by LeRoy H. Ferguson, III

As the General Assembly of the Presbyterian Church in America considers the manner in which it handles judicial cases, it is helpful for her to consider how the Presbyterian communion that preceded her viewed the use of commissions as part of their polity. We know that the Bible is the only infallible rule of faith and practice. We also know that "[a]ll synods or councils, since the Apostles' times . . . may err; and many have erred," and that the decisions of Presbyterian leaders and bodies in the past may be in error. It is important, however, to learn from the history of Christ's Church. In this case the history of the Presbyterian Church in the United States in relationship to its views and practice on judicial commissions will be helpful to the Presbyterian Church in America as she evaluates the Standing Judicial Commission. Although the use of commissions by the Presbyterian Church in this country was more than likely discussed prior to 1846, this paper begins with a discussion that arose in the Presbyterian Church in the United States of America in that year. In 1847 the General Assembly heard a report from a committee on the validity of the use of commissions to hear and adjudicate judicial cases. The Committee was established at the 1846 Assembly and reported to the 1847 Assembly.

The Right of Church Courts
This study committee arose out of controversy that developed over the approving of the records of the Synod of Virginia. The records of the Synod of Virginia noted that the presbyteries of Winchester and Lexington had appointed commissions to handle a judicial case. At the same time the Assembly also approved a resolution stating that in approving of the records, the Assembly "express[ed] no opinion on the question decided by the synod, in reference to the authority of the presbyteries. . . to appoint commissions in the case alluded to in the records of the synod."[45] This apparently resulted in a discussion in the Assembly, with the following resolution being presented to the Assembly: "Resolved, That in the judgment of this Assembly, it is contrary to the constitution and uniform practice of the Presbyterian Church in the United States for any ecclesiastical judicatory to appoint a Commission to determine, judicially, any case whatever." [46] Rather than approve the resolution the Assembly referred it to a study committee composed of five members including Dr. Charles Hodge. The study committee saw that they had been presented with two questions to be answered, one a question of principle and the other a question of fact. First, is it contrary to the constitution of the Church to appoint commissions to handle judicial cases? Second, is the appointment of such commissions contrary to the historic practice of the Presbyterian Church. The report of this study committee will be particularly helpful to the Presbyterian Church in America since these two questions are ones that have been raised by elders in the PCA concerning the Standing Judicial Commission. Though the decision of the committee and the Assembly of 1847 is in no way binding on the Presbyterian Church in America in 1995, the reasoning may prove helpful in the evaluation of the current practice of the Church relating to the SJC.

Are Judicial Commissions Unconstitutional
The committee, to the satisfaction of the Assembly, answered both questions. They answered the first question by stating that it was not contrary to the constitution. In answering they cited two reasons: "1st. Because the power in question is one of the inherent original powers of all primary Church courts. 2d. Because there is nothing in our constitution which forbids the exercise of that right." [47] The committee demonstrated that the powers of the courts of the Church are not granted to them by the constitution, but rather the constitution serves to limit the exercise of the inherent powers of the various courts. The various courts agree to this limitation when they adopt the constitution. There are two types of powers in the various Church courts, according to the committee: inherent powers and delegated powers. "The powers inherent in the people, they may exercise themselves, or delegate to those whom they choose to act in their stead." [48] The committee further noted that Presbyterians, in every country where they have established churches, have "acted on the assumption that they possessed the right of acting by commissions." [49] The committee further argued that since the use of commissions is an inherent right of Courts and since there is no particular prohibition against entrusting commissions with judicial procedures in the constitution then it is plainly constitutional to do so.

Are Judicial Commissions Contrary to Presbyterian Practice?
As to the second question of whether the use of commissions in such a way is contrary to the uniform practice of the Presbyterian Church in the United States, the committee offered ample proof that the Church had since its inception used commissions in such a way. Space does not allow the reproduction of all their citations but a few will be helpful. The committee cites an example from 1720 when a committee was appointed by a Synod to visit a church for the purpose of investigating a situation existing between the pastor and the church. The committee was given the full power of the Synod to "act in their name and by their authority." [50] Several examples are cited when committees were empowered to remove censures from ministers if the examination of the committee indicated that it was proper. A standard practice in Presbyterian polity has been that only the court that inflicts a censure or a higher one can remove it. These examples give clear indication of a committee being empowered by a Synod or Presbytery (therefore a commission in our terminology) to act judicially. In 1766 an appeal filed by the Presbytery of Suffolk was referred to a committee empowered "to try and issue the whole affair." [51]
The committee cites many other examples showing clearly that the practice of the Presbyterian Church in the United States had always been to allow Courts to entrust judicial matters to commissions. Even though the Assembly did not eventually adopt the report of the committee it did express its agreement with the findings of the report by failing to adopt the recommendation that had resulted in the formation of the study committee. Hodge comments on this action by the Assembly by saying, "[t]he rejection of that resolution, or its indefinite postponement, was a refusal on the part of the Assembly to deny this right to our primary courts." [52]

Dr. Thornwell's Agreement
It is interesting to note that Dr. James Henley Thornwell agree with the findings of the committee and commented on it in a review of the 1847 Assembly. [53] Dr. Thornwell states that Dr. Hodge and the committee were correct in their findings and that the report of the committee "furnished conclusive proof that the appointment of such Commissions is contrary neither to the Constitution nor the uniform practice of the Church." [54] This agreement between Hodge and Thornwell is significant because of their disagreement on the propriety of boards and agencies in carrying on the work of the church. It is important, therefore, to understand Thornwell's reasoning in supporting the position of the committee that the use of commissions to handle judicial cases is both constitutionally acceptable and historically in step with Presbyterian polity.
Thornwell did not believe that the use of commissions in judicial cases represented a situation of a court delegating its responsibility to another body. Rather Thornwell argues that the commission is nothing more than "the court itself, resolving to be constituted as such, with less than a majority of its members." [55] Thornwell is quite emphatic in denying that the commission represents a delegation of powers. "It is quite a mistake to suppose, as some in the Assembly seem to apprehend, that the right to appoint a Commission is founded upon the right to delegate power. According to this view, there would be no necessity that the members of the Commission should be members of the court." [56] It is interesting to note that Thornwell argues that if one is to condemn the use of Commissions in judicial cases (or other matters it could be argued) then the same argument could be used against allowing a Court to establish a quorum for itself that was less than a majority of its members. This is the heart of Thornwell's argument. A commission appointed by a Church court can only contain members that are members of the court itself. That is why it is not delegation. Delegation of power means transference of power from those who have the power to those who do not ordinarily have it. These are some interesting implications of Thornwell's views that the PCA may want to consider at some time. He argues that because the commission is simply the court with a smaller quorum than normal, all members of the court are "de jure members of the Commission". [57] He also points out that since they are de jure members, they have a right to attend the meetings of the commission. "The appointment of certain persons by name precludes none others from attending; all members of the court are de jure members of the Commission; the only purpose of the appointment is to render it certain that some shall attend, by making it their duty to do so." [58]
Though Thornwell and Hodge disagreed about the propriety of Church boards and agencies, it is clear that they agreed on the appropriateness of Commissions being used to handle judicial cases. The truth is helpful to the PCA as she examines her own Standing Judicial Commission at this point in time. It is clear from the report to the 1847 Assembly and Thornwell's article that this was not a Northern Presbyterian or Southern Presbyterian issue. The leaders of both sections of the church agreed as to the propriety of commissions being used to decide judicial cases. The same argument holds true today. It is not contrary to our constitution to appoint commissions to hear judicial cases. This has been the case from the foundation of the denomination. There have been, however, those who have argued that the use of commissions in this fashion is not in keeping with Presbyterian polity. According to this view, the Presbyterian practice should be that the entire court must hear and decide all judicial cases that come before it. Both Thornwell and Hodge argue effectively against this position. For those who argue for this position, the point made by Dr. Thornwell in 1847 is just as telling today: "[I]f Commissions are to be condemned, we are at a loss to determine upon what principle the provision of our government making the quorum of a court consist in many cases of a very small fraction of its members, can be defended." [59]

The Rights of the Parties
In addition to the rights of the courts to hear appeals and complaints by commissions, the Presbyterian Church also believed that the parties in these cases also had rights in the matter. The most important of these in relationship to the proper use of commissions is that trial by commission was subject to approval by the parties involved. This is not clear from the Committee report and Thornwell's article but it is clearly demonstrated by J. Aspinwall Hodge in his book What Is Presbyterian Law As Defined By The Church Courts? After commenting on the refusal of the 1847 Old School Assembly to deny the right of a Court to try a case by commission (the resolution that had lead to the establishment of the study committee), he speaks of the right of the parties to be heard by the whole court. "The O.S. [Old School] and N.S. [New School] Assemblies occasionally appointed judicial commissions to try appeals and complaints, with consent of parties. If these objected, their right to be heard by the whole court was not denied". [60] It is interesting to note that Hodge says that this was true of both the Old School and New School. Even though there were fundamental theological differences between the two Assemblies, they were agreed in the point of polity: parties in process had the right to demand a hearing by the entire court that had authority in their case. This right continued after the reunion of the two Assemblies. In the Presbyterian Church in the United States of America (Northern Church) following the Old School/New School reunion, the Assembly became so large that it became difficult to hear complaints and appeals at the Assembly, so the practice of hearing them by commission became the general practice; soon the Synods and Presbyteries did the same, "guarding, however, the right of parties to be heard by the whole court if they did so desire." [61] The Assembly in 1880 officially recognized the legality of trial by commission when it ruled that a complaint against a trial by commission was to be denied because both parties had consented to the trial. [62]
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.

The PCA and the Standing Judicial Commission
This brief historical survey is helpful in evaluating some of the questions that some ruling and teaching elders have been asking about the proper use of the Standing Judicial Commission in the PCA today. There are other questions about the current structure of the Standing Judicial Commission that are not directly answered by the survey. The establishment of a "permanent" commission is not discussed. It would seem clear that if the arguments are made for allowing commissions in general, they also hold for a permanent commission. It is interesting to note, however, that between 1908 and 1912 an attempt to establish a Standing Judicial Commission in the PCUS failed to gain the needed support in the presbyteries and between 1916 and 1918 failed at the General Assembly level. [66] The appropriate size and proper representation on the Standing Judicial Commission is an area that perhaps should be discussed. Should there be more members? Should they be elected by Presbyteries rather than the Assembly? Considering Thornwell's position that all members of the court have a right to attend commission meetings the PCA may wish to discuss the possibility and practicality of allowing members of the General Assembly to attend these meetings. All meetings of the SJC are currently open to all visitors (except when they are in executive session), but if large numbers of General Assembly commissioners wished to attend, meeting places and times might need to change.
The question of the rights of the parties to a hearing by the full court is a question that should be considered because of the importance of this right as seen by men like J.A. Hodge and F.P. Ramsay. It would appear that the same logistical problems facing the PCUS in 1913 face the PCA today, and perhaps even more. With an undelegated Assembly and the great expense of meeting for long periods of time, it is difficult (if not impossible) to provide a trial at the General Assembly level for all appeals and complaints. This is especially true when there are as many as twelve cases coming before the SJC during some years. The Assembly may wish to consider trial by the whole court when a certain number of members of the SJC request it or when a certain number of petitioning commissioners to the General Assembly request it.

Even with these questions about the SJC (and others not mentioned), it is clear that allowing the General Assembly to entrust their judicial business to a commission is neither unconstitutional nor contrary to historic, Presbyterian practice. Commissions have historically been used in the Presbyterian churches of the United States to try complaints and appeals, so the PCA's use of commissions in this way is not new. It is interesting to note, however, that the same concern that some of today's elders have has been shared by Presbyterian elders throughout the church's history in this country.

[45] Hodge, Charles, Church Polity (New York: Charles Scribner's Sons, 1878), p. 353.
[46] Ibid, p. 354.
[47] Ibid, p. 354.
[48] Ibid, p. 355.
[49] Ibid, p. 355.
[50] Ibid, p. 357.
[51] Ibid, p. 358.
[52] Ibid, p. 359.
[53] Thornwell, J.H., "The General Assembly of 1847." Southern Presbyterian Review. XIII. reprinted in Collected Writings of James Henley Thornwell, IV, p. 486-88.
[54] Ibid, p. 486.
[55] Ibid, p. 487.
[56] Ibid, p. 487.
[57] Ibid, p. 487.
[58] Ibid, p. 487.
[59] Ibid, p. 487.
[60] Hodge, J. Aspinwall, What Is Presbyterian Law As Defined By The Church Courts?, Philadelphia: Presbyterian Board of Publication, 1882, pp. 218-19; original Presbyterian Digest, William E. Moore, 1873, pp. 564, 565.
[61] Ibid, p. 219.
[62] Minutes of the General Assembly, 1880, p. 65, cited in Hodge, What Is. . ., p. 219.
[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.
[66] Ibid, p. 1100.