A Working Bibliography on In Thesi Deliverances
Following some recent discussion on this topic, I thought a bibliography might be helpful.
[The entries below with added comments were taken from David Coffin's bibliography on ecclesiastical judicial procedures, in particular, the section, ‘On the Powers of the Assembly in Judicial Cases and the Doctrine of Stare Decisis’]
• Adger, John B., “Deliverances of Church Courts,” Southern Presbyterian Review, 31.3 (July 1880): 535-603.
• Chapell, Bryan, Note 1 of “PRJC Letter Regarding Women in Combat”. [accessed here, on 27 June 2012 : http://www.pcamna.org/chaplainministries/PRJCWomen2004.pdf ]
• Cunningham, William, “Church Power,” being Chapter IX (pp. 235-256) in Discussions on Church Principles. Edinburgh: T. & T. Clark, 1863. Reprinted, Edmonton, AB: Still Waters Revival Books, 1991. See particularly pages 245-246.
• Gordon, E. C. (Edward Clifford, 1842-1922), “Laws and Deliverances In Thesi,” The Union Seminary Review, 31.2 (January 1920): 175-183.
• Hodge, J. Aspinwall. What is Presbyterian Law as Defined by the Church Courts? Philadelphia: Presbyterian Board of Publication, 1884, p. 271.
Can the Assembly answer questions in “thesi”? It does not appear that the constitution ever designed that the General Assembly should ever take up abstract cases and decide on them, especially when the object appears to be to bring these decisions to bear on particular individuals no judicially before the Assembly.” [citing Presbyterian Digest, p. 279.] What authority have the decisions of the Assembly? Even its recommendations are of authority, coming as they do from a body representing the whole Church. Its recommendations concerning the Boards are obligatory. Its replies to overtures are authoritative interpretations of the constitution. Its testimony on doctrine and morality is the Church’s declaration of the meaning of the “Confession of Faith,” and its application. And its judicial decisions are final and obligatory in all similar cases.” No later Assembly can reverse its judicial acts or revise its proceedings. A manifest error may be corrected. [citing Presbyterian Digest. p. 689.] (Emphasis added.)
• Leslie, J.D. Presbyterian Law and Procedure in the Presbyterian Church in the United States. Richmond, VA: Presbyterian Committee of Publication, 1930, pp. 182-185, 188.
Deliverances and General Assembly decisions. Two forms of decisions: 1. The General Assembly sits as a deliberative body which is legislative. 2. The General Assembly frequently sits as a court, in the trial of judicial cases…. 1. The deliverance that is of the highest authority is that of a decision in a judicial case, the case having come up by appeal or complaint from the lower court. The General Assembly sits as the supreme court of Jesus Christ, and its decision is final. It determines and concludes a particular case. (see also paragraph 418.) The Assembly in 1879 made a deliverance stating that the deliverances of 1865, 1869 and 1877 on the subject of worldly amusements are not to be accepted and enforced as law by judicial process upon the following grounds:
(1) That these deliverances do not require judicial prosecution expressly, and could not require it without violating the spirit of our law.
(2) that none of these deliverances were made by the Assembly in a strictly judicial capacity, but were all deliverances in thesi, and therefore can be considered as only didactic, advisory and monitory. [p. 183; Note that this phrase, "didactic, advisory and monitory" applies only to in thesi statements, not judicial decisions."]“
(3) That the Assembly has no power to issue orders to institute process except according to the provisions of the Rules of Discipline found in the Book of Church Order (revised 1925).” (A.D. 1910; M.G.A. 1879, p. 23.)….
Force of in thesi deliverance. A judicial sentence cannot be set aside by an in thesi deliverance. While it is competent for one General Assembly, under the rules provided by the constitution, to grant a new hearing to a case which has been judicially decided by a previous Assembly, a deliverance by the Assembly could not modify or set aside the judicial sentence. (A.D. 1922, p. 166, 167; M.G.A. 1879, p. 57.) (Also see par. 416.) [p. 185]…. Original jurisdiction in judicial cases. The General Assembly has no original jurisdiction in matters of discipline; but when a judicial case comes before the Assembly, by appeal or complaint, it has the power to declare the law in this particular case. This judicial interpretation of the law is the interpretation in connection with a given case. This decision becomes the law of the Church in cases similar to this given case. Decisions of this kind are not to be construed as in thesi deliverances, but are of biding authority. These decisions have been made after the matter has been discussed in two or more courts and after everything connected with it has been discussed freely, not only in the lower court but also in the Assembly. [p. 188]. (Emphasis added.)
• Mullally, Francis, “The Church’s Power to Make Declarations,” The Presbyterian Quarterly, 9.1 (October 1895): 571-583.
• Patton, Francis L. The Revision of the Confession of Faith, read before the Presbyterian Social Union, New York, December 2, 1889, p. 6 [reprinted from The Independent].
There is no doubt that there is an area of tolerated divergence from the Confession of Faith. How large that area is will depend upon the degree of readiness there may be in the Church to move the ecclesiastical courts, and upon the decisions reached in the court of last resort. Historical students may tell us what the Church has thought upon the subject, and dogmatic theologians may tell us what the Church ought to think; but it is only as the General Assembly decides concrete cases in appellate jurisdiction, and the principle of stare decisis may be supposed to govern subsequent deliverances, that the area of tolerated divergence can be defined. (Emphasis added)
• Peck, Thomas E. “The Action of the Assembly of 1879 on Worldly Amusements, or the Powers of Our Several Church Courts.” Southern Presbyterian Review 31.2 (April 1880): 218-243. Reprinted in Miscellanies of Rev. Thomas E. Peck. Edited by T.C. Johnson. Richmond, VA: The Presbyterian Committee of Publication, 1895, II.331-360.
Review of the action of the Assembly in 1879, cited by Leslie supra, provides the occasion for a masterful discussion of the nature and authority of Assembly in thesis statements, as contrasted with the authority of Assembly judicial decisions, the constitution, and the lower courts, by one of the main theorists and chief authorities on Presbyterian polity and procedure for the Southern Church. Argues Peck:
“The principle here involved is one of immense importance. It lies at the root of all the struggles between the advocates of a constitutional government and the advocates of an `absolutism.’ The forms of constitutional government and of absolutism, both in church and in state, have varied indefinitely; but the essence of the struggle has always been the same. Abstracted from its accidental forms, the question has always been, whether the power of the whole is over every part, or only over the power of the part….” [335-336.]
“[W]e must repeat the `state of the question’ once more: Does the same force belong to the deliverances in thesi of the higher courts as to their judicial decisions? Do the two classes of decisions regulate and determine the administration of discipline in the same way and to the same extent? Or, to express the same thing in other words, does the interpretation of a law by an appellate court—the interpretation being given in thesis—bind a court of original jurisdiction in such as sense as to deprive it of its power of judgment as to the meaning of said law, and compel it to accept and act upon the interpretation of the appellate court as the law of the Church? … The General Assembly of 1879 answers it clearly and unanimously in the negative; and, we think, truly and righteously….” [pp. 337-338.]
“We confess to a great astonishment that brethren should insist that deliverances in thesi have the same force and judicial decisions. The two classes of acts are reached by processes wholly different. A deliverance in thesi may concern a subject which has never been before the church or any of its courts; may be `sprung’ upon the Assembly by some ardent and eloquent member, and be carried by his personal influence and eloquence. A judicial decision by that court necessarily implies discussion in a least two of the lower courts-in a cause originating in the session it is implied that the matter has been discussed in three—before it is called to decide. The cause is represented on both sides by counsel, who are fully heard; and the members of the court next below are heard, etc., etc.; all circumstances which give assurance that the matter has been fully discussed by those most competent to do it. Further, the deliverance in thesi is apt to be sweeping and general. The judicial decision is upon a case, is interpreted by it, and is applicable only to similar cases. The responsibility in delivering a judgment in a judicial case will be more sensibly felt by the members of the court, because they are not only interpreting the law, but are judging a brother, and are determining his ecclesiastical status….” [pp. 344-345.]
“[I]f the idea of the unity of the church is to be realized on any larger scale than that of a single coetus fidelium, there must be appellate jurisdiction, and a power given to some higher court to `decide’ all controversies. This is the reason why a `judicial decision’ of the General Assembly becomes law and continues to be law until a contrary decision is rendered by the same court-law, in the sense of a regulator of the exercise of discipline in the courts below…. [T]he courts of original jurisdiction have the right to interpret the law for themselves, until a judicial decision of the highest court shall decide the matter.” [p. 346, 348.] (Emphasis added)
[Note : Peck's article, soon published in The Southern Presbyterian Review, initiated a long-running discussion which appeared on the pages of The Christian Observer in 1880 :
◊ "The Assembly and Worldly Amusements," by Rev. James Stacy [1830-1912], The Christian Observer, 59.5 (4 February 1880): 2, columns 5-6.
◊ “Power of the Assembly to Restrain Worldly Frivolity,” by the editor [either Rev. F. Bartlett Converse or Rev. Thomas E. Converse], The Christian Observer, 59.5 (4 February 1880): 4, columns 1-3.
◊ “The Assembly and Its Deliverances,” by Rev. James Stacy, The Christian Observer, 59.8 (25 February 1880): 7, columns 1-3.
◊ “Deliverances “In Thesi” of the Assembly,” by Rev. D.W. Shanks [David William, 1830-1894], The Christian Observer, 59.9 (3 March 1880): 7, columns 1-3.
◊ “The General Assembly: Its Deliverances and Modern Dance,” by Rev. E.C. Gordon, The Christian Observer, 59.11 (17 March 1880): 1, columns 4-5.
◊ ”‘In Thesi’ Deliverances of the Assembly,” The Christian Observer 59.22 (2 June 1880): 5, columns 1-6.
◊ “The Power of the Assembly,” The Christian Observer, 59.23 (9 June 1880): 2, columns 1-6 and 3, columns 1-3.
◊ “What Did the Assembly Decide About Dancing?,” The Christian Observer, 59.25 (23 June 1880): 4, columns 3-4.
◊ “The Great Debate and the Deliverance of 1880,” by “Knox,” The Christian Observer, 59.27 (7 July 1880): 4, column 6 – 5, column 1.
◊ “Action of the Assembly: An Open Letter from Dr. Girardeau,” The Christian Observer, 59.30 (28 July 1880): 2, columns 4-6.
• Presbyterian Church, United States of America. “The Plan of Union, Synods of New York and Philadelphia.” Minutes of the Synod of New York and Philadelphia. 1758, p. 3; reprinted in Minutes of the Presbyterian Church in America 1706-1788. Edited by Guy S. Klett. Philadelphia, PA: Presbyterian Historical Society, 1976, p. 341.
II. That when any Matter is determined by a Major Vote, every Member] Shall either actively concur with, or passively Submit to Such Deter[min]ation; or, if his Conscience permit him to do neither, he Shall, [after] Sufficient Liberty modestly to reason and remonstrate, peaceab[ly withdraw from our Communion, without attempting to make any Sc[hism:] provided always, that this Shall be understood to extend only to [Such] Determinations, as the Body Shall Judge indispensable in Doct[rine] or Presbyterian Gover[n]ment.
III. That any member, or Members, for the Exoneration of his, or t[heir] Conscience before God, have a Right to protest against any A[ct, or] Procedure of our highest Judicature, because there is no [fur]ther [App]eal to another for Redress, and to require that Such Prote[st]ation [be] recorded in their Minutes…. And it is agreed, that Protestations ar[e only to be entered] against the publick Acts, Judgments, or Determina[tions of the Judica]ture, with which the Protester’s Conscience is offe[nded.]
• Presbytery of Michigan and Ontario (OPC), “Recommendations for Presbyters Regarding in thesi Statements of GA and Examining Candidates” [accessed here, on 27 June 2012 : http://www.pmocc.org/Presbyters/H603_2007-05-19_Response_to_the_Letters_of_C-O-L_and_Marsh_Draft.pdf ]
• 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. 112-113.
This is a power peculiar to the Assembly; for, while the other courts decide in the sense of rendering a judgment, that judgment, if controverted, is not the DECISION of the controversy; but the Assembly’s judgment is the judgment of the Church, and is, therefore, the end of the controversy. When, then, the Assembly has decided, is that a prohibition of further discussion? By no means. But the Assembly’s decision in a controversy respecting doctrine is thenceforth the doctrine of the Church; and further opposition to this doctrine is opposition to the doctrine of the Church, and is permissible only within the limitations within which opposition to the doctrine of the Church is permissible. And the decision of the Assembly in a controversy respecting discipline fixes the status of the parties affected, and they are to be treated accordingly in their ecclesiastical relations by all who prefer to remain in this Church and free from its censure. (Emphasis added)
• Taylor, L. Roy, “Status of in thesi Statements,” [accessed here, on 27 June 2012 : http://www.pcahistory.org/bco/articles/Taylor-inthesi.pdf ]
• Thompson, Ernest Trice, Presbyterians in the South. Richmond, VA: John Knox Press, 1973. Volume II : 1861-1890, pages 392-400.
• Willborn, C.N., “The ‘Ministerial and Declarative’ Powers of the Church and In Thesi Deliverances,” The Confessional Presbyterian, Vol. I (2005): 94-101.