Bro. Roscoe Pound

Dean, Harvard College of Law


Part One

IN England, the common law, using the term to mean the traditional element of the legal system, is the customary course of decision in the English courts from the thirteenth century to the present, as developed and applied to the conditions of the present by jurists and judges in the nineteenth century. In America, the common law, using the term in the same sense, has four chief constituents: (1) the course of decision in the English courts prior to colonization, or at least prior to the Revolution, so far as applicable to the social, political, economic, and physical conditions in America; (2) the course of decision in American courts since the Revolution; (3) the course of decision in England and other countries with England legal institutions since the Revolution; and (4) international law, or the body of rules governing the relations of individuals with foreign states and citizens of one state with those of other states which has been received by general agreement of the community of nations in modern times. Thus it will be seen there are two types of rules which go to make up the common law of the lawyer — universal principles, upon which English and American courts alike have proceeded since the Revolution, and local American usages, of a general and permanent nature, which have developed in this country since our independence.

In the same way we may recognize two types of usages in our Masonic common law: on the one hand a universal body of usage, developed in eighteenth-century Masonry after the revival of 1717, and on the other hand a general body of usage developed in the United States, chiefly in the nineteenth century, through decisions of Grand Masters and the review thereof in Grand Lodges, in which the former is developed and applied. In this lecture I shall speak only of the former.

Masonic common law, in the stricter sense, I take to be the body of tradition and doctrine, developed in eighteenth-century Masonry, which is of such long standing, is so universal and is so well attested, that, although it lacks the absolute authority of the Landmarks, it stands at the foundation of our Masonic legal system. It is to be used to interpret and supply gaps in Masonic legislation and it is never lightly to be set aside. Our fathers used to say that statutes in derogation of the common law were to be strictly construed. Whether or not this is true in the everyday law of the state it may well be true in Masonry where these settled customs have entered into the very structure of the Order. The foundation of all study of Masonic common law is in Mackey's exposition of the Landmarks. We may grant that not more than one-third of his twenty-five Landmarks are to be accepted as such. Nevertheless he succeeded wonderfully in putting his finger on the significant points in generally accepted Masonic usage. Everything that has been done since has been done in the light of his exposition and on more than one point he said all that was to be said. Hence the most effective mode of treating Masonic common law is to take up his list of Landmarks seriatim and expound those which seem to be rather doctrines or institutions of our common law as such, showing that they are not to be classed as Landmarks.

Dr. Mackey puts as the first Landmark the modes of recognition. These, he says, are the most legitimate and unquestioned of the Landmarks. To use his own words, "They admit of no variation; and if ever they have suffered alteration or addition, the evil of such a violation of the ancient law has always made itself subsequently manifest." Indeed at first sight, nothing might seem more fundamental, and yet Masonic history gives us pause.

For one thing, there is Preston's version of the causes of the great schism in Masonry in the eighteenth century. Even if we do not accept this — and I take it Gould has shown that we should not — it is highly significant as to the development of the important Masonic institution in question.

Preston's narrative is that in consequence of the expose of Masonry in Prichard's Masonry Dissected, a change was made in the mode of communication of the degrees, so that the words of the Entered Apprentice and Fellowcraft degrees were exchanged. This change, he gives us to understand, took place in 1739. But there is pretty conclusive evidence that the order of the Moderns, which Preston tells us, represents a change made in 1739, was the order which obtained in 1737 and the assertion that there was a change, made by Dermott and by Preston a generation later, seems traceable to two sources: (1) The change from two parts to three degrees definitely established in 1738, which was the cause of much discontent at the time and was one of the causes of a revolt from the Grand Lodge of England in 1739; and (2) a statement of a spurious ritual of 1766, one of a crop of spurious rituals and exposes of which the decade 1760 to 1770 was prolific, that such a change was made in consequence of Prichard's Masonry Dissected. What the author knew was that Prichard's order and that of the Grand Lodge of England were not the same. Of course Prichard could not be wrong! That Prichard's book had a considerable influence on Masonic ritual is a significant as well as a curious fact, showing how fluid the Masonry of the period really was. The conclusion that the order of 1737 was what it remained till the union with the ancients in 1813 might at first seem to sustain Mackey's view. But how can we adhere to it when we find that the prevailing order today is not that of 1737 and that two distinct systems of recognition prevailed in England from 1747 to 1813?

Again, we are taught not to be dogmatic when we note that a distinct substitute word has prevailed in many parts of the world and may possibly go back to Jacobite Masons in the first quarter of the eighteenth century. Even if we do not accept the view that "macbenac" is mac benach (blessed is the son) and is an allusion to the Pretender, the prevalence of this distinct word puts a heavy burden of proof upon those who would assert the immemoriality and universality of our present modes of recognition. If we suppose it to be a corruption, analogous to "Peter Gower" and "Naymus Graecus," when we put our substitute word of four syllables (pronounced as three) beside "macbenac" and the mysterious "maughbin" of operative manuscripts, we may well wonder whether we have anything more than a clever working into Hebrew of a corrupt word hopelessly lost or an eighteenth-century endeavor to make a word worthy of the occasion. At any rate, such reflections compel modesty in laying down Landmarks. Perhaps the card or receipt for dues now required of the visitor in more than one jurisdiction is not so counter to fundamental principles as has been asserted.

Yet one cannot doubt that the established modes of recognition are upon a much firmer basis than the ephemeral creatures of Grand-Lodge legislation and Grand-Lodge decision. As far as anything can be established short of the Landmarks these are established. They are a part of our common law and deserve to be cherished as such.

Dr. Mackey's second Landmark is the division of Craft Masonry into three degrees. Here he has support in the English pronouncement of 1813 "that ancient Craft Masonry consisted of the three degrees of Entered Apprentice, Fellowcraft, and Master Mason, including the Holy Royal Arch." But, he adds, "that disruption has never been healed, and the Landmark, although acknowledged in its integrity by all, still continues to be violated." A Landmark universally violated since 1813 may indeed excite our suspicion. And here again history compels us to take a different stand. For whether 1717 was a revival or a beginning in Craft Masonry, there can be no doubt that the middle of the eighteenth century did not preserve our high degrees — it created them. The first known reference to the Royal Arch is in 1741. In that year the records of a Lodge (No. 21) set forth that in a procession the Master was "preceded by the Royal Arch carried by two excellent Masons." In 1744 Dassigny, an Irish Mason, tells us that there was an assembly of Royal Arch Masons at York, that the degree had been brought from York to Dublin, and that it had been practised in London "some small space before." He also tells us that the Royal Arch Assembly at York was "an organized body of men who have passed the chair." The evidence seems clear that this was the first additional or high degree. On the whole we may be pretty sure it was worked in England at least from 1740 and Gould thinks it has its origin in the alteration of the Master's creed in the constitutions of 1723. The Past Master's degree does not appear till the Grand Lodge of the so-called Ancients in 1751, and this was not admitted by the regular or so-called Modern Grand Lodge till 1810. But gradually, as the thirst for high degrees grew, probably influenced not a little by the growth of elaborate "systems" of high degrees on the Continent, a practice arose of conferring the Royal Arch upon Masons not qualified to receive it by a fictitious or constructive passing them through the chair, and thus a Past Master's degree arose and in effect a new rite. For this a new ceremony was evolved which, it is shown clearly enough, has no relation to the simple communication of secrets known to Payne, Desaguliers, and Anderson. This rite or these degrees were worked in the Craft Lodges, and during the schism both the Modern and the Ancient Grand Lodges came to permit them indifferently. Thus at the union it was possible to recognize the Royal Arch as a component part of ancient Freemasonry. By this time, however, it had achieved an independent existence. One might say, of course, that this is but the tale of the disruption of which Mackey speaks. But there is clear testimony to the contrary. In 1757, Manningham, Deputy Grand Master of the Grand Lodge of England (Modern), in a letter on the subject of the high degrees, said: "These innovations are of very late years, and I believe the Brethren will find a difficulty to produce a Mason acquainted with any such forms twenty, nay ten years ago. My own father has been a Mason these fifty years and has been at Lodges in Holland, France and England. He knows none of these ceremonies. Grand Master Payne, who succeeded Sir Christopher Wren, is a stranger to them, as is also an old Brother of ninety I conversed with lately. This Brother assures me he was made a Mason in his youth and has constantly frequented Lodges till rendered incapable by advanced age, and never heard or knew of any other ceremonies or words than those used in general amongst us." This is not conclusive. But it is very suggestive that the Royal Arch was attributed by Ireland to distant York, and yet has no warrant in York records till 1761. A priori, one must feel the true word is an essential part of Masonry; that it is, as Dermott put it, "The root, heart, and marrow of Masonry." Yet in the face of history this is no warrant for pronouncing it a Landmark that communication of the true word is a part of Craft Masonry. On the contrary it is notorious Masonic common law that this is a matter for rites that build on Craft Masonry and vary infinitely in the details.

So also with the division into three degrees. I discussed the evidence upon this point in a lecture last year upon the causes of divergence in ritual [1]. Perhaps it is enough to say that there seems indubitable proof that originally there were two "parts" and that our present system of working the two parts in three degrees arose in some way between 1723 and 1728 and was not accepted universally for many years after the latter date. And yet nothing in Masonry short of a Landmark could be better established. If the system of three degrees cannot claim the immemorial existence that characterizes a Landmark, it can claim to be of such long standing, to be so universal, and to be so well attested — in that it is the common element in every rite that has ever been devised — as to be a fundamental institution of Masonic common law.

The third Landmark in Mackey's exposition, namely, the legend of the third degree, was considered in the last lecture. [2]

Next Mackey puts, as his fourth Landmark, to use his own words, "The government of the fraternity by a presiding officer, called a Grand Master, who is elected from the body of the Craft." Here again history gives us pause. Tradition does indeed tell us of Grand Masters prior to 1717 and Anderson, in 1738, gave us a long and palpably apocryphal list. As to Sir Christopher Wren, whom Anderson has taught us to consider the last Grand Master prior to the so-called revival, there is at least much doubt whether he was a Mason at all. And there is every reason to hold that there were no Grand Masters prior to the election of Sayer on St. John the Baptist's day, 1717. It might be said that the name is not important if it may be shown that some such officer, elected from the body of the Craft, has existed from time immemorial. But this cannot be shown and evidently is not true.

We have abundant evidence as to speculative Lodges in England at least as far back as 1646, and have good reason to believe that speculative Masonry was widely diffused in seventeenth-century England and that persons of the first rank were joining eagerly. Had there been such an institution as a Grand Mastership with the dignity and authority which it involves, it could not possibly have left no trace in the voluminous writings and loquacious diaries of the time. Moreover, we have actual written minutes of the Masons at York from 1712 and minutes from 1705 were once extant and are authentically established. These show that there was no Grand Lodge and no Grand Master at York till 1725. Prior to that time there was an annual assembly of Masons presided over by a "President" for the time being. But this President was a mere chairman of what was really a sort of convention. In 1778 when a claim of priority was made for the Grand Lodge at York, these presidents were made into Grand Masters. But the contemporary records show they were nothing of the sort and that the Grand Lodge organization at York in 1725 was fashioned upon the model of the London Grand Lodge of 1717. Likewise in Scotland we have abundance of evidence, including Lodge records, covering the whole of the seventeenth century. Nowhere is anything disclosed at all like a Grand Mastership, unless it be the appointment by the crown of a "Warden-General" for the Masons at the end of the sixteenth century. This obviously proves too much.

It must be concluded, therefore, that the institution of the Grand Master is no Landmark. Yet here also is an undoubted and fundamental institution of Masonic common law. From the revival in 1717 to the present the Grand Mastership has been the cornerstone of Masonic organization. It has established itself as a universal institution and is as thoroughly a part of Masonry as anything short of a Landmark may be. Hence one must needs feel some pain in reading in the proceedings of American Grand Lodges that "the office of Grand Master is a constitutional office" — meaning that it is derived from, gets its powers by virtue of, and has its prerogatives determined by Masonic legislation. One may suspect, indeed, that those who so speak confound the "constitution" of an American state and the "constitutions" of Freemasonry. The latter, let us ever bear in mind, are but statutes. So far as we have a "constitution" in the sense of American public law, it is to be found in the Landmarks. The Grand Master is not the creature of Masonic legislation. To that extent Mackey was absolutely right. If his office and his prerogatives are not Landmarks, then we may grant that Masonic legislation in any jurisdiction may impair the office and shear it of its time honored prerogatives. In the same way the ruthless hand of the legislator may, as a mere display of power, alter any of our established usages short of a handful of Landmarks. But unless and until this is clearly and expressly done, the common law of Masonry prevails. Surely the mouth of the Masonic legislator is speaking great things when he tells us that we are to look to the pages of his codes to tell us the full measure of the powers and prerogatives of the Grand Master, who is older than legislation. For the Grand Master dates from 1717, while the first Masonic legislation — itself only declaratory — is the compilation of General Regulations by Grand Master Payne in 1720, approved by the Grand Lodge of England in 1721. Legislation may alter and take away, but is not the source and will not be until ignorance or innovation go so far as to lead some jurisdiction to set up a "constitution" in the sense of American public law in the place of the "constitutions" (as a body of legislation) which alone are known to Masonic law.

Mackey's fifth, sixth, seventh and eighth Landmarks have to do with prerogatives of the Grand Master and hence cannot be admitted to be Landmarks for the reasons above set forth. If the office of Grand Master did not exist in form or in substance prior to 1717 it is obvious that the prerogatives of that office cannot be of immemorial antiquity. Some of these prerogatives, however, are undoubted common law. Thus Mackey's fifth Landmark reads: "The prerogative of the Grand Master to preside over every assembly of the Craft, wheresoever and whensoever held." As he is Grand Master only within his jurisdiction, this means that he may assume the chair at any and every communication not only of the Grand Lodge but of any subordinate or constituent Lodge. This is certainly Masonic common law and is not a power derived from legislation, although constitutions may have declared it. Until constitutions add or subtract something we may not concede that they are sources. When they merely declare we may look to the universal practice of Masons since the eighteenth century and to the established customs of the Craft since the Grand Lodge system became established as the real sources of Masonic law.

The sixth and seventh Landmarks in Mackey's system have to do with the prerogative of the Grand Master to grant dispensations for conferring degrees at irregular times and for opening and holding Lodges. Here again we have undoubted institutions of Masonic common law. For we have here an idea perfectly familiar to the formative period of Masonic Institutions however alien to the political and legal ideas of today. The dispensing power was part of the royal prerogative in England down to 1688 and a dispensing power for special occasions upon special reasons was regarded — and perhaps must to some extent be regarded always — as inherent in all magisterial office. Adaptation and application of general rules to actual cases which are sometimes particular rather than general in their significant characteristics is the essence of administration.

As laws are general rules the process of making them involves elimination of elements of particular controversies which are special to those controversies. In eliminating immaterial factors to reach a general rule, in view of the infinite variety of controversies and the almost imperceptible differences of degree in their approximation to recognized types, it is not possible entirely to avoid the elimination of factors which will be more or less material in some particular controversy. To take account of all these variations an over-wide discretion in the magistrate would be required. On the other hand, if exceptions and qualifications and provisos are appended to legal rules to any great extent the system of law becomes cumbrous and unworkable. A compromise must be made; a middle course must be found between over-wide discretion and over-minute law making. Necessarily, therefore, legal standards are more or less artificial. In the law of the state we meet this difficulty by discretion of judges and magistrates by the pardoning power of the supreme executive, by a certain extra-legal power of juries to run away with the law in bringing in a general verdict. All these are but phases of a dispensing power that is inevitable if lifeless rules are to be made to govern creatures of flesh and blood. Hence the equitable powers of the Roman praetor, the interference of the Roman emperor in cases of shocking breach of confidence that led to the law of testamentary trusts, the power of the Frankish king to decide secundum aequitatem, the power of the Anglo-Saxon king to mitigate the law, the power of the king's chancellor to deal with particular cases of great hardship in accordance with equity and good conscience. Hence we commit the regulation of public utilities today to administrative commissions rather than to courts. Hence the ecclesiastical law recognized a dispensing power in the pope and to less extent in the bishops. Thus the dispensing power of the Grand Master is inherent in his office. It has its origin in the nature of things and is but recognized and declared by Masonic legislation where such legislation purports to confer it.

More serious question arises with respect to the eighth of Mackey's list, namely, the alleged prerogative of the Grand Master to make Masons at sight. This has been the subject of much debate and clearly is not a general institution of Masonic common law. Brother Hughan, indeed, styled it an "American pretension." But much misapprehension has prevailed in the discussion of the subject. Some tell us that the power has not existed "since 1717," apparently reasoning that it is incompatible with the Lodge and Grand-Lodge system that has prevailed since that date. On the other hand we are told that it is a Landmark which has been suffered to fall into disuse by some while others have vindicated it in its integrity. Neither position can be maintained. When we are dealing with a question of Masonic common law our only criterion is long-standing, general, well attested usage. And authorities and jurisdictions will necessarily differ as to the application of this criterion and will reach different results, exactly as the courts of our states differ as to what are principles of common law under which we live and reach different results so frequently that, with a common foundation in each, the details of the traditional law differ in all our states. Certainly one may say with confidence that the power in question is not a general much less a universal institution of Masonic common law. But if it is recognized and obtains anywhere by custom or declaratory legislation, there is no reason why Masonic jurists elsewhere should hurl argumentative thunderbolts at the authorities of that jurisdiction. The nine American Grand Lodges that accept Mackey's twenty-five Landmarks in their entirety are at least entitled to claim that with them this prerogative is Masonic common law and rests in their law on a higher basis than such purely legislative rules as those which in some American jurisdictions preclude those who follow certain occupations from becoming Masons. For a logical argument may be made for the power as an incident of the common-law prerogative of the Grand Master to dispense with the law for grave reasons or on important occasions and it is at least disputable whether some such power was not exercised by eighteenth-century Grand Masters.

Mackey's ninth Landmark is thus stated: "The necessity of Masons to congregate into Lodges." He adds:

"It is not to be understood by this that any ancient Landmark has decreed that permanent organization of subordinate Lodges which constitutes one of the features of the Masonic system as it now prevails. But the Landmarks of the order always prescribe that Masons should from time to time congregate together for the purpose of either operative or speculative labor and that these congregations should be called Lodges. Formerly these were extemporary meetings called together for special purposes and then dissolved, the Brethren departing to meet again at other times and other places according to the necessity of circumstances. But warrants of constitution, by-laws, permanent officers, and annual arrears are modern innovations entirely outside the Landmarks and dependent entirely on the special enactment of a comparatively recent period."

The comment of Brother George F. Moore in this connection is very pertinent. He says: "This amounts to saying that a society of men must be a society — that an association of men must associate, that a fraternity of men must fraternize. A common definition of a Freemason is 'one of a secret association composed of persons united for social enjoyment and mutual assistance.' But it is not so clear that the meeting of Freemasons were to be called 'Lodges' nor is there any evidence of a Landmark prescribing the use of the word 'Lodge'."

We must remember that the Lodges of seventeenth-century England were often mere occasional assemblies of Masons and indeed were called "assemblies" at York. Often any number of Masons who find themselves in a convenient place at a convenient time are seen holding a Lodge. As a Landmark, therefore, this must fail. Yet nothing is more undoubted in Masonic common law than the system of regular and permanent Lodges that grew up in England after 1691, became an established part of the Grand Lodge system of 1717, and obtained universal authority in the Masonic world.

Mackey states his tenth Landmark thus:

"The government of the Craft when so congregated [i. e. in a Lodge] by a Master and two Wardens is also a Landmark. A congregation of Masons meeting together under any other government, as that for instance of a president and vice-president, or a chairman and subchairman, would not be recognized as a Lodge. The presence of a Master and two Wardens is as essential to a valid organization of a Lodge as a warrant of constitution is at the present day. The names, of course, vary in different languages; but the officers, their number, prerogatives and duties are everywhere identical."

A few points are noteworthy in connection with the organization of a Masonic Lodge: (1) the organization with a Master and two Wardens is analogous to that of a parish in England, with the rector and two wardens. (2) It is the same as that of the Craft gilds in England, where there was a Master or governor (or some such title) and two wardens. (3) We know the title Master was not always used. In York the chief officer was called President. In Scotland he was called Warden. But this is not decisive and is no proof that there were not three officers. (4) The Master and Wardens were recognized and their duties defined in the old ordinances of the Steinmetzen of the fifteenth century. (5) The relation of the number three to the numerical symbolism so universal in Masonry suggests strongly the antiquity of the Master and Wardens.

On the whole this tenth of Mackey's Landmarks comes very near to fulfilling the requirements. In a former article [3] I indicated my reasons for not so recognizing it. But Brother Moore accepts it as a Landmark. At any rate its place as an unquestioned institution of our common law is secure.

We come next to Mackey's eleventh Landmark. His language is:

"The necessity that every Lodge when congregated should be duly tiled is an important Landmark of the institution which is never neglected. The necessity of this law arises from the esoteric character of Masonry. The duty of guarding the door and keeping off cowans and eavesdroppers is an ancient one which constitutes, therefore, a Landmark."

I suppose if there is such a thing as a Landmark, we should have to agree that secrecy is a Landmark. But notice that Mackey claims not only secrecy as a Landmark, but also the mode of maintaining secrecy by purgation of the Lodge and by tiling. Notice also the way he proves this, not historically, but logically or analytically. This is a good example of the analytical method in Masonic jurisprudence. Mackey's argument may be put thus: Masonry is a secret institution in its very nature. Hence secrecy is an unalterable fundamental. But the traditional incidents of secrecy, which are necessary to the maintenance of this fundamental institution of secrecy, are logically inseparable from secrecy and therefore they also are Landmarks. Consequently in his Encyclopedia, under the word "tiler," Mackey says that the name tiler and the office itself are based "not on any conventional regulation, but on the Landmarks of the Order." In other words, not only secrecy, but the tiling of the Lodge and the tiler, as a means of maintaining secrecy, are Landmarks.

Undoubtedly we must agree that secrecy is a Landmark. We do not need analysis or logic for this. It is an immemorial, universal characteristic not merely of Masonry, but of all the like societies which, as I told you in another connection, have existed among all men in all times. But how far are the means of preserving secrecy Landmarks? How far are they fundamental and immutable, and how far are they but Masonic common law? This is not so easy to answer. For myself, I should say they are not a Landmark. One might say that where there is nothing against tradition in such a case we should accept it. And here we have, so far as there is evidence, the evidence of universal and immemorial usage. So one might say that the tiling of the Lodge and the doorkeeper, sentinel, outside guard, or tiler are Landmarks. But this is only saying that secrecy is a Landmark. As to the name "tiler" — we cannot be sure. It is hard to say what the word means. Some think it means one who lays tiles and is symbolical of the building roofed or completed. And in justification of this we are cited to the old practice that when a clandestine or a cowan got into the lodge a brother called out — "It rains" — signifying that the roof leaked for want of proper tiling. This is ingenious, and may be so. Others derive tiler from "tailleur," stone-cutter. This is philologically erroneous. There is some philological evidence that it may mean only guard. If so, the whole is clear. The symbolism of the roofed building is not well enough established to make it safe to rely on this for a Landmark. Probably recognition of secrecy and of purgation and tiling as a Landmark is as far as we can go. Brother Moore accepts Mackey's view entirely.

Mackey states his twelfth Landmark thus:

"The right of every Mason to be represented in all general meetings of the Craft and to instruct his representatives is a [twelfth] Landmark. Formerly these general meetings, which were usually held once a year, were called General Assemblies, and all the fraternity, even to the youngest Entered Apprentice, were entitled to be present. Now they are called Grand Lodges and only the Masters and Wardens of the subordinate Lodges are summoned. But this is simply as the representatives of their members. Originally each member represented himself; now he is represented by his officers."

This is certainly Masonic common law, but I am confident it cannot be maintained as a Landmark.

(1) In the first place it contains a refutation in itself. If prior to 1717 all Masons had a right to attend, what warrant was there in that year for changing a right of personal attendance into a right to attend by representatives? This shows that we are hardly dealing here with a Landmark.

(2) As I showed in other lectures, the existence of these general assemblies prior to 1717 is involved in great doubt historically. I think there is evidence of such assemblies in the seventeenth century. But I do not believe there is evidence of regular assemblies, much less of a system of periodical assemblies prior to 1717. To dispose of the matter in a few words, Masonic history is against this alleged Landmark, and Mackey's argument for it as a Landmark is in conflict with his assertion. But as a bit of Masonic common law, it is undoubted.

In passing it should be noted that here, as in so many cases of Masonic common law, we have a purely English idea. Representation of every Englishman in Parliament through the knights of the shire and the burgesses is the obvious analogy. Indeed Mackey's very language is taken from Blackstone. A very large part of Masonic common law is English. But when we have an idea so peculiarly English we may well pause and ask ourselves whether we are sure that we have a Landmark.

Two matters of some practical importance are involved in the question as to the existence of this supposed twelfth Landmark. One is the question, once much mooted, of the right of the Entered Apprentice to ballot for candidates for the Entered Apprentice degree. This was the subject of a characteristically learned report by Albert Pike in 1854. As is well known, the question has been settled in the negative. The other point is one still controverted in many jurisdictions, namely, whether a Lodge of Master Masons is opened on the Entered Apprentice degree or a Lodge of Entered Apprentices is opened. This is really, it is submitted, but a matter of local law. One may think that the local law should be this or that on general principles of Masonic common law. But it cannot be that any Landmark is violated by a jurisdiction which takes the one view or the other.

Mackey states his thirteenth Landmark thus:

"The right of every Mason to appeal from the decision of his Brethren in Lodge convened to the Grand Lodge or General Assembly of Masons is a Landmark highly essential to the preservation of justice and the prevention of oppression. A few modern Grand Lodges, in adopting a regulation that the decision of subordinate Lodges in cases of expulsion cannot be wholly set aside upon appeal, have violated this unquestioned Landmark as well as the principles of just government."

Notice how Mackey proves this Landmark. He says the right of appeal is essential to justice: therefore it is a Landmark. It is a fundamental notion in justice that there shall be a review of a decision; therefore it is fundamental in Masonic justice. But unappealable decisions are known to all legal systems. For example: Criminal appeals were not allowed in England till a few years ago; judgments and decrees for less than $5,000 in our federal courts were not appealable prior to 1891; petty judgments are unappealable in many states, and judgments were not appealable in Roman law prior to the empire. Hence it is by no means clear that Mackey's premises are maintainable. Moreover, as he admits, the practice has not been universal in modern times. But the conclusive objection is that this alleged Landmark assumes the existence of Grand Lodges prior to 1717, which we cannot concede. Nevertheless this is clearly a doctrine of Masonic common law.

Mackey states his fourteenth Landmark in these words:

"The right of every Mason to visit and sit in every regular Lodge is an unquestioned Landmark of the Order. This is called the right of visitation. This right of visitation has always been recognized as an inherent right which inures to every Mason as he travels through the world and this is because Lodges are justly considered as divisions for convenience of the universal Masonic family. This right may of course be impaired or forfeited on special occasions by various circumstances; but when admission is refused to a Mason in good standing who knocks at the door of a Lodge as a visitor, it is to be expected that some good and sufficient reason shall be furnished for this violation of what is in general a Masonic right founded on the Landmarks of the order."

This is a matter of great difficulty, not merely as to the existence of a Landmark of visitation, but also with respect to the limits of the right, whether founded on a Landmark or on common law. That there is a Landmark that Masons have a right of visitation is quite possible. There are several good reasons for asserting this. (1) Originally Lodges were not necessarily permanent. The Masons present at the time and place opened a Lodge. A striking illustration of this may be found in Ashmole's well known account of his initiation. Under such circumstances all who were there had a right to take part. But there were also permanent Lodges in Scotland, at least, in the sixteenth century. (2) The right of visitation, it may be said, inheres in the ideas of fraternity and universality. So far as we can use logic and philosophy they sustain Mackey on this point. (3) Visitation exists in all brotherhoods and societies in all time, so far as not purely local. It is said to have been a maxim of the Pythagoreans. (4) The old charges uniformly prescribe a duty of receiving "strange fellows" — that is, foreign Masons — and of treating them well. This is a very strong argument.

We might, then, accept a Landmark of visitation. What, however, are its limits? This is one of the most difficult and vexed questions in Masonic jurisprudence. Hence I prefer to regard visitation as a common law right, the limits and scope whereof must be considered in the next lecture.

(To be continued)

  1. "Causes of Divergence in Ritual," THE BUILDER, vol. III, Nov. C. C. B: pp. 4-10.
  2. "Masonic Jurisprudence - II, The Landmarks," THE BUILDER, vol. III, pp. 211-216.
  3. Idem.

The Builder, April 1918 Vol. 4 No. 4