Church officers are required to explain and defend their life and doctrine when seeking admission to serve under the jurisdiction of another court (e.g., BCO 13-6.). Church officers are required by their ordination vows to come forward and make known any way in which their views might have become out of accord with any of the fundamentals of our system of doctrine (e.g., BCO 21-5.2.). Church officers are subject to the demand of the court of original jurisdiction to explain and defend their life and doctrine upon mere reports that their views or actions are inconsistent with their profession (BCO 31-2).

The 43^rd General Assembly of the Presbyterian Church in America (PCA) will consider and act upon Overture 7, a proposal to amend the Rules of Discipline to remove the right of a church officer to decline to testify as an accused in an ecclesiastical trial.

This Overture has been subject to robust criticism in Reformation21, the online magazine of the Alliance of Confessing Evangelicals (hereinafter referred to as the Critique).[1] Thus it seems suitable that some answer should be offered, correcting a number of misunderstandings, as well as pointing out the irrelevant observations and non sequiturs that trouble the Critique, so that commissioners may be able to justly weigh the merits of the proposal.

The Critique begins with a rather truncated consideration of Jesus and the right against self-incrimination, citing Mark 14:55-61. In this text it is alleged that Jesus provides an example (presumably for us, although that is not self-evident) of someone who refused to testify against himself. The Critique grants (though not so prominently) that this was not Jesus’ only way of responding, and thus grants that his example in Mark 14 is not prescriptive for all occasions. But perhaps it would be helpful for the reader to consider Jesus’ other “example,” in the very same “hearing,” continuing what was left off of verse 61, in the text printed in the Critique:

61 [“But he remained silent and made no answer.” Text cited in the Critique ends here. The verse continues:] Again the high priest asked him, “Are you the Christ, the Son of the Blessed?” 62 And Jesus said, “I am, and you will see the Son of Man seated at the right hand of Power, and coming with the clouds of heaven.” 63 And the high priest tore his garments and said, “What further witnesses do we need? 64 You have heard his blasphemy. What is your decision?” And they all condemned him as deserving death. Mark 14:61–64.[2]

It is important to observe that Jesus’ behavior in the next hearing, now before Pilate, reverses the pattern: here there is testimony and then silence (Mark 15:1-5; though note further that John reports that Jesus gave considerably more testimony than Mark recounts, John 18:34ff.).

What are we to make of this? Well, the matter of Jesus’ example is considerably more complex than represented in the Critique. However, clearly, it cannot be essentially sinful (or sinful on all occasions) for one such as Jesus to keep silent, for a time, before the accusations of a court. But of course the attentive reader of Overture 7 will have noticed that the proposal makes no claim to the contrary. Church members continue to have the right not to testify:

In general, the accused party may be allowed, but shall not be compelled to testify.

It is only church officers, and that because of the nature of their voluntary relation to a church court, who are taken to have given up that right:

However, because of the relationship of mutual accountability between church officers and the church created in the voluntary affirmation of ordination vows, church officers under accusation shall be required to testify before the court of original jurisdiction.

But if we are to consider the Scripture witness in this matter fully, we should recall that Jesus does not propose his example as the rule for his disciples. On the contrary, when Jesus is teaching on the subject, he instructs them:

And when they bring you to trial and deliver you over, do not be anxious beforehand what you are to say, but say whatever is given you in that hour, for it is not you who speak, but the Holy Spirit. (Mark 13:11-13; cf. Luke 21:12-19. Note that in the Luke passage Jesus calls testimony before the court “your opportunity to bear witness”!).

Sound hermeneutical policy requires that the didactic take precedence over the supposed exemplary. And in fact, the disciples appear to have understood this point, for in every instance in Acts, when challenged, the disciples freely testify with respect to their views and behaviors. A few instances will suffice:

And as [Peter & John] were speaking to the people, the priests and the captain of the temple and the Sadducees came upon them, 2 greatly annoyed because they were teaching the people and proclaiming in Jesus the resurrection from the dead. 3 And they arrested them and put them in custody. . . . 5 On the next day their rulers and elders and scribes gathered together in Jerusalem, 6 with Annas the high priest. . . . 7 And when they had set them in the midst, they inquired, “By what power or by what name did you do this?” 8 Then Peter, filled with the Holy Spirit, said to them, “Rulers of the people and elders, 9 if we are being examined today concerning a good deed done to a crippled man, by what means this man has been healed, 10 let it be known to all of you and to all the people of Israel that by the name of Jesus Christ of Nazareth, whom you crucified, whom God raised from the dead—by him this man is standing before you well. Acts 4:1–10.

[Another occasion] But the high priest rose up, and all who were with him . . . and filled with jealousy 18 they arrested the apostles and put them in the public prison. . . . 27 And when they had brought them, they set them before the council. And the high priest questioned them, 28 saying, “We strictly charged you not to teach in this name, yet here you have filled Jerusalem with your teaching, and you intend to bring this man’s blood upon us.” 29 But Peter and the apostles answered, “We must obey God rather than men. . . . Acts 5:17–29. See also, e.g., Acts 6:8–7:2.

These considerations rather weaken the bold conclusion asserted in the Critique: “Thus, Scripture does not require the accused to testify against himself.” More modestly put, we might conclude that Scripture does not require that in every instance in a given proceeding an accused must to testify concerning himself, but Christ’s instructions on the matter, and the example of those who heeded these instructions, create the expectation that his disciples will so testify.

The Critique next recounts something of the history of the right not to testify as it grew up in Anglo-American law. However, though edifying, the account is largely irrelevant to the proposal before the Assembly. The Overture declares in the first “Whereas”:

there is a long established tradition in Anglo-American law, with the respect to the compulsory powers of government, that an accused person cannot be required in any criminal case to testify against himself, the justice of which we raise no question or objection. . . .

Thus a defense of the right not to self-incriminate in civil government criminal proceedings is not a question before the Assembly.

On a personal note, with respect to the underlying principles of justice as applied to the civil government, I am entirely committed to the rights enshrined in the Fifth Amendment. I recently had a chance to see, and was filled with awe with respect to, a display of an original copy of Magna Carta, the proximate source of this understanding in American law. However, I am also persuaded that virtually every argument in its favor has no application in a church court, and the ill-considered attempt to introduce it in American Presbyterianism (note that it was not until the late 19th century), will prove to have done considerably more harm than good.

However, it is worth reflecting upon the civil rights asserted to this extent: these were rights asserted in relation to the exercise of the power of the state to hold a trial without indictment (illegitimate), in the use of force to compel testimony (illegitimate), and to use force to punish (legitimate), in criminal cases. Thus there was an

inquisitorial system . . . [that] compelled the alleged wrongdoer to affirm his culpability through the use of the oath ex officio. Under the oath, an official had the power to make a person before him take an oath to tell the truth to the full extent of his knowledge as to all matters about which he would be questioned; before administration of the oath the person was not advised of the nature of the charges against him, or whether he was accused of crime, and was also not informed of the nature of the questions to be asked.”[3]

Associated with this abuse, was the abuse of the use of force in criminal proceedings:

. . . [the] sole concern [of the privilege] is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of penalties affixed to the criminal acts. It reflects many of our fundamental values and most noble aspirations . . . our fear that self-incriminating statements will be elicited by inhumane treatment and abuses. . . .[4]

Thus is the Fifth Amendment to the United States Constitution:

No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. . . . (Emphasis added.)

Note that “Madison’s version of the clause read ‘nor shall be compelled to be a witness against himself,’ but upon consideration by the House an amendment was agreed to insert ‘in any criminal case’ in the provision.”[5] According to US law, in civil cases both plaintiffs and defendants are required to be subject to deposition. In a civil case both sides have a right to take the other’s deposition during discovery. At trial, the plaintiff can also call the defendant to testify as a witness in the plaintiff’s case and the defendant can call the plaintiff to testify as a witness in the defendant’s case, and in both instances “cross examination” is permitted in direct testimony. This is done because of the powerful truth-finding effect of cross-examination.

Now in the matter of Overture 7, the differences make all the difference. PCA ecclesiastical disciplinary proceedings require that there be specific accusations, citing the laws alleged to have been transgressed, the witnesses to testify, and providing that “the times, places and circumstances should, if possible, be particularly stated, that the accused may have an opportunity to make his defense” (BCO 32-5). A church court has no power to use force to compel testimony. A church court has no recourse to the use of force at all, nor to the infliction of physical pains and penalties, and does not pretend to adjudicate criminal cases, but, on the contrary, has only moral and spiritual power, exercised as ministerial and declarative (Preliminary Principles 7.-8.). The civil government has no right over opinions; a church government does (so far as the exercise of office is in view), and that at every instance of the formal relationship between the officer and the court. Nothing in PCA polity provides materials that would give rise to the rightly dreaded trilemma referred to by the Critique.

The current language of BCO 35-1 is not a reflection of longstanding Presbyterian ecclesiastical heritage. No right to refuse to testify can be found in the relevant documents from the Westminster Assembly. The provision did not enter the PCUS BCO until the complete revision of 1879, some one hundred years after its first adoption in 1788.[6] Today there is no such provision in the BCO of the Orthodox Presbyterian Church, heirs of the Northern Old School tradition.

The Critique of Overture 7 offers in favor of its claims a discussion of the debate concerning a revision of the Book of Discipline in the PCUSA/PCUS in the 19^th century. This was a remarkable debate, as it pitted Charles Hodge and James Henley Thornwell (together!) against critics such as R.L Dabney.[7] Any time Hodge and Thornwell agree on a point of Presbyterian polity, the church should sit up and take notice, and any time I disagree with Dr. Dabney, it is a happy opportunity for me to prove that I don’t follow his views like a puppy![8]

In one of the sections of the extensive revision proposed by the Hodge/Thornwell committee, with respect to the pre-trial right of inquest (not trial, as the Critique apparently understands it), the text allows that the court “has the inherent power to demand and receive satisfactory explanations from any of its members concerning any matter of evil report.”

The Critique cites Thornwell, though he was a defender of the proposed revision, as noting that the language of “demand and receive” invited comparisons to the abusive methods of the Star Chamber. The attentive reader will see that Thornwell did nothing of the sort. In fact, Thornwell expressed surprise that others made such invidious comparisons to what he asserted as a “great principle” of long standing implication in PCUSA polity. He would later urge, “That principle is no new one, but imbedded in the very nature of spiritual jurisdiction. . . .”[9] What principle? “Nothing more or less than that the church-courts are the spiritual guardians of the people. . . . The Lord has made them overseers of the flock. . . . and the very nature of their trust implies that they have all the power which is necessary to execute it.”[10] Thornwell summed the matter up in these words:

We were greatly astonished to find it made an objection to this power, that it might require men to criminate themselves. If they have done wrong, this is precisely what a church-court ought to try to do, and it never will succeed in doing them any good until it reduces them to this point. In spiritual jurisdiction, self-crimination is no evil. In civil courts, it may be the parent of tyranny and injustice; but a spiritual court is for edification, a civil court for justice. A spiritual court aims at producing and fostering a given state of heart; a civil court is for the protection of rights. . . . Spiritual courts can censure, but not punish; civil courts punish without censuring. The spiritual court is entrusted with . . . the power of search and investigation; the civil court is armed with the sword. To reason from the rights of one to the rights of the other is therefore absurd. Cæsar is no model for Christ.[11]

The Critique supposes that the PCUS finally agreed with Dabney. This is not accurate. The denomination did what Presbyterians do in many-membered church courts: it compromised. In the revision as adopted we read,

It is the duty of all church Sessions and Presbyteries to exercise care over those subject to their authority; and they shall, with due diligence and great discretion, demand from such persons satisfactory explanations concerning reports affecting their Christian character.

Note that in dropping the words “and receive,” the book becomes silent on that subject—it takes no position—while at the same time the court is acknowledged to have the power to “demand.” This is hardly a ringing affirmation of Dabney’s view, nor is it an outright rejection of Thornwell’s view.[12] This compromise language provides the antecedent to the language of the PCA’s BCO:

31-2. It is the duty of all church Sessions and Presbyteries to exercise care over those subject to their authority. They shall with due diligence and great discretion demand from such persons satisfactory explanations concerning reports affecting their Christian character. . . .

BCO 35-1, however, stands out as an anomaly in the context of “the relationship of mutual accountability between church officers and the church.” What is that relationship? Church officers are required to explain and defend their life and doctrine in order to be ordained to office (e.g., BCO 21-4.c.). Church officers are required to explain and defend their life and doctrine when seeking admission to serve under the jurisdiction of another court (e.g., BCO 13-6.). Church officers are required by their ordination vows to come forward and make known any way in which their views might have become out of accord with any of the fundamentals of our system of doctrine (e.g., BCO 21-5.2.). Church officers are subject to the demand of the court of original jurisdiction to explain and defend their life and doctrine upon mere reports that their views or actions are inconsistent with their profession (BCO 31-2). In each instance the context is a quasi-judicial setting and officers are required by the court to “testify”.

The Critique supposes that there is a significance to the fact that these provisions are, for the most part, found in the Form of Government, not the Rules of Discipline. But a little reflection will lead to the conclusion that this is merely a formal, not material, difference. In each case mentioned, should the person in question fail in his testimony, he would not be ordained, or not admitted as a member to the new court, or make himself liable to censure after further proceedings if the matter admitted is found wanting. These all belong to the discipline of the church, regardless of the part of the Book in which they appear (cf. BCO 27-1.a.). Church officers are, in the nature of the case, continually obliged to voluntarily have their life and doctrine subject to legitimate scrutiny (1 Tim. 4:16; 1 Tim. 5:22; Acts 20:28-30). In this context, a rule relieving all accused persons from an obligation to testify, as does BCO 35-1, undermines the responsibilities of our courts of original jurisdiction and our officers.

Finally, commissioners ought to consider the serious problems provoked by the right of an officer not to testify, particularly as exercised in a trial concerning his views. In such an instance, the trial court may have written or transcribed evidence before it, but typically the meaning of such texts or transcribed speech is disputed, and such texts and transcribed speech cannot be subject to cross-examination. The trial court never hears the man—the court hears only hearsay—what other people say about the man’s views. That being the case, an appeals court, bound to rule only according to the Record, has no testimony from the man to consider, and thus a very incomplete Record that is exclusively to be the grounds for the decision to be rendered.

The SJC recently had a complaint before it, with respect to a trial concerning a man’s views, wherein the accused exercised his right not to testify. The trial court admitted written exculpatory material from the defendant. This serious procedural error cast a shadow over the entire proceeding thereafter, sustaining an appearance of injustice in the adjudication of the trial, and, because there could be no cross-examination, doubt was cast upon the ability of the trial court to assess evidence as to the character of the man’s views. Cross examination is an essential tool in the pursuit of justice and arrival at the truth. This is especially true where a party or witness has made what appear to be conflicting statements (Proverbs 18:17, “The one who states his case first seems right, until the other comes and examines him.”). The SJC declared, in deciding that case,

The exercise of this right [to decline to testify] profoundly incapacitates our courts of original jurisdiction and courts of appellate review in their Christ-appointed responsibilities. Perhaps the [PCA] will find in these observations an occasion to study and suggest amendments to our order that will remedy this anomaly.[13]

In concluding this defense of Overture 7, it should be noted that the Critique raises the issue of whether or not requiring a church officer to testify might undermine his Fifth Amendment rights should he be under criminal charges.[14] I grant that this is serious problem, but it is a problem that already belongs to our rules. The problem should be remedied, nonetheless, and can be remedied, by simply adding to the proposal of Overture 7 the following sentence:

If an accused party is subject to, or likely to become subject to, civil litigation or criminal prosecution with respect to an accusation, the ecclesiastical court shall stay all proceedings until the civil or criminal proceedings are completed. If a church officer, the accused may be suspended from his official functions until the ecclesiastical proceedings are completed (cf. BCO 31-10).

It has long been my conviction that the addition of the language above is a most necessary qualification to our Rules, and perhaps the more-so in days ahead. It is rooted in the principle that our discipline is not to have any civil effects (Preliminary Principle 8). It is my hope that the Overtures Committee considering Overture 7 will see fit to add such language to the proposed amendment.

Dr. David F. Coffin, Jr. is a minister in the Presbyterian Church in America and is pastor of New Hope Prsbyterian Church in Fairfax, Va.

[Editor’s note: One or more original URLs (links) referenced in this article are no longer valid; those links have been removed.]

[1] Scott Seaton, “The PCA And The Right Against Self-Incrimination,” parts 1 & 2, http://www.reformation21.org/blog/2015/05/the-pca-and-the-right-against.php; http://www.reformation21.org/blog/2015/05/-this-post-continues-a.php.

[2] It is suggestive to note that in Matthew’s account Jesus testifies after the high priest puts him under oath, Matt. 26:63.

[3] The Constitution of the United States of America, Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States, prepared by The Congressional Research Service Library of Congress, 2000 Supplement, p. 1302.

[4] The Constitution of the United States of America, p. 1303.

[5] Ibid.

[6] That the Critique asserts that in Presbyterian polity “the accused has always been given protection against self-incrimination” is a significant misstatement, certainly not, as is alleged, for “400 years”! Thornwell claimed that what he called the “right of inquest,” 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,” was a most important implication of the old Book. J.H. Thornwell, “The Revised Book of Discipline,” in The Collected Writings of James Henley Thornwell, 4 vols. (Richmond, VA: Presbyterian Committee of Publication, 1871-75), IV:304.

[7] For a full discussion of the demerits and merits of revision see Charles Hodge, “The General Assembly. Judicial Cases,” Princeton Review. (1856): 582 ff; reprint, “Need of Revision,” in The Church and Its Polity, edited by William Durant and A. A. Hodge (London: Thomas Nelson and Sons, 1879), pp. 456-459; R.L. Dabney, “The Changes Proposed in Our Book of Discipline,” Southern Presbyterian Review (SPR) 12:1 (Apr. 1859): 36-82; reprinted as “The Revised Book of Discipline: A Discussion of Some of the Changes Proposed by the Committee of the General Assembly,” Discussions, II:312-355 (the sentence is discussed on pp. 326-327); Hodge, “The General Assembly. Revised Book of Discipline,” Princeton Review (1859): 603 ff; reprint, “Infant Members Subjects of Discipline” in Church and Polity, pp. 215-217; J.H. Thornwell, “The Revised Book of Discipline,” SPR 12:3 (Oct. 1859): 373-406, reprinted in The Collected Writings of James Henley Thornwell, vol. IV-Ecclesiastical, pp. 299-335 (Richmond, VA: Presbyterian Committee of Publication, 1871-75) (Thornwell’s defense of the “right of inquest” is found on pp. 304-307); Dabney, “The Revised Book of Discipline,” Philadelphia Presbyterian, 29:49 (Dec. 3, 1859): 173; 29:50 (Dec. 10, 1859): 177; and 30:1 (Jan. 7, 1860): 1; reprint, Discussions, II:356-392 (the question of inquest is considered on pp. 357-361); Thornwell, “A Few More Words on the Revised Book of Discipline,” SPR 13:1 (Apr. 1860): 1-38; reprinted in Collected Writings, IV:336-375 (Thornwell has the last word in defense of inquest on pp. 371-373).

[8] An appreciative examination of his theology of Divine sovereignty and human free agency was the subject of my doctoral dissertation.

[9] Thornwell, “Revised Book of Discipline,” pp. 305.

[10] Thornwell, “Revised Book of Discipline,” pp. 304-05.

[11] Thornwell, “Revised Book of Discipline,” pp. 305.

[12] Dabney’s term for the court’s power in this instance, “advise,” hardly comports with the term adopted in the provision, “demand”!

[13] 43^rd General Assembly Commissioner’s Handbook (2015), p. 2009-10.

[14] The Critique speaks of “civil” charges, but the constitutional right not to testify only comes into play when doing so would expose one to criminal prosecution.