Church and State in the U.S. Legal History: Period of Conflict (1834-1900)

Joseph Polking & Howard Bromberg. New Catholic Encyclopedia Supplement 2010. Editor: Robert L Fastiggi. Volume 1. Detroit: Gale, 2010.

The nineteenth century was an era of conflict on the religious front in the United States. Resentment against immigrants brought forth American nativism in the form of such movements as the Ku Klux Klan and Know-Nothingism. The amazing growth of the Catholic parochial system was a response to the problems of the era.

At the start of this period, only a few effects of state establishment of religion still remained. The most obnoxious was the religious test for public office. In spite of federal and state guarantees of religious freedom, American churches in the nineteenth century encountered several new types of difficulty with the government. A proposed constitutional amendment (the BLAINE AMENDMENT) that sought to deprive religious-affiliated schools of state financial aid had a lasting effect in many states. The Mormon Church and its practice of polygamy came under direct attack. A series of disputes reached the courts as a result of schisms that split the churches into warring factions. Religious practices in public schools were both approved and forbidden by various state courts. And problems arose concerning the holding of church property and the incorporation of churches. Amid all this conflict, there was, strangely enough, a twenty-year period in which the United States and the VATICAN maintained diplomatic relations.

Religious Tests for Public Office

The Founding Fathers of the United States thought that a necessary prerequisite for securing the freedom of religion was the inclusion in the U.S. Constitution of a clause prohibiting any religious test as a requirement for holding public office. The original proposal was made in 1787 at the Constitutional Convention by Charles Pinckney (1746-1825) of South Carolina. There was considerable debate on the subject at the convention, but the proposal was finally drafted into Article 6 of the U.S. Constitution and passed easily, North Carolina being the only state that voted against it. Article 6 states that elected officials shall be bound by oath or affirmation to support the Constitution, and then continues, “but no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Although this provision in the U.S. Constitution was almost unanimously approved by the original thirteen states, they were very slow to incorporate similar provisions in their own state constitutions. Most of the states were still feeling the effects of religious establishment, and they consequently limited public office to those who professed the “Protestant religion,” those who were “Christians,” those who believed in the “Old and New Testament,” and other such conditions. Five of the original states had provisions in their constitutions limiting holders of public office to those who professed a belief in the Protestant religion (Georgia, New Hampshire, New Jersey, North Carolina, and South Carolina). Georgia was the first of the five to remove this requirement, in 1789, when its constitution was changed to read that no religious test for public office would be required. New Jersey and New Hampshire did not follow suit until 1844 and 1877 respectively. North Carolina changed “Protestant” to “Christian” in 1835, and in 1868 revised it to “belief in God.” South Carolina replaced the qualification “Protestant” with belief in a supreme being in 1868. Maryland and Delaware originally required officeholders to be Christians. Delaware removed this restriction in 1792. Maryland changed the requirement to belief in God in 1826, and the requirement held until 1961, when the U.S. Supreme Court declared it unconstitutional (Torcaso v. Watkins, 367 U.S. 488). Pennsylvania early required a belief in both the Old and New Testaments, but the requirement was changed in 1790 to “belief in God.” The slow pace at which the original states proceeded to remove religious tests can be attributed to the fact that they were free to retain or modify their laws of religious liberty as they chose.

However, the new states to gain admission to the Union had to have their constitutions approved by Congress, and Congress after the beginning of the nineteenth century required that states have adequate guarantees of religious freedom. Consequently, only four states admitted to the Union after the original states had any kind of religious restriction for public officeholders (Arkansas, Mississippi, Tennessee, Texas). These four required officeholders to hold a belief in God or in a supreme being. Most of the states admitted to the Union during the nineteenth and the early twentieth centuries have some specific constitutional provision forbidding any religious test for public office. Some, though not specifically referring to public office, forbid a religious test in guaranteeing civil or political rights to all. A few states made no mention of a religious test in their constitutions.

By 1912, with the admission of the forty-eighth state to the Union (Arizona), the states specifically prohibiting any religious test included: Alabama, Arizona, Delaware, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. States forbidding a religious test to guarantee civil and/or political rights included Michigan, Montana, Oklahoma, and South Dakota. States whose constitutions made no mention of any form of religious test were California, Colorado, Connecticut, Florida, Kentucky, Nevada, and North Dakota. Those requiring a belief in God or a supreme being included Arkansas, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee, and Texas. One state, Massachusetts, obliged the people in choosing their officials to pay attention to principles of piety.

The Blaine Amendment

On December 14, 1875, James Gillespie Blaine (1830-1893), a congressman from Maine, presented to the House of Representatives a proposed amendment to the U.S. Constitution. The proposed amendment sought primarily to prevent the states from directly or indirectly devoting any public money or land to schools having any religious affiliation. As proposed, the amendment read:

No state shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no religious test shall ever be required as a qualification to any office or public trust under any State. No public property, and no public revenue of nor any loan of credit by or under the authority of the United States, or any State, Territory, District or municipal corporation, shall be appropriated to, or made or used for, the support of any school, educational or other institution, under the control of any religious or antireligious sect, organization, or denomination, or wherein the particular creed or tenets shall be read or taught in any school or institution supported in whole or in part by such revenue or loan of credit; and no such appropriation or loan of credit shall be made to any religious or anti-religious sect, organization or denomination, or to promote its interests or tenets. This article shall not be construed to prohibit the reading of the Bible in any school or institution, and it shall not have the effect to impair rights of property already vested. Congress shall have power, by appropriate legislation, to provide for the prevention and punishment of violation of this article.

The issue was debated in Congress, and discussion centered on the questions of the states’ right to determine their educational policies, and the privilege of a religious people to secure their teachings in schools attended by their children. The proposal failed to win the necessary two-thirds majority in the Senate and was never put to the states for ratification.

Since the amendment’s original failure, it has been reintroduced some twenty times, but only once was it reported on by the committee to which it was referred. Even this report recommended that the resolution should not be passed. But the amendment’s effect has been felt in subsequent amendments or revisions of many state constitutions. Between 1877 and 1913, more than thirty state constitutions forbade financial aid to parochial schools. The provisions adopted vary greatly in detail. Some use the same language as the Blaine amendment; others say the same thing in different words. However, they all have the same purpose, of preventing the use of public school funds by private sectarian schools.

Only eight states had any constitutional provision on this matter before the Blaine amendment was introduced. These provisions were very limited in scope, usually prohibiting aid to theological and religious seminaries. The states were Wisconsin (1848), Michigan (1850), Indiana (1851), Oregon (1857), Minnesota (1857), Kansas (1858), Nebraska (1866), and Illinois (1870).

States that responded early to the Blaine amendment and incorporated a similar provision in their own constitution before 1880 included Pennsylvania (1873); Missouri, Alabama, and Nebraska (1875); Texas and Colorado (1876); Georgia, Minnesota, and New Hampshire (1877); California and Louisiana (1879); and Nevada (1880). Other states were to follow in the next twenty years: Florida (1885); Idaho, Montana, North Dakota, South Dakota, and Wyoming (1889); Mississippi and Kentucky (1890); New York (1894); South Carolina and Utah (1895); and Delaware (1897). Three states admitted to the Union after 1900 joined in adopting similar provisions in their constitutions: Oklahoma (1907), New Mexico (1911), and Arizona (1912). Several states that have adopted new constitutions since 1900 retained provisions on this matter that appeared in their earlier constitutions: New Hampshire, Louisiana, Massachusetts, and Alabama.

The Mormon Church

In 1852 the Mormon Church decreed that the practice of polygamy was in accord with its doctrine. Polygamy was permitted only to people of good moral character who could afford a large family. The practice was never widespread, even among Mormons. But opposition to it was strong. Many non-Mormons clamored for some type of legislation to suppress and prohibit the practice.

Congress responded in 1862 with the passage of the Anti-Polygamy Act (12 Stat. 501), making polygamy in any U.S. territory a crime, and prescribing a penalty of up to five years imprisonment for violations of the act. The law was difficult to enforce because it was hard to obtain evidence of plural marriages; the Mormon Temple officials secretly retained the records of such services. It was also hard to get convictions because the juries hearing the cases were often composed primarily of Mormons. One case of violation of the Anti-Polygamy Act did reach the U.S. Supreme Court (Reynolds v. United States, 98 U.S. 145 [1878]). The Court upheld the conviction of Reynolds, reasoning that freedom of religion does not extend so far as to condone overt acts that may be disruptive of the social order.

In 1882 Congress passed the Edmunds Act (22 Stat. 30), making it a crime for a man to cohabit with two or more women at once. To secure enforcement, it was further provided that in a prosecution under this act no one could serve as a juror unless he swore that he never practiced polygamy or that he disapproved of the practice. The act also excluded polygamists from voting or holding public office in any territory. Prosecution under this law was much more successful than under the previous law.

Congress followed in 1887 with the Edmunds-Tucker Act (24 Stat. 635), which further restricted the privileges of people practicing polygamy. It permitted the vote only to those who would swear an oath against polygamy, and required all marriage ceremonies to be registered. The act also annulled laws that indirectly supported the practice, such as those affording inheritance rights to illegitimate children, laws limiting prosecution for adultery to cases in which there was a complaint by the wife, and laws that provided for elective judgeships in order to afford judicial support to the practice. This act also dissolved the corporation of the Mormon Church and seized all its property except that used for worship. Shortly after passage of this act, the Mormon Church officially disavowed polygamy and advised its members to abide by the laws of the United States in regard to it.

Shortly thereafter, in 1896, Utah was admitted to the Union with a constitutional provision forbidding the practice of polygamy. Four other western states subsequently admitted to the Union also forbade the practice in their constitutions (Oklahoma, Idaho, Arizona, and New Mexico).

Religious Practices in Public Schools

The nineteenth century saw the advent of the public school system in the United States under the leadership of Horace Mann (1796-1859). Gradually, the parochial schools of most denominations were absorbed into the public school system; the major exception was the Catholic school system. When parochial schools were merged with the public schools, there was not an immediate desecularization; religious practices and instruction were common in the early public schools. Since the Protestant religion was predominant at this time, most public schools incorporated Protestant teachings into their curriculum. Catholics objected to this practice and accordingly thought it expedient to continue their own schools with their own religious instruction.

Gradually, antireligious and nonreligious elements of the population began to work for the discontinuance of religious instruction in the public schools, and they soon succeeded. Toward the end of the nineteenth century, the public school system was conducted by the state, divorced from all church control, and given over exclusively to the dissemination of secular information. Though public schools were no longer to be controlled by religious factions, vestiges of sectarian influence remained in many states. Many schools retained the practices of saying prayers, singing hymns, and reading the Bible.

Court decisions in the nineteenth and early twentieth centuries concerning the propriety of Bible reading in public schools had conflicting results; a minority of the decisions prohibited such practices. Wisconsin (State v. School District of Edgeton, 44 N.W. 967 [1890]), Nebraska (State v. Scheve, 91 N.W. 846 [1902]), Illinois (People v. Board of Education, 92 N.E. 251 [1910]), and Louisiana (Herold v. Board of School Division [1915]) were the four states to disallow Bible reading in public schools. Illinois excluded the Bible entirely; Nebraska and Wisconsin barred it only so far as it was sectarian and not when it was used to teach moral ethics. Louisiana barred it as giving preference to Christians over Jews. Twelve other states in which the question reached the courts decided in favor of allowing the reading of the Bible; they were Colorado, Georgia, Iowa, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Ohio, Pennsylvania, and Texas.

Similar inconsistent results occurred when the courts were asked to decide whether the holding of religious services and Sunday schools in the public school buildings was proper. Some courts prohibited such use, stating that school buildings can be used only for educational purposes, thereby excluding religious services. Other courts upheld the decisions of school officials in these matters, whether the school officials allowed or disallowed the use.

The propriety of the practice of employing Roman Catholic nuns as teachers in the public schools also came to the courts for determination. Objectors pointed out that the wearing of religious garb with crucifixes and rosaries had a sectarian influence on education in such schools. Statutes forbidding the wearing of religious garb were upheld in both Pennsylvania (Commonwealth v. Herr, 78 Atl. 68 [1910]) and New York (O’Connor v. Hendrick, 77 N.E. 612 [1906]).

In the late nineteenth century, antireligious feelings concerning public schools brought pressure to bear on legislation. As a result, from 1876 to 1912, nine of the ten states admitted to the Union were required as a condition of admission to agree that provision be made for the establishment of public schools free from sectarian control.

Tenure of Church Property

Early in the nineteenth century, most of the property of the Catholic Church was held or administered by lay trustees. This was the result of an interplay of several factors, including Old World customs, Protestant influence, and practical necessity.

Since priests were scarce in the early colonies, small communities desiring to establish a church had to rely on traveling missionaries. The only practical method of caring for church property in the absence of priests was to entrust its care to lay members of the church. Also, many early Catholics in the United States had come from continental Europe, where a similar lay trustee system worked well in a civil-law framework. Finally, since the Protestant denominations were in the majority in the United States, and since they were organized on a basis of lay control, Catholics were inclined to trust in lay organization.

Nevertheless, the lay trusteeship form of control of church property in the United States was the cause of great dissension and conflict within the Church for fifty years. Trustees attempted to secure a voice in spiritual affairs of the Church. Cases occurred in which they refused to accept the services of lawfully appointed priests and attempted to name priests of their choice. Often these differences resulted in civil court cases and occasionally went to Rome for settlement.

In 1829 the First Provincial Council of Baltimore attempted to put an end to such internal disorders and dissension by decreeing that in the future no church could be built unless it were assigned to the bishop of the diocese in which the church was to be located. The decree cited the ills of the trustee system and obviously meant to abolish this system in the future. It was immediately carried out.

Bishop as Absolute Owner. Under this system, the bishop holds absolute title to the property and administers it in his individual name. This was a useful system for some time in that it proved better than the lay trustee system. However, certain difficulties arose in regard to the transfer of property at the death of the bishop, as well as in regard to improper use or disposition of the property by the bishop during his life. Attempts were made by the provincial councils of 1837, 1840, and 1843 to guarantee continuance of property in the church’s hands by requiring the bishops holding title to make valid wills in favor of fellow bishops. Many courts aided the church in this matter by declaring that the bishop mentioned in a conveyance held the property only as trustee for the members of the church, even though no trust is expressed in the instrument. By virtue of this interpretation, the property would not descend to the heirs of a bishop not having a will, nor could he dispose of it by will since the beneficiary of the trust would be the equitable owner. By the same token, under this interpretation, the property cannot be reached for satisfaction of a bishop’s personal debts, as it could were he the absolute titleholder. An important case in which this result was reached was Mannix v. Purcell, 46 Ohio St. 102 (1888).

As a result of the troubles involved in this system, the Third Plenary Council (1884) decreed that the method of making the bishop the absolute owner of church property was to be used only as a last resort. On July 29, 1911, the Congregation of the Council forbade the method entirely.

Bishop as Trustee. Under this system of property ownership, the legal title is vested in the trustee (bishop) and the equitable title is vested in the cestui que trust (members of the congregation). The bishop holds title for the benefit of the congregation. As legal owner of the property, the bishop is free to administer it according to the canons of the Church. He can delegate control of the property to administrators while retaining the right of supervision over the administration. Other advantages of the system include the protection of the property of the church. The property of the church cannot be reached by creditors of the bishop, and neither is there a problem of testate or intestate succession since the members of the church are the equitable owners.

Most courts have minimized the importance of the bishop as trustee and classify him as a passive, silent trustee with little power, thereby giving the members of the congregation considerable voice in deciding what use or disposition is to be made of the property (see Arts v. Guthrie, 37 N.W. 395 [1871]). This is the only objection to this form of church property ownership, and such interference by a congregation has become rare.

Bishop as a Corporation Sole. Some states in the United States provide for a system of church property ownership called the corporation sole. By this system, the bishop and his successors are incorporated by law and are afforded perpetuity. The corporation consists of one person, the bishop. At his death, the corporation does not cease but is merely in abeyance until a successor is appointed, the successor then becoming the new corporation sole. The corporation sole holds absolute title to its property. The bishop, though he is the corporation, does not hold title. This means that the property does not descend to the bishop’s heirs, nor can it be reached by the bishop’s creditors. The property is transferred to the succeeding bishop.

This type of ownership existed in the colonial days wherever established religions existed (e.g., in Maine, Massachusetts, and Virginia). With the disappearance of the establishments, the corporation sole disappeared until the late nineteenth century, when a few states provided for it by statute. Other states have created quasi corporations sole through court decisions without legislation authority.

Corporation Aggregate. Two types of corporation aggregate appeared: the trustee corporation and the congregational corporation. The trustee corporation is an outgrowth of the lay trustee system. To remedy the faults inherent in the lay trustee system, churches sought special charters incorporating the trustees. Later, most states provided for such incorporation in their general statutes. In this form of property ownership, the legal title is vested in the incorporated trustees, and the equitable title is in the unincorporated society. Death of a trustee has no effect on the life of the corporation, and title to property after such a death is never in abeyance.

The congregational corporation is composed of all the members of the parish. Together they form a single legal entity. The title of property is vested in the body corporate. Officers (often called trustees) are elected, but they do not hold title to the property. They merely are entrusted with the management of the business affairs of the corporation and as such are agents of the corporation. Their discretion is similar to that vested in the board of directors of an ordinary business corporation.

These types of aggregate corporations began to appear with regularity in the second half of the nineteenth century as various states passed laws permitting their establishment. Prior to this time, religious societies were not allowed to be incorporated except by special charter. This system was criticized because favoritism to certain churches was becoming manifest.

Schisms and the Courts

A SCHISM has been defined as a division or separation in a church or denomination of Christians occasioned by diversity of opinion (Nelson v. Benson, 69 Ill. 29 [1873]). Such schisms have occurred with considerable frequency in the history of the churches of the United States, with comparatively few of them involving the Roman Catholic Church. Usually, when a schism occurs, a dispute arises concerning the property of the church. Both factions seek to retain title to and use of the property. The resolution of such disputes has often been placed in the hands of the civil courts of the United States. The courts have struggled with the difficult problems involved, the primary difficulty arising from the fact that the solution depends on the type of church involved. The large number and variety of denominations with varying forms of government make it impossible to find a solution that is applicable to all such disputes.

A study of the case law in this area shows that state courts have given uniform treatment to these problems according to the type of church involved. In the only U.S. Supreme Court decision on this matter, the Court summarizes the various types of cases that have occurred and classifies them according to three categories (Watson v. Jones, 80 U.S. 679 [1871]).

Specific Trust. A type of controversy arises when a schism occurs in a church that holds property deeded to it with an express stipulation that it be used to spread some specific form of doctrine or belief. In such a case, it is the duty of the court to see that the property is not diverted to any other than the specified use. The court has to decide which faction of the church still adheres to the tenets or beliefs specified in the deed. This solution will often depend on the type of church involved. Is the church totally independent of any higher form of government or is it part of a national church by which it is governed? If the church is totally independent, the court must decide for itself which faction is adhering to the specified beliefs. There is no higher church government to rely on. If the church is part of a larger organization, the court enforces the decision of the highest tribunal of the church. Accepting this decision, the civil court has merely to decree that one faction is entitled to the use of the property according to the terms of the deed. This result will follow even if the recognized faction is a minority of the original local congregation (Wilson v. Pres. Church of John’s Island, 2 Rich. Eq 192 [1846] S.C.).

Independent Congregation. Another type of controversy arises when a schism occurs in a religious congregation that owes no fealty to a higher authority or any other ecclesiastical association. The property that is the subject of the controversy has not been specifically entrusted. Such an organization is entirely independent and governs itself either by the will of a majority of its members or by such other local organism as the majority may have instituted for the purpose of ecclesiastical government. The rules to be followed in these cases are the ordinary principles governing voluntary associations. Whatever form of government is set up by the congregation must be followed. If the majority is to rule, the courts will abide by this, even if the majority has made a complete reversal from the doctrines to which it originally adhered. If certain officers are vested with control of the church, then whatever faction is headed by these officers will be entitled to the property. No inquiry may be made into the doctrine or beliefs of the various factions of the church.

In Shannon v. Frost, 3 B. Monro 253 (1842), a Kentucky court showed its reluctance to interfere with the decision of the majority of an independent Baptist church by stating: “The judicial eye cannot penetrate the will of the church for the forbidden purpose of vindicating the alleged wrongs of excised members.” The court refused to allow the minority to use the house of worship, basing the decision on the decision of the majority. A Vermont court, in Smith v. Nelson, 18 Vt. 511 (1846), stated that in a review of church proceedings, a church cannot be treated differently from any other voluntary association. In a 1903 Texas case involving a church of this type, the court correctly stated that the question of a higher church government cannot be a test, since the society is independent of all such higher ecclesiastical control, and can, by majority vote, conduct its government as it pleases (Gibson v. Morris, 73 S.W. 85).

Associated Church. Another type of case, and the type under which most of the court cases seem to fit, is that of property normally acquired and intended for the general use of a religious congregation that is itself part of a large and general organization of some religious denomination, with which it is more or less intimately connected by religious views and ecclesiastical government. Most early cases were in agreement as to how disputes over property should be handled in such a case. Often a majority of a local congregation would attempt to break away from the general association and attempt to retain rights to its property. The courts recognized that although the dissenting group might be a majority of the local congregation, consideration must be given to the church government of the association of which the local congregation is a part.

A church originally formed as a branch of an associated church, subordinated to the government of that church, cannot break away from that form of government and discipline without losing the character or identity that confers rights to property (Miller v. Gable, 2 Denio [New York] 492 [1845]). The portion of a church that separates itself from the old organization to form a new one cannot validly claim property belonging to the old organization if the old organization retains its original framework, tenets, and beliefs (Gibson v. Armstrong, 46 Ken. 481 [1847]). Any majority of a local congregation that organizes resistance to the legitimate authority of its ecclesiastical superiors is not a true congregation and is not entitled to use of the church property (Winebrenner v. Colder, 43 Pa. 244 [1862]).

In a case in which a majority of a congregation withdrew from a presbytery of a Protestant church and denounced its teachings, the court held that the title to church property should remain with that portion of the congregation adhering to the tenets and discipline of the larger organization to whose use the property was originally dedicated. This is true even though the remaining faithful are a minority (Ferraria v. Vascanelles, 23 Ill. Repts. 403 [1860]).

These cases indicate that a minority of a local Methodist Episcopal congregation that adheres to its conference or of a local Presbyterian church that adheres to its presbytery is entitled to the property in such a dispute. It has likewise been decided that a Roman Catholic congregation that has placed itself under the authority of its archbishop cannot divorce itself from such authority and still keep title to property acquired by it (Dochkus v. Lithuanian Benefit Society of St. Anthony, 206 Pa. 25 [1903]).

The U.S. Supreme Court case of Watson v. Jones, 80 U.S. 679 (1871), involved a division in a local Kentucky congregation that was part of the Presbyterian Church. In deciding in favor of the group still recognized by the Protestant presbytery, the Court stated:

In this class of cases we think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.

The Court based its decision on two principles. First, it feared that freedom of religion would be subverted if an aggrieved party could appeal to the secular courts after the church judicatory had decided against him. Second, the Court reasoned that ecclesiastical courts and scholars were better equipped with the knowledge proper for deciding questions of this nature.

Generally speaking, U.S. civil courts have refused to hear cases concerning purely ecclesiastical matters; rather, they accept the holding of the ecclesiastical judicatories. Also, if a civil court should choose to hear such a case, it will only do so after the aggrieved person has exhausted all possible appeals in the particular church judicatory structure (German Reformed Church v. Seibert, 3 Barr 282 Pa. [1846]).

Diplomatic Representation at the Vatican

Prior to 1846, there were a few isolated instances in which the idea was proposed that the United States send a diplomatic representative to the Vatican. However, in 1846, with the election of Pius IX to succeed Gregory XVI as pope, the idea gained new impetus since this election was greatly favored in the United States; Pius IX was considered a liberal who would strive for reforms and greater freedoms.

In June 1847, the American consul at Rome, in a dispatch to the secretary of state, proposed that formal diplomatic relations be established between the United States and the government of the Vatican. This proposal was made after high officials of the Vatican government and the pope himself expressed the desire that such diplomatic relations be started.

In December 1847, President James K. Polk (1795-1849) in his message to Congress proposed the opening of such diplomatic relations, giving as reasons the political events occurring in the Papal States and protection of U.S. commercial interests there. In Congress, the proposal met with some opposition, but easily passed (137 to 15 in the House and 36 to 7 in the Senate). The opposition argued that under the U.S. Constitution the government could play no part in ecclesiastical matters and that the United States had no actual commercial interests to protect in the Vatican. Some feared that the president was making the proposal merely as a political move, to secure the vote of the Roman Catholic population. With the passage of this proposal, Jacob Martin, a convert to Roman Catholicism, was named the first chargé d’affaires to the Vatican in 1848. Martin’s instructions from the secretary of state read:

There is one consideration which you ought always to keep in view in your intercourse with the Papal authorities. Most, if not all Governments which have Diplomatic Representatives at Rome are connected with the Pope as the head of the Catholic Church. In this respect the Government of the United States occupies an entirely different position. It possesses no power whatever over the question of religion. All denominations of Christians stand on the same footing in this country,—and every man enjoys the inestimable right of worshiping his God according to the dictates of his own conscience—Your efforts, therefore, will be devoted exclusively to the cultivation of the most friendly civil relations with the Papal Government, and to the extension of the commerce between the two countries. You will carefully avoid even the appearance of interfering in ecclesiastical questions, whether these relate to the United States or any other portion of the world. It might be proper, should you deem it advisable, to make these views known, on some suitable occasion, to the Papal Government; so that there may be no mistake or misunderstanding on this subject.

The diplomatic relationship thus created lasted for twenty years, until 1867. During these years, six different chargés d’affaires represented the United States in the Papal States. There was no interruption of the friendly feelings that existed between the two governments. Most of the matters arising were unrelated episodes that called for no sustained policy on the part of either country. Some of the more important incidents that arose included the alleged recognition of the southern Confederacy by the Vatican; the question of the status of Monsignor Gaetano Bedini, who came to the United States as apostolic delegate; the protection of Vatican property by the U.S. legation during Giuseppe Garibaldi’s entrance into Rome; and the rejection of the Washington Monument Association in 1852 of a block of marble for the monument sent by the pope.

The matter that caused the most concern and eventually the cessation of U.S. diplomatic representation at the Vatican revolved around the institution of Protestant services conducted for American citizens within the Vatican. Such worship apparently seemed to the papacy inconsistent with the idea of Rome as the center of the one, true, universal Church. To enable the American chapel, set up outside the legation, to continue their Protestant services, the American minister in 1866 placed the arms of the American legation over the building used as a chapel. The American minister insisted that this arrangement was satisfactory to the papal authorities. Nevertheless, as a result of this difficulty, which had been greatly exaggerated, Congress refused to appropriate money for continuance of the U.S. representative at the Vatican. Thus the mission ceased to exist without ever having been formally discontinued. No formal message of explanation was ever sent to the Vatican.