CHAPTER 35

 Evidence

 

35-1.    All persons of proper age and intelligence are competent witnesses, except such as do not believe in the existence of God, or a future state of rewards and punishments.  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.  Either party has the right to challenge a witness whom he believes to be incompetent, and the court shall examine and decide upon his competency.  It belongs to the court to judge the degree of credibility to be attached to all evidence.

 

35-2.    A husband or wife shall not be compelled to bear testimony against one another in any court.

 

35-3.    The testimony of more than one witness shall be necessary in order to establish any charge; yet if, in addition to the testimony of one witness, corroborative evidence be produced, the offense may be considered to be proved.

 

35-4.    No witness afterwards to be examined, unless a member of the court, shall be present during the examination of another witness on the same case, if either party object.

 

35-5.    Witnesses shall be examined first by the party introducing them; then cross-examined by the opposite party; after which any member of the court, or either party, may put additional interrogatories.  No question shall be put or answered except by permission of the moderator, subject to an appeal to the court.  The court shall not permit questions frivolous or irrelevant to the charge at issue.

 

35-6.    The oath or affirmation to a witness shall be administered by the Moderator in the following or like terms: 

 

Do you solemnly promise, in the presence of God, that you will declare the truth, the whole truth, and nothing but the truth, according to the best of your knowledge in the matter in which you are called to witness, as you shall answer it to the great Judge of the living and the dead?

 

If, however, at any time a witness should present himself before a court, who for conscientious reasons prefers to swear or affirm in any other manner, he should be allowed to do so.

 

35-7.    All testimony shall be recorded (transcription, audiotape, videotape, or some other electronic means) and witnesses informed of such prior to testifying. 

Such recording becomes part of the Record of the Case.  However, in order to be referenced in written or oral briefs, such recording must be transcribed and the transcription authenticated by the trial court.  The court of final appeal may assess the cost of transcription equitably among the parties.

 

35-8.    The records of a court or any part of them, whether original or transcribed, if regularly authenticated by the moderator and clerk, or by either of them, shall be deemed good and sufficient evidence in every other court.

 

35-9.    In like manner, testimony taken by one court and regularly certified shall be received by every other court as no less valid than if it had been taken by itself.

 

35-10.  When it is not convenient for a court to have the whole or perhaps any part of the testimony in any particular case taken in its presence, a commission shall be appointed, or coordinate court requested, to take the testimony in question, which shall be considered as if taken in the presence of the court.

            Due notice of the commission or coordinate court, and of the time and place of its meeting, shall be given to the opposite party, that he may have an opportunity of attending.  If the accused shall desire on his part to take testimony at a distance for his own exculpation, he shall give notice to the court of the time and place at which it shall be taken, in order that a commission or coordinate court, as in the former case, may be appointed for the purpose.  Testimony may be taken on written interrogatories by filing the same with the clerk of the court having jurisdiction of the case, and giving two weeks’ notice thereof to the adverse party, during which time he may file cross-interrogatories, if he desire it.  Testimony shall then be taken by the commission or coordinate court in answer to the direct and cross-interrogatories, if such are filed, and no notice need be given of the time and place of taking the testimony.

 

35-11.  A member of the court who has given testimony in a case becomes disqualified for sitting as a judge if either party makes objection.

 

35-12.  An officer or private member of the church refusing to testify may be censured for contumacy.

 

35-13.  If after trial before any court new testimony be discovered, which the accused believes important, it shall be his right to ask a new trial and it shall be within the power of the court to grant his request.

 

35-14.  If, in the prosecution of an appeal, new evidence be offered which, in the judgment of the appellate court, has an important bearing on the case, it shall be competent for that court to refer the case to the lower court for a new trial; or, with the consent of parties, to admit the evidence and proceed with the case. 

 

CHAPTER 36

 The Infliction of Church Censures

 

36-1.    When any member or officer of the Church shall be found guilty of an offense the court shall proceed with all tenderness and shall deal with its offending brother in the spirit of meekness, the members considering themselves lest they also be tempted.

 

36-2.    Church censures and the modes of administering them should be suited to the nature of the offenses.  For private offenses, censure should be administered in the presence of the court alone, or in private by one or more members of the court.  In the case of public offenses, the degree of censure and mode of administering it shall be within the discretion of the court, acting in accordance with paragraphs below which deal with particular censures.

 

36-3.    The Censure of Admonition should be administered in private by one or more members of the court if the offense is known only to a few and is not aggravated in character.  If the offense is public the Admonition should be administered by the moderator in presence of the court and may also be announced in public should the court deem it expedient.

 

36-4.    Definite suspension from office should be administered in the presence of the court alone or in open session of the court, as it may deem best, and public announcement thereof shall be at the court’s discretion.

 

36-5.    Indefinite suspension from office or the Sacraments should be administered after the manner prescribed for definite suspension, but with added solemnity, that the indefinite suspension may be the means of impressing the mind of the delinquent with a proper sense of his danger.  Indefinite suspension should also be administered under the blessing of God of leading him to repentance.  When the court has resolved to pass this sentence, the moderator shall address the offending brother to the following purpose:

Whereas, you, ___________________ (here describe the person as a teaching elder, ruling elder, deacon, or private member of the church) are convicted by sufficient proof (or are guilty by your own confession) of the sin of ______________ (here insert the offense), we the _______________________ Presbytery (or Church Session) in the name and by the authority of the Lord Jesus Christ, do now declare you suspended from the Sacraments of the Church (and from the exercise of your office), until you give satisfactory evidence of repentance.

            To this shall be added such advice or admonition as may be judged necessary, and the whole shall be concluded with prayer to almighty God that He would follow this act of discipline with His blessing.

36-6.    Excommunication is to be administered according to one or other of the two modes laid down for indefinite suspension, or to be inflicted in public as the court may decide.  In administering this censure the moderator of the Session shall make a statement of the several steps which have been taken with respect to the offending brother, and of the decision to cut him off from the communion of the church.  He shall then show from Matthew 18:15-18 and 1 Corinthians 5:1-5 the authority of the church to cast out unworthy members, and shall explain the nature, use and consequences of this censure.  He shall then administer the censure in the words following:

Whereas, _________________________, a member of this church has been by sufficient proof convicted of the sin of _______________________, and after much admonition and prayer, obstinately refuses to hear the Church, and has manifested no evidence of repentance: Therefore, in the name and by the authority of the Lord Jesus Christ, we, the Session of ________________________ church do pronounce him to be excluded from the Sacraments, and cut off from the fellowship of the Church.

            Prayer shall then be made that by God’s blessing this solemn action of the court may issue in the repentance and restoration of the offender, and in the establishment of all true believers.

36-7.    The censure of deposition shall be administered by the moderator in the words following:

Whereas, ____________________, a teaching elder of this Presbytery (or ruling elder or deacon of this church), has been proved, by sufficient evidence to be guilty of the sin of ____________________, we, the ____________________ Presbytery (or Church Session), do adjudge him disqualified for the office of the Christian ministry (or ruling eldership, or deaconship), and therefore we do hereby, in the name and by the authority of the Lord Jesus Christ, depose from the office of a teaching elder (or ruling elder or deacon) the said ____________________, and do prohibit him from exercising any of the functions thereof

            If the censure includes suspension or excommunication, the moderator shall proceed to say:

We do moreover, by the same authority, suspend the said ____________________ from the Sacraments of the Church, until he shall exhibit satisfactory evidence of sincere repentance,

 

or

We do moreover, by the same authority, exclude the said ____________________ from the Sacraments, and cut him off from the fellowship of the Church.

 

            The sentence of deposition ought to be inflicted with solemnities similar to those already prescribed in the case of excommunication.

 

CHAPTER 37

          The Removal of Censure

 

37-1.    A person who has been definitely suspended from office shall be restored by the court at the end of the term of his suspension by declaring words of the following import to him:

 

Whereas, you ____________________ have been debarred from the office of teaching elder, (or ruling elder, or deacon), but have now fulfilled the time of your censure, we, of the __________________ Presbytery (or Church Session) do hereby, in the name and by the authority of the Lord Jesus Christ, absolve you from the sentence of suspension and do restore you to the exercise of your said office, and all the functions thereof.

 

37-2.    After any person has been indefinitely suspended from the Sacraments, it is proper that the rulers of the church should frequently converse with him as well as pray with him and for him, that it would please God to give him repentance.

 

37-3.    When the court shall be satisfied as to the reality of the repentance of an indefinitely suspended offender, he shall be admitted to profess his repentance, either in the presence of the court alone or publicly.  At this time the offender shall be restored to the Sacraments of the Church, and/or to his office, if such shall be the judgment of the court.  The restoration shall be declared to the penitent in the words of the following import:

 

Whereas, you, ______________, have been debarred from the Sacraments of the Church (and/or from the office of teaching elder, or ruling elder, or deacon), but have now manifested such repentance as satisfies the church, we, the _______________ Church Session (or Presbytery), do hereby, in the name and by the authority of the Lord Jesus Christ, absolve you from the said sentence of suspension from the Sacraments (and/or your office) and do restore you to the full communion of the Church (and/or the exercise of your said office, and all the functions thereof).

 

            After which there shall be prayer and thanksgiving.

  

37-4.    When an excommunicated person shall be so affected with his state as to be brought to repentance, and to desire to be readmitted to the communion of the church, the Session, having obtained sufficient evidence of his sincere penitence, shall proceed to restore him.  This may be done in the presence of the court, or of the congregation as seems best to the Session.

            On the day appointed for his restoration, the minister shall call upon the excommunicated person and propose to him in the presence of the court or the congregation the following questions:

 

1.   Do you, from a deep sense of your great wickedness, freely confess your sins in thus rebelling against God, and in refusing to hear His Church; and do you acknowledge that you have been in justice and mercy cut off from the communion of the Church? 

 

      Answer, I do. 

 

2.   Do you now voluntarily profess your sincere repentance and contrition for your sin and obstinacy; and do you humbly ask the forgiveness of God and His Church? 

 

      Answer, I do. 

 

3.   Do you sincerely promise, through divine grace, to live in all humbleness of mind and circumspection; and to endeavor to adorn by a holy life the doctrine of God our Saviour? 

 

      Answer, I do.

 

            

Here the minister shall give the penitent a suitable exhortation, encouraging and comforting him.  Then he shall pronounce the sentence of restoration in the following words:

 

Whereas, you ____________________, have been shut out from the communion of the church, but now have manifested such repentance as satisfies the Church; in the name of the Lord Jesus Christ, and by His authority, we, the Session of this church, do declare you absolved from the sentence of excommunication formerly pronounced against you, and we do restore you to the communion of the Church, that you may be a partaker of all the benefits of the Lord Jesus to your eternal salvation.

 

            The whole shall be concluded with prayer and thanksgiving.

 

37-5.    The restoration of a deposed officer, after public confession has been made in a manner similar to that prescribed in the case of the removal of censure from an excommunicated person, shall be announced to him by the Moderator in the following form, namely:

 

Whereas, you, ______________ , formerly a teaching elder of this Presbytery (or a ruling elder or deacon of this church), have been deposed from your office, but have now manifested such repentance as satisfies the Church; in the name of the Lord Jesus Christ, and by His authority, we, the _______________ Presbytery (or Church Session) do declare you absolved from the said sentence of deposition formerly pronounced against you; and we do furthermore restore you to your said office, and to the exercise of all the functions thereof, whenever you may be orderly called thereto.

 

            After this there shall be prayer and thanksgiving, and the members of the court shall extend to him the right hand of fellowship.

 

37-6.    When a ruling elder or deacon has been absolved from the censure of deposition, he cannot be allowed to resume the exercise of his office in the church without re-election by the people.

 

37-7.    When a person under censure shall remove to a part of the country remote from the court by which he was sentenced, and shall desire to profess repentance and obtain restoration, it shall be lawful for the court, if it deems it expedient, to transmit a certified copy of its proceedings to the Session (or Presbytery) where the delinquent resides, which shall take up the case and proceed with it as though it had originated with itself.

 

37-8.    In the restoration of a minister who is under indefinite suspension from the Sacraments, and/or his office, or has been deposed, it is the duty of the Presbytery to proceed with great caution.  It should first admit him to the Sacraments, if he has been debarred from them.  Afterwards it should grant him the privilege of preaching on probation for a time, so as to test the sincerity of his repentance and prospect of his usefulness.  When satisfied in these respects, the Presbytery shall take steps to restore him to his office.  But the case shall always be under judicial consideration until the declaration of restoration has been pronounced.

 

37-9.    In the case of the removal of censures from, or the restoration of, a minister, jurisdiction shall be as follows:

a.   If the censure(s) does not include excommunication, the presbytery inflicting the censure(s) shall retain the authority to remove the censure(s) and, at its discretion, restore him to office.  This authority is retained by the presbytery even when a divested or deposed minister is assigned, under the provisions of BCO 46-8, to a session.

b.   If the censure includes excommunication, the penitent may only be restored to the communion of the church through a session (BCO 1-3; 6-4; 57-4; 57-5; 57-6).  Once the penitent is restored, and therefore a member of a local church, the authority to remove any other censure(s) in respect to office, concurrently imposed with that of excommunication shall belong to the court originally imposing such censure(s).

 

 

CHAPTER 38

 Cases Without Process

 

38-1.    When any person shall come forward and make his offense known to the court, a full statement of the facts shall be recorded and judgment rendered without process.  In handling a confession of guilt, it is essential that the person intends to confess and permit the court to render judgment without process.  Statements made by him in the presence of the court must not be taken as a basis of a judgment without process except by his consent.  In the event a confession is intended, a full statement of the facts should be approved by the accused, and by the court, before the court proceeds to a judgment.  The accused has the right of complaint against the judgment.

 

38-2.    A minister of the Gospel against whom there are no charges, if fully satisfied in his own conscience that God has not called him to the ministry, or if he has satisfactory evidence of his inability to serve the Church with acceptance, may report these facts at a stated meeting of Presbytery.  At the next stated meeting, if after full deliberation the Presbytery shall concur with him in judgment, it may divest him of his office without censure.  This provision shall in like manner apply with any necessary changes to the case of ruling elders and deacons; but in all such cases the Session of the church to which the ruling elder or the deacon who seeks demission belongs shall act as the Presbytery acts in similar cases where a minister is concerned.

 

38-3.       a.  When a member or officer in the Presbyterian Church in America shall attempt to withdraw from the communion of this branch of the visible Church by affiliating with some other branch (BCO 2-2), if at the time of the attempt to withdraw he is in good standing, the irregularity shall be recorded, his new membership acknowledged, and his name removed from the roll.  But if at the time of the attempt to withdraw there is a record of an investigation in process (BCO 31-2), or there are charges (BCO 32-3) concerning the member or minister, the court of original jurisdiction may retain his name on the roll and conduct the case, communicating the outcome upon completion of the proceedings to that member or minister.  If the court does not conduct the case, his new membership shall be acknowledged, his name removed from the roll, and, at the request of the receiving branch, the matters under investigation or the charges shall be communicated to them.

          b.  When a member or minister of the Presbyterian Church in America shall attempt to withdraw from the communion of this branch of the visible Church by affiliating with a body judged by the court of original jurisdiction as failing to maintain the Word and Sacraments in their fundamental integrity (BCO 2-2), that member or minister shall be warned of his danger, and if he persists, his name shall be erased from the roll, thereby, so far as the Presbyterian Church in America is concerned, he is deemed no longer to be a member in any body which rightly maintains the Word and Sacraments in their fundamental integrity, and if an officer, thereby withdrawing from him all authority to exercise his office as derived from this Church.  When so acting the court shall make full record of the matter and shall notify the offender of its action.

 

38-4.    When a member of a particular church has willfully neglected the church for a period of one year, or has made it known that he has no intention of fulfilling the church vows, then the Session, continuing to exercise pastoral discipline (BCO 27-1a and 27-4) in the spirit of Galatians 6:1, shall remind the member, if possible both in person and in writing, of the declarations and promises by which he entered into a solemn covenant with God and His Church (BCO 57-5, nos. 3-5), and warn him that, if he persists, his name shall be erased from the roll.

            If after diligently pursuing such pastoral discipline, and after further inquiry and due delay, the Session is of the judgment that the member will not fulfill his membership obligations in this or any other branch of the Visible Church (cf. BCO 2-2), then the Session shall erase his name from the roll.  This erasure is an act of pastoral discipline (BCO 27-1a) without process.  The Session shall notify the person, if possible, whose name has been removed.

            Notwithstanding the above, if a member thus warned makes a written request for process (i.e., BCO Chapters 31-33, 35-36), the Session shall grant such a request.  Further, if the Session determines that any offense of such a member is of the nature that process is necessary, the Session may institute such process.