Daylight Provisions for the Court

I found this interesting: Three denominations—the Orthodox Presbyterian Church (OPC), the Bible Presbyterian Church (BPC) and the Reformed Presbyterian Church, Evangelical Synod (RPCES)—each looking back in common heritage to the modernist controversy of the 1930s—retain virtually identical wording in their respective Books of Discipline:

“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.”

[The BPC was a split from the OPC, and RPCES descended in part from the BPC, so those connections explain their retention of this provision. The BPC & RPCES editions have simpler language, with “court(s)” instead of “judicatory(ies)”.  And the RPCES of course is now dissolved, having merged in with the PCA in 1982.]

How did these denominations come to have such a provision, when none of the other Presbyterian denominations in the United States have anything similar?

Well, to review American Presbyterian history, the PCUSA Rules of Process simply did not speak to this issue, at least until 1880. It was at that time that the Presbytery of Northumberland brought Overture 2 before the General Assembly, speaking “in regard to the disorder often occasioned at ecclesiastical trials by the presence of large numbers of spectators.” The Assembly’s Committee on Bills and Overtures then brought the following recommendation in its report:

Resolved, That the General Assembly recommend to its subordinate judicatories, that, before entering upon judicial process, they carefully determine what degree of privacy or publicity in the proceedings would be most conducive to the ends of justice, the peace of the church, and the spiritual benefit of the person tried.

Eventually this resolution was finalized in the PCUSA Book of Discipline under Chapter V, §18 thus:

In all cases of judicial process, the judicatory or judicial commission may at any stage of the trial, determine, by a vote of two thirds of the members present, to sit with closed doors.

This was the text that was in force in the 1930s when the PCUSA declared unconstitutional any involvement with parachurch missions agencies. The enforcement of that declaration led to the ecclesiastical trials of Drs. J. Gresham Machen, J. Oliver Buswell, Jr., Harold S. Laird, and several others.

By contrast, the Presbyterian Church in America to this day has no provision similar to that of the OPC and the BPC. The PCA initially based its Book of Church Order (BCO) on the 1933 edition of the Presbyterian Church, U.S (aka, Southern Presbyterian) BCO, and in this particular matter the PCUS BCO still reflected the pre-1880 PCUSA Rules of Process. In other words, the matter simply did not come up.

So much for background. But when we seek to explain how this provision comes into the OPC Book of Church Order [and subsequently into the BPC’s Book], two theories come to mind. Access to the OPC Archives would be helpful here, but perhaps another day for that search.

The first theory will take some further research and will only be briefly mentioned. Namely, that the provision enacted in 1880 in the PCUSA set the stage for some of the problems that ensued in the heresy trials of Briggs, Smith and McGiffert in the 1880’s and 1890’s. To explore that theory would require an examination of the trial record and news coverage for each of these trials.

The other theory has more appeal, at least for its sense of immediacy. When the OPC was formed, recent events were still fresh in the everyone’s memory. Machen had been defrocked for his involvement with the Independent Board for Presbyterian Foreign Missions [IBPFM]. So also were J. Oliver Buswell, Jr., Carl McIntire, Harold S. Laird, and several lay members of the Church.

When Dr. Machen was cited to appear for the trial in February of 1935, it became clear that the Special Judicial Commission intended to bar the public from observing the trial. Machen strongly protested against a secret trial and the Commission then relented and allowed the public to attend. That was one memory.

But later that same year, a more egregious action occurred during the trial of two IBPFM lay members, Mary W. Steward and Murray F. Thompson. A news account published in the Philadelphia Bulletin tells the story:

TWO FIGHT SECRET TRIALS BY CHURCH

Oppose Presbyterian Hearing Behind Locked Doors On Fundamentalist Charge.

FACE CONTEMPT THREAT.

Efforts to keep the proceedings secret have added new complications to the disobedience trial of two lay members of the Independent Board for Presbyterian Foreign Missions. The new development arose last night at a session in Hollond Memorial Presbyterian Church, Broad and Federal sts., after the defendants and their counsel rebelled against the secrecy ruling, made by the trial board.

As a result the accused face threats of being adjudged “in contempt of this court of Jesus Christ,” and possible “suspension from the Communion of the Presbyterian Church,” in addition to the original charges. Their defenders are facing disqualification.

The defendants are Miss Mary W. Stewart, 1216 S. Broad St., a teacher in the William Penn High School and Murray F. Thompson, an attorney, of 6810 McCallum st. They are on trial for “contempt and rebellion” and “breach of the law of the church,” because they refused to comply with an order of the General Assembly of the Presbyterian Church of the U. S. A. to resign from the Independent Mission Board, which is supported by the fundamentalist element.

The trial board is composed of eight elders of the church, with the Rev. George A. Avery, of the Hope Presbyterian Church, presiding as moderator.

The first session of the trial was held two weeks ago in the Hollond Church. Spectators heard the proceedings from the choir loft. Last night the proceedings were removed to the Sunday school room on the advice of the prosecutor, W. E. Burtes, who is also the sexton. There’s no choir loft there. In addition, to insure secrecy, Robert Crowe was stationed at the door to see that nobody got in.

Even Thompson’s wife was kept out. “This is an outrage,” she said. “If he were on trial in a criminal court I’d be allowed to take my place with him.”

The Rev. H. McAllister Griffiths, chief counsel for the defendants and editor of the new fundamentalist publication, “The Presbyterian Guardian,” was even stronger in his protest. “This is like the days of the Spanish inquisition,” he said.

The Rev. J. Gresham Machen, professor in the Westminster Theological Seminary, and assistant counsel, declared: “There is no justification in the church constitution for this action. This injunction is extraordinary. Court proceedings ought to be open and above board. That right is accorded the most degraded criminals under our civil laws. “If men are deprived of it in church courts, that means that the church is standing on a lower moral plane than the world at large. Religion will seem to many people to be little more than a delusion and a sham when it is made the cloak for tyranny such as this.”

Dr. Machen himself has been found guilty of violating the assembly’s order.

The trial was adjourned until October 28 after it was discovered there were technical errors in the citation of witnesses.

So our second theory rests on the sense of outrage that must have persisted in many minds. The problem with this theory is that the OPC provision specifically speaks to trials for heresy and I don’t think the IBPFM trials fell into that category.

All very curious when examined.

[News clipping taken from one of the scrapbooks of the Rev. Henry G. Welbon]