The Judge’s Summing Up - In the Trial of Tyler, Guard and Deacon

An Address given by WBro Graham Dunne
After his Installation as Master of
The Hawke’s Bay Research Lodge No 305
On Monday, 3rd August 2009

The following is an adaptation of a paper written by WBro Gerald Mendoza, LGR, and printed in Freemasonry Today, Issue 11 (1999)
Preamble …

The lodge room was rearranged so that twelve specially chosen Installed Masters were seated in the South East to act as the “jury”.
The Tyler, the Inner Guard and the Junior Deacon (the “accused”) were seated together in the “dock” in the South.

“Clerk”
Silence in Court! All stand for Judge Dunne presiding.
The Master, acting as the “Judge”, entered, wearing a legal gown and wig, to take his seat in the “court”.

“Judge Dunne”
Members of the jury, the accused are charged with several serious offences. They include attempted murder, causing grievous bodily harm, assault, unlawful imprisonment, conspiracy, incitement and possession of offensive weapons.
You have listened patiently to the evidence. It is now my duty to sum up and to direct you on the law. It is for you to decide on the facts whether the offences specified in the indictment have been committed.

The prosecution has alleged that the victim (now known as Mr Candidate), having applied for membership of what he believed to be a private philanthropical and dining club, was interviewed by a committee of members. Having been informed that he was acceptable as a member, he was then given an appointment to attend on a certain evening

On arriving to keep that appointment he was immediately confined alone in a small room and warned not to leave it. Later, the defendant, Tyler, who was armed with a sword, opened the door and took charge of him. The candidate’s clothing was apparently then rearranged in a most peculiar manner before he permitted himself to be blindfolded, or hoodwinked, as the accused would have it. You may feel, members of the jury, that, despite his genial looks, Tyler is a forceful character and one not to be argued with. That of course is a matter for you.

After certain preliminaries Mr Candidate heard a door open and the sound of people in a room. Naturally enough, as you may think, he stepped forward. He recollects hearing a voice enquiring whether he felt anything. He did indeed, a sharp pain in his chest, before suddenly being pulled backwards by the throat and almost falling to the ground.

Subsequently it was established that he had been stabbed in the chest with a stiletto, quaintly referred to as a poignard by the accused, before he was pulled backwards by a rope, which counsel referred to as a cable tow, and which was formed as a noose around his neck. He sustained further injuries while falling that were inflicted by a sword held by Tyler.
What did the accused have to say in reply to those allegations?

First, they submitted that there was no mens rea, which means that there was no guilty intent in their actions. This whole matter was simply dismissed as an unfortunate accident in a ceremonial that had been performed for centuries. You will however remember the statement made by the defendant Guard. He claimed that he had simply stood firm and done his duty. Stabbing Mr Candidate was simply "doing his duty".

No guilty intent? But that of course is a matter for you.
Secondly, the defence has argued that Mr Candidate had consented to take part in the ceremony. It was said that he was a free man and of full age. You will however remember that under cross examination it was admitted that those questions had not been put to him before he was regrettably and so grievously stabbed.

As a matter of law, consent may be implied even when physical harm may result, for example in visiting the dentist, or when agreeing to surgery, or when taking part in boxing or other sports where physical contact or risk is involved. Consent must however be real. It must not be obtained by fraud or deceit.

Can a blindfolded man give meaningful consent to matters going on around him of which he is deliberately kept in ignorance? That is what you are asked to believe. But that of course is also a matter for you.
Counsel for the defendant Deacon has contended that he was not directly involved in the events that led to this trial. He was merely standing close by, an innocent bystander, and was no more a party than anybody else in the room, or “lodge”, as it has been referred to. It has, however, never been denied that all were gathered for a common purpose.

Members of the jury - it follows that if you find Tyler and Guard guilty, then Deacon must also be convicted. 
Tyler's defence to the charge of causing grievous bodily harm is that the injuries inflicted by his sword were caused accidentally when he unsuccessfully tried to catch Mr Candidate as he fell. You may feel this excuse to be thin, strained, weak, feeble, flimsy, barely credible and utterly pathetic. But that of course is also entirely a matter for you.

On the charge of being in possession of offensive weapons, Tyler does not deny being in possession of a sword. The defendant Guard likewise does not deny possession of the dagger that you have all seen. They claim, however, that these are not offensive weapons, but ritual objects and no more remarkable than the dirk worn as part of full Scottish Highland dress.
Members of the jury, if that is true, you may well wonder whether it is permissible to possess a machine gun, a field piece, or an atomic bomb, provided it is used for ritual purposes only. If the sword or dagger were to be carried openly in the street, there can be no doubt that an offence would be committed. Whether this is excused by using them behind closed doors, I leave to you.
It has been argued that the accused were not engaged in a criminal conspiracy but simply performing an ancient ritual. We have heard exhaustive analogies to Trooping of the Colour, the State Opening of Parliament and even to the law itself. We have heard about judges' wigs and robes, about forms of address used in court, about the secrets and mysteries of conveyancing. It has actually been suggested that a great deal of the practice of law is ritual.

I am sure I need not tell you that the law is quite different. The majesty of the law must never be confused with the activities of common people. One might say, the fact that Judges wear wigs, tra la, has nothing to do with the case [With apologies to Gilbert and Sullivan’s The Mikado].

The defence would have you believe that the events, of which we have heard, were conducted between men who were of full age, sound judgement and strict morals. Men indeed much like yourselves, who might be called on to serve on a jury. The defence, that members of the judiciary have taken part in these assemblies, has even been suggested.

You may believe that, but I do not seek to influence your decision on the facts in any way, and would not for one moment wish to do so. You may, however, as reasonable men of the world think the interpretation of events given by the witnesses is a tale to be told to the marines, a case, as you yourselves as ordinary men in the street might very well say of credat judaeus apella non ego [Horace].
As sole judges of the facts it is entirely possible, that you may find the events and practices referred to in this case, and the defences offered, to be strange, remarkable, astonishing, unbelievable, bizarre, weird, incredible, unaccountable, mysterious, enigmatic, exotic, outlandish, fantastic, amazing, bewildering, surpassing belief, baffling, dumbfounding, flabbergasting, stupefying, unheard of, mind boggling, astounding, but, members of the jury, that is entirely a matter for you.

You will now consider your verdict and vote according to your conscience. May I remind you that two black balls will convict.
I would make one final comment. I have my suspicions that you, the members of the jury, may in fact all be members of the same organisation as the defendants. But that is also a matter entirely for you. You will now consider your verdict.

Post Script …

The “jury” found all three defendants guilty as charged.