Second Thoughts About the Proposed Witness Overtures

Ecclesiastical cases are fundamentally intramural proceedings brought in and for the church.  The proposed changes seek to expand the jurisdiction of our ecclesiastical courts into an area that, under the framework of our historic polity, has been the province of the civil magistrate.  Expanding the jurisdiction of our ecclesiastical courts by accepting unbelievers as witnesses would undermine the principle that our church courts’ authority is solely moral and spiritual, not civil.  We should defer to the civil magistrate the adjudication of those matters that are especially suited to his jurisdictional powers in matters that turn on the testimony of persons who are neither Christians nor otherwise subject to the discipline of the church. 

Two overtures to the 2023 PCA General Assembly pertain to who can be a witness in ecclesiastical cases.  Changes are proposed to BCO 35-1 and BCO 35-7 of the Book of Church Order: Overture 2021-41 from Tennessee Valley Presbytery (carried over from last year) and Overture 2023-13 from Northern California Presbytery.

The current language of the Book of Church Order reads as follows:

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.

The Tennessee Valley Overture proposes to eliminate the first sentence, thereby removing belief in the existence of God or a future state of rewards and punishments as a qualification to testify.  The Northern California Overture makes the same redaction but adds “All persons generally are competent to testify as witnesses.”  The Northern California Overture also adds that the court “shall give consideration to age, intelligence, belief in God, relationship to the parties involved, and other like factors in judging testimony.”

The current oath of witness provision (BCO 35-6) reads this way:

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.

The Northern California proposal would retain the form of oath but adds that the witness may also swear or affirm “with other language” – like writing one’s own wedding vows — “provided such oath or affirmation impresses the solemnity of this duty upon the witness’s conscience.”

The proposed changes would remove belief in God and belief in heaven and hell as theological preconditions for witness eligibility in PCA judicial trials.  The new rule would presume that any and every person is eligible to testify in our ecclesiastical proceedings, the only relevant consideration being that person’s credibility. Such a witness’s belief in God or of a future state, it is proposed, is merely a “factor” in judging the reliability or trustworthiness of the witness’s testimony, not a precondition to the testimony being heard or considered at all.

At first blush this may seem like a reasonable change.  After all, isn’t witness credibility the most relevant consideration?  We should assume that the judges of our church courts are wise and competent to sort out truth from falsehood and assign that degree of credibility to any witness’s testimony that is appropriate under all the circumstances, whether the witness is a believer or not. Why should we refuse to hear someone at all just because he doesn’t “believe in the existence of God” or in heaven and hell?

Of course, the changes proposed should lead us to think carefully about why our Rules of Discipline have long maintained belief in God and in a future state of rewards and punishments as a precondition for witness eligibility.  I believe those reasons remain sound, and they argue against the present proposals.

Preserving The Function of Oaths

Oaths bear an honored place not only in our polity, but our theology.  WCF 22.2 tells us:

The name of God only is that by which men ought to swear, and therein it is to be used with all holy fear and reverence; therefore to swear vainly or rashly by that glorious and dreadful name, or to swear at all by any other thing, is sinful, and to be abhorred. Yet, as, in matters of weight and moment, an oath is warranted by the Word of God, under the New Testament, as well as under the Old, so a lawful oath, being imposed by lawful authority, in such matters ought to be taken.

Thus, not merely tradition but theological principle informs the conclusion that oaths ought to be taken “in matters of weight and moment” such as in testifying in ecclesiastical cases.  The theologian James Bannerman spoke of the oath as “the bond and seal of civil society,” a concept once commonly understood but that has gradually eroded from the national memory.   James Bannerman, The Church of Christ: A Treatise on the Nature, Powers, Ordinances, Discipline, and Government of the Christian Church (Edinburgh, 1868), Volume 1, page 137.  The oath is a “solemn appeal to God” Bannerman said, “as the present Witness of the truth, and the future Avenger of falsehood.”  (Page 140).

We remember that God took an oath to Abraham (Heb. 6:13-17), renewed His sworn promise to Moses (Dt. 1:8), and swore David an oath (Ps, 131).  We find that Israel was warned not to swear by the Lord’s name falsely (Lv. 19:12); an oath was used to determine the truth in cases where a witness’ veracity was all that could be relied upon (Nm. 5:16-28); Paul in Romans calls on God as “his witness” (Rm. 1:9 & 2 Cor 1:23); Paul took vows during his ministry (Acts 18:18).  John records his vision of an angel who swore an oath (Rev. 10:5-6).  Thus, the Bible repeatedly recognizes the appropriateness of oaths as solemn statements made in the presence of the Lord as witness, invoking as they do an increased liability for bearing false witness when solemnly invoking His presence in weighty matters of consideration.  The oath is grounded on the Divine Presence and Divine Righteousness.

However, we should recognize that the proposed change is mirroring a process of secularization that has eroded oath taking in the general culture.  I see no reason to disagree with the conviction of our presbyterian forebears that those who do not believe in the existence of God, or a future state of rewards and punishments are not competent witnesses in formal judicial proceedings.  After all, if the ecclesiastical courts will not insist on taking an oath in the presence of God, then who will? But a person who does believe in the existence of God cannot possibly take an oath that comports with our theological conception of them.

The secularization of oath taking took root in the national mind and civil law courts more than 100 years ago.  Thomas Rayburn White narrated this story in his Oaths in Judicial Proceedings And Their Effect Upon the Competency of Witnesses, The American Law Register, Volume 51 OS, 42 NS, July 1903, No. 7.  An evident twentieth century secularist, White declared it a “mystery” how Christian oaths became solemnized in English proceedings, ascribing the practice “to the spirit of intolerance which unfortunately seemed to dominate most religious people of early times,” and supposing that the Church, having come to dominate secular affairs, presumed “that all ‘heathen’ were wholly unfit to be believed.” .

Id. at 387. The idea that an atheist is ineligible to serve as a witness was instantiated in the common law of England:

The oath having become firmly incorporated into the machinery of the English courts, it was the theory of the common law that no witness ought to be allowed to give evidence unless he did so under the sanctity of an oath, which was thought to be the strongest possible guarantee of truth. It follows that if a man did not possess the necessary qualifications of an oath taker, heretofore mentioned, he would be excluded from the witness stand; that is, if he did not believe in a supernatural being who would, when called upon, witness the words spoken and punish a deviation from the truth. The only essential was that the witness should relate his evidence under the sanctity of a belief on his part in some superior power (no matter what) which was taking note of his words for the purposes mentioned.

Id. at 388-389.  The common law exclusion was later softened to allow “infidels” (atheists were still excluded) to testify.  Id.

In the civil arena fostered by historic Christendom it was first maintained that one must be a Christian to take an oath at all, and thus be eligible to participate in the judicial process.  Then, as the culture became more pluralistic, those who were not Christians but who still at least believed in a “Supreme Being” and a state of future rewards and punishments (like Jews and Muslims) were permitted to testify.  Eventually the significance of the oath, and the faith beliefs of the one who took it, disappeared altogether.  White represented for us the final step of full secularization when he said:

[A]n oath is avowedly but an imposition upon the ignorance or superstition of the witness. No intelligent man at this day pretends to believe that it is any greater sin to tell an untruth upon oath than upon affirmation —- it is the lie not the violation of the ceremony that is wicked. Page 436

That, of course, was more than a hundred years ago.  I fear the church is following the world slowly at a distance.   The instant overtures, as framed, propose a step toward secularization in our ecclesiastical courts by relinquishing the requirement of belief in the existence of God or hell in connection with taking an oath in ecclesiastical proceedings. If we adopt the proposal, we will be acceding to the logic of, and even imitating, our surrounding godless culture that has eviscerated the necessity of belief in God and the Final Judgment as a condition of witness eligibility.

Oaths as Gauges of Truth Telling

In our church courts the requirement of an oath is a way that we have historically assured ourselves that witnesses tell the truth in judicial proceedings.

Someone who does not believe in the existence of God or in a future state of rewards and punishment has no reason to have regard for the church’s ecclesiastical power when it comes to telling the truth in the church’s judicial proceedings.

The power of ecclesiastical courts is “exclusively spiritual” whereas the power of the state “includes the exercise of force.”  (BCO 3-4).  This disparity of remedy disadvantages church courts in incentivizing truth telling by witnesses in court proceedings.  Our ecclesiastical courts, lacking the “force” of secular courts, have no means to punish perjury in the way that the Civil Magistrate can. Lacking such power, our ecclesiastical courts have traditionally received only witnesses who believe in God, and therefore who at least exhibit the ground for a healthy fear of divine punishment for lying under oath.   Additionally, in the case of witnesses who are church members, the ecclesiastical courts possess the power of censuring them for bearing false witness, another assurance of and incentive to truth telling.

But neither of these incentives applies to those persons whom the new overtures propose to nominate as eligible to testify in ecclesiastical proceedings, namely persons who neither “believe in the existence of God” nor a “future state of rewards and punishments.”

Some might object that the oath is unreliable because believers and unbelievers alike can take oaths falsely, and we really have no means of measuring a person’s sincerity merely by virtue of their having taken an oath.

But taking this position would require us to renounce (or at least minimize) the place of oaths in our theological system as set out in WCF 22.2.  Believing in the theological propriety of oaths, our church courts rightly take assurance that a witness who has shown his or her willingness to invoke judgment upon his or her own head by taking the oath is more likely telling the truth.  Such a witness at least professes belief in the divine disapprobation of bearing false witness. By doing this our church courts both subscribe to and practice the important place of oaths in God’s government and in our theological system.  A witness’s willingness to invoke divine judgment on his or her head through an oath is really worth something to ecclesiastical courts, which is why it has long been a qualifier or a precondition to witness eligibility or competence to testify.

The adoption of the present proposal to allow a person who does not “believe in the existence of God” to take our oath will necessarily require a dilution of our theology and integrity of oaths together with the corresponding idea of witness eligibility or competence in a theological and ecclesiastical sense, leaving in place only to the already existing judicial task of measuring the credibility of witnesses. But if credibility is truly all that matters, why require or practice any kind of oath or affirmation at all?  The oath, like so many other post-Christian relics in our society, will eventually become only an echo of a Christian view of the world.  And indeed, that is what it is becoming or has become in our civil courts.  Such secularization ought not to be the trend in the courts of the PCA.

The Spiritual Nature of Church Courts

Another factor to consider in favor of insisting that a witness “believe in the existence of God” and a “future state of rewards and punishments” is the very nature of the power of church courts. “The power of the Church is exclusively spiritual”  (BCO 3-4). Of course, from one perspective the power of the church courts are very great indeed because they represent Jesus Christ.  Thus, their exercise of ecclesiastical power “has the divine sanction when in conformity with the statutes enacted by Christ, the Lawgiver, and when put forth by courts or by officers appointed thereunto in His Word” (BCO 3-6).  While that is a profound fact to the members of the church, it is not to persons who do not “believe in the existence of God.”

The spiritual nature of the church courts implies certain limitations on their authority. The apparent (and understandable) impetus for changing the oath requirement is to widen the scope of who may participate in ecclesiastical proceedings so that the ecclesiastical courts can adjudicate matters that might be out of its reach under our present polity.  Perhaps the overtures particularly have in mind matters that might involve key testimony from unbelieving witnesses as in cases involving sexual impropriety or abuse, and especially in cases where individuals victimized by members of the church may have resultantly abandoned the faith, rendering them ineligible to testify under present BCO 35-1.  Allowing unbelievers to testify would enable our church courts to take on cases in which proof may fail, under the existing rules, because an unbelieving witness is ineligible to inform the court of relevant facts.

It might be objected that If we don’t allow unbelieving victims to testify, then the church courts can’t do full justice.  But strictly speaking, our church courts are not called upon to do full justice.  Our church courts serve several functions, including “the rebuke of offenses, the removal of scandal, the vindication of the honor of Christ, the promotion of the purity and general edification of the Church, and the spiritual good of offenders themselves”  (BCO 27-3).  Our church courts are imperfect forums, and the “right” result is not guaranteed in any case.  Rules like the two-witnesses rule (BCO 35-3), founded in Scripture, sometimes work to prevent our church courts from discovering or declaring the truth, even assuming that the sole witness to a sexual crime, for example, is credible, reliable, and trustworthy.

The requirement that a witness must “believe in the existence of God” to be eligible to testify in our courts is like the two-witness rule.  As profound as any sin is, including sexual sin or abuse, it is also a sin to not believe in God’s existence, a denial that, if you think about it, is an unequivocal renunciation of the jurisdiction of the courts of Christ’s Church.  According to the unbeliever, the King of our courts does not even exist. Christ’s under shepherds serving in His ecclesiastical courts cannot coherently ignore unbelievers’ denial of the very premise of their jurisdiction and entertain such a person’s testimony in church proceedings against souls who, although charged with having committed an offense, at least profess belief in God and are still under both the jurisdiction and care of the church.

Thus the de facto renunciation of ecclesiastical jurisdiction by unbelievers who would otherwise be determinative witnesses in an ecclesiastical case against a member of the church leaves the courts of the civil magistrate as the courts of exclusive jurisdiction in such matters.   It is not the church but the victim, by virtue of his or her unbelief, that has placed such matters out of the reach of ecclesiastical adjudication. The matter can be adjudicated, just not in the ecclesiastical courts.

Ecclesiastical cases are fundamentally intramural proceedings brought in and for the church.  The proposed changes seek to expand the jurisdiction of our ecclesiastical courts into an area that, under the framework of our historic polity, has been the province of the civil magistrate.  Expanding the jurisdiction of our ecclesiastical courts by accepting unbelievers as witnesses would undermine the principle that our church courts’ authority is solely moral and spiritual, not civil.  We should defer to the civil magistrate the adjudication of those matters that are especially suited to his jurisdictional powers in matters that turn on the testimony of persons who are neither Christians nor otherwise subject to the discipline of the church.

Jim Eggert is a Ruling Elder in Westminster Presbyterian Church (PCA) in Brandon, Fla.