jedediah Morse in an Anti-Masonic crusade, New England Lodges were embarrassed and half-paralyzed, and Masons suffered under a barrage of libelous accusations; it appears that it did not occur to the Masons that they had any rights at law, and as such, nor did their own Craft legislators ever tell them that they had; they suffered in consequence of their ignorance, for if any man state in public, " Freemasons are atheists, corruptionists, conspirators, liars, and devil-worshipers " the statement is made not against a set of abstract theories but against known and identifiable men, and these men can sue for redress even though the charges had not mentioned them by name.
In the Anti-Masonic crusade launched by the Morgan Affair the whole Fraternity, save in only a few cities, notably in Boston, gave up and quit under the mistaken assumption that to submit to destruction was somehow an Ancient Landmark--a dismal contrast to the Operative Masons of the old days who never failed to stand up like men in defense of themselves as against lords, country courts, clergy, employers, or any injustice; and it would never have occurred to the men who for six centuries comprised the Craft and w ho gave us our Landmarks that Masons have no right in courts, no defense in the law, nor could they have entertained the modern notion that civil jurisprudence is a subject outside the provenance and subject-matter of Masonic jurisprudence. Nor if they could have read the books on Masonic jurisprudence by Oliver, Mackey, Morris, Macoy, Lawrence, et al, would they have been able to understand the complete silence of those books about the hundred and one points or salients where Craft law interlocks with the civil law; and they would have said, as publicists and jurisconsults now say, that until Masonic jurisprudence incorporates into itself a complete coverage of Masonry in its relations to the Civil law it is not entitled to call itself a jurisprudence.
It is a Landmark that Lodge members are not to take any quarrels among themselves, and as Masons, to court; also it is a Landmark that a few esoteric matters can be nowhere discussed--though, as courts themselves have stated, this latter fact is of no importance in the eyes of the law since it consists of matters which nowhere are justiciable. Except for two or three reservations of this type anything and everything in Freemasonry comes under the eyes of the civil law, or may come. Many Grand Bodies, or certain Boards or Committees in them, are incorporated; Grand Bodies and Constituent Bodies own property: or they rent it, and hence are responsible for it. They possess funds, own furniture and paraphernalia, and equipment.
Lodge buildings stand on the public street, and receive police and fire protection. It means something to a man to be a Mason, in the reputation of himself and family, in the eyes of the public; if his Lodge is disgraced, if he is expelled, his family suffers from it. Actions taken by local and by Grand Bodies bind every member. Lodges carry on their Order of Business according to parliamentary law; if that law is conformed to, what is done is done by the Lodge as a body. The Lodge becomes responsible; a Master often is legally responsible for his acts; and it is not only the responsibilities of the Master which may involve him in a case in court, but of other officers also, the Secretary, the Treasurer, Trustees, and Building Committees.
At these points, and at many others like them, are obvious and inevitable interlinkings with civil law. But, as the records of them prove, a large number of cases involving Masonry in the courts raise profounder and more philosophic questions. When the War Office of the British Government forbade secret societies in the army and navy did the ruling apply to Military Masonic Lodges? Should British Grand Lodges have gone before Parliament to protect those Lodges? To do so would have meant in the end that a high court would have to decide whether Freemasonry is a secret society in the eyes of the law, or is a voluntary fraternity which, like other societies, keeps its affairs private to itself, and admits members only.
If every Grand Lodge in America were to write into its Constitutions a disclaimer clause, defining itself as a fraternity and not as a secret society, the action would serve as a bulwark against future Anti-Masonic crusades (which inevitably will come). When the case against McBlain Thomson's American Masonic Federation was tried in the Federal Court at Salt Lake City, Utah, in 1922 (see Thomson Masonic Fraud, by Isaac Blair Evans), the Federal Judge had to decide whether regular Grand Lodges are of a de jure or a de facto origin; fortunately, he decided for the latter, but if he had not done so every American Grand Lodge would have been in legal jeopardy, and the case would have gone to the Supreme Court; but when the Masonic lawyers, as they confessed privately, came to prepare their arguments on the point they could find almost no actions, decisions, or instruments on the question in the archives of Grand Lodges! If every Grand Lodge were to write into its Constitution, in the paragraph on its Title, some such statement as, " constituted according to time immemorial practice " the whole Craft would be protected against future risks of that kind; for if Thomson had won his case, if the court had decided that only Grand Lodges are regular which can produce a written charter, not one Grand Lodge in America except New York could have produced anything better than a Grand Master's personal letter of deputation of the Colonial period, and most Grand Lodges could have produced no documents.
When in a friendly suit the Tax Commission of the State of New Mexico summoned the Grand Lodge to show cause for not paying taxes, as the new State Constitution required, the Grand Lodge there and then had to decide whether it was or was not a religious, charitable, or educational organization; it lost the case in the District Court but won it on appeal to the Supreme Court--the weightiest argument in the eyes of the Supreme Court was the fact, apparently of small import, that Masonic law compels a member to pay dues, and compels Lodges to use those dues, at least in part, for charity and relief. If Grand Lodges were to incorporate in their Constitutions a clause defining Masonic Purposes the question as to taxation of Masonic property would be greatly enlightened.
For many years in Europe the burning question has been as to the place of the Craft in the frame-work of general society: Is it carrying on a propaganda? Is it subversive? Is it automatically loyal to the established government? Does it support the established church? Is it a society, a cult, a party, a church, a club? If seventy-five years ago European leaders had busied themselves less about getting counts and lords into their membership, or had composed their petty, unessential differences, and by much labor had learned to understand the whole of Freemasonry, the Craft would not have been a professed casus belli of World War II--Freemasonry could have quietly recovered itself after the war because it would have had a self to recover.
(A basis for this whole study, especially in Europe, is Gierke's great history of Medieval law, though Masonry is not its subject. In Maitland's edition of it [here recommended as the first book of reference for Masonic jurisconsults] a number of classic Masonic cases are discussed in the notes by way of commentary.)
In his short paper entitled Freemasonry and the Civil Courts, Arthur H. Hay has prepared a model for future studies. It is discursive and illustrative rather than analytical, but it makes the main point, and makes it unambiguously: namely, that Masonic jurisprudence must incorporate in itself that side of the Fraternity which comes under the eye of the Civil Law. He shows, among other things, that the meaning of the word " Freemasonry " has been a question at issue in Court; that rights to residence in Masonic Homes have been decided; that Masons must be made such according to the procedure required in the Grand Jurisdiction where the making occurs; Masons accused of Morgan's murder were tried in court; Lodge funds have been often in litigation; a court recognizes as Masonic law whatever system of Masonic jurisprudence a Grand Lodge has been using (embarrassing, where a Grand Lodge has none, for in the eyes of the law a mere digest of decisions, acts, edicts, is not a jurisprudence; Mackey's is oftenness used); courts recognize the existence of Landmarks, but are often hard put to find what they are; a Lodge is not a partnership; an incorporated Masonic body is in the eyes of the law a person; in "most jurisdictions" Masonic property is held to be taxable; a member is not individually liable for a note signed by the Lodge; seceding members lose all rights to a Lodge property; a Master himself cannot bind a Lodge to a contract; Lodge property cannot be distributed among its members; a Master cannot be tried by his Lodge--this is recognized by the civil law; trustees are not personally liable for Lodge debt; Masonic private correspondence is not privileged; civil courts consider a reinstated member as a full member having no loss of privileges; an expelled member cannot recover initiation fees; etc.
It was for many years the accepted opinion that in the "famous Wm. Preston Case" Preston had been an opinionated, stiff-necked, trouble-maker and that it was as a seceder or schismatic (dreadful words among Trans-Atlantic Brethren!) that he set up his small but interesting Grand Lodge of England South of the River Trent. The records of the Antiquity Lodge No. 2 as published by Bros. Rylands and Firebrace now make it clear that the then Grand Secretary, who had a reputation for irascibility, picked a personal quarrel with Preston, was in the wrong, and made use of the Grand Lodge as an engine of persecution--the members of Antiquity, who knew the facts in detail and at firsthand, so understood it because they left almost in a body.
They were expelled; after a decade or so they were reinstated; but while the Lodge and while its members individually were reviewed, tried, and sentenced by the Grand Lodge at no moment were the actions taken by the Grand Lodge itself ever reviewed, though the Grand Lodge had been in the wrong, and a Masonic solution was easier at the time than it was to prove a decade later. It made it appear as if Masons were under the law, whereas a Grand Lodge was above it. Therefrom arises the question: has a Grand Lodge provided clear, practical machinery by which its own acts are subject to review, revision, or rebuke, and if so has it promulgated the fact in order that no Master may be timid about protecting his own Lodge from injustices worked upon it by Grand Officers, or from their neglect? From that in turn arises a more fundamental question still: is a Lodge a constituent, or is it a subordinate?
If the former, anything done in or by the Grand Lodge is subject to a review of peers when the Lodges are assembled in Regular Grand Communication; if the latter, Grand Lodges' actions are in the nature of things not subject to review by the Lodges. This question as between constituent and subordinate has been a point at issue in a large number of Masonic cases in civil courts.
According to The History of the Wigan Grand Lodge, by Eustace B. Beesley (Manchester; 1920), some twelve or more Lodges, mostly in Manchester and Liverpool, set up in 1822 a Grand Lodge of their own which lasted until 1866, because the then Provincial Grand Master refused to function, and for years brought his Provincial Grand Lodge to a dead halt. The merits of the case are irrelevant here but the secession raised a question about the Unwritten Law which more than once has been at issue in civil courts: is the Grand Master, and in his own right, a ruler; or is it the office, the Grand Mastership, which is supreme, any given Grand Master being only its temporary incumbent? It may turn out, after a hundred years of thorough legal thought has clarified the subject, that everywhere there is nothing of final authority but the last law of Freemasonry; and that competency resides anywhere within the Craft to initiate action against any man or office who acts contrary to it, in an individual Mason, in a committee, in a Lodge, in the Grand Lodge.
This would greatly simplify the work of civil courts reviewing Masonic cases, because instead of having to decide according to changing ordinances, or Masonic officers who differ among themselves, or offices which differ from time to time and from state to state, they could decide every case, in its Masonic aspects, in the terms of pure Masonic law. This was Drummond's contention; he asserted that there is such a thing as pure Masonic law; that it is final; and he refused to accept a digest or collection of multitudinous Grand Lodge actions, Grand Master's edicts, and by-laws as a statement of that law. Mackey had the same conception; but Mackey built only one pier of the bridge, and omitted almost the whole question of the civil law from his pages.
In the present posture of affairs clandestinism is the point at which it is most clear that an overhauling of Masonic jurisprudence in order to incorporate in it the Masonic-civil interrelations is least academic, most urgent, most fateful. The classic texts for a study of this question are the records of a hundred or more court cases in the State of Ohio, the aftermath of a plague of Cerneauism which had followed on the demoralization wrought by the Anti- Masonic Crusade, the second most important center of which was at Oberlin, Ohio. If the Grand Lodge had followed the advice of Lodges in Cincinnati it could have seized the rattlesnake firmly behind the head and crushed out the whole evil at one stroke; instead it chose to bury its own head in the sand.
New York was almost equally inactive. Cerneauism was in essence nothing but a scheme to sell the weird formulas which it miff called Scottish Rite Degrees at bargain rates, and to any customer; secondarily, it was a scheme to bring the Three Degrees under the control of its own so called Scots Degrees. At its best it was an ugly, dreary, unrewarding thing which it is now our good fortune to be able to forget.
During the Cerneau plague the legally soporific Grand Lodges most concerned either ignored the evil, or else took refuge in the once orthodox, vague notion that in some undisclosed sense clandestinism is an interior, family question, to be dealt with leniently, and not aired in court. But Cerneauism in Ohio went to court of itself, and did so with no vagueness of purpose; and the records show that the single issue before the courts was one which threatened the very existence of Freemasonry in America, and that issue stands out from the testimony and the decisions plain as a pike-staff, and of a razor sharpness: Is there, and can there be, in the nature of things, one Freemasonry in Ohio, and only one? or can there be many Freemasonries?
If there be many, then Cerneauism has as good a right to call itself Freemasonry as the Grand Lodge of Ohio; if Cerneau can start up a new Freemasonry, so can Jones, so can Smith, so can Brown; there could be fifty Freemasonrys, each legal; and therefore there would be none. If in the nature of things there can be but one, then the Grand Lodge of Ohio is it, and any other society calling itself Masonic is unlawful, and in practice is fraudulent.
It is now almost unanimously believed among the courts that Freemasonry is necessarily and uniquely one; since so, there is and can be but one sovereign Craft authority in any state; the courts therefore condemn clandestine organizers for violation of the civil law. In New York they have sent a succession of them to Sing Sing. Some two-thirds of the Grand Lodges are aware of the existence of this vital, protective law, and act upon it; the others remain soporifically ignorant of it, and continue to believe that clandestinism is "a family affair," and is not for the courts. They do not know that to send clandestine literature through the post-office is to defraud by the use of the mails, is a penitentiary offense; and in consequence Lodges in their smaller towns continue to be embarrassed, or pestered, or challenged by a group of salesmen for regalia and cipher books working under cover of the name "lodge." (For details of such practices see the book by Evanst referred to above.)
Once the pure law of Masonry is disentangled from occasional decisions and changing practices, and its jurisprudence has been enlarged to take in at every point Masonic-civil laws and interrelations, the whole organized Fraternity will have a clearer understanding of itself; but more important still, it will have secured itself against a recurrence of the dangerous Anti- Masonic movements of the Jedidiah Morse, William Morgan, and Cerneau type, and of the more general kinds such as have been in war years so de6tructive of the Craft in Europe. Masonic Jurisprudence will have become something more than a book of rules for the pragmatic decision of occasional questions, and will have become the chief instrument and reliance of Masonic statesmanship in the future when it is going to be compelled to take the whole world into its ken.
Reports, Digests, and Reviews of Masonic cases in civil courts are plentiful among the forty- eight States; so also with legislation, though very few States have adopted statutes or passed bills directed at Freemasonry by name. A few specimens will show over how broad a field the subjects range: In 1919 the Grand Lodge of New Jersey forbade Schiller Lodge, No. 66, to use the German language. Counsel for the Lodge filed a bill in equity in the court of chancery. (No Landmark requires that English shall be used in a Lodge; on the other hand if the use of another language destroys peace and harmony in the Lodge a Grand Lodge may take action on that ground. The Grand Jurisdiction of New York has a large number of "foreign-speaking Lodges," perhaps forty or fifty, in which German, Italian Spanish, French, Swedish, Polish, etc., may be used. The majority of Grand Lodges permit the same.)
In 1921 an Illinois judge upheld a Mason's plea of property rights as against expulsion. The Criminal Code of Illinois provides that insignia of any Lodges may be worn " by the mother, sister, wife or daughter, " etc.
In the test case of Hammer against the State, the Supreme Court of Indiana upheld a law making it a misdemeanor for a non-member to wear insignia. (The "infringement of insignia" in most States rests on same grounds as infringement of patented or trade-marked emblems pictures names devices.)
The State of New York has a Benevolent Orders Law. See also Penal Code of New York, Section 567-b
The State of Massachusetts has a statute against clandestine bodies. (It would be Masonically lawful, and wise, for Masons to seek to have a similar statute in each State.)
The above facts and expositions make it plain that Masonic Jurisprudence can neither in theory nor in practice be independent of the civil law. In scores of instances what is a Masonic law at one end is a civil law at the other. Nor are Masonic Lodges exempt from the civil law. A history of the interactions between the Craft and civil law has never been written, but the materials for it are abundant, and from the very earliest centuries when Freemasons were Operatives in gilds, companies, and lodges. The earliest periods are found in such works as Riley's Liber Albus, Stow's Survey, in the standard histories of Medieval law, the writings of Pennant, and old Gild and Borough records. Gould and Mackey have dealt faithfully with the period in their Histories. For the period from 1717 to the present the materials are inexhaustible and of easy access.
For a reader unable to work through many volumes the subject as a whole is set forth in an excellent epitome in a chapter entitled "The Statutes Relating to Labor" in Records of the Hole Craft and Fellowship of Masons, by Edward Conder, Jr.; Swan Sonnenschein & Co.; London; 1894. A precis of the chapter will show the interconnection between Masonic law and civil law; it also will show how the history of the civil law lights up the history of Freemasonry, recalling the while how often general laws have included Freemasonry in laws covering associations, gilds, etc., without mentioning it by name. The chapter begins at page 62:
1350. After the Black Death in England in 1348 which swept away about one-third of the population the Masons, like other craftsmen, united among themselves to demand better wages. In 1349 Edward III enacted the famous Statute of Laborers to forbid this; and in a statute of 1350 fixed their wages by law, Freemasons to receive not more than 4d per day.
1356. The Mayor and Aldermen of London had the Masons adopt a revised set of rules, agreed to on behalf of the Freemasons by six men (including Henry de Yevele); on behalf of the Layers or Setters, by six other men.
1375. In 1375 the election of civic dignitaries was transferred from the wards to the City Companies. Also, they elected a man to Parliament. There were at the time 48 Companies, they elected 148 members to the Council. The Freemasons elected 2.
1390. Richard II demanded of the Companies that they lay before him their charters, rolls, etc. This was the famous " Writ for Returns "; it has been guessed that the original of the Old Charges may have been written in response to that Writ.
1402. Masons (among others) were not permitted to hire out for the week- only for the day.
1425. Henry VI ordained that " Masons shall not Confederate in Chapters or Congregations." This was to prevent a general strike of builder gilds. This statute proves and contra certain arguments by Gould, that Masons did hold general assemblies. (The Act was repealed in 1562.)
1444. Once again wages were fixed by law. (Those who think of regulation of hours and wages by Government as a modern innovation would be disillusioned by Medieval history.)
1450. The terms of apprenticeship affirmed by law. (In about 1550 a term of seven years for apprenticeship was fixed for the whole of England.)
1463. The Masons Company secured through the city authorities the Priory and Convent of the Holy Church of the Trinity within Oldgate for use as Masons Hall.
1469. A record of the time shows that the Masons Company was required to furnish twenty armed men to " the watch " to stand on duty at the city gates. (They were police.)
1472. The Masons Company received a Grant of Arms. It was among the third or fourth to receive that honor.
1481. The Company received permission to wear its own Livery. (The great emphasis on clothing by the early Speculative Lodges goes back to the customs of Livery--their caps, collars, gauntlets, sashes, aprons, etc.)
1484. A number of members of the Company were impressed (forcibly ordered) to work at Westminster by Richard III. (One of the contractors at Westminster was the famous Mayor Sir Richard Whittington hero of the old story of " Dick Whittington and his cat) 1495. Wages were again fixed by statute
1538 (circa). Henry VIII by law fixed order of precedence among the Companies. The Masons were placed thirty-third.
1558 (circa). Queen Elizabeth revised and rearranged the accumulated Statutes of Laborers.
1563. The Company had held its Hall on a 99 year lease; in 1563 it purchased the property.
1572. The Masons had to join other Companies in furnishing trained soldiers. A record of 1585 showed them supporting 8 men. 1591. The Company contributed 16 toward building a navy for the King.
1602. It was assessed 25 quarters of grain to guard against shortage of food in the City.
1618. The Masons subscribed to the planting of Colonies in north Ireland, or Ulster, under the name of The Irish Society. (These colonists were for the most part Scotch Presbyterians. Shiploads of them later migrated to America and settled in the Appalachians, where they fought the British in the Revolution.)
NOTE: During the " building boom " which swept the United States between 1920 A.D. and 1930 A.D. thousands of Masonic bodies acting by themselves or in an association erected new temples and in most instances did so by borrowing money. The Depression which almost immediately followed sent hundreds of these Temple Associations into whole or complete bankruptcy, and carried more than 200 of them into court. The courts found that many of the financing schemes, though honest had been fearfully and wonderfully made, and that their framers had often failed to draw them in the technical forms required by state laws. It was another instance of the interrelation between Masonic and civil laws.
Yet another instance is found in the matter of Lodge endowments and bequests. Almost every State has a set of laws governing the conditions under which endowments and legacies can be received- it is not uncommon for Masonic Bodies to lose legacies because of their failure to conform to the technical requirements of those laws.
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