SECTION I.

THE LEGISLATIVE POWERS OF A GRAND LODGE.
The Old York Constitutions of 926 declare that " the General Assembly or Grand Lodge shall con- sist of Masters and Fellows, Lords, Knights and Squires, Mayor and Sheriff, to make new laws and to confirm old ones, when necessary. "*
The Regulations of 1721, enlarging on this defi- nition, assert that " every Annual Grand Lodge has an inherent power and authority to make new regu- lations, or to alter these, for the real benefit of this ancient fraternity, provided always that the old Landmarks be carefully preserved. "f
Both of these Regulations, it will be seen, acknow- ledge, in unmistakable terms, that the law-making- power is vested in the Grand Lodge. But the lat- ter one couples this prerogative with a qualification of so important a nature that it should be constantly borne in mind, when we are speaking of the legis- lative function of Grand Lodges. Although the Grand Lodge may make laws, these laws must never contravene the Landmarks ; for the whole power of the Grand Lodge, great as it is, is not sufficient to subvert a Landmark. If Jupiter is the supreme governor, yet he must yield to the Fates, for they arc greater than he.
The legislative powers of the Grand Lodge are therefore limited only by the Landmarks, and be- yond these it can never pass.
* See ante p. 46. f Anderson, first edit. p. 70, ank p. 79.
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In June, 1723. an attempt was made to remove this restriction, and a regulation was adopted which asserted that "it is not in the power of any man or body of men to make any alteration or innovation in Ike body of Masonry, witliout the consent first ob- tained of the Grand Lodge"* which clearly inti- mates that with such consent an innovation might be made. But at the very next communication, in November of the same year, the Grand Lodge re- turned to the old conservative principle that " any Grand Lodge duly met has a power to amend or explain any of the printed regulations in the Book of Constitutions, luhile they break not in upon the ancient rides of the fraternity. "t
This prerogative to make new regulations, or to amend the old ones, has been therefore exercised since the enactment of those of 1721, with the re- striction of not touching the Landmarks, not only by the Grand Lodge ol England, but by all the other Grand Lodges which have since emanated from that body, directly or indirectly ; for it is ad- mitted that all the functions and powers that were possessed by the original Grand Lodge have de- scended to every other Grand Lodge that has been subsequently instituted, so far as the jurisdiction of each is concerned.
But this law-making power is of course restrained within certain limits by those fixed rules of legis- lative policy which are familiar to every jurist. 1. In the first place, a Grand Lodge can make no
* Axdeeson, second edL*. p. 175. f Ibid, p. 175.
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regulation which is in violation of or contradictory to any one of the well settled Landmarks of the Order. Thus, were a Grand Lodge, by a new regu- lation, to abolish the office of Grand Master, such legislation would be null and void, and no Mason would be bound to obey it ; for nothing in the whole Masonic system is more undoubted than the Landmark which requires the institution to be pre- sided over by such an officer. And hence this doc- trine of the supremacy of the Landmarks has been clearly admitted in the very article which asserts for Grand Lodges the power of making new regulations.
2. The legislation of every Grand Lodge must be prospective, and not retrospective in its action. To make an ex post facto law, would be to violate the principles of justice which lie at the very foundation of the system. " It was a maxim of the Roman law that " no one could change his mind to the injury of another,"! which maxim, says Mr. Broom, " has by the civilians been specifically applied as a re- striction upon the law-giver, who was thus forbid- den to change his mind to the prejudice of a vested rights
* " Every statute which takes away or impairs a vested right acquired under existing laws, or creates a new obligation, imposes a new duty, or at- taches a new disability, in respect of transactions or considerations already past, may be deemed retrospective in its operation, and opposed to those principles of jurisprudence which have been universally recognized as sound.'1 ■.-Bkooai, Leg. Max. p. 28.
f " Nemo potest mutare consilium suum in altering mjunam."
% Leg. Max. p. 29.
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3. A Grand Lodge cannot permanently alter or lepeal any one of its by-laws or regulations, except in the mode which it has itself provided ; for it is a maxim of the law that the same means are neces- sary to dissolve as to create an obligation."* Thus, if it is a part of the by-laws of a Grand Lodge that no amendment to them can be adopted unless it be read on two separate days, and then passed by a vote of two-thirds, it is not competent for such a Grand Lodge to make an amendment to its by-laws at one reading, and by merely a majority of votes.
But it has been held that a Grand Lodge may temporarily suspend the action of any one of its by- laws by an unanimous vote, without being compelled to pass it through a second reading. Thus, if the by-laws of a Grand Lodge require that a certain officer shall be elected by ballot, it may, by unani- mous consent, resolve to elect, in a particular in- stance, by a show of hands. But after such election, the original by-law will be restored, and the next election must be gone through by ballot, unless by unanimous consent it is again suspended.
4. A Grand Lodge has the power of making by- laws for its subordinates ; for the by-laws of every Lodge are a part of the Regulations of Masonry, and it is the prerogative of a Grand Lodge alone to make new regulations. Yet, for the sake of con- venience, a Grand Lodge will, and most Grand Lodges do, delegate to their subordinates the duty of proposing by-laws for their own government ;
* " Eodeni modo quo quid cofcstituitur, eodem modo dissolvitur." — Coke.
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but these by-laws must be approved and confirmed by the Grand Lodge before they become permanent regulations. And a Grand Lodge may at any time abrogate the by-laws, or any part of them, or of any one or all of its subordinates ; for, as the power of proposing by-laws is not an inherent prerogative in the Lodges, but one delegated by the Grand Lodge, it may at any time be withdrawn or revoked, and a Grand Lodge may establish a uniform code of by- laws for the government of its subordinates.
It is from the fact that a Lodge only proposes its by-laws, which the Grand Lodge enacts, that the principle arises that the Lodge cannot suspend any one of its by-laws, even with unanimous consent, for here the maxim of law already cited applies, and the same method must be adopted in abolishing as in creating an obligation. That is to say, the by law having been enacted by the Grand Lodge, that body alone can suspend its operation.
5. But the most important prerogative that a Grand Lodge can exercise in its legislative capacity is that of granting warrants of constitution for the establishment of subordinate Lodges. Important, however, as is this prerogative, it is not an inherent one, possessed by the Grand Lodge from time im- memorial, but is the result of a concession granted by the Lodges in the year 1717 ; for formerly, as I have already shown, all Masons enjoyed the right of meeting in Lodges without the necessity of a warrant, and it was not until the re-organization of the Grand Lodge, in the beginning of the last
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century, that this right was surrendered. Preston gives the important Regulation which was adopted in 1717. in which it is declared that warrants must be granted by the Grand Master, " with the consent and approbation of the Grand Lodge in communi- cation.-"* Anderson does not give this Regulation, nor will anything be found in the Regulations which were approved in 1721, respecting the necessity of the consent and approbation of the Grand Lodge. On the contrary, the whole tenor of those Regula- tions appears to vest the right of granting war- rants in the Grand Master exclusively,'!* and the modern Constitutions of the Grand Lodge of Eng- land are to the same effect. J But in this country it
* As this Regulation is an important one, I give it in the exact words of Preston: "That the privilege of assembling as Masons, which had been hitherto unlimited, should be vested in certain Lodges or Assemblies of Masons, convened in certain places ; and that every Lodge to be hereafter convened, except the four old Lodges at this time existing, should be legally authorized to act by a warrant from the Grand Master for the time being, granted to certain individuals by petition, with the consent and approbation of the Grand Lodge in communication ; and that without such warrant no Lodge should be hereafter deemed regular or constitutional."— Preston, p. 182, Oliver's edit.
t Thus : " They must obtain the Grand Master's warrant to join in form- ing a new Lodge.'' — Reg. viii. " If any set or number of Masons shall take upon themselves to form a Lodge, without the Grand Master's warrant," &c. — Reg. ix. " And this Lodge being thus completely constituted, shall be registered in the Grand Master's book, and by his order notified to the other Lodges." — Anderson, first edit. p. 72.
X " Every application for a warrant to hold a new Lodge must be by peti- tion to the Grand Master."— Const, of G. L. of England, 1847, p. 122. In the third and subsequent editions of the Book of Constitutions, we find an im- portant paragraph, which shows that in 1741, the right of granting warrants was expressly admitted to be the exclusive prerogative of Grand Masters. In that year " it was also ordered that no new Lodge for the future should be constituted within the bills of mortality, without the consent of the bret}»--°-n.
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has been the universal usage to restrict the power of the Grand Master to the granting of temporary dispensations, while the prerogative of granting permanent warrants is exclusively vested in the Grand Lodge.
G. Coincident with this prerogative of granting warrants is that of revoking them. But as this prerogative should only be exercised for cause shown, and after some process of trial, it appears to me that it will be more appropriately discussed when we come to the consideration of the judicial functions of a Grand Lodge.
7. The taxing power is another prerogative of a Grand Lodge. Every Grand Lodge has the right to impose a tax on its subordinate Lodges, or on all the affiliated Masons living within its jurisdiction. The tax upon individual Masons is, however, gene- rally indirect. Thus, the Grand Lodge requires a certain contribution or subsidy from each of its subordinates, the amount of which is always in pro- portion to the number of its members and the ex- tent of its work, and the Lodges make up this contribution by imposing a tax upon their members. It is very rarely that a Grand Lodge resorts to a direct tax upon the Masons of its jurisdiction. At present I recollect but two instances in which such
assembled in quarterly communication be first obtained for that purpose. But this order afterwards appearing to be an infringement on the preroga- tive of the Grand Master, and to be attended with many inconveniences and with damage to the craft, was repealed." — Book of Const, edit. 17G9, p. 247. This record throws a reasonable doubt on the authenticity of the regulation quoted by Prestoa.
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a right lias been exercised, namely, by the Grand Lodges of Louisiana and Arkansas. In the former instance, as there appeared to be some opposition to the doctrine, the Grand Lodge in 1855 adopted a resolution, in which it declared that it did not " assert its power to tax unconditionally, or for ex- traordinary purposes, the constituent Lodges."*
I am at some loss to understand the distinct mean- ing of this proposition ; but if it is intended to deny the prerogative of the Grand Lodge to levy any kind or amount of tax that it deems expedient on either the subordinate Lodges or their individual members, I am compelled to refuse my assent to such a proposition. That the power to impose taxes is a prerogative of every sovereignty is a doc- trine which it would be an act of supererogation to defend, for no political economist has ever doubted it.f The only qualification which it admits is, that the persons taxed should be entitled to a voice, di- rectly or indirectly, in the imposition ; for taxation without representation is universally admitted to be one of the most odious forms of tyranny. But as a Grand Lodge, as the supreme Masonic author- ity in every jurisdiction, is invested with all the attributes of sovereignty, and is besides a repre- sentative body, it follows that the unconditional power of taxation must reside in it as one of the prerogatives of its sovereignty. And if the par-
* Proceedings of the G. L. of Louisiana, 1855, p. 80. t "Taxes," says Cicero, " are the sinews of the State."' Vectigalm nerui sunt reipubli'jce.
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tieular species or amount of taxation is deemed op- pressive or even inexpedient, it is easy for the subordinate Lodges, by the exercise of the power of instruction which they possess, to amend or alto- gether to remove the objectionable imposition.
But the question assumes a different aspect when it relates to the taxation of unaffiliated Masons. I am compelled, after a mature consideration of the subject, to believe that the levying of a tax upon unaffiliated Masons is contrary to the spirit of the institution, the principles of justice, and the dic- tates of expediency. It is contrary to the spirit of our institution : Masonry is a voluntary association, and no man should be compelled to remain in it a moment longer than lie feels the wish to do so.* It is contrary to the principles of justice, for taxation should always be contingent upon representation ; but an unaffiliated is not represented in the body which imposes the tax. And lastly, it is contrary to the dictates of expediency, for a tax upon such Masons would be a tacit permission and almost an encouragement of the practice of non-affiliation. It maybe said that it is a penalty inflicted for an offence ; but in reality it would be considered, like the taxes of the Roman chancery, simply as the cost of a license for the perpetration of a crime. If a Mason refuses, by affiliation and the payment of
* "We recognize fully the doctrine laid down in the Ancient Constitutions, 1 that it is the duty of every Mason to belong to some regular Lodge.' But as his entrance into the fraternity is of his own free will and accord, so should be the performance of this and every other Masonic duty."'- -Special Com. G. L. of Ohio, 1854. See Proc. from 1848 to 1857, p. 384.
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dues to a Lodge, to support the institution, let Mm, after due trial, be punished, by deprivation of all bis Masonic privileges, by suspension or expulsion ; but no Grand Lodge should, by the imposition of a tax, remove from non-affiliation its character of a Masonic offence. The notion would not for a moment be entertained of imposing a tax on all Masons who lived in violation of their obligations ; and I can see no difference between the collection of a tax for non-affiliation and that for habitual in- temperance, except in the difference of grade be- tween the two offences. The principle is precisely the same.