Posted by Bob Mattes
The phrase “strong presumption of guilt” in the Presbyterian Church in America’s Standing Judicial Commission’s case summaries for cases 2006-2 and 2007-8 have garnered considerable, if poorly informed, posts and discussions on the blogs in recent weeks. Where does this phrase in the BCO, especially BCO 31-2, originate? Over at the PCA Historical Center, there is a series entitled Historical Development of the Book of Church Order. This has some great information on the history of our Presbyterian Church in America polity.
For reference, BCO 31-2 says:
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. [my bold emphasis]
The Historical Center article observes that this paragraph has remained virtually unchanged since its first draft of the PCA BCO in 1973. Perhaps even more interesting is that the phrase goes way back to the PCUS Canons of Discipline, V- 5, in 1867:
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. [my bold emphasis]
That should sound very familiar. The Historical Center also has an excerpt from F.P. Ramsay’s Exposition of the Book of Church Order (1898, pp. 185-186), on RoD, V-2:
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.
So, the concept isn’t an injustice invented by the PCA to use against hapless Federal Visionists as some blogs seem to tout, but goes back to the very early days of the Presbyterian Church on the North American continent.
Can we trace the concept back further? Indeed, otherwise why would I ask? Check out Barbara J. Shapiro’s “Beyond Reasonable Doubt” and “Probable Cause”: Historical Perspectives on the Anglo-American Law of Evidence. Berkeley: University of California Press, c1991 1991. On page 138, she shows that this phrase dates back at least to 1716:
Hawkins’s authoritative Treatise of the Pleas of the Crown (1716) is particularly important in facilitating and formalizing the transfer of the causes of suspicion from examination to arrest. Unlike the sixteenth- and seventeenth-century authors of the justicing handbooks, Hawkins places a list of the causes of suspicion in the arrest portion of his treatise, and from that point onward it became a standard part of the arrest canon of the English and the American handbook tradition. Hawkins’s treatise illustrates how concepts and criteria might migrate from one procedure to another. Hawkins’s treatment of the causes of suspicion that justified arrest included the familiar “common fame” and life-style. The former ought to have “some probable ground,” and the latter might be gained from the suspect’s living a vagrant and idle life with no visible means of support. Keeping company with known offenders at the time of the offense, and more generally associating with those of scandalous reputation, was also an appropriate cause of suspicion. Social and economic status thus had an important role in determining the legitimacy of an arrest. Circumstantial evidence that indicated “a strong presumption of guilt” was another cause of suspicion. Here Hawkins employed the famous presumptions that arose from being found with a bloody sword in hand, leaving the house of a murdered person, and being in possession of stolen property. Behavior which “betrays a consciousness of guilt,” for example, flight, was also numbered among the causes of suspicion. These passages were garnered from materials from Crompton, Lambarde, Dalton, Coke, and Hale, with their sources duly noted. When these passages of Hawkins were retransferred to the justicing handbooks and placed in chapters dealing with arrest, the citations were dropped. They thus floated free from their more distant Romanocanon and rhetorical origins and their proximate pretrial examination associations. The most influential justicing handbook of the eighteenth century was that of Richard Burn. Burn, and most of the English and American handbooks modeled on Burn’s work, followed the Hawkins treatment and provided a list of appropriate causes of suspicion which might engender arrest. [my bold emphasis]
Sorry for the long block of text, but that’s the way it appears in the original. I bolded the phrase in question to provide a quick reference.
The bottom line is that the phrase “strong presumption of guilt” and the concept go back to at least 1716. It wasn’t invented by the PCA or even by Presbyterians in general. Some Federal Visionists have touted this phrase in the SJC case reports as a gross injustice hatched against them. Far from it, and now you know the unvarnished, historically accurate truth.
Posted by Bob Mattes, who isn’t a lawyer but has stayed at Holiday Inn Expresses a number of times.