MR. JUSTICE FIELD concurring.
I agree with my associates that the jurors summoned in this case could not be required to make oath whether they had participated in, or given aid and comfort to, the late rebellion against the government of the United States. And I also agree with the court below as to the unconstitutionality of the act which excludes from the jury persons who decline to take such oath.
Undoubtedly Congress may prescribe the qualifications of jurors in the Federal courts, and declare the causes of disqualification and challenge. But if any of these causes by the commission of an act which the law has made a public offence, it is not competent for the court to go into an investigation to determine the guilt or innocence of the juror. That is to be ascertained only in one way,-by a separate trial of the party upon an indictment for the offence; and the only competent evidence in such case is the record of his conviction or acquittal. It would be a strange and unprecedented thing for a court, upon the challenge of a juror, to go into a side trial, whether he had committed a felony, such as highway robbery, arson, or murder. No one would contend that such a procedure is admissible; and if not in those cases, it is not admissible in any case where the commission of a public offence is the ground of challenge.
The court may take judicial notice, from the existence of war, that a whole people are public enemies; but it cannot take judicial notice that a whole people, or individuals of it, have violated the municipal laws of the country. If such violation be relied upon to exclude a person from becoming a witness or a juror, it must be shown, not by evidence of what others may have seen or heard, but by the record of the party's conviction.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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