CHAPTER III.

Etstjrattcn,
Having, in the two preceding chapters, treated of Masonic crimes, and of the. punishments which are imposed upon the perpetrators, we are next to inquire into the method by which a mason senten- ced to any punishment, which temporarily or per- manently severs his connection with the Order, may be reinstated into any or all of his former rights and privileges.
Restoration, as the reinstatement of an excluded, suspended or expelled Mason to his rank in the Order, is techinally called, may be the result of either one of two entirely distinct processes. It may be by an act of clemency on the part of the Lodge, or the Grand Lodge, consequent upon, and induced by the repentance and reformation of the guilty individual. Or it may be by a reversal of the sentence of the Lodge, by the Grand Lodge, on account of illegality in the trial or injustice in the verdict.
Restoration by the first method, which is ex gratia, or, as a favor, is to be granted on petition, while restoration by the second method, which is e debito
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Justitice, or as a debt of justice, is to be granted on appeal. The two methods may, therefore, be briefly distinguished as restoration on petition and restora- tion on ajjpeal.
s In the consideration of this subject, each of these methods of restoration will require to be occasion- ally borne in mind.
In the case of permanent exclusion, or erasure from the roll of the Lodge, the party is placed in a peculiar position. He is no longer a member of the Lodge, and, unless, on an appeal, he can prove that he has been unjustly or unconstitutionally stricken from the roll, he can be restored only upon petition, and a unanimous acceptance, as in the case of any other Mason applying for membership. Membership having been justly forfeited, can only be recovered under the Regulations of 1721, which require one month's notice and unanimous consent.
Hence, when a member's name is stricken from the roll, for non-payment of arrears, he cannot, by the mere payment of the indebtedness, recover his membership. He acquires, by this payment, a right to a clearance and demit, but not to restored mem- bership; for the exclusion was not a conditional one, dependent on such payment for its termination, but peremptory and unconditional. He was stricken from the roll, and by that act ceased at once and for ever to be a member of the lodge, as much so as if lie had demitted.
In the case of definite suspension, as I have already remarked, the termination of the period
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specified in the sentence is a termination, ipso facto, of the suspension, and restoration takes place with- out any further act on the part of the Lodge. Eestoration, on petition or appeal, may take place at any time, by a vote of two-thirds of the mem- bers, and after due notice given of the intention to restore.
Restoration, from definite suspension, may also be made by the Grand Lodge, on appeal, where the act of the subordinate Lodge is reversed on account of illegality, or wrongful judgment; and such resto- ration, of course, annuls the suspension, and restores the party to his former position in the Lodge.
Restoration, from indefinite suspension, may also take place in the same way, either on petition or appeal. But, in this case, due notice is not abso- lutely required of an intention to move for a resto- ration, although, as I have already said, courtesy should induce the mover to give notice. Of course, no restoration, either from definite or indefinite suspension, upon petition or appeal, can take place, except at a regular meeting; for, as the sentence must have been decreed at such meeting, the Masonic rule forbids a special meeting to reverse the pro- ceedings of a regular one.
Restoration from expulsion differs from restora- tion in the other cases, in several important par- ticulars, which; as the subject is now exciting much discussion among the Grand Lodges of this country, require a careful consideration.
In the first place it must be borne in mind, that
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expulsion completely severs the connection of the expelled individual with the fraternity In the lan- guage of Dr. Oliver, " his Masonic status, vanishes, and he disappears from the scene of Masonry, as completely as the ripple of the sea subsides after the stately ship has passed over it.77 * This condi- tion must be constantly remembered, because it has an important influence on the effects of restoration. On an application for restoration by petition, as a favor, on the showing that the party has repented and reformed, that he has abandoned the criminal course of conduct for which he was expelled, and is now leading an irreproachable life, the Grand Lodge may ex gratia, in the exercise of its clemency, extend a pardon and remit the penalty, so far as it refers to expulsion from the Order. But in this case, as there is no question of the original justice of the sentence nor of the legality of the trial, the pardon of the Grand Lodge will not and cannot restore the brother to membership in the Lodge. And the reason of this is plain. The act of the Lodge is admitted to have been legal. Now, while this act dissevered his connection with the Order, it also cancelled his membership in the Lodge. He is no longer a member either of the Order or of the Lodge. The Grand Lodge may restore him to the former, it may restore him to his rights as a Mason,
* Institutes of Masonic Jurisprudence, p. 258: London, 1859. Of this work, which has just been issued by Bro. Spencer, I regret that I have re- ceived from the publisher a copy, only while composing these last chapters. Could I have had earlier access to it, it would have afforded mo much valu- able information on the subject of English Masonic law.
546 RESTORATION.
but it must be as an unaffiliated one, because, hav ing by this very act of clemency, admitted that he legally and constitutionally lost his membership, it cannot compel the Lodge to admit him again, con- trary to its wishes, into membership, for no man can be admitted a member of a Lodge, without the unanimous consent of all present. Nor can the Grand Lodge interfere with this inherent right of every Lodge to select its own members. Let it be thoroughly understood that the incompetence of the Grand Lodge, in this case, to restore to member- ship, is founded on the admission that the original sentence was a just one, the trial legally conducted, the testimony sufficient and the punishment not oppressive. The Grand Lodge says, in an instance like this, to the petitioner, " We are induced bj your present reform to pardon your past conduct and to restore you once more to the Order; but, as- you were ju?tly expelled from your Lodge, and are no longer a member, we have no power to force you upon it. We give you, however, by a restoration to your Masonic status, the privilege that all other unaffiliated Masons possess, of applying to it by peti- tion for admission, with the understanding that you must, as in all such cases, submit to the ordeal of a ballot, but with the result of that ballot we cannot interfere."
But, in the case of a restoration by appeal, a dif- ferent condition of things ensues. Here there is no petition for pardon of an offence committed — no admission of the legality of trial — no acknowled,o:
RESTORATION. 547
ment of the justice of the sentence inflicted. But, on the contrary, all of these are in the very terms of the appeal denied. The claim is not for clemency, but for justice — not for a remission of deserved pun- ishment, but for a reversal of an iniquitous sentence; and the demand is, that this reversal shall not be de- creed ex gratia, as a favor, but debito justitice, by virtue of a claim justly established. Now, in this case it is evident that the rules governing the resto- ration must entirely diifer from those which con- trolled the former class of cases.
The principle which I lay down on this subject is, that when a Lodge has wrongfully deprived a Ma- son of his membership, by expulsion from the Order, the Grand Lodge, on his appeal, if it shall find that the party is innocent, that wrong has been inflicted, that by the sentence the laws of the institution, as well as the rights of the individual, have been vio- lated, may, on his appeal, interpose and redress the wrong, not only by restoring him to his rights and privileges as a Mason, but also to membership in the Lo^ge. This, it seems to me, is the true principle, not only of Masonic law, but also of equity. If a brother be innocent, he must be restored to every- thing of _ whici an unjust sentence had deprived him — ■ to membership in his Lodge, as well as to the gene- ral rights of Masonry. I think that I was the first to contend for this principle as a doctrine of Ma- sonic law, although it had always been recognized by the Grand Lodge of England, and in this country by that of South Carolina. At first there was a
548 RESTORATION.
very general opposition to the doctrine, and the grounds of objection were singularly based on a total misapprehension of that article in the Regula- tions of 1721, which declares that " no one can be admitted a member of any particular Lodge without the unanimous consent of all the members of that Lodge then present" — a provision which the same article asserts to be " an inherent privilege,not sub- ject to dispensation."
I have said that the application of this regulation to the doctrine of restoration from expulsion, by ap- peal, is a total misapprehension of its meaning, be- cause the question is not, in these cases, as to the admission of a new member, with which it is not denied that the Grand Lodge cannot interfere, but whether one who is already a member shall be di- vested of his franchiscd rights of membership wi th- ou t cause.
It is admitted on all sides that where the restora- tion is made on petition, simply as an act of cle- mency, in which case the forfeiture of membership is acknowledged to have been justly and legally in- curred, the Grand Lodge cannot restore to member- ship, because by its act of clemency it admits that the brother is not a member of the Lodge, and it cannot intrude him on the Lodge without its con- sent. I say that it admits this by its act of cle- mency, because if he were not justly deprived of his membership, there would have been no room for clemency. Pardon is for the guilty, not for the innocent.
RESTORATION. 549
But whea it is proved that the trial was illegally conducted — that the testimony was insufficient — that the offence was not proved — that the brother was innocent, and therefore unjustly condemned — who will dare to say that a Lodge may thus, by an arbitrary exercise of power, inflict this grievous wrong on a brother, and that the Grand Lodge has not the prerogative, as the supreme protector of the rights of the whole fraternity, to interpose its superior power, and give back to injured innocence all that iniquity or injustice would have deprived it of? Who will dare to say, in the face of the great principles of justice and equity, that though inno- cent, a Mason shall receive but a portion of the re- dress to which he is entitled? — and that he shall be sent from the interposing shield of the supreme authority and highest court of justice of the Order, not protected in his innocence and restored to his rights, but as an innocent man, sharing in the punishment which should only be awarded to the guilty? I, for one, never have subscribed, and ne\cr will subscribe, to a doctrine so full of arbi- trary oppression and injustice, and which, if it really constituted Masonic law, would be to every honest man the crying reproach of the institution.
I have said that when, several years ago, I first advanced this doctrine of the competency of the Grand Lodge to grant an unconditional restoration to membership, it met with very general condemna- tion. Here and there a solitary voice was heard in its defence, but officially it was almost univer*
550 RESTORATION.
sally condemned as an infringement on the rights of Lodges. The rights of members do not seem, on those occasions, to have been at all considered.*
But the doctrine is now gaining ground. In 1857, the Grand Lodge of Missouri carried it into practical operation, and ordered that one of its
* The first support that was given to these views was by my distinguished friend, Albert PiKa, whose remarks on the question, in his report in 1854, to the Grand Lodge of Arkansas, I cannot refrain from citing in a note.
"If, iu case of trial aad conviction, suspension or expulsion from the rights and benefits of Masonry is adj.idged, that includes, as a part of itself, suspension or expul-ion from membership. If, on appeal, the Grand Lodge reverses the decision of the subordinate, on the ground of error in proceeding, or innocence, that reversal annuls the judgment, and it is as if never pro- nounced— non avenu: consequently it has no effect whatever — and, in Masonic law, the matter stands as if no such judgment had ever been ren- dered. The accused is not restored to the Older, nor to membership. The effect of reversal is, that he was never suspended or expelled at all, in law : and there is no power in the Grand Lodge, either by the judgment or by previous legislation, to give such judgment of leversal any other or less effect.
" If the Grand Lodge tries the case de novo, and adjudges the party inno- cent, of course it must annul the judgment of the subordinate Lodge in toto ; and if the suspension from membership resulted solely from that judgment there never was, in law, any suspension.
" If it merely decides that the proceedings were erroneous, it should send the case back for another trial ; if it decides that the testimony was insuf- ficient to establish guilt, it should reverse arid annul, and direct the proceed- ings to be dismissed. In either case the judgment is annulled ; but in one case the proceeding continues, and in the other it does not.
" But the Grand Lodge may find such a case as that the offence was pro- ven, and the proceedings were regular, except as to the judgment, which should, have been limited to suspension from membership. In that case it may partially reverse and reduce the sentence to its proper dimensions. It can only do that when the offence charged, or a minor one included in it, is established, but the punishment of suspension or expulsion from the rights and privileges of Masonry cannot be inflicted for such an offence.
" These principles of Masonic law seem to us so palpably plain and cor- rect as to need no argument ; and if violated anywhere, we hope to see the ancient Landmarks set up again in this respect."
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Lodges should restore an expelled brother to mem- bership, under penalty of arrest of charter.
In the same year, the doctrine was virtually in- dorsed by the Grand Lodge of Kentucky, in its ap- probation of the course of its Grand Master, in deciding that a brother who appealed from expul- sion, and after a new trial, had been acquitted, should be restored to membership, notwithstanding the opposition of the Lodge to his re-admission.
And lastly, in 1858, the Grand Lodge of Missis- sippi has entered into the earnest consideration of the question ; and an able report has been made to that body by Bro. G. M. Hillyer, one of the most enlightened Masons in America, who has eloquently and manfully supported the hitherto unpopular doc- trine for which I have been so long contending. From this eloquent, as well as logical report, I shall cite a single paragraph, with which to conclude the subject.
Speaking of the appeal made by a brother expel- led from the rights and privileges of Masonry, and concomitantly from membership in his Lodge, Bro. Hillyer says : " The Grand Lodge perhaps acquits him, and then it is, under the present system, that his punishment commences. Whatever the final verdict and decision, the accused brother has to undergo a penalty. If innocent, the smiting is not to be with as many stripes, it is true ; but why with any ? What punishment has an innocent man de- served ? If he is in the right, and his accusers have been in the wrong, what justice is there in saying
552 RESTORATION.
that lie shall only be deprived of half his privileges ? Why deprive him of any in that case ? Why punish the innocent ? Why, above all, have a law that makes the very tribunal that vindicates the inno- cence of the accused, accompany that vindication with punishment? There is no justice, there can be no expediency in such a course."*
The time will yet come, I am sure, and the expec- tation is made more certain by such aid, when the universal suffrage of the fraternity will confess the law to be as I have announced it, that in case of unjust expulsion, the Grand Lodge may restore an innocent brother, not only to the rights and privi- leges of Masonry, but also to membership in his Lodge.
Lastly, a Grand Lodge may restore in part, and not in whole. It may mitigate the amount of pun- ishment, as being too severe or disproportioned to the offence. t It may reduce expulsion to suspen- sion, and indefinite to definite suspension, or it may abridge the period of the last. But all these are matters of justice and expediency, to be judged of by the Grand Lodge, according to the particular circumstances of each case.
* Proc. G. L. of Miss., 1858, p. 69.
f Noxiat posna par esto — " let the punishment be equal to the offence," is a maxim of strict justice, common to the Masonic, as well as to every code cf law ; and hence an oppressive and disproportioned penalty affords good ground for an appeal.
CHAPTEK IV. $ena! Sur tstrtcttou*
The penal jurisdiction of Masonic bodies is that jurisdiction which is exercised by them for the in- vestigation of offences and the award of punish- ment. The subject is properly divided into two sections — the one relating to the penal jurisdiction of Grand Lodges, the other to that of Subordinate Lodges. The penal jurisdiction of Grand Lodges has already been fully considered under the head of the ''Judicial Powers" of those bodies, so that it only remains here to inquire into the penal jurisdic- tion which is exercised by subordinate Lodges.
The penal jurisdiction of a subordinate Lodge is both geographical and personal.
The geographical jurisdiction of a Lodge is that penal jurisdiction which it exercises over the terri- tory within which it is situated, and extends to all the Masons, affiliated and unaffiliated, who live within that territory.
As to the local extent of this jurisdiction, it is universally supposed to extend to a point equally distant from the adjacent Lodge. Thus, if two Lodges are situated within twenty miles of each
24
554 PENAL JUBISDICTION.
other, the geographical jurisdiction of eacli will ex- tend ten miles from its seat in the direction of the other Lodge. But in this case both Lodges must be situated in the same State, and hold their warrants from the same Grand Lodge ; for it is a settled point of Masonic law that no Lodge can extend its geographical jurisdiction beyond the territorial limits of its own Grand Lodge.
Thus, if of two Lodges, twenty miles distant from each other, one is situated in Georgia, five miles from the boundary line between that State and Alabama, and the other in Alabama, fifteen miles from the same line, then the jurisdiction of the Georgia Lodge will not cross over the boundary, but will be restricted to the five miles which are between it and the line, while the fifteen miles which are between that line and the Alabama Lodge, will be within the penal jurisdiction of the latter body.
The personal jurisdiction of a Lodge is that penal jurisdiction which it exercises over its own mem- bers, wherever they may be situated. No matter how far a Mason may remove from the Lodge of which he is a member, his allegiance to that Lodge is indefeasible, so long as he continues a member, and it may exercise penal jurisdiction over him.
With this view of the nature of the two kinds of penal jurisdiction exercised by Lodges, we are pre- pared to investigate the practical application of the subject.
1. A Lodge exercises penal jurisdiction over all its members. The old Charges require every Mason
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to "stand to the award and determination of the Lodge f that is to say, the Lodge of which he is a member, and the rights and privileges, as well as the Masonic protection secured by such membership, carry with them a corresponding duty of allegiance and obedience. This doctrine is not left to mere deduction, but is supported by the ritual law, which imposes on every Mason, in the most solemn man- ner, an obligation to abide by and obey the by-laws, rules and regulations of the Lodge, of which he is a member. Membership in a Lodge can only be voided by death, demission, or expulsion, and hence neither it nor the jurisdiction which it communi- cates is lost by a change of residence.
The Master of a Lodge is the only one of its members who is not amenable to the jurisdiction of the Lodge. There is no principle of Masonic law more completely settled by the almost universal con- sent of the fraternity, than that which declares that a Master cannot be tried by his Lodge. It may be- come his accuser, but to the Grand Lodge alone is he amenable for any offence that he may commit while in office.
In like manner, the Grand Master, while holding that office, is not within the penal jurisdiction of the Lodge, of which he is a member.
2. A Lodge exercises penal jurisdiction over all affiliated Masons, although not its members, who live within its territorial limits. A, for instance, being a member of a Lodge in New York, but living in the vicinity of a Lodge in Florida, is amenable
556 PENAL JURISDICTION.
to the jurisdiction of both bodies ; to the former by personal jurisdiction, to the latter by geographi- cal. And this is a wise provision of the law ; for A, living at a great distance from his own Lodge, might conduct himself in so disorderly a manner, violating the proprieties of life, and transgressing habitually the moral law, as to bring great reproach upon the institution of which he is a member. Now, his distance from his own Lodge would, in all probability, prevent that body from acquiring any knowledge of the evil course he is pursuing, or if cognizant of it by report, it might find great difficulty in proving any charge based upon such report.
The Order, therefore, under the great law of self- preservation, commits to the Lodge in Florida, in whose vicinity he is living, and whose good fame is most affected by his conduct, the prerogative of trying and punishing him ; so that the world shall not say that a bad Mason can lead a disorderly life, and violate the law, under the very eyes of his con- gregated brethren, and yet receive no reproof for his criminality. And if expulsion is the result of such trial, that expulsion, by the Lodge in Florida, carries with it expulsion from his own Lodge in New York ; for, if the premises are not denied that the Lodge in. Florida can rightfully exercise penal jurisdiction, then the conclusion follows, that that expulsion must be legal. But expulsion annuls all Masonic status and obliterates Masonic existence, and the Mason, whoever he may be, that has been
PENAL JURISDICTION. 557
legally expelled by one Lodge, can never receive admission into another.
The appeal in such a case will be, not to the Grand Lodge of New York, but to that of Florida, for that body alone can investigate matters or re- dress grievances arising within its own territory, and in one of its own subordinates.
3. Lastly, a Lodge may exercise penal jurisdic- tion over all unaffiliated Masons living within its territorial limits. This provision of Masonic law is founded on the same prudent principle of self-pre- servation as the former. An unaffiliated Mason must not be permitted, for want of jurisdiction over him, to claim his connection with the Order, and yet, by an irregular course of life, to bring discredit on it. The jurisdiction must exist somewhere, which will remove such an evil, and vindicate the institution ; and nowhere can it be more safely or appropriately deposited than in the Lodge which is nearest to his residence, and which must conse- quently have the best opportunity of observing and judging of his conduct.