The Act of Congress passed on the 20th of July, 1840, 5 Stat.
394, confers upon the courts of the United States the power to make
all necessary rules and regulations for conforming the empanelling
of juries to the laws and usages in force in the state.
This power includes that of regulating the challenges of jurors,
whether peremptory or for cause, and in cases both civil and
criminal, with the exception, in criminal cases, of treason and
other crimes, of which the punishment is declared to be death.
The act of 1790 recognizes the right of peremptory challenge in
these cases, and therefore it cannot be taken away.
But this recognition does not necessarily draw along with it the
qualified right, existing at common law, of challenges by the
government, and unless the laws and usages of the state, adopted by
rule of court, allow it on behalf of the prosecution, it should be
rejected, conforming in this respect the practice to the state
law.
The point of difference was thus stated.
Page 59 U. S. 589
"
Statement of point of disagreement"
"The statement of the point upon which the disagreement of the
judges happened having been made, is in these words:"
"
Question of difference"
"In the progress of the trial of this cause, and after the jury
had been in part selected and other jurors were presented to the
prisoner, he peremptorily challenged one of them, when the question
arose whether the defendant was entitled to any peremptory
challenges, on which question the judges were divided in opinion.
Whereupon the point of division and the grounds thereof are ordered
to be certified to the Supreme Court of the United States for its
opinion and direction to this Court on the case certified."
"And the cause was continued, to await the instructions of the
Supreme Court."
"J. CATRON"
MR. JUSTICE NELSON delivered the opinion of the Court.
The prisoner was indicted for a misdemeanor in wrongfully
deserting the mails of the United States before delivering them to
the proper officer or agent, he being a mail carrier at the time,
and, as such, having the mails in charge. ยง 21 of act of Cong., 3d
March, 1825; 4 Stat. 107
A question arose, in empanelling the jury, whether the prisoner
was entitled to a peremptory challenge of one or more jurors, upon
which the judges were divided in opinion.
The Act of Congress passed 20 July, 1840, 5 Stat. 394, provides
that jurors, to serve in the courts of the United States in each
state, shall have the like qualifications and be entitled to the
like exemptions as jurors of the highest court of law of such state
now have and are entitled to, and shall hereafter from time to time
have and be entitled to, and shall be designated by ballot, lot, or
otherwise according to the mode of forming such juries now
practiced and hereafter to be practiced therein, so far as such
mode may be practicable by the courts of the United States or the
officers thereof.
"And, for this purpose, the said courts shall have power to make
all necessary rules and regulations for conforming the
designation,
Page 59 U. S. 590
and empanelling of juries, in substance, to the laws and usages
now in force in such state, and further, shall have power by rule
or order from time to time to conform the same to any change in
these respects which may be hereafter adopted by the legislatures
of the respective states for the state courts."
The Court is of opinion that the power conferred upon the
federal courts to adopt "rules and regulations for conforming the
designation and empanelling of juries to the laws and usages in
force at the time in the state" enables them to adopt the laws and
usages of the state in respect to the challenges of jurors, whether
peremptory or for cause, and in cases both civil and criminal, with
the exception, in criminal cases, of treason and other crimes, of
which the punishment is declared to be death.
Section 30 of the Crimes Act of 1790, 1 Stat. 119, provides that
if persons indicted for treason against the United States shall
challenge peremptorily above the number of thirty-five of the jury,
or if persons indicted for any other of the offenses before set
forth for which the punishment is declared to be death shall
challenge peremptorily above the number of twenty persons of the
jury, the court in any of these cases shall, notwithstanding,
proceed to the trial of the persons so challenging &c.
This act of Congress having expressly recognized the right of
peremptory challenge in the one case of the number of thirty-five
jurors, and in the other of twenty, they should be regarded as
excepted out of the power conferred upon the courts to regulate the
subject by rule or order under the aforesaid act of 1840.
The right of challenge in the cases specified in the act of 1790
in respect to the number of jurors is derived from the common law,
which allowed thirty-five in cases of treason and twenty in cases
of felony. 4 Bl.Com. 354, 355;
25 U. S. 12
Wheat. 483.
That law also 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.
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.
It does not appear in the case before us whether or not the
court below had adopted the state law under the act of 1840,
Page 59 U. S. 591
as it existed at or previous to the proceedings certified, and
hence we are not enabled to express any opinion upon the particular
question certified. But the opinion expressed upon the general
question will enable the court below to dispose of the case without
any amendment of the record or further hearing of the case.
The cause is therefore remanded to the court below to
proceed according to the foregoing opinion.
