a Jew," and the 1867 Constitution
erased any distinction between Christian
and Jew, the requirement now being
only a "belief in the existence of God."
The 1867 Constitution also was the first
in Maryland to deny the legislature the
power to prescribe other tests; it was
the "Reconstruction Convention" of
1867 which voiced solid opposition to
the so-called "loyalty oaths."124
Article 37, however, was still not fully
in line with the third clause of Article
VI of the federal Constitution (pro-
hibiting any religious tests for govern-
ment officers). Thus, in 1961 the
Supreme Court found Maryland's Arti-
cle 37 to be unconstitutional.126
Article 38
Once called the second most impor-
tant provision of the Declaration of
Rights, 126 Article 38 has engendered a
great deal of litigation. The Article is
analogous to the old British mortmain
statutes, designed to prevent the Church
from accumulating property in per-
petuity.127 Every transfer of property
124 niles, supra note 90 at 55. See also
Brice v. Davidson, 91 Md. 681, 690, 48 A.52
(1900). The legislature has prescribed as a
form of oath: "In the presence of Almighty
God, I do solemnly promise or declare . . . ."
md. code ann., art. 1, §10 (1957).
125Torcaso v. Watkins, 367 U.S. 488, 81
S.Ct. 1680 (1961). See appendix III, VI
(notes 9, 12).
126 NILEs, supra note 90 at 56-57. Only
one other state, Mississippi, has a similar con-
stitutional provision. (Miss. const, art. XIV,
§270).
127Vansant v. Roberts, 3 Md. 119, 128
(1852). Foreign religious corporations are
not included within the scope of this Article.
A gift to a minister as an individual (and not
as a cleric) does not violate the Article.
Church Extension v. Smith, 56 Md. 362, 391
(1881). Any deed of under five acres does
not need the legislature's sanction. Zion
Church v. Hilken, 84 Md. 170, 35 A.9
(1896).
32
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to a clergyman or religious institution
was voided unless expressly sanctioned
by the General Assembly. With the ex-
ception of several minor changes in lan-
guage, Article 38 (in 1776, Article
34; in 1851, Article 35) remained intact
until 1948, when it was virtually re-
pealed. After having been twice rejected
by the voters (in 1942128 and 1944129),
a proviso clause was inserted in 1948 to
negate the requirement of legislative
sanction, thereby making gifts to the
church valid.130
Article 39
Article 39 prescribes the manner in
which oaths are to be administered. Its
language in the present (1867) Consti-
tution is identical to the two immediate
predecessors, the Constitutions of 1864
and 1851 (Articles 36). The only dif-
ference between these and the corre-
sponding provision of the 1776 Declara-
tion of Rights (Article 26) is that
the latter contained additional clauses
which, first, allowed certain denomina-
tions such as the Quakers to make a
"solemn affirmation" in place of the
oath and, second, excluded the same
sects from acting as witnesses in cases
involving capital offenses. Various acts
of 1795 and 1798 amended the Consti-
tution to remove these disabilities.131
While the validity of Article 39 under
the federal Constitution has never been
specifically tested, the recent Supreme
Court cases yield a strong implication
of that provision's unconstitutionality.
THE RECENT CASES
A series of cases originating in Mary-
land and involving the interpretation of
128 Md. Laws of 1941, ch. 716.
129 Md. Laws of 1943, ch. 320.
130 See appendix IV, VI (note 7).
131 niles, supra note 90 at 375. See ap-
pendix V, VI (note 13).
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