The Romans were the first people to discover that law and justice are one and the same. They contributed other great and permanent things to the world also, but no one of them has aroused so deeply the admiration of men; and that word is here used in its sense of gender, for in contradistinction to women and children men have a lasting love of the law, because it is that in the nature of our world which is most masculine. And in the whole of our English language with its 400,000 words there is no other combination of terms which rings such strong chords of power and music in the feelings of men as that one which centers in, and has grown out of, the old Latin word jus, which has always had the meaning of both law and justice. Our term "justice" itself means to "let the law prevail; to let the law have its way." "To judge" is one form of the Latin judex, which the Romans formed by combining jus with the word dico, which meant to say, to speak, to utter. When a case is brought before a judge he does not decide what the evidence is but finds and states the law which applies to the facts given in evidence; he says, or declares, that law; and it is the law, not the judge, which judges the case. Our word "jurisprudence" also has jus as one of its roots; with it is combined the Latin prudentia, which meant to provide for, or to provide against; it in turn was derived from pro, which meant ahead, to foresee, the future, combined with video, which meant to see, to look. In itself therefore "jurisprudence" means "as far as the law can see."
In the United States we always think of the law as belonging to government, and we do not permit associations or agencies not belonging to the government to find, declare, and state the law, nor are they permitted to have officers who can use force to compel men to act lawfully; when they attempt to do so we say that "they are taking the law into their own hands" and that is itself illegal. In Medieval Britain this was not true. The administration of law was not confined to a single government which stood at the center of the nation, but was divided up and parcelled out among great lords, cities, the church, and the gilds. Our modern gilds, fraternities, labor unions, churches and societies have their own rules and their own officers but they are not permitted to usurp the legal functions of the government. In consequence it is a question whether any private society may in the true sense of the word be said to have laws, and therefore to have a jurisprudence. We are discussing that question in Freemasonry now and until the discussion reaches a conclusion we can use the word "law" in Masonry with quotation marks around it, shown or implied; and we can define Masonic Jurisprudence as its own system of rules and regulations.
If this be allowed to be a correct definition we can state categorically that Masonic Jurisprudence is as old as Freemasonry itself because in its Operative Period the Fraternity had a complete system of Landmarks and rules and regulations; we can state with equal certainty that this jurisprudence was transmitted in its fundamentals with remarkably few changes; and to this we can add the fact that in the Operative Period Freemasonic rules and regulations were laws in the correct sense, because, under authority delegated by the King's government at that time, the Masonic Fraternity could impose such penalties on its own members as fines, suspension from work, or expulsion from the Craft, the last named being a very severe penalty because it banished a Craftsman from his own world and took from him his means of livelihood.
If we take it that the Fraternity began in the Twelfth Century (the date is approximate) and that Lodges did not write clown their own rules and regulations until the middle of the Fourteenth Century, the question arises as to how the Fraternity had preserved its rules and regulations during the two centuries before. The answer is, that it was by means of oral transmission.
Oral transmission was a remarkable system, and until writing came into common use, was the only system used by peoples to preserve their own chronicles and records it was a learned profession, as much as history and authorships are now; in respect of some of its uses oral transmission was less reliable than our own system of written records and documents, in other of its uses it was more reliable, because where we now have thousands of records and thousands of men to keep them, peoples using oral transmission had only one record, and the many chroniclers had to use the same record.
Possibly the most complete records now existing of any one peoples' system of oral transmission are of Ireland. Before Christianity was brought in from Europe (not from England) by the missionaries, and when Druidism was the religion of the country, the Druids kept at the court of each king or chieftain an officer called an ollave whose duty it was to learn by heart the laws, the history, and the songs of the tribe, and it was worth his life to forget any of them. Under Christianity this officer was retained, but he came to be called poet instead of ollave. These poets were organized as a gild: they had their titles, officers, and ranks, and took apprentices. In the early period it took a poet twelve year, to master his craft and to learn the record; by the Sixteenth Century it took him twenty years. Generation alter generation these ollaves and poets preserved, in a letter perfect form, the old chronicles, laws, and songs.
The Irish System was but a more complete and perfected form of the same system that was used everywhere else. The Operative Freemasons themselves used it, and their use of it was one of the origins of the Ritual; and it explains why it was that the authors of the first copies of the Old Charges in the Fourteenth Century could be so confident to believe that the rules and regulations which they wrote into the document had come down from far earlier times. Our own rules and regulations are, the body of them (and after being adapted to new uses, and rewritten in modern form), substantially the same as those written into the Old Charges. Our own jurisprudence is, to repeat, very old; and it is our loss that we do not love it the more and have more emotion for it because it is very old; for our prejudice against the past, because it is the past, is a piece of stupidity, and our fear lest we be gripped by "the dead hand of the past" is a piece of superstition loving the past has nothing to do with slavery to the past!
Socrates once raised the question "whether the soul is a simple substance" (as water is) or whether it was a compound of many things of different kinds. If Socrates could be here to examine Freemasonry he would not find any need to ask that question about it; he could see at a glance that it is a compound in which are many elements or constituents, of different kinds and sorts. Among these constituents is a kind composed of rules and regulations, which belong to Freemasonry as much as the Degrees and the symbols and Lodges belong to it; jurisprudence separates out those constituents which are concerned with rules, observes them, studies them, and seeks to know and to understand them; but it is not something external to Freemasonry because its subjects belong to what Freemasonry is; therefore a knowledge of jurisprudence is a knowledge of Freemasonry itself, a way of explaining or describing one of the things which it is; our jurisprudence is not about our rules and regulations, it is our rules and regulations.
This description of our jurisprudence is also a description of our Ancient Landmarks, which are its foundations. Among the many things which constitute Freemasonry are a number of things so fundamental to it that if they, or any one of them, are destroyed Freemasonry itself is destroyed; such fundamentals are the Ancient Landmarks. How discover them? By observation, by reasoning, by experience, and analysis.
Next after them come Constitutions and constitutional laws. The Landmarks show us what Freemasonry is, in one fundamental after another; constitutional law gives us the means to organize those fundamentals, to put them into practice, to implement them. A Landmark tells us that we cannot have Freemasonry unless we have a Lodge, constitutional law gives us the power and the agencies to erect a Lodge. Another Landmark says that we must confer three Degrees; constitutional law gives us a set of Installed Officers with which to confer them. It goes on then from one Landmark to another; for each Landmark that we find, constitutional law gives us the means to put it into effect.
Next after constitutional laws comes a large body of statutes, general rules, decisions, and edicts which may be denominated General Laws because their generality is their chief characteristic, since they are general in kind and have a general application, and apply equally to Lodges and Lodge members everywhere in a Grand Jurisdiction. In the Landmarks we have the fundamentals of which Freemasonry consists, as those fundamentals are seen in the eyes of jurisprudence; in constitutional laws we have the means or implementation by which Grand Lodges and Lodges are brought into existence as the means to make Freemasonry effective; once these Lodges and Grand Lodges are in existence they begin their work, and this work takes the form of activities of many kinds; General Laws are the rules by which these activities are separately and individually regulated.
Inside this large field of General Law is a field which may be best described as Lodge Law. A Lodge is a legislative and a judicial body; it has rules of its own in its written By-laws; it conducts trials, it collects dues; it elects and installs officers; a number of the Landmarks belong to it exclusively; it has within its own jurisdiction a privacy of its own, and within its own sphere a complete sovereignty; moreover it can, within that sphere and jurisdiction, act in its own name and with original authority, because unlike local bodies in many other fraternities and societies it is not a mere organ or agent for some authority outside itself. There is, therefore, such a thing as Lodge jurisprudence; it is not as large in scope as the jurisprudence of the General Masonic Laws, still less does it have the sweep of the Landmarks, which are laws for the World Fraternity; but within its own sphere it is as fundamental and as sovereign.
In the Autumn of 1946 A.D., President (and Brother) Harry S. Truman proclaimed officially to the world that the United States had annexed a vast new territory which had added 700,000 square miles to our public domain. Professor Harold F. Clark and George T. Renner, who wrote a work on this proclamation, declared it to be one of the most epoch making events since the discovery of the Continent by Columbus in 1492 A.D. This new territory consists of ocean bed lying as a strip around the coast of the United States and of its possessions, extending so many rods from the coast line. But where is the coast line? The margin where land and water meet is a shifting one, always advancing and retreating, and the two historians of the proclamation predicted that in hundreds of courts, and in the heads of thousands of lawyers, and for generations to come, that question as to where is the coast line would be rising continually.
A student of Masonic Jurisprudence has that
same question thrust upon him at every point in his studies. That
Jurisprudence is only a part of Freemasonry; therefore there are
other parts; where is the line between them and Jurisprudence
to be drawn? The best of our authorities (jurisconsults) have
never found any better answer than to say that it is a changing
coast line; it would be more convenient if we could draw the line
hard and fast but we cannot, and we must do the best we can with
it, and they remind us that this uncertainty in the outer boundaries
of our Jurisprudence is one of the explanations of that variety
in law and in laws from one Grand Jurisdiction to another which
has perplexed so many Masons. Nevertheless these perplexed Masons
can simplify their own particular problem to at least an appreciable
degree if they will note that Masonic Jurisprudence is never to
be confused with Masonic Parliamentary Law, or with Masonic Etiquette,
or with Masonic traditions, usages, and customs.
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