The Principles of Masonic Law/Chapter XXI
Having thus discussed the penalties which are affixed to masonic offenses, we are next to inquire into the process of trial by which a lodge determines on the guilt or innocence of the accused. This subject will be the most conveniently considered by a division into two sections; first, as to the form of trial; and secondly, as to the character of the evidence.
Section I.
Of the Form of Trial.
Although the authority for submitting masonic offenses to trials by lodges is derived from the Old Charges, none of the ancient regulations of the Order have prescribed the details by which these trials are to be governed. The form of trial must, therefore, be obtained from the customs and usages of the craft, and from the regulations which have been adopted by various Grand Lodges. The present section will, therefore, furnish a summary of these regulations as they are generally observed in this country.
A charge or statement of the offense imputed to the party is always a preliminary step to every trial.
This charge must be made in writing, signed by the accuser, and delivered to the Secretary, who reads it at the next regular communication of the lodge. A time and place are then appointed by the lodge for the trial.
The accused is entitled to a copy of the charge, and must be informed of the time and place that have been appointed for his trial.
Although it is necessary that the accusation should be preferred at a stated communication, so that no one may be taken at a disadvantage, the trial may take place at a special communication. But ample time and opportunity should always be given to the accused to prepare his defense.
It is not essential that the accuser should be a Mason. A charge of immoral conduct can be preferred by a profane; and if the offense is properly stated, and if it comes within the jurisdiction of the Order or the lodge, it must be investigated. It is not the accuser but the accused that Is to be put on trial, and the lodge is to look only to the nature of the accusation, and not to the individual who prefers it. The motives of the accuser, but not his character, may be examined.
If the accused is living beyond the jurisdiction of the lodge--that is to say, if he be a member and have removed to some other place without withdrawing his membership, not being a member, or if, after committing the offense, he has left the jurisdiction, the charge must be transmitted to his present place of residence, by mail or otherwise, and a reasonable time be allowed for his answer before the lodge proceeds to trial.
The lodge should be opened in the highest degree to which the accused has attained; and the examinations should take place in the presence of the accused and the accuser (if the latter be a Mason); but the final decision should always be made in the third degree.
The accused and the accuser have a right to be present at all examinations of witnesses, whether those examinations are taken in open lodge or in a committee, and to propose such relevant questions as they desire.
When the trial is concluded, the accused and accuser should retire, and the Master or presiding officer must then put the question of guilty or not guilty to the lodge. Of course, if there are several charges or specifications, the question must be taken on each separately. For the purposes of security and independence in the expression of opinion, it seems generally conceded, that this question should be decided by ballot; and the usage has also obtained, of requiring two-thirds of the votes given to be black, to secure a conviction. A white ball, of course, is equivalent to acquittal, and a black one to conviction.
Every member present is bound to vote, unless excused by unanimous consent.
If, on a scrutiny, it is found that the verdict is guilty, the Master or presiding officer must then put the question as to the amount and nature of the punishment to be inflicted.
He will commence with the highest penalty, or expulsion, and, if necessary, by that punishment being negatived, proceed to propose indefinite and then definite suspension, exclusion, public or private reprimand, and censure.
For expulsion or either kind of suspension, two-thirds of the votes present are necessary. For either of the other and lighter penalties, a bare majority will be sufficient.
The votes on the nature of the punishment should be taken by a show of hands.
If the residence of the accused is not known, or if, upon due summons, he refuses or neglects to attend, the lodge may, nevertheless, proceed to trial without his presence.
In trials conducted by Grand Lodges, it is usual to take the preliminary testimony in a committee; but the final decision must always be made in the Grand Lodge.
Section II.
Of the Evidence in Masonic Trials.
In the consideration of the nature of the evidence that is to be given in masonic trials, it is proper that we should first inquire what classes of persons are to be deemed incompetent as witnesses.
The law of the land, which, in this instance, is the same as the law of Masonry, has declared the following classes of person to be incompetent to give evidence.
1. Persons who have not the use of reason, are, from the infirmity of their nature, considered to be utterly incapable of giving evidence.[1] This class includes idiots, madmen, and children too young to be sensible of the obligations of an oath, and to distinguish between good and evil.
2. Persons who are entirely devoid of any such religious principle or belief as would bind their consciences to speak the truth, are incompetent as witnesses. Hence, the testimony of an atheist must be rejected; because, as it has been well said, such a person cannot be subject to that sanction which is deemed an indispensable test of truth. But as Masonry does not demand of its candidates any other religious declaration than that of a belief in God, it cannot require of the witnesses in its trials any profession of a more explicit faith. But even here it seems to concur with the law of the land; for it has been decided by Chief Baron Willes, that "an infidel who believes in a God, and that He will reward and punish him in this world, but does not believe in a future state, may be examined upon oath."
3. Persons who have been rendered infamous by their conviction of great crimes, are deemed incompetent to give evidence. This rule has been adopted, because the commission of an infamous crime implies, as Sir William Scott has observed, "such a dereliction of moral principle on the part of the witness, as carries with it the conclusion that he would entirely disregard the obligation of an oath." Of such a witness it has been said, by another eminent judge,[2] that "the credit of his oath is over-balanced by the stain of his iniquity."
4. Persons interested in the result of the trial are considered incompetent to give evidence. From the nature of human actions and passions, and from the fact that all persons, even the most virtuous, are unconsciously swayed by motives of interest, the testimony of such persons is rather to be distrusted than believed. This rule will, perhaps, be generally of difficult application in masonic trials, although in a civil suit at law it is easy to define what is the interest of a party sufficient to render his evidence incompetent. But whenever it is clearly apparent that the interests of a witness would be greatly benefited by either the acquittal or the conviction of the accused, his testimony must be entirely rejected, or, if admitted, its value must be weighed with the most scrupulous caution.
Such are the rules that the wisdom of successive generations of men, learned in the law, have adopted for the establishment of the competency or incompetency of witnesses. There is nothing in them which conflicts with the principles of justice, or with the Constitutions of Freemasonry; and hence they may, very properly, be considered as a part of our own code. In determining, therefore, the rule for the admission of witnesses in masonic trials, we are to be governed by the simple proposition that has been enunciated by Mr. Justice Lawrence in the following language:
"I find no rule less comprehensive than this, that all persons are admissible witnesses who have the use of their reason, and such religious belief as to feel the obligation of an oath, who have not been convicted of any infamous crime, and who are not influenced by interest."
The peculiar, isolated character of our institution, here suggests as an important question, whether it is admissible to take the testimony of a profane, or person who is not a Freemason, in the trial of a Mason before his lodge.
To this question I feel compelled to reply, that such testimony is generally admissible; but, as there are special cases in which it is not, it seems proper to qualify that reply by a brief inquiry into the grounds and reasons of this admissibility, and the mode and manner in which such testimony is to be taken.
The great object of every trial, in Masonry, as elsewhere, is to elicit truth; and, in the spirit of truth, to administer justice. From whatever source, therefore, this truth can be obtained, it is not only competent there to seek it, but it is obligatory on us so to do. This is the principle of law as well as of common sense. Mr. Phillips, in the beginning of his great "Treatise on the Law of Evidence," says: "In inquiries upon this subject, the great end and object ought always to be, the ascertaining of the most convenient and surest means for the attainment of truth; the rules laid down are the means used for the attainment of that end."
Now, if A, who is a Freemason, shall have committed an offense, of which B and C alone were cognizant as witnesses, shall it be said that A must be acquitted for want of proof, because B and C are not members of the Order? We apprehend that in this instance the ends of justice would be defeated, rather than subserved. If the veracity and honesty of B and C are unimpeached, their testimony as to the fact cannot lawfully be rejected on any ground, except that they may be interested in the result of the trial, and might be benefited by the conviction or the acquittal of the defendant. But this is an objection that would hold against the evidence of a Mason, as well as a profane.
Any other rule would be often attended with injurious consequences to our institution. We may readily suppose a case by way of illustration. A, who is a member of a lodge, is accused of habitual intemperance, a vice eminently unmasonic in its character, and one which will always reflect a great portion of the degradation of the offender upon the society which shall sustain and defend him in its perpetration. But it may happen--and this is a very conceivable case--that in consequence of the remoteness of his dwelling, or from some other supposable cause, his Brethren have no opportunity of seeing him, except at distant intervals. There is, therefore, no Mason, to testify to the truth of the charge, while his neighbors and associates, who are daily and hourly in his company, are all aware of his habit of intoxication.
If, then, a dozen or more men, all of reputation and veracity, should come, or be brought before the lodge, ready and willing to testify to this fact, by what process of reason or justice, or under what maxim of masonic jurisprudence, could their testimony be rejected, simply because they were not Masons? And if rejected--if the accused with this weight of evidence against him, with this infamy clearly and satisfactorily proved by these reputable witnesses, were to be acquitted, and sent forth purged of the charge, upon a mere technical ground, and thus triumphantly be sustained in the continuation of his vice, and that in the face of the very community which was cognizant of his degradation of life and manners, who could estimate the disastrous consequences to the lodge and the Order which should thus support and uphold him in his guilty course? The world would not, and could not appreciate the causes that led to the rejection of such clear and unimpeachable testimony, and it would visit with its just reprobation the institution which could thus extend its fraternal affections to the support of undoubted guilt.
But, moreover, this is not a question of mere theory; the principle of accepting the testimony of non-masonic witnesses has been repeatedly acted on. If a Mason has been tried by the courts of his country on an indictment for larceny, or any other infamous crime, and been convicted by the verdict of a jury, although neither the judge nor the jury, nor the witnesses were Masons, no lodge after such conviction would permit him to retain his membership, but, on the contrary, it would promptly and indignantly expel him from the Brotherhood. If, however, the lodge should refuse to expel him, on the ground that his conviction before the court was based on the testimony of non-masonic witnesses, and should grant him a lodge trial for the same offense, then, on the principle against which we are contending, the evidence of these witnesses as "profanes" would be rejected, and the party be acquitted for want of proof; and thus the anomalous and disgraceful spectacle would present itself--of a felon condemned and punished by the laws of his country for an infamous crime, acquitted and sustained by a lodge of Freemasons.
But we will be impressed with the inexpediency and injustice of this principle, when we look at its operation from another point of view. It is said to be a bad rule that will not work both ways; and, therefore, if the testimony of non-masonic witnesses against the accused is rejected on the ground of inadmissibility, it must also be rejected when given in his favor. Now, if we suppose a case, in which a Mason was accused before his lodge of having committed an offense, at a certain time and place, and, by the testimony of one or two disinterested persons, he could establish what the law calls an alibi, that is, that at that very time he was at a far-distant place, and could not, therefore, have committed the offense charged against him, we ask with what show of justice or reason could such testimony be rejected, simply because the parties giving it were not Masons? But if the evidence of a "profane" is admitted in favor of the accused, rebutting testimony of the same kind cannot with consistency be rejected; and hence the rule is determined that in the trial of Masons, it is competent to receive the evidence of persons who are not Masons, but whose competency, in other respects, is not denied.
It must, however, be noted, that the testimony of persons who are not Masons is not to be given as that of Masons is, within the precincts of the lodge. They are not to be present at the trial; and whatever testimony they have to adduce, must be taken by a committee, to be afterwards accurately reported to the lodge. But in all cases, the accused has a right to be present, and to interrogate the witnesses.
The only remaining topic to be discussed is the method of taking the testimony, and this can be easily disposed of.
The testimony of Masons is to be taken either in lodge or in committee, and under the sanction of their obligations.
The testimony of profanes is always to be taken by a committee, and on oath administered by a competent legal officer--the most convenient way of taking such testimony is by affidavit.