Burt v. Panjaud/Concurrence Field
MR. JUSTICE FIELD concurring.
I agree with the court that the juror Holmes, in this case, could not be required to answer the questions put to him; but I go further. I do not think that the act of Congress, which requires a test oath as to past conduct, and thereby excludes a great majority of the citizens of one-half the country from the jury-box, is valid.  In my judgment, the act is not only oppressive and odious, and repugnant to the spirit of our institutions, but is unconstitutional and void. As a war measure, to be enforced in the insurgent States when dominated by the national forces, it could be sustained; but after the war was over, and those States were restored to their normal and constitutional relations to the Union, it was as much out of place and as inoperative as would be a law quartering a soldier in every Southern man's house.
^1 The act was passed in 1862, repealed in 1871, and re-enacted in 1874 by sect. 820, Rev. Stat.