the State of North Carolina ever since the foundation of the State, and it has also prevailed in South Carolina and Pennsylvania.

In 1790 Congress provided for granting certain peremptory challenges to the defendant (1 Stat. 119), but no peremptory challenge was allowed to the Government.

While the Government was thus situated in regard to peremptory challenges the case of United States v. Marchant, 12 Wheat. 480, came before the court. The question directly involved was whether persons jointly charged in the same indictment for a capital offense had a right by law to be tried separately without the consent of the prosecutor, and it was held that persons so jointly charged had not that right, but that such separate trial was a matter to be allowed in the discretion of the court. In the course of the opinion, however, which was delivered by Mr. Justice Story, it was stated as follows:

"But a still more direct conclusion against the right may be drawn from the admitted right of the Crown to challenge in criminal cases, and the practice under that right. We do not say that the same right belongs to any of the States of the Union; for there may be a diversity in this respect as to the local jurisprudence or practice. The inquiry here is, not as to what is the state prerogative, but, simply, what is the common law doctrine as to the point under consideration. Until the statute of 33 Edw. I, the Crown might challenge peremptorily any juror, without assigning any cause; but that statute took away that right, and narrowed the challenges of the Crown to those for cause shown. But the practice since this statute has uniformly been, and it is clearly settled, not to compel the Crown to show cause at the time of objection taken, but to put aside the juror until the whole panel is gone through. Hawkins, on this point, says (Pl. Cr. b. 2, ch. 43, s. 2, s. 3), 'if the King challenge a juror before the panel is perused, it is agreed that he need not show any cause of his challenge, till the whole panel be gone through, and it appears that there will not be a full jury without the person so challenged. And

if the defendant, in order to oblige the King to show cause, presently challenge, touts paravaile; yet it hath been adjudged, that the defendant shall be first put to show all his causes of challenge before the King need to show any.' And the learned author is fully borne out by the authorities which he cites, and the same rule has been recognized down to the present times.

"This acknowledged right of peremptory challenge existing in the Crown before the statute of 33 Edw. I, and the uniform practice which has prevailed since that statute, to allow a qualified and conditional exercise of the same right, if other sufficient jurors remained for the trial, demonstrate, as we think, that no such power of selecting his jury belongs, or was ever supposed to belong, by the common law, to the prisoner; and that, therefore, he could not demand, as matter of right, a separate trial to enable him to exercise it. In a separate or joint trial he could at any time be defeated by the Crown of such choice, by its own admitted prerogative."

It is true that the matter involved in the Marchant case did not call for this statement, as the direct question was not in issue. It was made argumentatively, as one reason for denying the right claimed by defendant in that case. Subsequently the Circuit Court of the United States in Pennsylvania, in 1830, followed the views expressed in the Marchant case. United States v. Wilson and Porter, 1 Bald. 78. In that case the right was claimed by the district attorney and denied by counsel for defendant, but was allowed by the court upon the ground that it considered the opinion of the Supreme Court as a recognition of the qualified right of the United States to challenge, and directed the juror to be put aside until the panel was exhausted, declaring that if that should happen and the juror be again called the United States could not then challenge him without showing cause.

Again, in the case of United States v. Douglass, 2 Blatch. 207, which was decided in 1851, this qualified right of challenge was conceded to exist by Mr. Justice Nelson, who presided on

the trial in that case, but was denied by District Judge Betts, who sat with him. The case was tried in the Southern District of New York, in which State no such right of conditional challenge existed. A motion for a new trial was made before the same court, and Judge Nelson said in his opinion, in denying the motion, that "this qualified right of challenge without cause is the settled doctrine of the common law, and has been recognized by the Supreme Court of the United States in the case of United States v. Marchant, 12 Wheat. 480, and has been practiced upon in some of the circuits." The judge then said. that the doubt as to the right of the Government arose by reason of the passage of the act of July 20, 1840, 5 Stat. 394, providing for the designation of jurors to serve in the Federal courts, and empowering those courts to make rules and regulations for conforming the designation and impaneling of jurors to the laws and usages of the States as they may exist at the time. A rule to that effect had been adopted in the Southern District of New York. The justice further stated in his opinion that the act of 1840 applied only to the mode and manner of drawing or selecting the jury—that is, by ballot, lot or otherwise as prescribed by the state laws, and that it did not affect the questions involved in the right of challenging the jurors called, whether peremptorily or for cause; and that those questions stand upon the common law, except where regulated by the act of Congress. Judge Betts, in his opinion, which is set forth in the report, held that no such right existed, certainly not in the States where such practice was not recognized.

In 1855 the case of United States v. Shackelford, 18 How. 588, came before the court. It arose on a certificate of difference of opinion between the judges holding the Circuit Court of the United States for the District of Kentucky. The question was whether the defendant, who was indicted for a misdemeanor, was entitled to any peremptory challenges, and, as the judges were divided in opinion, they certified the question of difference to this court. Mr. Justice Nelson, in delivering the opinion of the court, stated that the power conferred upon VOL. CCII-11

the Federal courts under the act of 1840, supra, enabled those courts to adopt rules and regulations for conforming the designation and impaneling of jurors to the laws and usages in force at the time in that State, and that by virtue of that act the courts were enabled to adopt those laws and usages in respect to challenges of jurors, whether peremptorily or for cause, and in cases both civil and criminal, with the exception therein stated. It was further held that, as the act of 1790, 1 Stat. 112, 119, gave persons indicted for treason a certain number of peremptory challenges, etc., that act expressly recognized the right of peremptory challenge, and the right should be regarded as excepted out of the power of the courts to regulate the subject by rule or order under the aforesaid act of 1840. Mr. Justice Nelson further observed as to the common law that it "gave to the King a qualified right of challenge in these cases, which had the effect to set aside the juror till the panel was gone through with, without assigning cause, and if there was not a full jury without the person so challenged, then the cause must be assigned or the juror would be sworn." Continuing, he said:

"The court is of opinion that the right of challenge by the prisoner recognized by the act of 1790 does not necessarily draw along with it this qualified right, existing at common law, by the Government; and that, unless the laws or usages of the State, adopted by rule under the act of 1840, allow it on behalf of the prosecution, it should be rejected, conforming in this respect the practice to the state law."

In the case before us the laws or usages of the State permitted this qualified right of challenge by the Government. No case in this court has been cited, nor have we found one, that decides the question now before us. Those which we have referred to, whether of this court or the Circuit Courts of the United States, were at any rate decided before the passage of the act of Congress of 1865, 13 Stat. 500, amended in some particulars by the act of 1872, 17 Stat. 282. These statutes gave peremptory challenges to the Government, and the ques

tion now presented is whether after Congress has dealt with the subject of such challenges the former qualified right of challenge on the part of the Government still exists in those States where such practice obtains, and the practice has been adopted by a rule of court in the courts of the United States. Section 800 of the Revised Statutes of the United States in substance reproduces the act of 1840, above referred to, so that the subject must be considered with reference to that section as well as the statute which gives challenges to the Government.

The question arose in United States v. Butler, 1 Hughes, 457, 467. The trial was held before Chief Justice Waite and Judge Bond in the United States Circuit Court for the District of South Carolina in April, 1877. Upon the impaneling of the jury a juror was called and was examined on his voir dire, and was then told by the counsel for the Government to stand aside. The defense objected, and insisted that the prosecution must either exercise the right of challenge or waive it entirely and at once. The court held that this rule was in force when the Government had no right of peremptory challenge, but as the right of peremptory challenge had been given to the prosecution it should be given the same right with the defense and should exercise the right at once or not at all.

This decision of the Federal Circuit Court is the only one brought to our attention that has been decided since the passage of the acts of Congress, giving the right of peremptory challenge to the Government. It was by virtue of the act of 1840, already mentioned (Rev. Stat. § 800), that the Federal courts have been enabled to adopt the laws and usages of the State in respect to the challenging of jurors, whether peremptorily or for cause. United States v. Shackelford, 18 How.

supra.

When the Federal statute granted the right to a certain number of peremptory challenges to the defendant in criminal cases, it was said that such right must be regarded as excepted out of the power of the court to regulate the same by rule or