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The Historical Development of the PCA Book of Church Order

Chapter 15 : Ecclesiastical Commissions

Paragraph 3 : Of a Presbytery's Judicial Commissions

15-3. Presbytery as a whole may try a judicial case within its jurisdiction (including the right to refer any strictly constitutional issue to a study committee with options listed below), or it may of its own motion commit any judicial case to a commission. Such a commission shall be appointed by the Presbytery from its members other than members of the Session of the church from which the case comes up. The commission shall try the case in the manner presented by the Rules of Discipline and shall submit to the Presbytery a full statement of the case and the judgment rendered. The Presbytery without debate shall approve or disapprove of the judgment, or may refer, (a debatable motion), any strictly constitutional issue(s) to a study committee. In case of referral, the Presbytery shall either dismiss some or all of the specific charges raised in the case or decide the case only after the report of the study committee has been heard and discussed. If Presbytery approves, the judgment of the commission shall be final and shall be entered on the minutes of Presbytery as the action. If Presbytery disapproves, it shall hear the case as a whole, or appoint a new commission to hear the case again.

HISTORICAL SUMMARY: In the original edition of the PCA BCO, this chapter was designated as Chapter 16. In 1988, 15-3 was amended at the 16th General Assembly, the Presbyteries having first consented to the change by vote of 29 to 13 [See M16GA, 16-10, Item 1, pp. 88-89].

ANTECEDENT TEXTS:
PCA 1973, Adopted text, 16-3, as printed in the Minutes of General Assembly, p. 136
The Presbytery, or General Assembly may, of its own motion, commit any judicial case coming before it by appeal or complaint to a Commission, and should ordinarily follow this procedure, especially when requested by one or both parties to the case. Such a Commission shall be appointed by the court from its members other than members of a court from which the case comes up.
A Judicial Commission of the Assembly shall consist of not less than fifteen, of whom not less than seven shall be Ruling Elders. In each case two-thirds of the Commissioners shall be a quorum to attend to business. The Commission shall try the case in the manner proscribed by the Rules of Discipline; shall submit to the court a full statement of the case and the judgment rendered, all of which shall be entered on the minutes of the court and accepted as its action and judgment in the case.

Continuing Presbyterian Church 1973, 16-3, Proposed text, p. 20
The Presbytery, or General Assembly may, of its own motion, commit any judicial case coming before it by appeal or complaint to a Commission, and should ordinarily follow this procedure, especially when requested by one or both parties to the case. Such a Commission shall be appointed by the court from its members other than members of a court from which the case comes up.
A Judicial Commission of the Assembly shall consist of not less than fifteen, of whom not less than seven shall be Ruling Elders. In each case two-thirds of the Commissioners shall be a quorum to attend to business. The Commission shall try the case in the manner prescribed by the Rules of Discipline; shall submit to the court a full statement of the case and the judgment rendered, all of which shall be entered on the minutes of the court and accepted as its action and judgment in the case.

PCUS 1933, XVIII, § 94
and
PCUS 1925, XVIII, § 94
The Presbytery, Synod, or General Assembly may, of its own motion, commit any judicial case coming before it by appeal or complaint to a Commission, and should ordinarily follow this procedure, especially when requested by one or both parties to the case. Such a Commission shall be appointed by the court from its members other than members of the court from which the case comes up.
A Judicial Commission of a Synod shall consist of not less than fifteen, of whom not less than seven shall be Ruling Elders; a Judicial Commission of the Assembly of not less than twenty-seven, of whom not less than thirteen shall be Ruling Elders. In each case two-thirds of the Commissioners shall be a quorum to attend business. The Commission shall try the case in the manner prescribed by the Rules of Discipline; shall submit to the court a full statement of the case and the judgment rendered, all of which shall be entered on the minutes of the court and accepted as its action and judgment in the case.

PCUS 1879, V-7-2
The Synod and the General Assembly may, with the consent of parties, commit any case of trial coming before them on appeal to the judgment of a commission, composed of others than members of the court from which the appeal shall come up. The commission of a Synod shall consist of not less than fifteen, of whom seven shall be Ruling Elders ; the commission of the Assembly of not less than twenty-seven, of whom thirteen shall be Ruling Elders, in each case, two-thirds of the commissioners shall be a quorum to attend to business. The commission shall try the cause in the manner prescribed by the Rules of Discipline ; and in rendering judgment shall make a full statement of the case, which shall be submitted to the court for its action as its judgment in the cause.

PCUS 1869 draft, V-7-3
The Synod and the General Assembly may commit any case of trial, coming before them on appeal, to the judgment of a commission. The commission of a Synod shall consist of not less than fifteen, of whom five shall be Ruling Elders; the commission of the Assembly, of not less than twenty-seven, of whom nine shall be Ruling Elders. In each case two-thirds of the commissioners shall be a quorum to attend to business. The commission shall try the cause in the manner prescribed by the rules of discipline; and in rendering judgment shall make a full statement of the case, which shall be submitted to the court for its adoption, as its judgment in the cause.

PCUS 1867 draft, V-7-3
The synods and the general assembly may commit all cases of trial coming before them on appeal, except the cases of ministers on trial for error or heresy, to the judgment of its commission. The commission of a synod shall consist of not less than fifteen, of whom five must be ruling elders; the commission of the assembly, of not less than twenty-seven, of whom nine must be ruling elders. In each case two-thirds of the commissioners shall be a quorum to attend to business. The commission shall try the cause in the manner prescribed in the canons of discipline; and in rendering judgment, shall make a clear but concise statement of the whole case, together with their findings. This paper shall be submitted by the commission to the court for its adoption, as its judgment in the case. It may be amended in any of its principles, but not in its statements of facts. Should the court have reason to believe that the facts are not correctly stated, it may order a new trial before the same or another commission.


COMMENTARY:
F.P. Ramsay, Exposition of the Book of Church Order (1898, pp. 119-120), on V-7-2:

94.--III. The Synod and the General Assembly may, with the consent of parties, commit any case of trial coming before them on appeal to the judgment of a commission, composed of others than members of the court from which the appeal shall come up. The commission of a Synod shall consist of not less than fifteen, of whom seven shall be Ruling Elders ; the commission of the Assembly of not less than twenty-seven, of whom thirteen shall be Ruling Elders, in each case, two-thirds of the commissioners shall be a quorum to attend to business. The commission shall try the cause in the manner prescribed by the Rules of Discipline ; and in rendering judgment shall make a full statement of the case, which shall be submitted to the court for its action as its judgment in the cause.
May these courts do anything else by commission? Yes. For the next paragraph names, expressly, much that the Assembly may do by commission. But where parties bring a cause to a court for trial, even if it be an appeal, the court, even the General Assembly, may not try it by commission without consent of parties. The principle is here recognized, that the parties have a right to trial by a full court. May a complaint be tried by commission? Yes, with consent of parties ; for if an appeal, much more a complaint. May a Presbytery or a Session try a cause by commission? Yes, with consent of the parties ; and it may take testimony without such consent (93). But, lest trial in the appellate courts by commission should become a reference to individuals rather than a trial by a court in reality, it is prescribed that the commission shall be so large, and contain so many Ruling Elders, that the resort to a commission in judicial cases will be impracticable unless the court is very large, and then the commission will be large enough to have the essential qualifications of a court for counsel together. And while in other cases the action of the commission is in force until annulled by the appointing court, in judicial cases the action of the commission is not in force until endorsed by the court as its own action. Is the court bound to make the action of the commission its own? By no means. It may annul it, reverse it, modify it, and even order it tried over by a commission or before itself. For nothing is final in a judicial case but the decision of the court itself.

Hodge, J. Aspinwall, "May Synod try an appeal by commission?," in What Is Presbyterian Law? (Philadelphia, 1882), pp. 241-242.
It may with consent of parties. In 1880 the Assembly recognized the right of the Synod to do so. The Southern Church makes a distinct provision for trial by commission: "The Synod and the General Assembly may, with consent of parties, commit any case of trial coming before them on appeal to the judgment of a commission, composed of others than members of the court from which the appeal shall come up. The commission of a Synod shall consist of not less than fifteen, of whom seven shall be Ruling Elders; the commission of the Assembly, of not less than twenty-seven, of whom thirteen shall be Ruling Elders. In each case two-thirds of the commissioners shall be a quorum to attend to business. The commission shall try the cause in the manner prescribed by the Rules of Discipline, and in rendering judgment shall make a full statement of the case, which shall be submitted to the court for its action as its judgment of the cause."

LeRoy H. Ferguson III, "The Use of Commissions in the Presbyterian Churches in the United States of America" [excerpt, pp. 130-131, from the Report of the Ad Interim Committee on Judicial Procedure, 24th General Assembly (1996), 24-17, pp. 66-157.
In the Presbyterian Church in the United States (Southern Church) similar provisions existed. The provisions for trial by commission are set out in the Book of Church Order (1879 edition): "The Synod and the General Assembly may, with consent of parties, commit any case of trial coming before them on appeal to the judgment of a commission . . ." [63] This was not the original wording of the Southern Church's Book of Church Order. In 1866, a committee established to revise the BCO (the committee consisted of John Adger, Robert Dabney, Thomas Peck, B.M. Smith and E.T. Baird), published their first draft of proposed revisions to the BCO. In this same section dealing with the use of commissions in the trying of cases the reference to the consent of the parties is lacking. This reference is also not found in the 1869 edition of the BCO. Ten years later, however, the requirement that the parties consent to cases, being heard by commissions is part of the BCO. It is not clear whether this change was made to provide a change in polity or to make specific a right of the parties that the entire church had always accepted and now needed to have clearly spelled out. From J.A. Hodge's comment it would appear that the latter was the case. In 1898, when F.P. Ramsay wrote his Exposition of the Form of Church Government, the provision requiring the consent of the parties was still in the Book of Church Order. It occasioned the following comment by Ramsay "Where parties bring a cause to a court for trial, even if it be an appeal, the court, even the General Assembly, may not try it by commission without consent of parties. The principle is here recognized, that the parties have a right to a trial by a full court. May a complaint be tried by commission? Yes, with consent of parties; for if an appeal, much more a complaint. May a Presbytery or a Session try a cause by commission? Yes, with consent of the parties. . . ." [64] Two things of note are seen in Ramsay's comment: 1) His apparent agreement with Thornwell that a commission is the court itself with a smaller quorum since he speaks of trial by the Assembly, Synod, Presbytery or Session as "a trial by a full court" and 2) His understanding that this is a right of the parties, not merely something offered to them out of kind consideration.
Not too many years later, however, this right disappeared from the Form of Government of the Southern Church. In 1913 the BCO was again amended to allow Synods and General Assemblies to commit cases to trial "at their discretion." Following the revision of 1913, chapter V, section VII, sub-section III, then read: "The Synod and the General Assembly may, at their own discretion, commit any case of trial coming before them on appeal, to the judgment of a commission. . . " [65] Now it is no longer the parties that have the right by the court itself; it is "at their own discretion." Research did not uncover the reason for this change. Perhaps the Assembly and Synods had become so large as to make such trials difficult. Perhaps the number of cases coming to these courts and the insistence of many parties to have a trial by the whole court made it impossible to hear all the cases by the full court. Whatever the reason, something seen as a right from the earliest days of the Presbyterian Church on these shores disappeared from the Form of Government in the Southern Church with these amendments.
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[63] Book of Church Order (1879), Presbyterian Church in the United States, ch. v., sect. vii., sub-sect. iii, cited in Hodge, What Is . . ., p. 241.
[64] Ramsay, F.P., An Exposition of the Form of Government and the Rules of Discipline of the Presbyterian Church in the United States, Richmond: Presbyterian Committee of Publication, 1898, pp. 119-120.
[65] Alexander's Digest, p. 1101.

OVERTURES & AMENDMENTS:
1987 - Ad Interim Committee on the General Assembly, Judicial Procedures, Exhibit "B"
[M15GA, 15-43, p. 106-107]
Proposals for Restructuring the Judicial Business of the General Assembly. [Amending 15-1, 15-3 and adding new 15-4 and 15-5]
A. Recommend amendments to the Book of Church Order, so that they read as follows:
Amended 15-3. Presbytery as a whole may try a judicial case within its jurisdiction (including the right to refer any strictly constitutional issue to a study committee with options listed below), or it may of its own motion commit any judicial case to a commission. Such a commission shall be appointed by the Presbytery from its members other than members of the Session of the church from which the case comes up. The commission shall try the case in the manner presented by the Rules of Discipline and shall submit to the Presbytery a full statement of the case and the judgment rendered. The Presbytery without debate shall approve or disapprove of the judgment, or may refer, (a debatable motion), any strictly constitutional issue(s) to a study committee. In case of referral, the Presbytery shall either dismiss some or all of the specific charges raised in the case or decide the case only after the report of the study committee has been heard and discussed. If Presbytery approves, the judgment of the commission shall be final and shall be entered on the minutes of Presbytery as the action. If Presbytery disapproves, it shall hear the case as a whole, or appoint a new commission to hear the case again.
1988 -
Adopted, following a reported vote by the Presbyteries of 29 in favor, 13 against [M16GA, 16-10, Item 1, pp. 88-90]



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