Bro. Roscoe Pound

Dean, Harvard College of Law


NO idea is today more familiar than the idea of making law. Wherever any sort of sovereign authority exists, men take for granted that it will proceed to justify its existence by copious legislation and assume as a matter of course that the quantity of its legislative output is the measure of its efficiency. This was not always true. Indeed conscious law-making on any large scale is a wholly modern phenomenon not only in the state but in those human organizations which exist to conserve other than political values and secure other than political interests, but are organized along lines analogous to those which govern politically organized society. Hence by way of introduction it is worth while to give some account of the development of legislation in the legal systems of modern states.

Five stages may be perceived in the development of legislation as the everyday agency of law-making: (1) unconscious legislation in the period of customary law, (2) declaratory legislation in the period when the traditional law is reduced to writing, (3) selection and amendment when by the political union of peoples with divergent customs it becomes necessary to choose in declaring the custom of the new whole, (4) conscious constructive law-making as an occasional expedient, at first to meet political exigencies, but gradually to effect important changes here and there in the legal system in great emergencies, and (5) habitual legislation as the ordinary agency of development, usually culminating in codification of the law as a whole.

In the first stage of legal development. the stage of traditional modes of decision based upon repeated decisions by supposed divine inspiration, there is not a little unconscious law-making. The case in hand may not be exactly like one which has arisen previously, but those who have the custody of the tradition may assimilate it thereto. Moreover the custodians of the tradition may warp it more or less unconsciously to meet new needs. The laws obeyed are regarded as having always existed. Men are not conscious of the innovations which creep in from time to time and in the best of faith confuse new usages with the old. Thus for a time law-making is a purely subconscious process.

Later we come upon a stage of declaratory legislation. In the beginnings of law all legislation, as such, is of this type. It is not an authoritative making of new law — it is an authoritative publication of law already existing. All the so-called ancient codes are of this type. Indeed the prologue to the laws of Manu, reciting how Bhrigu, who had learned the tradition from Manu, authoritatively dictated them to the sages, the prologue to the Senchus Mor, in the Ancient Laws of Ireland, telling how the bards were brought together and recited the traditional laws to St. Patrick, and the prologue to the Salic Law, telling how chosen men from the different villages were brought together and discussed among themselves the traditions, as they remembered them, till they arrived at an authoritative text to be reduced to writing — such prologues tell the story of primitive legislation.

Conscious law-making begins when it becomes necessary to make choice between conflicting traditions or when conflicting traditions must be harmonized through amendment. This necessity arises whenever attempt is made to reduce the tradition to writing or to compare and re-edit different versions of the written tradition. It becomes acute when attempt is made to declare the common custom of a political unit formed by the union of formerly distinct tribes or peoples with customs of their own. An example is to be seen in the laws of Alfred. He tells us that he had to pick and choose and even amend, but adds "I durst not set down much of my own." From this it is an easy stage, but one taken only gradually and occasionally, to pass to conscious constructive law-making. The first step in this direction comes when men perceive that by changing the written record of the law they can change the law which theretofore had been held eternal and immutable. Even when this discovery is made, however, after a brief law-making ferment, the law settles back to a process of growth through development of tradition, and it is not until the maturity of legal systems that we enter upon a real stage of legislation.

A similar development may be seen in Masonic lawmaking, and it will conduce to sounder appreciation of our written law to look at its history in this way. It is true a wholly different view of the subject became classical in Masonic literature. Thus Mackey, after considering the landmarks, says:

"Next to the unwritten laws, or Landmarks of Masonry, come its written or statutory laws. These are the 'regulations' as they are usually called, which have been enacted from time to time by General Assemblies, Grand Lodges, or other supreme authorities of the Order. They are in their character either general or local." (Jurisprudence, chapter 2.)

We are then told that the "General Regulations are those that have been enacted by such bodies as had at the time universal jurisdiction over the craft," and the year 1721 being fixed as the decisive point beyond which such general regulations were no longer possible because there were no longer general assemblies with general powers, ten authentic and authoritative acts of general Masonic legislation down to 1721 are set forth as follows: (1) The "Old York Constitutions of 926" (for which he gives Oliver's abridged version of the articles and points from the Halliwell MS.); (2) the "Constitutions of Edward III" (taken from Anderson's Constitutions, 2d edition); (3) the "Regulations of 1663"; (4) the "Ancient Installation Charges" (taken from Preston's Illustrations); (5) the "Ancient Charges at Makings" (also from Preston); (6) the "Regulation of 1703" (given on the authority of Preston); (7) the "Regulations of 1717" (given on the same authority); (8) the "Regulations of 1720" (an authentic regulation, adopted at a quarterly communication of the Grand Lodge of England, June 24, 1720); (9) the "Charges Approved in 1722" (presented to the Grand Lodge of England in 1721 by Anderson and Desaguliers, adopted March 25, 1722, and published in the first edition of Anderson's Constitutions, 1723); and (10) the "General Regulations of 1721" compiled by George Payne, Grand Master in 1720, approved by the Grand Lodge of England in 1721, printed in the first edition of Anderson's Constitutions. Thus, it will be noted, we are asked to believe in a series of acts of Masonic legislation, wholly analogous to a codification of the law or the enactment of a new paragraph of the written law by a modern American Grand Lodge, extending from the tenth century to the eighteenth. It is the first step in a proper understanding of Masonic Jurisprudence to discard this idea completely. There were no such assemblies as this conception of the MS. constitutions postulates down to 1717, and it was not till the eighteenth century that men began to think of the wholesale making of laws out of whole cloth as a normal, much less a legitimate process.

Thanks to the studies of Hughan and Gould and Begemann, we know much more about the MS. constitutions than was known in 1859, when Mackey's Jurisprudence was written. Today no serious Masonic scholar believes that constitutions "were framed at the City of York in the year 926" or that the constitutions so framed "were seen approved and confirmed in the reign of Henry VI." The unconfirmed authority of Anderson and Preston, moreover, will not suffice to establish legislation of the first quarter of the eighteenth century. What we find is not a uniform tract of law-making, analogous to that set forth in the statutes of the realm, but rather a written tradition from the end of the fourteenth century, obviously based on an older oral tradition, changing and developing slowly in the course of successive transcripts, and laid hold of on the rise of the Grand Lodge system in the eighteenth century as the basis of Masonic law. In other words, we may see an unconscious development in the (Masonically) pre-historic period of oral tradition, declaratory law-making when in the middle ages the traditional regulations were reduced to writing, selection and amendment from time to time as the MSS. were recopied and re- edited, conscious constructive law-making as an occasional expedient in the fore part of the eighteenth century in the Mother Grand Lodge, and finally an era of habitual legislative law-making in the nineteenth century which has reached its highest development in America. Gould's conclusion that the earliest of our authentic MSS. shows us "a gild or fraternity which commemorated the science without practising the art of masonry" seems well founded. It was as far back as the fourteenth century a "fraternity from whom all but the memory or tradition of its ancient trade had departed." Hence, as Gould puts it, "many of the old laws or disciplinary regulations of the earlier Masons became fossilized or petrified." "They passed out of use, though retaining their hold on the written and unwritten traditions of the society" (Concise History, Am. ed. 308). When, in the eighteenth century, organized Grand Lodge Masonry became a world-wide institution, these traditions had to be put to a new use. Instead of being read to or shown to the initiate, they had to be transformed into a body of law for a society with new values to conserve and new interests to secure. In this respect Mackey's instinct was sound when he fixed upon Payne's General Regulations of 1721 as the turning point.

Why should the Masons of the last half of the eighteenth century and of the first three quarters of the nineteenth century have deceived themselves so completely upon a matter of such consequence? One reason, and perhaps the chief reason, is to be found in eighteenth-century ideas of codes and of law-making. For one thing, the eighteenth century was an age of absolute governments. The local, feudal, decentralized governments of medieval Europe had definitely broken down. In England the Wars of the Roses had demonstrated that the general security called for something stronger and the Tudors and Stuarts had furnished it, howbeit the struggles against the Stuarts had preserved for the modern world the sound kernel of the medieval polity. In France, which in the days of Louis XIV had furnished the model for eighteenth-century politics, centralized royal government had triumphed. The Roman Corpus Iuris, compiled in sixth-century Constantinople, gave us Byzantine ideas of law as the product of the sovereign will, and the Byzantine theory of law, expounded by

French publicists in the seventeenth and eighteenth centuries, accorded so exactly with what men saw before their eyes that it scarcely needed the aid of an idea that Roman law was embodied reason to give it currency. The time was one of codes and legislative programs. Men spoke of the "codes" of the Anglo-Saxon kings and thought of the traditional law of English-speaking peoples as a body of statutes worn down by time. It was the fashion among historians to attribute all legal and political institutions to the deliberate invention of this or that ruler. A sounder view came in with Hegel's philosophy and the rise of the historical school in the nineteenth century. But that view did not reach Anglo-American scholarship at once and did not become significant in American thought till some time after the Civil War.

Again we must remember that the eighteenth century thought of itself as the age of reason. Men had absolute faith in reason. They believed that they could work out everything by their own unaided reason without troubling to do the futile work of investigating details. Moreover they believed firmly in what they called "natural law." They conceived that what ought to be and what was were to be made synonymous; that whenever one could show a moral principle that ought to govern conduct he had thereby shown a legal principle that did govern it. This attitude led naturally to confusion of what ought to be and what was, and it was an easy transition from what one would like to think to what ought to be. Thus much of eighteenth-century historical writing was ultra-subjective. It is a record of what the writer thought a priori must have been the course of history, assuming that to show what ought to have been sufficiently demonstrated what was. When, therefore, Gould says of Preston that he was "a Masonic visionary who — untrammeled by any laws of evidence wrote a large amount of enthusiastic rubbish, wherein are displayed a capacity of belief and capability of assertion which are hardly paralleled at the present day by the utterances of the company promoter, or even of the mining engineer," he is but saying that Preston was a child of his time. The need of fortifying the Grand Lodge system by an appeal to antiquity was strong. Men were not trained in historical method. Rather they relied on their individual reasons for all things, and what they took to be reason was often no more than enthusiasm and desire.

Thus the first five of Mackey's ten forms of the old written law of Masonry take on a wholly different aspect. The sixth and seventh are Preston's generalizations from the result of the establishment of the Grand Lodge system. The principles which he formulates in these so-called regulations were thoroughly established in his day. Characteristically he assumed that they must have resulted from deliberate law-making and, fixing the terms as accurately as he could, he reported them circumstantially as to the time and place of their adoption, exactly as the eighteenth-century historian could report the precise words spoken in a council of war centuries before and report out of his own reason the details of intrigues and conspiracies, of debates of secret councils, and even of the communings of a king or commander with himself. Indeed the apocryphal character of the so-called regulation of 1703, which contradicts all that we know of Masonry from the fourteenth to the eighteenth centuries, suggested itself to Mackey, who sought to avoid the difficulty by interpretation in a footnote. The remaining four are genuine examples of legislative declaration of existing law, with minor emendations, or of legislative innovations to secure new interests and conserve new values.

Today the written law of the craft in any particular Jurisdiction, which Mackey would call its local regulations, is made up commonly of four elements: (1) constitutions of the Grand Lodge, which are usually compiled and edited from time to time and thus kept in organized, systematic form exactly as a state of the Union compiles its legislation, or else after a definite compilation are held in that form by a practice of introducing new legislation in the form of amendments of or additions to this or that paragraph; (2) decisions of the Grand Lodge on appeal from the Masters of subordinate (or constituent) lodges or from the lodges themselves; (3) edicts of the Grand Master; and (4) answers of the Grand Master to inquiries as to the law submitted to him, or decisions of the Grand Master upon questions asked by Masters of lodges with reference to matters pending before them or their lodges. To understand these we must turn to the Roman law where these forms of law developed and got the names which still attach to them not only in the law of the state but in Masonic law.

A Roman emperor made or declared the law by constitution, by decision (decree), by edict, and by rescript or letter. He had this power, in legal theory, because at his accession the Roman people had specially conferred it upon him for his life by a special act of legislation. Down to the reign of Diocletian, at least, in political theory, the Roman state was a republic. Sovereignty was in the Roman people. The emperor was only "princeps," first citizen, a citizen upon whom the Roman people had devolved their sovereignty for the time being by an act of legislative authority upon an extraordinary occasion. Later, in Byzantine times, the emperor came to be thought of as the repository of sovereignty and the source of law. But in classical times he simply wielded the powers of the sovereign Roman people which had been devolved upon him. Accordingly as the Roman people in their legislative assembly could enact a statute (lex) the emperor, wielding the legislative power of the people, could enact a law. What he thus established (constituit) by virtue of the legislative authority devolved upon him, was called a constitution (constitutio). Thus in Roman law a constitution is a rule established by legislative act. And such precisely is a constitution in Masonry. Only with us the legislative power of the fraternity in each jurisdiction has devolved upon the Grand Lodge. Hence what the Grand Lodge establishes and promulgates as a rule of law, by virtue of its legislative authority, is a constitution. At the end of the eighteenth century, when sovereign peoples began to adopt for themselves a fundamental law, fixing the framework of government and imposing limitations upon the several organs of government so set up, the term constitution came to be applied to such enactments of the sovereign people. Thus it has come into use in America, and to a less extent elsewhere, in the sense of a superior fundamental law, to which ordinary acts of the several departments of government or of the agencies of a society must yield, a conception growing out of the circumstances of colonial government in America prior to the Revolution, where executive and legislative acts were subject to the measure of the colonial charter. In Masonic law we preserve the older use of the term, speaking from the fore part of the eighteenth century, when the modern political written constitution was quite unknown.

Another way in which the Roman emperor made or declared law was by his decisions in causes taken to him on appeal or determined by him directly. These were called decrees. For the Roman magistrate had no power to render a judgment of the strict law. This could be done only by judices or arbitrators, chosen for the case in hand, somewhat as the common law demands the verdict of a jury as the foundation of a judgment. But the magistrate could decide certain things extra ordinem and render a decree, and this power, along with the other powers of the Roman magistrates, was specially devolved upon the emperor at his accession. In Masonry, the power of determining appeals, as an attribute of sovereignty — for so it was regarded when men forgot how the Roman emperors came by it — devolved upon the Grand Lodge, to which in the eighteenth century sovereignty definitely passed.

Still another way in which the Roman emperor made or declared the law was by his edict. The power of issuing an edict belonged originally to the superior magistrates of the Republic and was exercised chiefly by the praetors or judicial magistrates. Strictly the edict was a pronouncement by the magistrate of the course which he proposed to take in the administration of his office. It was a sort of post-election platform from which the citizen might know what to expect from the officer in question. But this easily became a law governing the administration of his office, and when the magisterial power was devolved upon the emperor the power of issuing an edict came to be in substance a power of issuing general orders governing matters of administration. The term was so used in French public law in the seventeenth and eighteenth centuries and was generally used in this sense at the time when Masonic law was formative. In this same sense we use it in Masonry. An edict is a general administrative, as distinguished from a judicial order, prescribing the conduct of some matter of administration, on prescribing the conduct of Masons in some matter of administrative cognizance. A good example may be seen in the edicts of Grand Masters in different jurisdictions against the use of cipher rituals.

Finally a Roman emperor made or declared the law by means of rescripts. The rescript or letter was an answer which the emperor returned to a question put to him by a judge or magistrate who had a cause pending before him. In the classical Roman polity the judices who had a cause before them were advised as to the law by the expert opinion of a jurisconsult. In the imperial polity the emperor was taken to be the most authoritative jurisconsult and the practice of submitting questions for his authoritative opinion as to the law was a natural result. This practice passed to the canon law, where the Papal rescripts had similar authority, and was well known to the law of continental Europe in the eighteenth century. Naturally it came into Masonic practice along with other institutions of the time when, in the formative period of Grand Lodge Masonry, a universal polity had to be set up rapidly. The decisions of the Grand Master in answer to questions might very well be called rescripts, exactly as his administrative general orders are called edicts. They are not decisions in a judicial sense, they are authoritative opinions of the most authoritative jurisconsult of the craft for the time being. Being mere opinions there is no impropriety in the practice of many Grand Lodges to which the Grand Master regularly reports his opinions for review. His decision is not reviewed. Indeed Mackey seems justified in his position that the decisions of a Grand Master as such are not or at least ought not to be reviewable. In legal theory what happens might be explained thus: The opinion of the Grand Master upon the point of law involved in his answer is considered and the doctrine which it announced is given the force of a constitution by the approval of the Grand Lodge or else the doctrine is rejected as a rule for the future and some other rule given legislative authority.

It will be noted that of the four forms of making or declaring the law which were in use by the Roman emperor, two are appropriate to the Grand Lodge and two to the Grand Master. In the later Roman imperial polity all the powers of sovereignty were in the emperor. As the Institutes put it, his will had the force of law. But along with the imperial Roman conceptions, familiar to the time through the writings of publicists based on Justinian's law books, another set of conceptions were familiar to Englishmen at the time when Masonic legal institutions were formative. The memory of the contests with the Stuart kings was still fresh and in the course of that contest English lawyers had resurrected and furbished up many ideas that belonged to the polity of the Plantagenets. Thus the British constitution in the eighteenth century was a superposition, as it were, of what were then modern ideas and institutions upon the older and radically different ideas and institutions of medieval England. As a result the balance was maintained chiefly by custom and precedent and respect for traditional lines between authorities and magistracies with large potentialities of theoretical jurisdiction. Experience gradually settled the lines and respect for precedent established them. The same phenomenon is to be seen in the development of Anglo-American Masonic polity. Legislation by general regulations or constitutions and the power of judicial decision on appeal, with the incidental power of so declaring the law, became functions of the Grand Lodge. The more nearly administrative functions of issuing edicts and rendering what may fairly be called rescripts became functions of the Grand Master. They can hardly be said to be common-law powers in the same sense as those universally customary prerogatives which Mackey sought to establish as Landmarks. No doubt Grand Lodge legislation may interfere, as it sometimes has done, to abridge or modify them. But it is significant that with the example of the separation of powers in American public law constantly before them, American Masonic lawyers have acquiesced in and developed a system of law-making proceeding on radically different lines and originating in the law books of Rome.

Direct, deliberate law-making by constitutions is the type of Masonic law-making that calls chiefly for our attention. Maine tells us that "the capital fact in the mechanism of modern states is the energy of legislatures." True, the lawyer is somewhat skeptical. He doubts with good reason the possibility of achieving by law more than a small fraction of what the promoters of new laws confidently expect. But the layman's faith in the efficacy of legislative law-making is unbounded and there is no evidence of abatement of the huge annual output of our political law-making machinery. There are many causes behind this phenomenon. But one is of special significance for Masonry and is behind a similar excess of zeal for legislative law-making in too many of our jurisdictions. The theory that law is the will of the sovereign, that a sovereign democracy, or its representatives or delegates in its name, can make law by the simple process of translating its will for the time being into chapters and sections, the magic words "be it enacted" justifying all that follow, arose by applying to sovereign peoples the ideas which had been worked out with reference to absolute personal sovereigns. The will of the emperor had the force of law; hence the will of the people is to have the force of law. But a confusion was involved here. The emperor owed it to his subjects to use his will rationally when willing law. The power to give his declarations of will the force of law did not absolve him from obligation to measure the content of those declarations by reason. Our fathers were conscious of this with good reason and so sought to. limit law-making and give security against arbitrary and capricious action by bills of rights. But these securities are available only within comparatively narrow limits. So long as the theory of law as will prevails, the flood of law-making will continue.

In American Masonry we have very generally a similar situation, as has been said, for a like reason. For one thing, we have all been trained in the theory that what we will collectively or in sufficient mass to make a majority is law in substance and only needs a mechanical process of receiving the legislative guinea stamp to be law in form. It is very easy to transport this conception to every other connection in which the word law appears. Is there Masonic law? Then it is to be made by the will of the Masonic sovereign. Have we a sovereign Masonic body? Go to, let it justify its existence by making laws. Such ideas confuse exercise of the will as a means and exercise of the will as an end. The means of making law is the declared will of the sovereign. But the end of making law is not to enable the sovereign to declare his will. The end is to conserve values and to secure interests. Delicate processes of weighing values and cataloguing, appraising, and balancing interests must be gone through with before the matter is ripe for the declaring will.

Having no bills of rights in Masonry and hence nothing beyond a handful of vaguely defined Landmarks to restrain him, what then are our barriers against the ravages of the zealous, energetic, ambitious Masonic law-maker? Legal barriers there are none. But some of the most sacred interests of life have only moral security and on the whole do not lose thereby. For example, the claims of husband and wife respectively to each other's society and affection are left as between the two with no other security than the moral sense of the community. It is important to ask, therefore, how far there are agencies for focusing the moral sentiment of the craft upon the Masonic legislator and making it an effective moral check.

One such agency, which has been of no little service, is the report of the Committee on Correspondence, whereby in so many jurisdictions the law-making of the Masonic world is reviewed, criticized, and adjusted, if possible, to general theories of Masonic law. These reports vary greatly in value. But by and large they are inestimable repositories of Masonic law. Moreover it must needs give the Masonic innovator pause when he reflects that what he does must run the gauntlet of critical scrutiny by veteran reviewers upon the Committees on Correspondence of a majority of our jurisdictions. Another restraining influence is coming forward with the development of Masonic study. Nothing is so dogmatic as ignorance. A better and more general acquaintance with the history, philosophy, and legal traditions of the craft is certain to make our law-makers more cautious, more intelligent, and more effective. Such comparative studies in Masonic legislation as those already begun in The Builder [1] are likely to do much for intelligent law-making where library facilities are small and law-makers are zealous. But above all things we must rely upon the principles of Masonry. Let us remember Krause's formula: "Law is the sum of the external conditions of life measured by reason." Our measure is to be reason, not will, and all the lessons and symbols of the craft are eloquent of measurement and restraint.

In conclusion, let me repeat the disclaimer with which I began. I have not sought to expound the law of the craft at large or of any jurisdiction in particular. I have sought rather to consider how far there may be said to be such a thing as Masonic jurisprudence, what materials are at hand for an organized body of knowledge that may be called appropriately a science of Masonic law, what general principles may be found for such a science, and in particular how far the problems of legal science generally may be found in and their solutions may be applied to the law of our craft. So studied, the subject of Masonic jurisprudence has great possibilities which are as yet scarcely opened. The ambitious Masonic student who essays any of its problems as he would a problem of the everyday law, going through our Grand Lodge proceedings as he would the legal sources, using our texts as he would a legal text book, reasoning from our traditions as he would from the body of written tradition we call the common law, will not only be abundantly repaid but will do a service in helping to make Masonic jurisprudence a reality.

  1. Advancement vol. III, p. 60.
    Affiliation, vol. III, p. 9.
    Ballot for the Degrees, vol. III, p. 70.
    Dimits, vol. III, p. 134.
    Physical Qualifications for Initiation, vol. III, p. 2~.

The Builder, November 1918 Vol. 4 No. 11