Ordained Servant: The Orthodox Presbyterian Church

This body is about to sit in a judicial capacity and I exhort you, the members, to bear in mind your solemn duty faithfully to minister and declare the Word of God, the only infallible rule of faith and practice, and to subordinate all human judgments to that infallible rule.

The announcement and the exhortation shall be repeated at the opening of each subsequent session of the trial judicatory. A session shall terminate as soon as the trial judicatory recesses, but a meeting is terminated only by adjournment.

b. The judicatories of the church shall ordinarily sit with open doors. In every case involving a charge of heresy the judicatory shall be without power to sit with closed doors. In other cases, where the ends of the discipline seem to require it, the trial judicatory at any stage of the trial may determine by a vote of three-fourths of the members present to sit with closed doors.

c. No person shall be deprived of the right to set forth, plead, or offer in evidence in any judicatory of the church the provisions of the Word of God or of the subordinate standards.

d. If unusual circumstances require it, a judicatory may deny an accused person the right of participating in the Lord's Supper, or of performing the functions of his office, until the case is concluded.

e. In a trial before the session if the accused refuses or fails to appear without satisfactory reason for his absence at the time appointed for the trial of the case, he shall again be cited, with the warning that, if he does not appear, it will proceed with the trial in his absence. The time allowed for the appearance on a citation shall be determined by the issuing session with due consideration for the circumstances.

In a trial before a presbytery if the accused refuses or fails to appear without satisfactory reason for his absence at the time appointed for the trial of his case, it will proceed with the trial in his absence.

Comment: BD 4 presumes that all the processes of BD 3 have been carefully followed and that the judicatory of original jurisdiction has found charges brought either by private parties (BD 3.7) or by the judicatory itself (BD 3.8) to warrant trial as determined by a full preliminary investigation. We thus begin in this chapter by addressing the matter of the judicatory as it proceeds from its ordinary work to constitute itself as a trial judicatory and to proceed to a judicial trial.

Section a. then begins focusing on the working of the trial judicatory itself. The concern here is that at the beginning of every trial, and of each session of the trial, the judicatory is reminded by declaration of the moderator that the Word of God is that to which all are to submit, and everything must be actively subjected to that Word during the trial. Note here that all members of the judicatory are solemnly exhorted faithfully to minister and declare (as befits proper church power) the Word, which is the only infallible rule of faith and practice. The doctrinal standards, as cherished and useful as they are as summaries of God’s Word, are not themselves infallible (only the Bible enjoys revisionary immunity), and in a trial the Word of God is that authoritative, necessary, sufficient, and perspicuous standard to which every other standard and all human judgment must submit (WCF 1.10).

The last sentence of a. points out that what is called a “session” of a trial terminates when the trial recesses (say, for lunch or for the day). A “meeting” of a trial, however, terminates only when it is adjourned. So a trial may have many sessions as part of a meeting. These “sessions” begin as part of the “Second Meeting of the Trial” and beyond. Judicatories may approach this matter differently. Some judicatories, as BD 4.C.2.b., below, may suggest, choose to denominate the second meeting of the trial as such and everything that follows it as additional sessions of the “Second Meeting of the Trial.” In this scenario, the trial judicatory recesses to meet again on another date and in another session. (If it adjourns, instead of recessing, it should designate the next time it meets as a “meeting.”) So some judicatories have many sessions as part of the second meeting, and others have third and fourth meetings with sessions ranging under them. This commenter thinks that regarding all meetings of the trial proper as Session X of the Second Meeting of the Trial is an advantageous way of proceeding and makes for cleaner references (all sessions being sessions of the second meeting and one need then not to bother with the nomenclature of meetings beyond the second).

Section b. sets forth an important tenet in our tradition. Unless there are good and necessary reasons for doing so, trial judicatories shall ordinarily sit with open doors. This means that the meetings and sessions of a judicial trial are customarily open to all members of the church. In the case of a charge of heresy, the judicatory is never, without exception, permitted to sit with closed doors. Heresy trials (trials involving serious doctrinal errors) generally involve those who hold the teaching office in the church and are promulgating teachings that undermine the faith. Since such is public, all teaching being a matter of public record, it is not fitting, and gives the appearance of an “old boys’ club,” for the church to close its doors to examine evidence and hear testimony in a heresy trial. Such should be conducted in the bright blaze of light for all to see so that the one accused of such can either be exonerated and proceed with his ministry or be convicted and suffer censure (BD 6).

The doors then can be closed only in matters of life, not matters of doctrine. In these cases of life, which would involve a charge of a sin like lying, adultery, etc., the doors should ordinarily remain open unless three-fourths of the presbyters present determine to close them and to go into executive session. A motion to close the doors can occur at any point in the judicial process but should only occur “when the ends of discipline seem to require it.” This has historically been understood to mean things like protecting the good names of others who may be victims of sin, allowing for testimony that may be highly sensitive (say, in an adultery case), and the like. The closing of the doors should neither be to afford undue protection to the accused nor to keep others from hearing testimony against the accused, particularly when the accused asks that the doors be kept open and is concerned that something like a star chamber proceeding may be afoot. Keeping the doors open to protect witnesses is one thing. Closing them so that all evidence against the accused can be kept secret or, on the other hand, so that scanty evidence can be hidden from a watching church, are both abuses of the practice of closing the doors and furnish reason for the doors usually being open unless a super-majority thinks otherwise.

Section c. ensures the rights of any persons to “set forth, plead, or offer in evidence” anything from the Bible or the Constitution of the church (doctrinal standards and the BCO). One may, on the one hand, argue that something violates God’s Word (though it may not be explicitly stated as such in the doctrinal standards) on the side of those bringing a charge or charges. One may defend oneself, on the other hand, with portions of God’s Word or the doctrinal and polity standards of the church in any and all cases. Machen was not allowed to defend himself from Scripture and the doctrinal standards in his judicial trial in the Presbytery of New Brunswick (PCUSA) but was convicted of not following the directive of the 1934 General Assembly.[1]

Machen argued that the Assembly’s directive was contrary to the Bible and the church’s constitution; but he was not allowed to present that as a defense, being told that he must simply submit to the church’s dictates.[2] The church, however, has power that is ministerial and declarative and cannot order her members to obey her dictates simply on her own authority: the church does not possess such magisterial authority but may only teach and preach consonant with the Word (“thus saith the Lord”) and its summary in the doctrinal standards.

Section d. permits a trial judicatory that has determined to go to trial (BD 4), or that has proposed censure (BD 6) for someone coming as his own accuser (BD 5), to deny the accused party the right of participating in special office and/or of communing at the table of the Lord immediately while matters are still in process. The conditions under which this may occur are described this way: “if unusual circumstances require it.” In other words, the judicatory must perceive that the prevalent circumstances of the case require the judicatory to deny the exercise of office and/or the Lord’s Supper to an accused right away because the sin is notorious, scandalous, or the like: perhaps someone has serious criminal charges against him, sinned publicly by attacking another, or any other number of sins, which to seek herein to catalog in the abstract is unwise. If the judicatory believes that immediate denial of the privileges of office and/or the table is warranted, it should record the unusual circumstances in its minutes so that it may justify its action if appeal is taken of the whole case, and part of the appeal is that the accused was unduly temporarily kept from the functions of his office or the right to the table.

Section e. provides for something differently handled in many Reformed and Presbyterian church orders: what does the judicatory do when the accused, without satisfactory reason, refuses to or fails to appear before the session when summoned for trial?[3] The trial judicatory determines whether a reason for absence is satisfactory, though an accused who contends that he has such reason might argue on appeal that he has satisfactory reason for his absence (perhaps he alleges abuse on the part of the accuser and is afraid to be in his presence in an ecclesiastical court, as opposed to a civil court, only the latter having coercive authority). The judicatory should carefully consider all such claims.

Once, however, it is determined that the accused has no valid (continuing) reason for his absence, he should be cited to appear a second time and warned that if he fails or refuses to appear again, the session shall proceed with trial of him in his absence. The time set for the second appearance shall be such that circumstances, as much as possible, will permit the accused, if he is willing and able to appear, to do so. If a willing and able accused person does indeed refuse to appear again, the session may proceed with his trial in his absence. BD 3.C.4. further details how a trial in absentia is to be conducted. That section should be consulted for such, and further comment thereupon will be reserved under the treatment of that section.

One might note that I have used the language of session and not presbytery thus far when referring to the judicatory in the case of proceeding to trial in absentia. This is because a minister, who is the party that a presbytery would try, is presumed to know the rules and to be in ready submission to them. When he is summoned by the presbytery and fails to show the first time, he is not summoned again, but the presbytery may immediately proceed to try him without further summons. This does assume that he has not provided an excuse for his absence that the presbytery deems satisfactory.

2. Regarding the Clerk

a. The clerk shall keep an accurate roll of the members attending each session of the trial judicatory. A session shall terminate as soon as the trial judicatory recesses.

b. The trial judicatory shall preserve a complete and accurate record of the trial. In the minutes recording the course of the procedure, the following shall not be omitted: (1) the charge and specifications; (2) objections made and exceptions taken at any stage of the trial; (3) a list of witnesses who testified and a summary of their testimony; (4) all rulings and decisions of the trial judicatory; and (5) the minutes of any private deliberations. Reproductions of part of the trial or the entire trial may be incorporated into the minutes of the trial judicatory. These minutes, together with all relevant papers, shall be certified by the trial judicatory and transmitted to the higher judicatory in cases of appeal.

c. Ordinarily all citations shall be served in person, but in case that is not possible, citations shall be sent by certified mail to the person cited.

Comment: The clerk for the trial (both moderator and clerk may be different from that of the ordinary judicatory if the trial judicatory so desires) shall keep an accurate roll of the members attending each session of the trial judicatory. This is important to determine eligibility to vote, particularly in any challenge that might be issued by the accused as to whether a voting party or parties were indeed present for every session of all the meetings of the trial, beginning with the Second Meeting of the trial. Absence from any part of the trial, except for the First Meeting of the trial, disqualifies potential voters for casting their votes for guilty or not guilty (see BD 4.C.2.b.) or for being counted as part of a quorum (though not from asking questions and the like). Thus, it is important to keep an accurate roll of members in attendance. A session of a trial terminates as soon as the trial judicatory recesses (for lunch, for the day, etc.).

The trial judicatory shall not only keep accurate attendance records but shall also preserve a complete and accurate record of the trial. Neither sessions nor presbyteries are required to record their trials and to provide a transcript of the same. But it seems easy enough these days to digitally record the meetings/sessions of a trial. Transcribing recordings is another thing and not inexpensive if such service must be hired. It seems wise, in any case, to have a digital recording of the whole trial that the clerk may have access to for aid in his producing proper trial minutes. This section then sets forth the sorts of things necessary to be recorded in the minutes of a trial.

The minutes of a trial must contain, first, the charge and specifications on which the accused is being tried (not previous charges, dismissed charges, and the like, which may prove confusing if they are in the minutes of the actual trial). Secondly, there must be an accurate record of all objections raised and exceptions taken by any party or parties at any stage of the trial. If rulings were made with respect to such objections or exceptions, either by the moderator or the presbytery, these shall also be recorded. Thirdly, there must be a witness list of those who testified and a summary of all their testimony. As far as the testimony of witnesses is concerned, present technology permits digital recording (and possible appeal suggests that the judicatory reduce this to a transcript). The making, or production, of recordings/transcripts that would be available is not presently required but seem to be a good idea given the current technology.

Fourthly, all rulings and decisions of the trial judicatory shall be duly recorded in the minutes. This would include all motions made and adopted by the trial judicatory. Fifthly, and finally, the minutes of any private deliberations shall be recorded. This has reference to the results of deliberation that are private, which is to say, are made secretly in executive session with closed doors. There must be a record of any and all actions adopted when the judicatory moves from public discussion to private deliberation. If, as has been recommended herein, a recording is made of the trial, any and all of that may appropriately be incorporated into the minutes of the trial judicatory. Any and all materials—minutes of the trial, together with other relevant papers—shall be certified by the trial judicatory for use of appellate courts and transmitted to such courts of appeal by the trial judicatory itself, which means from the office of the clerk. Lastly, as section c. notes, all citations to persons requiring them to appear before the court shall, as much as possible, be served in person. If that is not possible, the clerk shall send said citation by certified mail (return receipt requested) to the person cited.

3. Regarding the Accused

a. The accused shall be entitled to the assistance of counsel. No person shall be eligible to act as counsel who is not a member in good standing of the Orthodox Presbyterian Church. The accused may not sit in judgment on his own case at any stage thereof, including the preliminary investigation. No person who is counsel in a judicial case may sit in judgment on the same case in any stage following the preliminary investigation.

b. The accused may take exception to any and all rulings or decisions made by the trial judicatory.

c. The accused shall be allowed one copy of the minutes at the expense of the judicatory. Additional copies may be obtained by him at cost.

Comment: Any accused party, regardless of the accusation(s), is entitled to the assistance of counsel. This commenter would observe that not only is there a right to counsel for all accused parties but also note that any accused party would be wise to employ such counsel. It is the case that accused parties sometime wish to have counsel who may not be a member of the Orthodox Presbyterian Church. A judicatory may permit someone outside the OPC to serve as associate counsel, or the like, as long as the one identified as the designated counsel, in keeping with this section of the BD, is a member in good standing of the OPC.

The accused may not sit in judgment in his own case at any stage thereof, including the preliminary investigation. This means that if one is a member of a judicatory—the session or the presbytery—and a charge is brought against him, he may not sit in judgment even in the preliminary investigation, which is to say that he may not make motions and vote with respect to charges against him at any stage of the process. One who agrees to serve as a counsel in a judicial trial may not, at any point subsequent to the preliminary investigation, sit in judgment on the case, even though he may be a member of the judicatory. This does not mean that the counsel cannot lodge objections (since this is conceded herein at several points) or raise points of order (or like incidental motions), especially if a member of the body.

The accused, and/or his counsel, may take exceptions to any and all rulings or decisions made by the trial judicatory. Such exceptions shall be recorded in the minutes, as noted above, as well as any response made by the judicatory to such. It is especially important at such points to fully preserve the record of the case, particularly as such may be appealed, and a full and clear record is needed for appeal. A copy of the minutes is to be furnished to the accused at the expense of the judicatory. If he wishes to obtain additional copies from the judicatory, such may be done by the accused at cost to him.

4. Regarding Witnesses

a. Any person may be a witness in a judicial case if the trial judicatory is satisfied that he has sufficient competence to make the affirmation required of witnesses in this chapter, Section A.4.b.

b. The moderator shall require each witness before he testifies to make the following affirmation: “I solemnly swear, that by the grace of God, I will speak the truth, the whole truth, and nothing but the truth concerning the matters on which I am called to testify.”

c. If it becomes necessary to obtain testimony from witnesses who are subject to the jurisdiction of another judicatory of the church, such testimony may be obtained either by the taking of depositions, or by having such judicatory, at the request of the trial judicatory, issue citations directing such persons to appear and testify before the trial judicatory.

d. The trial judicatory shall have power to direct that the testimony of witnesses be taken by a commission appointed by the trial judicatory when it concludes that unusual circumstances require such a course. A representative of the trial judicatory and the accused, or his counsel, may examine and cross-examine such witnesses, and interpose objections concerning (1) the admissibility of any oral testimony, (2) the competency of the witnesses, (3) the authenticity, admissibility, and relevancy of any documents, records, and recordings identified by the witnesses. The commissioners must be communicant members of the Orthodox Presbyterian Church. They shall record such testimony and objections as may be offered, and, without ruling upon the objections, shall transmit to the trial judicatory a complete transcript of the proceedings.

e. If a witness who is a member of the church fails to obey a lawful citation, he shall be cited again with the warning that if he does not appear, or give satisfactory reason for his absence, he may be charged with contempt. The time allowed for appearance on a citation shall be determined by the issuing judicatory with due consideration for the circumstances.

f. If a member of the church under the jurisdiction of another judicatory has been cited as a witness, and such person refuses to appear, the trial judicatory will communicate the facts to the judicatory having jurisdiction over the person concerned.

Comment: The question of the competency of a witness in a trial has several different dimensions to it. Obviously, a competent witness needs to have directly witnessed some aspect of the offense (and not merely know hearsay, except in rare cases in which such is historically legally permitted). Another indispensable aspect of the qualifications of a competent witness is the ability to take the oath in section 4b. of this chapter. Thus, section b. contains the actual oath to be administered: the would-be witness solemnly swears, by the grace of God, that he will tell the truth, the whole truth, and nothing but the truth, with respect to the matters upon which he is called to testify. Such an oath can scarcely, especially in view of the appeal to the grace of God, be taken by one who openly professes anti-theism.

Some may maintain that none but a professing Christian can duly take such an oath. This commenter thinks that as things presently stand in the BD, it is the responsibility of the respective trial judicatories to determine who is qualified to take this oath. One could scarcely insist that one must be a member of the OPC to take it, but it would not be unreasonable to contend that one must be a professing Christian to take it. Other church orders require, minimally, that a competent witness in an ecclesiastical trial must affirm something like God and a final judgment, because one is not thought able to take such an oath if there is no fear of God before him.[4]

Section c. addresses the circumstances in which it is necessary to obtain the testimony of witnesses who are under the jurisdiction of judicatories of the OPC other than the trial judicatory. Such testimony may be obtained either by the taking of depositions or by having such judicatory, at the request of the trial judicatory, issue citations directing such persons to appear and testify before the trial judicatory. Thus, the trial judicatory relies on committees or commissions (in unusual circumstances) of the trial judicatory to go to the witnesses and take depositions or for them to come there at a convenient time and give depositions. Alternatively, the trial judicatory may request the proper judicatories of the prospective witnesses to issue citations to them that instruct them to cooperate with the trial judicatory.

Section d. authorizes the trial judicatory to employ when needed (in unusual circumstances) a commission to take the testimony of witnesses. A representative, or representatives, of the trial judicatory and the accused, or his counsel, should be a part of these proceedings. They may examine and cross-examine, as is appropriate, such witnesses and interpose objections concerning the following. First, the admissibility of any oral testimony. Is the testimony relevant, is it direct (as opposed to hearsay), and the like? Secondly, the competency of the witnesses may be called into question. We already commented at some length herein on the question of this matter (especially on BD 3.7, with respect to the Preliminary Investigation), which would include considerations of the age and mental capacity of the witness, their ability to take the prescribed oath, etc.

The commission may then consider the authenticity, admissibility, and relevancy of any documents, records, and recordings identified by the witnesses. Just as would the trial judicatory, the commission may consider such questions pertaining to evidence. To be clear, the BD notes at this point that the commissioners must be communicant members of the Orthodox Presbyterian Church (they could not be members of another church which may be involved in such proceedings). The commission shall record all testimony and objections as may be offered and, without ruling upon the objections, shall transmit to the trial judicatory a complete transcript of the proceedings. The trial judicatory shall rule upon the objections, implying that judicatories, and not commissions thereof, are the bodies that should conduct judicial trials in the OPC.

Finally, sections e. and f. address two different circumstances pertaining to witnesses. In the first case, a member of the OPC (this is the meaning in this book of “a member of the church”) under the original jurisdiction of the trial judicatory, who is cited to appear as a witness and who fails to do so, may, after all the qualifications noted (no satisfactory reason, cited a second time, due consideration of circumstances), be charged with contempt. The second case has to do with a witness cited to appear who is under the jurisdiction of another judicatory of the OPC. The refusal of the witness to appear and the circumstances thereof shall be communicated by the trial judicatory to the judicatory having jurisdiction over the cited witness.

Endnotes

[1] Edwin H. Rian, The Presbyterian Conflict (1940; Repr., Philadelphia: The Committee for the Historian of the OPC, 1992), 103–14: The General Council (GC; an ad interim administrative board of the PCUSA) issued an opinion against the Independent Board of Presbyterian Foreign Missions (IBPFM), of which Machen was one of the founders, begun due to undisciplined heterodoxy in the PCUSA’s foreign mission program. The 1934 GA, based on the recommendation from the GC, ordered the IBPFM to cease soliciting funds within the PCUSA and demanded that all PCUSA ministers resign from the Board.

[2] Rian, Conflict, 115–28: Machen argued that the Assembly’s directive was a sheer assertion of church power and was contrary to the Scriptures and standards because the PCUSA’s Board of Foreign Missions placed its own programs and personnel above the truth, which it is the obligation of the church to believe and promote.

[3] The PCA BOCO (32.6; 33.3, 4) provides that when the accused does not appear for trial, the judicatory is to issue a summary judgment of “contumacy” (persistent refusal to submit to due authority) and may proceed to censure, ultimately up to and including deposition for office-bearers and excommunication for members. Only upon a return of the contumacious party in repentance is censure for that summary judgment lifted, and the judicatory free to proceed, if it wishes, with the original charges in an in-person trial.

[4] The Constitution of the Reformed Church in the United States, for instance, in Article 141 permits a variety of witnesses in its trials, “except such as do not believe in the existence of God or in a future state of reward and punishment or have not sufficient intelligence to understand the obligation of an oath.”

Alan D. Strange is a minister in the Orthodox Presbyterian Church and serves as professor of church history and theological librarian at Mid-America Reformed Seminary in Dyer, Indiana, and is associate pastor of First Orthodox Presbyterian Church in South Holland, Illinois. Ordained Servant Online, March, 2023. A list of available installments in this series appears here.