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The Historical Development of the PCA Book of Church Order

Chapter 31 : The Parties in Cases of Process

Paragraph 2 : Of Instituting Process

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. This duty is more imperative when those who deem themselves aggrieved by injurious reports shall ask an investigation.
If such investigation, however originating, should result in raising a strong presumption of the guilt of the party involved, the court shall institute process, and shall appoint a prosecutor to prepare the indictment and to conduct the case. This prosecutor shall be a member of the court, except that in a case before the Session, he may be any communing member of the same congregation with the accused.


[DIGEST : The current text of BCO 31-2 remains that of PCA 1973, with only a few minor editorial changes. Specifically, the first sentence in PCA 1973 has now been divided into two, with a period occurring after the word "authority". A typographical error appears in the printing of the Minutes of the First General Assembly, with "subject" being shown in the plural. That error did not originate in the Proposed Book of Church Order (1973). Editorial changes aside, the current text dates to the first approved PCUS edition of 1879, and even in the earlier draft versions of 1867 and 1869, the substance of the text is largely unchanged. No comparable text was found as part of the earlier PCUSA Rules of Process.]

ANTECEDENT TEXTS :
PCA 1973, RoD, 5-2, Adopted text, as printed in the Minutes of General Assembly, p. 146
It is the duty of all church Sessions and Presbyteries to exercise care over those subjects to their authority; and they shall, with due diligence and great discretion, demand from such persons satisfactory explanations concerning reports affecting their Christian character. This duty is more imperative when those who deem themselves aggrieved by injurious reports shall ask an investigation. If such investigation, however originating, should result in raising a strong presumption of the guilt of the party involved, the court shall institute process, and shall appoint a prosecutor to prepare the indictment and to conduct the case. This prosecutor shall be a member of the court, except that, in a case before the Session, he may be any communing member of the same congregation with the accused.

Continuing Presbyterian Church 1973, Proposed text, p. 41
PCUS 1933, RoD, V-§183
PCUS 1925, RoD, V-§183
PCUS 1879, RoD, V-2
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. This duty is more imperative when those who deem themselves aggrieved by injurious reports shall ask an investigation. If such investigation, however originating, should result in raising a strong presumption of the guilt of the party involved, the court shall institute process, and shall appoint a prosecutor to prepare the indictment and to conduct the case. This prosecutor shall be a member of the court, except that, in a case before the Session, he may be any communing member of the same congregation with the accused.

PCUS 1869 draft, Canons of Discipline,
V-5
It is the duty of all Church sessions and Presbyteries to exercise a proper 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. This duty is the more imperative, when those who deem themselves aggrieved by injurious reports shall ask an investigation.
If such investigation, however originating, should result in raising a strong presumption of the guilt of the party involved, the court shall promptly appoint a prosecutor to conduct the case. This prosecutor shall be a member of the court, except that, in a case before the session, he may be any communicating member of the same congregation with the accused.

PCUS 1867 draft, Canons of Discipline, V-5
It is the duty of all church-sessions and presbyteries to exercise a proper 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. This duty is the more imperative, when those who deem themselves aggrieved by injurious reports shall ask an investigation.
If such investigation, however originating, should result in raising a strong presumption of the guilt of the party involved, the court shall promptly appoint a prosecutor to conduct the case. This prosecutor shall be a member of the court, except that, in a case before the session, he may be any communicating member of the same congregation with the accused.


PCUSA, 1789-1858
[no comparable text]

COMMENTARY:
F.P. Ramsay, Exposition of the Book of Church Order
(1898, pp. 185-186), on RoD, V-2:
162.--II. 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. This duty is more imperative when those who deem themselves aggrieved by injurious reports shall ask an investigation. If such investigation, however originating, should result in raising a strong presumption of the guilt of the party involved, the court shall institute process, and shall appoint a prosecutor to prepare the indictment and to conduct the case. This prosecutor shall be a member of the court, except that, in a case before the Session, he may be any communing member of the same congregation with the accused.
The phrase, "with due diligence and great discretion," qualifies the imperative "shall demand" to this extent, that the court may, for satisfactory reasons, omit such demand in some cases when there are injurious reports; but only for extreme reasons would a court be justified in refusing a request for an investigation, if made by a party claiming to be aggrieved by injurious reports. The principle, however, remains, that the court is bound to preserve the honor of religion (173) at whatever cost; and it cannot but fail of its most important function as a court of the Lord Jesus Christ, if it does not use its power of discipline to preserve the Church. But it is the court itself, and not any individual, that determines, in every instance, whether there shall be an investigation.
When, however, the court, by committee or otherwise, makes a demand or begins an inquiry, the object of such demand or inquiry being to determine whether there is ground of vindication or of instituting process, then "investigation" has originated (and investigation may originate and conclude at the same meeting, or even at the same session, of the court).
And after an investigation is once originated, the court no longer has discretion not to institute process, if the investigation results in raising a strong presumption of guilt of the accused. It appears, then, that, after an investigation, the court must always institute process, except where the court judges that the investigation fails to result in raising a strong presumption of guilt, and, of course, the court may institute process, even when the members of the court believe that there is no guilt, if they are persuaded that this is desirable for the vindication of innocence or for other reasons. The sum of the matter is, that the court has unlimited discretion (subject, as in all matters, to the review of higher courts), only that it has not discretion to raise by investigation a strong presumption of guilt and then not institute process. A strong presumption means a belief by the members of the court that evidence as then known to them would indicate that guilt probably exists, unless evidence to the contrary can be produced not then known to them.
The court institutes process by appointing a prosecutor. It is the duty of the prosecutor thus appointed to prepare the indictment and to conduct the case ; that is, the court, after the appointment of the prosecutor, is simply a judge, and the whole responsibility of representing the Church as an accuser is on the prosecutor. This appointed prosecutor must be a member of the court, or, in the case of the Session, a communicating member in good standing in its church.

OVERTURES :
No overtures have been successfully proposed in amendment of BCO 31-2, 1973-2009.

CONSTITUTIONAL INQUIRY AND REFERENCES:

1986, 14-52, 43, p. 128.
That Constitutional Inquiry #14, Question 1 from the Palmetto Presbytery, be answered in the following way:
1. No. It would be improper to appoint a judicial commission in the absence of "strong presumption of guilt" (BCO 31-2 para. 2).
2. See answer to 1.

1998, 26-68, Reference #R-1, p. 228
"Must Presbytery Proceed to Trial Without Thorough Investigation?"
Response:

It is the advice of the Committee that BCO 31-2 permits the Presbytery, through an investigation, to determine before adjudication that there is a "strong presumption of guilt" with respect to reports or charges against an accused. The Presbytery having received reports or charges against one of its members should investigate to determine whether the evidence warrants proceeding with a trial (34-2). Because of differences of opinion within the Presbytery and among the CCB, we recommend that the Presbytery propose amendments to BCO 31, 32, and 34 to clarify this issue.

JUDICIAL CASES :
90. Complaint of William A. Conrad, et al., vs. Central Carolina Presbytery [Case 92-4 (1992), 20-69, III, Item 8, p. 232]

95. Complaint of William A. Conrad, et al. vs. Central Carolina Presbytery [Case 92-6, 21-71, III, Item 5, p. 213]

113. Complaint of Paul R. McDade vs. Susquehanna Valley Presbytery [Case 93-11 (1995), 23-22, III, Item 4, p. 108]



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