Guest Post: Rev. Scott Seaton

May 2016 (revised from a similar article dated May 2015)

The accused party may be allowed, but shall not be compelled, to testify. (BCO 35-1)

This clause from the Book of Church Order of the Presbyterian Church in America is the denomination’s declaration of the right against self-incrimination. Verdicts in judicial cases are to be determined based on demonstrable evidence and testimony, rather than the forced testimony of the accused. In both religious and civil courts, this right against self-incrimination has served as an important safeguard against judicial overreach, for nearly 400 years.

At the 2015 General Assembly in Chattanooga, the PCA voted to affirm this right and rejected an overture to require an accused officer to testify. Doctrinal charges must be able to be proved by public materials and sermons, rather than aggressive prosecution. This summer in Mobile, however, Providence Presbytery will raise this same issue through Overture 14, which seeks to change BCO 35-1 such that “church officers under accusation with regards to doctrinal views shall be required to testify.” If adopted, this overture would undo important judicial safeguards and put the PCA at odds with Reformed denominations that do not force the accused to testify.

How did the right against self-incrimination become part of the BCO? As we will see, it was not because the PCA was influenced by civil protections, such as the Fifth Amendment of the U.S. Constitution. Instead, it was the contributions of our Reformed forefathers that helped shape the American religious and civil protections against self-incrimination we now take for granted.

1. Jesus and the Right Against Self-incrimination

The Scriptures clearly call us to be honest and not to give false testimony. But does God’s Word require the accused to testify against himself? Is there biblical support for the right against self-incrimination? This must be our first question. And the most compelling answer is the example of Jesus, who stood silent before the religious court:

Now the chief priests and the whole council were seeking testimony against Jesus to put him to death, but they found none. For many bore false witness against him, but their testimony did not agree. And some stood up and bore false witness against him, saying, “We heard him say, ‘I will destroy this temple that is made with hands, and in three days I will build another, not made with hands.’” Yet even about this their testimony did not agree. And the high priest stood up in the midst and asked Jesus, “Have you no answer to make? What is it that these men testify against you?” But he remained silent and made no answer. Again the high priest asked him, “Are you the Christ, the Son of the Blessed?” 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.” (Mk 14:55–62) 

In this passage, Jesus at first refused to testify against himself in court, and then later, chose to answer his accusers. Was he at fault for initially being silent? Did he testify because he changed his mind about what Scripture compelled him to do? Was he violating God’s Word by failing to answer? The answer, of course, is no. As one who perfectly kept all of God’s law, Jesus’ silence in the face of his accusers cannot be a violation of any of God’s commands. Thus, no biblical verse—including those cited in Overture 14—can be construed to require the accused to testify against himself. And if it is permissible for Jesus to be silent in the face of his accusers, it surely is permissible for others. Jesus’ example thus provides the basis for the current wording in BCO 35, where the accused is allowed to determine whether or not to testify against himself.

Further, Jesus’ silence was in accord with the broader Jewish understanding of Scripture, which based the protection against self-incrimination in Deuteronomy 17:6 and 19:15, the “two witness rule.” This protection ensures that no defendant can be convicted for any reason with less than two witnesses. It was held that even if the defendant confessed, his confession would not be held against him as evidence.1 This principle of “two or more witnesses” is carried over to the New Testament, notably regarding accusations against church officers: “Do not admit a charge against an elder except on the evidence of two or three witnesses” (1 Tim 5:19).

Thus, the Scriptures do not require the accused to testify against himself.

2. John Lilburne and the English Puritans/Presbyterians

By the Middle Ages, the Roman Catholic requirement of confession had seeped into their ecclesiastical courts, such that the accused was compelled to testify. This requirement allowed courts to inquire into any area, searching for evidence of guilt while the accused languished under the duress of trial. Although the system enabled courts to secure responses from the accused, this power inevitably led to abuse, with the trials of the Inquisition being the most famous and notorious examples.

The power of unrestrained prosecution found its way into England and the civil and religious courts known as the Star Chamber and the High Commission. Initially, the Star Chamber was considered a just and effective court, presided over by noble men. Sir Edward Coke called the Star Chamber “the most honourable court (Our Parliament excepted) that is in the Christian world. Both in respect of the judges in the court and its honourable proceeding.”2

Over time, however, the Star Chamber became known as a court of oppression, with its most powerful weapon being the ex officio oath:

The ex officio oath . . . was administered by the judge at the start of the proceedings. It required parties to swear to answer truthfully all questions put to them. Since defendants in criminal cases did not necessarily know precisely what the questions would be at the time they took the oath, this common practice resulted in their swearing to give evidence against themselves. It permitted ecclesiastical courts to embark on fishing expeditions for evidence of immorality or religious heterodoxy.

Although the ex officio oath could be, and in fact was, used in English practice to secure the punishment of a variety of offenders of the law of the Church, the defendants most immediately caught by the procedure were conscientious dissenters—Puritans and Catholics—who objected to the form of religion established under Queen Elizabeth . . . The Commissioners held what many regarded as a roving warrant to ferret out dissent. They exercised it vigorously, requiring any person they cited to take the ex officio oath and then convicting that person “out of his own mouth.”3

The requirement to testify against oneself resulted in what became known as the “cruel trilemma.” Faced by hostile questioning, the accused had three choices:

1. Incriminate themselves with their own testimony, true or not

2. Face charges of perjury if they gave unsatisfactory answers to their accusers

3. Be held in contempt of court (contumacy) if they gave no answer

When Puritan and nonconformists refused to comply with the Acts of Uniformity that required adherence to Anglican doctrine and practice, many were severely punished for refusing to testify against themselves. This culminated in the Lilburne case. John Lilburne was a Puritan and vocal opponent of the Acts of Uniformity. When Lilburne was arrested for smuggling thousands of religious pamphlets into England, he was prosecuted before the Star Chamber in 1637. He refused to testify against himself, saying the Court was trying to ensnare him. He was whipped and pilloried for refusing to take the ex officio oath, and put in prison.

Lilburne refused to testify because he believed in what he called “freeborn rights,” anticipating the later American term of “inalienable rights.” These are rights given by God to all people, simply because they are human beings made in the image of God. According to Lilburne, these freeborn rights included the protection against self-incrimination.

In 1641, the Long Parliament—which later established the Westminster Assembly—declared Lilburne’s punishment illegal, abolished the Star Chamber and ultimately recognized the right against self-incrimination. Though this protection is best known to Americans as the Fifth Amendment of the U.S. Constitution, it was first secured 150 years earlier, largely because of the contribution of our Puritan and Presbyterian fathers.

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.”

It is noteworthy the Book of Discipline of the Associate Reformed Presbyterian Church includes a similar protection, that “the accused party may be allowed, but shall not be compelled, to testify and no inference of guilt may be drawn from his failure to testify, on the demand of the accused.” The Book of Discipline of the Orthodox Presbyterian Church is silent on this matter: it contains no explicit protection against self-incrimination, nor does it require the accused to testify. 

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. 

1 Suzanne Kleinhaus, “The Talmudic Rule Against Self-Incrimination,” (2001), p. 207.
2 Edward P. Cheyney. “The Court of Star Chamber.” The American Historical Review, vol. 18, no. 4 (July, 1913), pg. 745.
3 Richard H. Helmholz, “Origins of the Privilege against Self-Incrimination: The Role of the European Ius Commune,” 65 New York University Law Review 962 (1990), p. 965.
James Thornwell, “The Collected Writings of James Henley Thornwell,” (1871), vol. 4 p. 302.
Charles Hodge, “The Revised Book of Discipline,” (1858), p. 703 (emphasis added).
6  Thornwell, p. 305 (emphasis added).
Robert Dabney, “The Changes Proposed in our Book of Discipline,” (1859), p. 52-53.
Ibid, p. 67.