MASONIC JURISPRUDENCE
Bro. Roscoe Pound
Dean, Harvard College of Law
3. MASONIC COMMON LAW
Part Two
AS I said in the last lecture, [1] there is much to be said for a Landmark of visitation. On the other hand, four points may be urged against such a Landmark: (1) The serious differences among Masonic writers of authority as to the existence of an absolute right of visitation; (2) The pronouncements of important Grand Lodges to the contrary; (3) The obvious necessity of restraints upon visitation under the conditions of today, which give great force in this connection to what lawyers call the argument ab inconvenienti; (4) The difficulties growing out of legislation in Grand Lodges with respect to membership in clandestine bodies conferring higher degrees and the effect thereof upon one's rights as a Craft Mason.
Let us look at these in order.
(1) While Mackey lays down the right of visitation as a Landmark and says in his Principles of Masonic Law: "Every Master Mason who is an affiliated member of a Lodge has the right to visit any other Lodge as often as he may desire to do so," Doctor Morris lays down the contrary with equal positiveness, saying: "There is no question in our mind but that a Lodge has the right to prohibit intrusion from visitors at any and all times at its own discretion." Likewise Brother Moore, whose excellent papers on the Landmarks have been referred to heretofore says: "The very custom of asking permission to visit implies the power to refuse the visitor admission." He concludes, therefore, that there is a duty of hospitality, but not a right of visitation, that the duty is moral rather than legal, and hence that there is no unchangeable Landmark. In other words, visitation is an old institution of Masonic common law. But, since it falls short of a Landmark, the subject is open to regulation, and the circumstances of today call urgently for the regulation which has sprung up through Masonic legislation.
(2) Masonic decision and legislation have not regarded the right of visitation as a Landmark. Thus, in 1857, the Grand Lodge of England decided that "the Master and Wardens may refuse admission to any visitor of known bad character." According to Mackey's view the sole question would be whether he was in good standing in a regular Lodge. Brother Moore asks why he remains a Mason if he is of known bad character? No doubt a strong presumption arises from his good standing in another Lodge. Still a Lodge may not do its duty and such persons may remain unchallenged. If so, when we are told that another Lodge may refuse to receive them, the result is to deny Mackey's Landmark. In Massachusetts and in Kentucky visitation has been held not to be an absolute right, but to be a favor which the Master may grant or may refuse in his discretion. Michigan also rests the whole matter on discretion, holding that a Lodge may admit or exclude visitors as it sees fit. These holdings are wholly incompatible with the alleged Landmark and amount to a recognition of the proposition for which Brother Moore contends, namely, that there is no more than a moral duty of hospitality.
(3) This view of the so-called right of visitation becomes almost imperative under the conditions of visitation today. With the best of intention toward the honest Masonic traveler, we are compelled today, in view of the enormous increase in the number of Masons, to restrict more and more the hospitality we extend to the visiting brother. Imposters and Masons for revenue only, traveling about the country, have not only required us to adopt elaborate precautions in the way of boards of relief, extending even to an international Masonic relief association, but have also driven our Grand Lodges to enact somewhat strict rules as to visitation. Moreover, nearly everywhere, with the great growth of the Order, clandestine Masonry has grown also. And this growth of clandestine Masonry, rendered inevitable by the prosperity of legitimate American Masonry, has been aggravated by controversies as to the legitimacy of Scottish Rite bodies and by attempts of Masonic charlatans to peddle high degrees of other rites, with which our Grand Lodges in many jurisdictions have felt it necessary to deal by legislation. Thus in one of the great states of the union — a state which took an honorable part in the spreading of Masonry over the country — there is a so-called Grand Lodge made up entirely of clandestine and irregular particular Lodges, having for their sole raison d'être a claim that the legitimate Grand Lodge had violated the ancient Landmarks by declaring the Scottish Rite bodies of Cerneau origin to be clandestine. The propriety of such legislation has been much controverted and is not relevant in the present connection. It is enough to say here that the competency of Grand Lodges to enact it seems indisputable. Nothing with any degree of pretension to be a Landmark is violated and the question is simply one of expediency. Hence such schisms have no legitimate basis. None the less they do exist, and elsewhere clandestine so-called Grand Lodges exist with even less justification. Obviously some barriers beyond the ordinary examination by a committee become necessary under such conditions.
But the Grand Lodge legislation last referred to leads to greater difficulties in that as a result a Mason may be in good standing in one of two jurisdictions, each recognizing the other, and yet, if he were a member in the jurisdiction where he seeks to visit he would not be eligible to sit in Lodge. For example, in Iowa, if a Mason joins a Cerneau Scottish Rite body, the law of his Grand Lodge pronounces him a clandestine Mason. Also in Pennsylvania an adherent of the Cerneau Scottish Rite is not permitted to visit a Craft Lodge. Many other states have like legislation. In view of such legislation, Brother George F. Moore puts this case: "There is, we will say for example, a symbolic Lodge in session in the District of Columbia, where there is no law forbidding a regular Mason to sit with a Cerneau Scottish Rite Mason. Seated in this Lodge are two or three 'Cerneauites' and Brethren are present from Pennsylvania, Ohio, Iowa, and other states which have declared Cerneaus to be clandestine Master Masons. The visiting brethren from Pennsylvania, Ohio, and Iowa are prohibited by the Masonic laws of their own states from sitting in a Lodge with the Cerneaus. They are not aware of the presence of the clandestine Masons in the Washington City Lodge, and sit with them. Afterwards one of the Cerneaus meets one of the Iowa Brethren who had sat with him in the Washington Lodge, and the latter vouches for the Cerneau who is admitted because of this voucher in a Lodge in another state. Has not the vouching brother violated his obligation and the laws of his Grand Lodge?
Clearly the Iowa brother has violated his obligation, and the laws of Masonry in his own state by vouching for a "clandestine Mason."
That such a situation may arise innocently and may very easily arise is unfortunate. It puts the Masonic visitor in a most awkward position, and seems to require him either to be offensively discourteous, or to know thoroughly the Masonic legislation both of his own jurisdiction and of that in which he seeks to visit, or else to abstain from visiting. As Brother Moore justly observes in the paper already quoted from, we can hardly expect the visitor from a state where a Cerneau Scottish Rite Mason is deemed clandestine also in the Craft Lodges, to say publicly, if he visits in a jurisdiction without such legislation: "If there are any Cerneaus present I must not sit here with you because I make myself liable to Masonic laws of my own state." Very likely those who deny the concern of the Craft Lodge with the higher degrees would suggest to him that he inform himself at his peril before he visits. But what becomes of the right of visitation under such circumstances? What shall we say of the Cerneau in good standing as a Master Mason at home who claims by virtue of Mackey's alleged Landmark an absolute right to visit a Craft Lodge in a jurisdiction which pronounces him clandestine?
We have here a question similar to the class of questions now very common in the law of the state to which we give the name of Conflict of Laws. Some explanation is necessary. In most of the cases which come before the courts in Massachusetts, for example, the parties are American citizens residing in Massachusetts and the transaction or occurrence out of which the controversy arises took place in this commonwealth. But an increasing number of cases are coming before tribunals which involve a foreign element. One or both of the parties may be foreign; the transaction or some part of it may have taken place abroad; or one or both of the parties may reside in another state of the union or the transaction may have taken place in another state or with reference to the laws of another state. In such cases the court must ask whether and how far it is to apply the law of the foreign country or of the other state, and the principles by which it answers these questions are said to belong to the subject of Conflict of Laws. When the law was substantially the same in our several states and interstate business was not extensive the subject was of no great importance. Today, however, in view of the great volume of interstate business and of foreign trade, and in view of the increasing divergence in the laws of the several states due to the huge output of legislation and judicial decision in recent years; the subject has become one of great consequence as well as one of much difficulty. A like situation has arisen in Masonry. When Masonic law and custom was simple and alike in all substantial details in each of our states conflict of laws was not an item in Masonic jurisprudence. Today Masons are so numerous and so peripatetic and the law in most of our jurisdictions is becoming so minute, so detailed, and hence often so diverse, that serious questions of what the lawyer would term Conflict of Laws arise continually. Doubtless, so far as the lawyer's theories of Conflict of Laws are grounded on natural reason and not merely upon historical accident, they are available to the Masonic jurist where not in conflict with the Landmarks or with Masonic common law.
In general the lawyer holds that a man's status, opposition before the law, is governed by the law of his home. Yet if his home law puts him in a position unknown to the local law, it may not recognize the status, and even if the local law does recognize the status it does not follow that effect will be given to the legal results which it involves at home. If we may apply this analogy — on the theory that it represents natural reason and formulates human experience of the just way of solving a difficult problem — we may say that in the case put the Mason's standing as a Master Mason is determined by the law of his home jurisdiction, and yet the jurisdiction where he seeks to visit, recognizing this standing, is not bound to give effect to the legal result involved at home, namely, the right to visit. He is in good standing by the law of his home jurisdiction, whose Masonic competency is admitted. But the policy of the local law requires that we refuse to give to that standing all the results which it involves at home. If such a solution is admissible under Masonic law, it is surely expedient, and the practical necessity of some such solution is a strong argument against an absolute right of visitation.
Mackey's fifteenth Landmark is thus stated: "No visitor unknown to the Brethren present or to some one of them as a Mason can enter a Lodge without first passing an examination according to ancient usage." In commenting upon this supposed Landmark he adds that it "refers only to the cases of strangers who are not to be recognized unless after strict trial, due examination, or lawful information." Hence the visitor may be vouched for and the examination may be dispensed with. There is some warrant for the claim of a Landmark here in the pronouncement of the Grand Lodge of England that the Landmarks are contained in the Master Mason's obligation. But after all the requirement of voucher or examination is a necessary consequence of the fundamental principle of secrecy. If we put secrecy as the Landmark, voucher or examination are but common-law or customary modes of giving it effect. It is important to recognize this not only because the practice of American jurisdictions varies, but because the great increase in the number of clandestine organizations in recent times and the ever-growing tribe of imposters render legislation on the subject expedient if not imperative, and it would be unfortunate if we were hampered by a Landmark. As to the first point, it may be enough to say that some jurisdictions take the phrase "lawful information" to mean that he who vouches for another must have sat with the other in a regular Lodge, while in other jurisdictions satisfactory evidence will suffice although the brothers vouching and vouched for have never sat together in Lodge. This divergence is not inconsistent with Mackey's claim of a Landmark. But the continually increasing reliance upon cards, receipts for dues, or diplomas is not unlikely to encroach upon it very materially and emphasizes the desirability of confining the absolute and unalterable requirement to the broad principle of secrecy. Nevertheless, examination or voucher are the established customary practice and, as in other matters of Masonic common law, legislative innovation ought to proceed cautiously and with assurance of sound reason for any change.
Doctor Mackey states his sixteenth Landmark in these words: "No Lodge can interfere in the business of any other Lodge nor give degrees to Brethren who are members of other Lodges." As in so many other cases, Mackey seeks to make a case for this Landmark analytically. "It is," he says, "undoubtedly an ancient Landmark founded on the great principles of courtesy and fraternal kindness which are at the very foundation of our institution." But Landmarks cannot be deduced from general principles in this way. Philosophy and logic may confirm history, but they cannot demonstrate a Landmark in the face of history. The conclusive objection to this supposed Landmark is that it assumes the established system of permanent Lodges with local jurisdiction which dates only from the eighteenth century. The second argument which Mackey brings forward is universal recognition in Masonic legislation. He says: "It has been repeatedly recognized by subsequent statutory enactment of all Grand Lodges." The remarks of Brother Moore in this connection are very pertinent: "It is the 'statutory enactments' which have made the so-called Landmark, and not the Landmark which has produced the statutes." In other words, the legislation of our Grand Lodges on this subject is not declaratory of a Landmark, but Doctor Mackey after studying the legislation was able to deduce a general principle underlying it, which he sought to set up as a Landmark. Together with all other rules that presuppose our modern Lodge system, it can only be a rule of Masonic common law.
We have here, however, a very important and difficult series of questions of Masonic Conflict of Laws. Although courtesy and fraternal spirit obviate many difficulties that might else arise, it is evident that they may not be relied upon entirely. Legislation has dealt with the matter everywhere as between the particular Lodges of the same jurisdiction. But as men move about so frequently and in such large numbers and as the volume and detail of Masonic legislation increases conflict between the legislation or usage of different Grand Lodges becomes inevitable. Such controversies as those which have raged over the question of perpetual jurisdiction illustrate the possibilities involved. There must be some general principles by which we may be governed in the absence of legislation and by which we may be guided in shaping, interpreting, and applying legislation. The nature of the case calls for something more than courtesy and comity, and Mackey's principle of non-interference and of keeping hands off of those who are members of other Lodges while giving us some guidance is not sufficiently definite. No doubt it is dangerous to turn to the law of the land for analogies. If this is done too much an alien element may creep into Masonry which would be undesirable. But the problems of law are often the same, whether we look to the law of the state, the law of the church, or the law of a fraternal order. And, so far as the answers proceed on natural reason and not on history, so far as they are universal and not the results of special circumstance of the society in which they originated, the solutions arrived at in the one society, embodying experience in the attainment of justice in the elimination of waste and conservation of values by means of a rule — these solutions, I say, arrived at in one type of society may well afford valuable suggestions for the law giver in another type. Thus we may well supplement the principle of Masonic common law contained in Mackey's fifteenth Landmark with the further principles of exclusive competence of a sovereign to determine the status or legal position of those subject to its authority, of the independence of legal control from without involved in the very idea of sovereignty, and of recognition of rights duly acquired under the law of other sovereigns as a matter of comity, which human experience has established in connection with the legal regulation of the everyday affairs of life. But we must not be dogmatic. These are but principles by the light of which independent Masonic sovereignties may co-exist, as independent political sovereignties co-exist. Details are subject to legislation in which every jurisdiction ultimately must decide what it deems expedient.
The seventeenth Landmark in Mackey's system is thus stated: "Every Freemason is amenable to the laws and regulations of the Masonic jurisdiction in which he resides, and this although he may not be a member of any Lodge." In other words, it is said to be a Landmark that all Masonic bodies have jurisdiction over all Masons residing within their territorial limits, whether affiliated or unafflliated, and if affiliated, no matter where they hold their Masonic membership. This alleged Landmark, as a Landmark, is open to the conclusive objection that it presupposes a territorial jurisdiction in Lodges, something which did not come into existence till well along in the eighteenth century. Brother Moore goes further and denies that territorial jurisdiction over foreign and unaffiliated Masons is Masonic law at all. He says: "If a Mason in good standing in a Lodge chartered by one of our American Grand Lodges were guilty of a Masonic offense in France made so by the French law, he would not and could not be tried by a Lodge under the Grand Orient of France for the offense. Nor would a member of a Lodge under the Grand Orient of France, who has been guilty of a Masonic offense made so by our law, here be tried in one of our Lodges, and much more so is it the case where unaffiliated Masons are concerned. The status of the Mason is determined not alone by the fact of his having been a Mason and becoming unaffiliated, but also by the relations between the jurisdictions under which he became a Mason, and that where he resides and has committed some Masonic offense. Some years ago nearly all the Grand Lodges in the United States broke off fraternal relations with the Grand Lodge of the State of Washington, because the latter had recognized certain negro Lodges. While that condition existed does anyone for a moment suppose that an unaffiliated Mason made in Washington state but residing in Massachusetts, who had committed a Masonic offense in the latter state, would have been tried for it in a Bay State Lodge?"
Perhaps a follower of Mackey might answer the last question by saying that it might depend on whether, after the severance of relations, the Washington made Mason was recognized as a Mason at all. As the point was that the Washington Masons were communicating Masonically with clandestine Masons, such an answer might well be returned. But in any event Brother Moore's next observation must be conceded: "This alleged Landmark," he says, "illustrates very forcibly the danger of generalizing without noticing all the facts which go to make up the problem."
As a matter of common law, how far is there such a territorial jurisdiction over resident Masons, regardless of where made?
To understand Mackey's position and the position of Brother Moore, who criticizes Mackey and not only rejects the alleged Landmark — which undoubtedly we must do — but also denies that there is any such jurisdiction by virtue of territory at all — to understand the two positions, I say, we must turn to a burning question in jurisprudence generally as to jurisdiction over crimes.
There are four theories of criminal jurisdiction in the modern world. The first is the territorial theory, the theory of the forum delicti commissi, the theory that offenses are punishable and only punishable by the sovereign of the place where the offense is committed, without regard to the allegiance of the offender. This is the theory of Anglo-American law, and it is one to which our law has thus far adhered very obstinately so that it has given rise to some curious cases.
Two examples of the territorial theory of criminal jurisdiction as applied in Anglo-American law may be of interest in the present connection. In one well known case, an American editor in Texas wrote a libellous article concerning a Mexican. Afterward, going into Mexico, where his paper circulated, the editor was taken under process from a Mexican court and required to go before a Court of Conciliation and enter into a settlement with the person he had libelled. Thereafter he again libelled the Mexican in his paper and going once more into Mexico was prosecuted criminally for the libel. The American government insisted upon his release, asserting the principle of English and American law that crimes are only to be prosecuted in the territorial jurisdiction in which they are committed as a principle of universal law. In another well-known case, one person, standing upon the North Carolina side of the line between North Carolina and Tennessee, shot and killed another, who stood in Tennessee. The crime being complete in Tennessee according to the common law could only be prosecuted in that state. There could be no prosecution in North Carolina because the act did not take effect there. On the other hand, as the murderer was never in Tennessee, he could not be regarded as a fugitive from Tennessee justice and therefore could not be taken from North Carolina to Tennessee on extradition. This case shows strikingly the type of difficulties involved in the Anglo-American theory, difficulties which indeed are compelling our several states by legislation to adopt more liberal views of criminal jurisdiction.
The territorial theory grows out of our conception that there must be a trial by a jury of the vicinage where the crime was committed. Historically it is a feudal theory. Obviously, Mackey took it without question that the doctrine he found in our American law books was a principle of universal justice and so erected it as a Landmark.
A second theory is the personal theory, the theory of the forum ligeantiae or theory of the forum of allegiance. According to this theory, the sovereign to which the offender owes political allegiance has jurisdiction to deal with him for offenses done anywhere in the world. This is the Roman theory, and it is held very strongly in the modern world by France. Hence Brother Moore, whose studies in the Scottish Rite have led him to read the French authors, sees this principle of jurisdiction and rightly criticizes Mackey for overlooking it. But I think, with submission, Brother Moore is equally wrong in laying down that there is no territorial jurisdiction over Masonic offenses. The basis of my view that there is such a jurisdiction — not as a Landmark indeed, but as a matter of Masonic common law — will appear from the other two theories of criminal jurisdiction, which I am about to explain.
A third theory is the theory of self-preservation, the theory of the forum laesae civitatis, or theory of the forum of the injured state. According to this theory, if an offense, wherever committed, is an injury to any particular sovereign, if that sovereign can reach the offender, he may deal with him. For example, in a leading case a Frenchman in Switzerland forged German government securities. He then went from Switzerland into Germany. He could not be dealt with by the French on the theory of the forum of allegiance because he was not in France, and could not be dealt with by Switzerland on the theory of the forum where the crime was committed because he was no longer in Switzerland. The German authorities, however, dealt with his case on the theory of the forum of the injured state, and this solution has generally been regarded as proper in Continental Europe. I will speak of possible Masonic applications of this theory in a moment.
Finally there is the theory of cosmopolitan justice, the theory of the forum deprehensionis, or forum of capture, the theory that when an offense has been committed anywhere in the world, by any person, no matter what his allegiance, any sovereign in the world who happens to be able to reach him, may deal with him in order to prevent failure of justice. The Italians insist in this theory. The English and Americans cannot adopt it because of our requirement of jury trial and producing of witnesses in court. Our mode of trial is in the way of proof by deposition. But as no such difficulties are in the way of Masonry, there would seem no reason why territorial jurisdiction should not be admitted, so far as the self-preservation theory or the theory of a cosmopolitan Masonic justice may require. In other words, we may agree with Brother Moore in rejecting Mackey's alleged Landmark of a territorial jurisdiction and yet may claim that there is such a jurisdiction as a matter of Masonic common law, along with the personal jurisdiction for which Brother Moore contends.
Suppose, for example, a Mason made abroad or made in another state whether unaffiliated or retaining his old membership, advertised his Masonic membership generally and thereupon so conducted himself as to bring scandal upon Masonry. Here there is an injury to the local Masonic sovereignty. There is good ground for it to interfere, and the person is before it where he can be reached. Masonic discipline can be given the same publicity which he has given his membership. Are we to say this cannot be done? Again, why should we not hold here to a doctrine of cosmopolitan justice? In such a case the Masonic sovereignty on the spot may be far the best able to try the case and to apply the remedy. Are we to take so narrow a view of Masonic justice as to deny this jurisdiction? It seems to me that, if nothing prevents, the most liberal view is perfectly open in Masonic jurisprudence and hence that Masonic common law admits of both territorial and personal jurisdiction over Masonic offenses. But, mark you, the territorial jurisdiction ought to be over general Masonic offenses, over offenses which injure Masonry generally and hence are either a danger to the local Masonic sovereign or are within a principle of cosmopolitan justice, and not offenses against mere local regulations. As the lawyer would say, they ought to be mala in se — not mala prohibita.
Mackey is generally very sound as to Masonic common law, where his wide experience of what actually obtained in practice, his keen sense of justice, and his sound common sense were safe guides.
But how about Mackey's proposition as to territorial jurisdiction to try for non-affiliation? Brother Moore rejects this idea wholly. His argument is "If non-affiliation is a Masonic offense as is asserted by Mackey, every Mason wherever he may be, is liable to be tried by any Lodge in whose territorial jurisdiction he resides. This would, indeed, be a strange and, it would seem, unbrotherly proceeding. It is quite true that the duty of the Mason to remain a working member may be traced to the ancient Gilds, but to raise to the dignity of a Landmark the proposition that every man once initiated must keep his dues paid and thereby keep up his affiliation wherever he may be on the surface of the earth or if he does not or becomes unaffiliated by dimit, he is guilty of a Masonic offense for which he may be tried like a criminal wherever he may be found, seems quite unmasonic. The unaffiliated Mason, according to that principle, bears on him the mark of Cain and everyone who finds him can slay him! There is nothing to show this is a Landmark, and against such a position is the conclusive argument that the permanent local Lodge is an eighteenth-century institution."
Moreover Mackey's idea that non-affiliation is necessarily, inevitably, and unalterably a Masonic offense is not merely uncharitable, it is very unseemly. While bestirring ourselves to collect dues to meet the expenses of the Lodge, we are apt to forget some things of much more importance than the merely financial side of Masonry. Every organization, no matter how high its purposes, encounters this obstacle to the attainment of its ideals as it becomes prosperous. Unhappily we cannot attain great things spiritually without a certain material foundation. And it is very easy, in our zeal for the former, to forget that the latter is but a means and to make it consciously or subconsciously an end. At the end of the Middle Ages the church, with its wonderful spiritual heritage, very nearly forgot its essential character as something not of this world in the press of temporal interests which were but the byproducts of its true activities. The Reformation was the result. Let us not make the same mistake. For in our proper zeal to punish wilful evasion of the duties of membership in a Lodge, we may easily fall into the grave error of measuring too much by a money standard and may easily commercialize the Fraternity. We may grant that the unaffiliated are not exempt from Masonic discipline to the extent that their conduct, ascribed by the world at large to Masons, may endanger the good report of the Order, and yet we may not be bound to regard non-affiliation in and of itself as an offense. Mackenzie's language on this subject is noteworthy. He says: "That a Mason, by non-affiliation, does not relax his fealty to the Craft at large or exempt him[self] from censure for Masonic offenses from the Grand Lodge whence his certificate has been derived." I think we may well add that the Masonic jurisdiction where he resides may deal with him, at least in case his Masonic offenses committed in that jurisdiction are injurious in their effects to Masonry in that locality. But it is quite a different proposition to lay down that he must absolutely affiliate at all events, and that his failure to keep up the payment of dues so long as he lives is in and of itself to be branded as an offense.
Mackey's eighteenth Landmark has to do with the qualifications of a candidate. Mackey states these qualifications thus: "He must be a free-born man, and of full age; . . . he must not be mutilated, a woman, an idiot, or a slave." This alleged Landmark was considered in part in a former lecture.[2] So far as it requires the candidate to be a man, free, free-born, and of the age of discretion by the law or custom of the place, we may accept it. But the requirement that the candidate be whole or unmutilated is not so clear. There is, indeed, more to be said for Mackey's position than some have perceived. It is not to be denied that primitive society looked upon the man who was not whole very differently from the way in which we now regard him. In civilized society there is a place for him. Serious physical injuries or physical defects will not prevent him from being a useful and a happy member of society. Very likely they may involve little more than inconvenience to the afflicted person. In primitive society the situation was very different. The man who was not physically whole was at least of no use to society and was very likely to be a serious incumbrance. If he was congenitally defective society in self-defense simply put him out of the way. If the defect was acquired later the defective man, if he was able to drag out a miserable existence, very likely had to associate with the women and children through inability to take a man's part in the community. He had no place in the men's house and hence primitive rites and secret societies were not favorably inclined toward him. Thus there was an immemorial prejudice against the physically defective which left traces even in so enlightened an institution as the Roman law and even in so unworldly an institution as the canon law. This immemorial prejudice against the mutilated or defective gains additional support in Masonry from the requirements of the operative art and from logical arguments based on the requirements of our ritual. Immemorial prejudice, growing out of the circumstances of primitive society, the practice of ancient rites, the requirements of the operative art, logical deduction from our ceremonies, and a certain amount of Masonic usage combine to make a formidable case. Most jurisdictions in the United States have accepted or assumed some requirement of wholeness, and our American Grand Lodge proceedings are full of discussions as to just what degree of mutilation will disqualify. Few things have been more debated in Masonic common law. But much as may be said for some such requirement as an ancient custom of the Craft, the practice in England is conclusive that the doctrine as to wholeness is not even universal Masonic common law. So far from admitting or regarding it as a Landmark, the English Masons have never insisted on physical perfection as so many jurisdictions do in America and our American distinctions and discussions are quite unknown to them. At most, therefore, this is but common law, and any jurisdiction which feels disposed to take a liberal view of the subject in the light of the conditions of modern civilized society and of the purposes and ideals of Masonry is clearly entitled so to do.
The remainder of Mackey's list of twenty-five Landmarks were considered in a prior lecture,[3] and require nothing further.
It would be unjust to close this view of the leading principles of Masonic common law without a tribute to Doctor Mackey. It has been necessary to criticize his theories at many points. But this necessity of criticism should not blind us to the permanent value of his work in formulating the main ideas that underlie Masonic law.
Where he erred chiefly was in assuming too rigid a body of fundamental law. But this was a natural error for an American in the nineteenth century. American lawyers of that time believed that an ideal version of our traditional Anglo-American legal system was, as it were, ordained by nature; they believed that the sections of our American bills of rights simply declared universal and eternal principles inherent in the very idea of free government. Hence it was not unnatural for an American Mason of that time to assume that an ideal development of the generally received customs of the Craft in America was the eternal jural order in Freemasonry. We may reject this idea and yet recognize the invaluable service which Mackey performed for us by working out and formulating the leading principles of our customary law.
- "Masonic Common Law — Part I," THE BUILDER, April, 1917, p. 117. ↩
- "The Landmarks," vol. III, p. 211. ↩
- Idem. ↩