The PCA And The Right Against Self-Incrimination [part 2]

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This post continues a discussion that began yesterday, discussing overture 7 (found here) To read the first part of the article, please see here ~ Editor

3. Robert Dabney and American Presbyterianism 

These protections were not only adopted in American civil courts, but in Presbyterian courts as well. The right against self-incrimination was not challenged in the Church until the 1850s, as part of proposed revisions to the Presbyterian Book of Discipline.

According to James Thornwell, the reason for the proposed revision was that the old Book of Discipline included Presbyterians' "denominational peculiarity" of sermonizing, such that the Book of Discipline was not simply a "book of definitions, of forms and rules."[4] To simplify the language, the General Assembly of 1857 appointed a committee of 10 men, including Thornwell and Charles Hodge, who met for four to five days in Philadelphia in August 1858. The PCA Historical Center's website includes drafts of the revisions, along with extensive commentaries by members of that committee. 

Charles Hodge, a member of the committee, wrote 30 pages of commentary on the proposed Revised Book of Discipline. In his commentary on chapter five, he says: 
This chapter relates to process against a minister. . . . Very little change is proposed in the revised Book. The first four sections are the same in both Books. They prescribe great caution in entertaining charges against a minister . . . Section 5 requires that process shall not be commenced against a minister (unless the scandal be notorious,) except charges are presented by one or more persons. To this is added in the new Book, "Nevertheless, each church court has the inherent power, to demand and receive satisfactory explanations from its members concerning any matters of evil report."[5] 
This last sentence proposed that courts should be able to compel the accused to testify: the court could not merely "demand" testimony, but it could "receive" it as well. This sentence corresponds to the PCA's BCO 31-2, but as we will see, the Church expressly revised the language prior to adoption so that the court could only demand testimony from the accused, but not compel it.  

According to Thornwell, there was a strong reaction against the committee's proposal, i.e. that 
every church-court has the inherent right to demand and receive satisfactory explanations from any of its members concerning any matter of evil report. Nothing has surprised us more than the manner in which this doctrine has been received. It has been branded as a 'new principle,' as 'unjust, hazardous, and extra-judicial.' 'No good,' we are told, 'can result from this exacting, star-chamber mode of inquiry.' Nothing but mischief is anticipated from the 'revised suggestion.' 'It has been hitherto unknown to the Presbyterian Church, and no court of law in a free country, has ever practiced to act upon it.'[6]
Even Thornwell noted that the language of "demand and receive" invited comparisons to the abusive methods of the Star Chamber. The strongest opposition to the proposal, however, came from Robert Dabney. Dabney was not on the committee for revisions, but when he read the proposal, he was deeply concerned that this new power would result in, as he put it, "tyranny." In 1859, in a paper called "The Changes Proposed In Our Book of Discipline," Dabney expressed his strong reservations about this proposed power, saying 
To the 5th section, which provides for placing a minister on his trial at the charge of a personal accuser, or of a persistent common fame, the Committee propose to add the following words: 'Nevertheless, each Church Court has the inherent power to demand and receive satisfactory explanations from any of its members concerning any matters of evil report.' The manner of asserting this power appears at least incautious. [If the proposed inquiry were limited to the minister's brethren to] advise him to avail himself voluntarily of an explanation, or of the examination above described, we could heartily approve. But farther than advice no judicatory should be allowed to go, without those regular forms of judicial process which are so necessary to the protection of equal rights. The sentence under remark, as it now stands, would seem to give a judicatory power to compel a brother, (who should be held innocent till he is proved guilty, but who is suffering under the infliction of evil tongues,) to take his place in the Confessional against his own consent. . . . We may not do any pain whatever to one member of a judicatory, which is not equally done at the same time to all the members, unless he consents, or unless he is proved to deserve it, by being confronted with his witnesses. It is tyranny.[7]
Dabney then picks up his concern again in his comments about witnesses in a trial:
It seems to us improper, however, to make it the uniform law that all parties shall be compelled to testify against themselves, an abuse repudiated by all liberal legislation. The fifteenth section -- in present Book sixteenth -- provides that a church member summoned to testify may be censured for his refusal to obey. It would be well to introduce a clause, here or elsewhere, excepting persons appearing as defendants in a cause from this censure for refusing to testify. Otherwise misunderstanding may arise [8] 
The Church agreed with Dabney. While these revisions were being debated, Civil War broke out, splitting the Church. In the Southern Church, Dr. Thornwell was appointed as chairman of a committee to complete the revisions, but he died in 1862. After the war, revisions continued, and for the 1867 draft of the Book of Discipline, the "demand and receive" wording of chapter five was changed simply to "demand." The phrase "and receive" was eliminated. In so doing, the Church explicitly ensured that courts could not require the accused to testify. 

Further, Dabney's proposal for protection against self-incrimination was added to the 1867 draft of chapter seven (corresponding to the current BCO 35-1): "The parties may be allowed, but shall not be compelled, to testify." In 1879, the final draft read, "The accused party may be allowed, but shall not be compelled, to testify; but the accuser shall be required to testify, on the demand of the accused." It was this language that was formally approved by the Church. When the PCA was formed in 1973, the new denomination adopted this phrase without alteration, which has since remained as the wording of BCO 35-1. 

4. The Case Before Us

Presbyterians properly affirm accountability in our life and doctrine. As the proposed overture indicates in the rationale, we see that accountability in the BCO where a candidate for office is required to explain his beliefs (e.g. BCO 21-4c), to state his beliefs when a minister transfers to another court (e.g. BCO 13-6), and to declare if his views have changed (e.g. BCO 21.5.2). However, all those requirements are found in Part One of the BCO, the Form of Government. In these examinations, the candidate is not being accused of any offense. He does not face an indictment by the court. 

That is not the case, however, for matters of judicial process. In Part Two of the BCO, the Rules of Discipline, the officer faces accusation of wrong doctrine or behavior, and the prospect of discipline. In such cases, the accused has always been given protection against self-incrimination. In BCO 31-2, the court may only "demand" explanations of the accused. In 1867 our fathers explicitly rejected the proposed wording that courts could "demand and receive" testimony from the accused. This distinction affirmed Dabney's exhortation that courts may "advise him to avail himself voluntarily of an explanation" but to go no "farther than advice." BCO 31-2 heeds Dabney's counsel that the courts cannot require the accused to testify. Furthermore, the inquiry of BCO 31-2 is during the pre-indictment phase of determining whether to proceed to trial. No formal charges have been levied. After such an indictment has been made, Dabney's proposal as secured in BCO 35-1 protects against unchecked prosecution: "the accused party may be allowed, but shall not be compelled, to testify."

On a practical level, revoking this right in church courts could undermine the constitutional rights of the accused who also faces civil charges. If a man is compelled to testify against himself in a church court, that testimony potentially could be used against him in a civil trial, thus effectively denying him protections of the Fifth Amendment. 

Without the safeguards currently in place in our BCO, the accused would once again face the old trilemma of self-incrimination, perjury, or contempt. The current wording of BCO 35-1, proposed by Dabney, stands as the accused's sole protection. Moreover, history shows us this right is also an important protection for the accusers, as a check against our worst tendencies. 

As Presbyterian elders consider this important issue, may we re-affirm the right against self-incrimination that Jesus exercised; that Lilburne, Dabney, and many others called for; and which has shaped our Presbyterian and civil courts for nearly 400 years. 

Scott Seaton is Pastor at Emmanuel Presbyterian Church, Arlington, Virginia


[4] James Thornwell, "The Collected Writings of James Henley Thornwell," (1871), vol. 4 p. 302

[5] Charles Hodge, "The Revised Book of Discipline," (1858), p. 703 (emphasis added).

[6] Thornwell, p. 305 (emphasis added)

[7] Robert Dabney, "The Changes Proposed in our Book of Discipline," (1859), p. 52-53

[8] Ibid., p. 67

Posted May 23, 2015 @ 8:06 AM by Rev. Scott Seaton

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