The testimony of Masons is to be taken either in lodge or in committee, and under the sanction of their obligations.

The testimony of profanes is always to be taken by a committee, and on oath administered by a competent legal officer--the most convenient way of taking such testimony is by affidavit.

Chapter IV.

Of the Penal Jurisdiction of a Lodge.

The penal jurisdiction of a lodge is that jurisdiction which it is authorized to exercise for the trial of masonic offenses, and the infliction of masonic punishment. It may be considered as either geographical or personal.

The geographical jurisdiction of a lodge extends in every direction, half way to the nearest lodge. Thus, if two lodges be situated at the distance of sixteen miles from each other, then the penal jurisdiction of each will extend for the s.p.a.ce of eight miles in the direction of the other.

The personal jurisdiction of a lodge is that jurisdiction which a lodge may exercise over certain individuals, respective or irrespective of geographical jurisdiction. This jurisdiction is more complicated than the other, and requires a more detailed enumeration of the cla.s.ses over whom it is to be exercised.

1. A lodge exercises penal jurisdiction over all its members, no matter where they may reside. A removal from the geographical jurisdiction will not, in this case, release the individual from personal jurisdiction. The allegiance of a member to his lodge is indefeasible.

2. A lodge exercises penal jurisdiction over all unaffiliated Masons, living within its geographical jurisdiction. An unaffiliated Mason cannot release himself from his responsibilities to the Order. And if, by immoral or disgraceful conduct, he violates the regulations of the Order, or tends to injure its reputation in the estimation of the community, he is amenable to the lodge nearest to his place of residence, whether this residence be temporary or permanent, and may be reprimanded, suspended, or expelled.

This doctrine is founded on the wholesome reason, that as a lodge is the guardian of the purity and safety of the inst.i.tution, within its own jurisdiction, it must, to exercise this guardianship with success, be invested with the power of correcting every evil that occurs within its precincts. And if unaffiliated Masons were exempted from this control, the inst.i.tution might be seriously affected in the eyes of the community, by their bad conduct.

3. The personal jurisdiction of a lodge, for the same good reason, extends over all Masons living in its vicinity. A Master Mason belonging to a distant lodge, but residing within the geographical jurisdiction of another lodge, becomes amenable for his conduct to the latter, as well as to the former lodge. But if his own lodge is within a reasonable distance, courtesy requires that the lodge near which he resides should rather make a complaint to his lodge than itself inst.i.tute proceedings against him.

But the reputation of the Order must not be permitted to be endangered, and a case might occur, in which it would be inexpedient to extend this courtesy, and where the lodge would feel compelled to proceed to the trial and punishment of the offender, without appealing to his lodge. The geographical jurisdiction will, in all cases, legalize the proceedings.

4. But a lodge situated near the confines of a State cannot extend its jurisdiction over Masons residing in a neighboring State, and not being its members, however near they may reside to it: for no lodge can exercise jurisdiction over the members of another Grand Lodge jurisdiction. Its geographical, as well as personal jurisdiction, can extend no further than that of its own Grand Lodge.

5. Lastly, no lodge can exercise penal jurisdiction over its own Master, for he is alone responsible for his conduct to the Grand Lodge. But it may act as his accuser before that body, and impeach him for any offense that he may have committed. Neither can a lodge exercise penal jurisdiction over the Grand Master, although under other circ.u.mstances it might have both geographical and personal jurisdiction over him, from his residence and membership.

Chapter V.

Of Appeals.

Every Mason, who has been tried and convicted by a lodge, has an inalienable right to appeal from that conviction, and from the sentence accompanying it, to the Grand Lodge.

As an appeal always supposes the necessity of a review of the whole case, the lodge is bound to furnish the Grand Lodge with an attested copy of its proceedings on the trial, and such other testimony in its possession as the appellant may deem necessary for his defense.

The Grand Lodge may, upon investigation, confirm the verdict of its subordinate. In this case, the appeal is dismissed, and the sentence goes into immediate operation without any further proceedings on the part of the lodge.

The Grand Lodge may, however, only approve in part, and may reduce the penalty inflicted, as for instance, from expulsion to suspension. In this case, the original sentence of the lodge becomes void, and the milder sentence of the Grand Lodge is to be put in force. The same process would take place, were the Grand Lodge to increase instead of diminishing the amount of punishment, as from suspension to expulsion. For it is competent for the Grand Lodge, on an appeal, to augment, reduce or wholly abrogate the penalty inflicted by its subordinate.

But the Grand Lodge may take no direct action on the penalty inflicted, but may simply refer the case back to the subordinate for a new trial. In this case, the proceedings on the trial will be commenced _de novo_, if the reference has been made on the ground of any informality or illegality in the previous trial. But if the case is referred back, not for a new trial, but for further consideration, on the ground that the punishment was inadequate--either too severe, or not sufficiently so--in this case, it is not necessary to repeat the trial. The discussion on the nature of the penalty to be inflicted should, however, be reviewed, and any new evidence calculated to throw light on the nature of the punishment which is most appropriate, may be received.

Lastly, the Grand Lodge may entirely reverse the decision of its subordinate, and decree a restoration of the appellant to all his rights and privileges, on the ground of his innocence of the charges which had been preferred against him. But, as this action is often highly important in its results, and places the appellant and the lodge in an entirely different relative position, I have deemed its consideration worthy of a distinct chapter.

During the pendency of an appeal, the sentence of the subordinate lodge is held in abeyance, and cannot; be enforced. The appellant in this case remains in the position of a Mason "under charges."

Chapter VI.

Of Restoration.

The penalties of suspension and expulsion are terminated by restoration, which may take place either by the action of the lodge which inflicted them, or by that of the Grand Lodge.

Restoration from definite suspension is terminated without any special action of the lodge, but simply by the termination of the period for which the party was suspended. He then at once reenters into the possession of all the rights, benefits, and functions, from which he had been temporarily suspended.

I have myself no doubt of the correctness of this principle; but, as it has been denied by some writers, although a very large majority of the authorities are in its favor, it may be well, briefly, to discuss its merits.

Let us suppose that on the 1st of January A.B. had been suspended for three months, that is, until the 1st day of April. At the end of the three months, that is to say, on the first of April, A.B. would no longer be a suspended member--for the punishment decreed will have been endured; and as the sentence of the lodge had expressly declared that his suspension was to last until the 1st of April, the said sentence, if it means anything, must mean that the suspension was, on the said 1st of April, to cease and determine. If he were, therefore, to wait until the 1st of May for the action of the lodge, declaring his restoration, he would suffer a punishment of four months" suspension, which was not decreed by his lodge upon his trial, and which would, therefore, be manifestly unjust and illegal.

Again: if the offense which he had committed was, upon his trial, found to be so slight as to demand only a dismissal for one night from the lodge, will it be contended that, on his leaving the lodge-room pursuant to his sentence, he leaves not to return to it on the succeeding communication, unless a vote should permit him? Certainly not. His punishment of dismissal for one night had been executed; and on the succeeding night he reentered into the possession of all his rights. But if he can do so after a dismissal or suspension of one night, why not after one or three, six or twelve months? The time is extended, but the principle remains the same.

But the doctrine, that after the expiration of the term of a definite suspension, an action by the lodge is still necessary to a complete restoration, is capable of producing much mischief and oppression. For, if the lodge not only has a right, but is under the necessity of taking up the case anew, and deciding whether the person who had been suspended for three months, and whose period of suspension has expired, shall now be restored, it follows, that the members of the lodge, in the course of their inquiry, are permitted to come to such conclusion as they may think just and fit; for to say that they, after all their deliberations, are, to vote only in one way, would be too absurd to require any consideration.

They may, therefore, decide that A.B., having undergone the sentence of the lodge, shall be restored, and then of course all would be well, and no more is to be said. But suppose that they decide otherwise, and say that A.B., having undergone the sentence of suspension of three months, _shall not_ be restored, but must remain suspended until further orders. Here, then, a party would have been punished a second time for the same offense, and that, too, after having suffered what, at the time of his conviction, was supposed to be a competent punishment--and without a trial, and without the necessary opportunities of defense, again found guilty, and his comparatively light punishment of suspension for three months changed into a severer one, and of an indefinite period. The annals of the most arbitrary government in the world--the history of the most despotic tyrant that ever lived--could not show an instance of more unprincipled violation of law and justice than this. And yet it may naturally be the result of the doctrine, that in a sentence of definite suspension, the party can be restored only by a vote of the lodge at the expiration of his term of suspension. If the lodge can restore him, it can as well refuse to restore him, and to refuse to restore him would be to inflict a new punishment upon him for an old and atoned-for offense.

On the 1st of January, for instance, A.B., having been put upon his trial, witnesses having been examined, his defense having been heard, was found guilty by his lodge of some offense, the enormity of which, whatever it might be, seemed to require a suspension from Masonry for just three months, neither more nor less. If the lodge had thought the crime still greater, it would, of course, we presume, have decreed a suspension of six, nine, or twelve months. But considering, after a fair, impartial, and competent investigation of the merits of the case (for all this is to be presumed), that the offended law would be satisfied with a suspension of three months, that punishment is decreed. The court is adjourned _sine die_; for it has done all that is required--the prisoner undergoes his sentence with becoming contrition, and the time having expired, the bond having been paid, and the debt satisfied, he is told that he must again undergo the ordeal of another trial, before another court, before he can rea.s.sume what was only taken from him for a definite period; and that it is still doubtful, whether the sentence of the former court may not even now, after its accomplishment, be reversed, and a new and more severe one be inflicted.

The a.n.a.logy of a person who has been sentenced to imprisonment for a certain period, and who, on the expiration of that period, is at once released, has been referred to, as apposite to the case of a definite suspension. Still more appropriately may we refer to the case of a person transported for a term of years, and who cannot return until that term expires, but who is at liberty at once to do so when it has expired.

"Another capital offense against public justice," says Blackstone, "is the returning from transportation, or being seen at large in Great Britain _before the expiration of the term for which the offender was sentenced to be transported." _ Mark these qualifying words: "before the expiration of the term:" they include, from the very force of language, the proposition that it is no offense to return _after_ the expiration of the term. And so changing certain words to meet the change of circ.u.mstances, but leaving the principle unchanged, we may lay down the law in relation to restorations from definite suspensions, as follows:

_It is an offense against the masonic code to claim the privileges of Masonry, or to attempt to visit a lodge after having been suspended, before the expiration of the term for which the offender was suspended_.

Of course, it is no crime to resume these privileges after the term has expired; for surely he must have strange notions of the powers of language, who supposes that suspension for three months, and no more, does not mean, that when the three months are over the suspension ceases. And, if the suspension ceases, the person is no longer suspended; and, if no longer suspended he is in good standing, and requires no further action to restore him to good moral and masonic health.

But it is said that, although originally only suspended for three months, at the expiration of that period, his conduct might continue to be such as to render his restoration a cause of public reproach. What is to be done in such a case? It seems strange that the question should be asked. The remedy is only too apparent. Let new charges be preferred, and let a new trial take place for his derelictions of duty during the term of his suspension. Then, the lodge may again suspend him for a still longer period, or altogether expel him, if it finds him deserving such punishment. But in the name of justice, law, and common sense, do not insiduously and unmanfully continue a sentence for one and a former offense, as a punishment for another and a later one, and that, too, without the due forms of trial.

Let us, in this case, go again for an a.n.a.logy to the laws of the land.

Suppose an offender had been sentenced to an imprisonment of six months for a larceny, and that while in prison he had committed some new crime.

When the six months of his sentence had expired, would the Sheriff feel justified, or even the Judge who had sentenced him, in saying: "I will not release you; you have guilty of another offense during your incarceration, and therefore, I shall keep you confined six months longer?" Certainly not. The Sheriff or the Judge who should do so high-handed a measure, would soon find himself made responsible for the violation of private rights. But the course to be pursued would be, to arrest him for the new offense, give him a fair trial, and, if convicted again, imprison or otherwise punish him, according to his new sentence, or, if acquitted, discharge him.

The same course should be pursued with a Mason whose conduct during the period of his suspension has been liable to reproach or suspicion. Masons have rights as well as citizens--every one is to be considered innocent until he is proved guilty--and no one should suffer punishment, even of the lightest kind, except after an impartial trial by his peers.

But the case of an indefinite suspension is different. Here no particular time has been appointed for the termination of the punishment. It may be continued during life, unless the court which has p.r.o.nounced it think proper to give a determinate period to what was before indeterminate, and to declare that on such a day the suspension shall cease, and the offender be restored. In a case of this kind, action on the part of the lodge is necessary to effect a restoration.

Such a sentence being intended to last indefinitely--that is to say, during the pleasure of the lodge--may, I conceive, be reversed at any legal time, and the individual restored by a mere majority vote the of lodge. Some authorities think a vote of two-thirds necessary; but I see no reason why a lodge may not, in this as in other cases, reverse its decision by a vote of a simple majority. The Ancient Const.i.tutions are completely silent on this and all its kindred points; and, therefore, where a Grand Lodge has made no local regulation on the subject, we must be guided by the principles of reason and a.n.a.logy, both of which direct us to the conclusion that a lodge may express its will, in matters unregulated by the Const.i.tutions, through the vote of a majority.

But the restoration of an expelled Mason requires a different action. By expulsion, as I have already said, all connection with the Order is completely severed. The individual expelled ceases to be a Mason, so far as respects the exercise of any masonic rights or privileges. His restoration to the Order is, therefore, equivalent to the admission of a profane. Having ceased on his expulsion to be a member of the lodge which had expelled him, his restoration would be the admission of a new member.

The expelled Mason and the uninitiated candidate are to be placed on the same footing--both are equally unconnected with the inst.i.tution--the one having never been in it, and the other having been completely discharged from it.