SECTION II.

THE JUDICIAL POWERS OF A GRAND LODGE.
In the exercise of its judicial functions, a Grand Lodge becomes the interpreter and administrator of the laws which it had enacted in its legislative capacity. The judicial powers of a Grand Lodge, according to the Old Constitutions, are both origi- nal and appellate, although it more frequently exer- cises the prerogative and duties of an appellate than of an original jurisdiction.
In England, at this day, all cases of expulsion must be tried under the original jurisdiction of the Grand Lodge, for there no private Lodge can inflict this penalty upon any one of its members ;* but in
* " In the Grand Lodge alone resides the power of erasing Lodges, and expelling brethren from the craft, a power which it ought not to delegate td any subordinate authority in England." — Const. G. L. of Eng. 1847.
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this country constant usage, which, according to Sir Edward Coke, is the best interpreter of the laws,* has conferred the power of expulsion upon the subordinate Lodges, and hence such cases sel- dom come before the Grand Lodge, except in the way of appeal, when, of course, it exercises its appel- late jurisdiction, and may amend or wholly set aside the sentence of its subordinate. Still, this must be viewed as only a tacit or implied concession, unless, as sometimes is the case, a Grand Lodge in express terms divests itself of original jurisdiction, which, of course, under the authority to make new regula- tions, it may.
But the general spirit of the ancient law is, that the Grand Lodge may at all times exer- cise original jurisdiction. And hence, where a Grand Lodge has not, by special enactment, di- vested itself of the prerogative of original jurisdic- tion, it may, by its own process, proceed to the trial and punishment of any Mason living within its jurisdiction. This course, however, although strictly in accordance with the Ancient Constitu- tions, is not usual, nor would it be generally expe- dient, and hence some Grand Lodges have specially confined their judicial prerogatives to an appellate jurisdiction, and require the inception of every trial to take place in a subordinate Lodge.
But I know of no matter in which a Grand Lodge may not, according to the ancient law and custom, exercise an original jurisdiction ; for, although a
* " Consuetude) est optimus interpres legum." i
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Grand Lodge in tins country Mil, by tacit consent, and sometimes by explicit enactment,* permit a subordinate Lodge to exercise judicial powers, and will allow its judgment to stand, unless there be an appeal from it, yet, if the original jurisdiction was assumed by the subordinate, only by this tacit con- sent, and not, as in the case of Ohio, by express grant, then the original jurisdiction continues to be vested in the Grand Lodge, and may at any time be resumed. For there is no fact in the history of Masonic jurisprudence more certain than that the General Assembly or Grand Lodge always in ancient times exercised an original jurisdiction and super- vision over the whole craft. t Hence offences were formerly always tried in that body ; and it is only since the re-organization in 1717, that the Grand Lodge has neglected to exercise its prerogative of original jurisdiction, and for the purposes of con- venience, perhaps, permitted the subordinate Lodges to try offences, restricting itself in general to an
* Ohio, for instance, gives the power of discipline to its subordinates, and reserves to the Grand Lodge only appellate jurisdiction. — Const. Reg. xxii. But New York, while granting this power of discipline to its subordinates, does not divest itself of the prerogative to exercise original jurisdiction. — Const. § 12.
t Thus the old York Constitutions of 926 (point 10) say : " If a Mason live amiss or slander his brother, so as to bring the craft to shame, he shall have no further maintenance among the brethren, but shall be summoned to the next Grand Lodge, and if he refuse to appear, he shall be expelled ;" and in the Ancient Charges at Makings, it is provided that " every Master and Fellow shall come to the Assembly, (that is, the General Assembly, as is evident from the context,) if it be within fifty miles of him, if he have any warning, and if he have trespassed against the craft, to abide the award of Masters and Fellows."
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appellate revision of the case.* But although, under ordinary circumstances, it is a maxim of law that rights are forfeited by non-user, yet such maxim cannot apply to the Grand Lodge, which, as a sove- reign body, can have none of its rights barred by lapse of timc,t and may therefore at any time re- sume its original jurisdiction.
But in matters of dispute between two Lodges, and in the case of charges against the Master of a Lodge, the Grand Lodge is obliged to exercise ori- ginal jurisdiction ; for there is no other tribunal which is competent to try such cases.
In the exercise of its judicial functions, the Grand Lodge may proceed either in its General Assembly or by committee, whose report will be acted on by the Grand Lodge. But the form of trial will be the subject of future consideration in a subsequent part of this work.
The Grand Lodge may, in the case of an appeal, amend the sentence of its subordinate, by either a diminution or increase of the punishment, or it may wholly reverse it, or it may send the case back for
* The Charges which were approved in 1722 say, that "if a brother do you an injury, apply first to your own or his Lodge ; and if you are not satis- fied, you may appeal to the Grand Lodge." But this does not preclude the Grand Lodge from instituting an inquiry itself into the conduct of any brother; and the records from 1717 onwards give several instances where the Grand Lodge did exercise original jurisdiction, as in the case of " certain brethren suspected of being concerned in an irregular making of Masons," which was tried in 1739, and in that of Bro. Scott, tried in 1766.— See Book of Const, fourth edit. pp. 228 and 305.
t The maxim of the law that " nullum tempus occurrit regi" applies to the Grand Lodge as the sovereign of Masonry.
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trial. And in any one of these events, its decision is final ; for there is no higher body in Masonry who can entertain an appeal from the decision of a Grand Lodge.
Among the important prerogatives exercised by a Grand Lodge in its judicial capacity, is that of revoking warrants of constitution. Although, as I have already shown, there is a discrepancy between the present American practice, which vests the granting of warrants in Grand Lodges, and the old Constitutions, which gave the power to Grand Mas- ters, there is no doubt that the Grand Lodge has constantly exercised the prerogative of revoking warrants from the year 1742, when the first mention is made of such action, until the present day. But all the precedents go to show that no such revoca- tion has ever been made except upon cause shown, and after due summons and inquiry. The arbitrary revocation of a warrant would be an act of oppres- sion and injustice, contrary to the whole spirit of the Masonic institution.