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may, by rule or order, conform the designation and impaneling of juries, in substance, to the laws and usages relating to jurors in the State courts, from time to time in force in such State. [This section shall not apply to juries to serve in the courts of the United States in Pennsylvania.*] [See $ 1671.]
20 July, 1840, c. 47, v. 5, p. 394; 17 June, 1862, c. 103, s. 1, v. 12, p. 430; 20 April, 1871, c. 22, s. 5, v. 17, p. 15; 3 Mar., 1849, c. 118, v. 9, p. 403; 15 July, 1870, c. 298, s. 3, v. 16, p. 363; 22 Dec., 1870, Res. 2, v. 16, p. 589; 1 Mar., 1875, c. 114, s. 4, v. 18, p. 336.
Practice in obtaining a jury.-Where a juror became ill and was discharged before any evidence was given, and before the plaintiff's counsel had concluded his opening address, and the court ordered another juror sworn and proceeded with the trial pursuant to the practice in the State courts, it was held that this was the proper practice. Sibley v. Foote, 14 How., 218.
The courts of the United States have the power to make all the necessary rules and regulations for conforming the impaneling of juries to the laws and usages in force in the States; and this power includes that of regulating the challenges of jurors, whether peremptory or for cause, and in civil and criminal cases, except as to peremptory challenges in cases of treason and other crimes, punishable with death, which is regulated by the act of 1790 (now $ 819 of the Revised Statute). United States v. Shackleford, 18 How., 588. It does not allow the common law right of thirty-five peremptory challenges to the State. Id.; United States v. Marchant, 12 Wh., 480.
Qualified peremptory challenge.-[See, post, $ 819, which now regulates the right of challenges in civil and criminal cases.) A right exists, on the part of the government in criminal cases, to a qualified peremptory challenge to a juror in a criminal case, that is, the right to set aside a juror without challenge for cause or favor, and have him finally excluded from the jury unless the panel is exhausted by the challenges of the prisoner. United States v. Douglass, 2 Blatch., 207. See, also, United States v. Reid, 12 How., 261; United States v. Wilson, 1 Bald., 78.:
The acts of congress adopt the State regulations respecting the procurement of grand and petit juries to serve in the federal courts, and apply to those courts the State regulations respecting the qualifications and the exemptions of grand and petit jurors. A challenge to a grand juror for favor on the ground that he is a prosecutor or complainant upon a charge, or that he is a witness on the part of the prosecution, and has been subpænaed or bound in a recognizance as such, goes to his qualifications. A challenge to the grand jury, on the ground that they have been selected, summoned, and returned by a person unfit to summon an indifferent jury in the case, touches the qualifications of the panel; and hence State regulations respecting such challenges are applicable in the federal courts. United States v. Reid, 2
*The last clause of section 800 repealed by section 2, chapter 52, act of June 30, 1879, page 43.
Blatch., 435; United States v. Woodruff, 4 McLean, 105. But when challenges to the array of the grand jurors are abolished in the State courts, they are also abolished in the federal courts. United States v. Tallman, 10 Blatch., 21; United States v. Reid, supra.
It is only necessary that the proceeding to secure juries in the federal courts should substantially comply with the provisions of the State law, prescribing how jurors shall be selected, but a State law which provides they shall be taken from the book of the receiver of tax returns, is not binding on the courts of the United States. United States v. Collins, 1 Woods, 499; United States v. Woodruff, 4 McLean, 105.
District and circuit courts in Territories. The district and circuit courts of the Territories, held by judges appointed by the President under acts of congress, are not courts of the United States, but the legislative courts of the territory; and hence jurors summoned into them under the acts of congress applicable to the courts of the United States, established under the Constitution which relates to judicial power, are wrongly summoned, and judgment on the verdict of such jurors cannot be sustained if properly objected to. Clinton v. Englebrecht, 13 Wall., 447. See, also, American Ins. Co. v. Canter, 1 Pet., 546; Benner v. Porter, 9 How., 235.
Challenges now regulated by statute.-Challenges to petit jurors in civil and criminal cases in the federal courts are now regulated by statutes of the United States. See, post, S $819, 820, adopted in 1872. The foregoing cases relating to such challenges were previously decided.
Section 801 of the Revised Statutes repealed by section 2, act of June 30, 1879, as follows:
SEC. 2. Repeal, 801, 820, 821 – Jurors drawn. —That the per diem pay of each juror, grand or petit, in any court of the United States, shall be two dollars; and that the last clause of section eight hundred of the Revised Statutes of the United States, which refers to the State of Pennsylvania, and sections eight hundred and one, eight hundred and twenty, and eight hundred twenty-one of the Revised Statutes of the United States, are hereby repealed; and that all such jurors, grand and petit, including those summoned during the session of the court, shall be publicly drawn from a box containing, at the time of each drawing, the names of not less than three hundred persons, possessing the qualifications prescribed in section eight hundred of the Revised Statutes, which names shall have been placed therein by the clerk of such court and a commissioner, to be appointed by the judge thereof, which commissioner shall be a citizen of good standing, residing in
the district in which such court is held, and a well-known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations, until the whole number required shall be placed therein. But nothing herein contained shall be construed to prevent any judge from .ordering the names of jurors to be drawn from the boxes used by the State authorities in selecting jurors in the highest courts of the State; and no person shall serve as a petit juror more than one term in any one year, and all juries to serve in courts after the passage of this act shall be drawn in conformity herewith: Provided, That no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for services as grand or petit juror in any court of the United States on account of race, color, or previous condition of servitude.
3 Mar., 1849, c. 118, v. 9, p. 403; 20 July, 1840, c. 47, v. 5, p. 394; 13 May, 1800, c. 61, v. 2, p. 82; 15 July, 1870, c. 298, s. 3, v. 16, p. 363; 22 Dec., 1870, Res. No. 2, v. 16, p. 589; 17 June, 1862, c. 103, s. 1, v. 12, p. 430; 20 April, 1871, c. 22, s. 5, v. 17, p. 15.
Sec. 802. Jurors, how to be apportioned in the district.-Jurors shall be returned from such parts of the district from time to time, as the court shall direct, so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burden the citizens of any part of the district with such services.
24 Sept., 1789, c. 20, s. 29, v. 1, p. 88.
Jurors to be selected from the State at large.-Under this section a defendant has a right to claim that the jurors shall be selected from the State at large and not from a limited portion of any part of the State. United States v. Woodruff, supra. See, also, cases cited under $ 800, supra; . United States v. Stowell, 2 Curt., supra.
Sec. 803. Writ of venire, how issued and served.Writs of venire facias, when directed by the court, shall issue from the clerk's office, and shall be served and returned by the marshal in person, or by his deputy; or, in case the mar
shal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as may be specially appointed for that purpose by the court, who shall administer to hiin an oath that he will truly and impartially serve and return the writ. 24 Sept., 1789, c. 20, s. 29, v. 1, p. 88.
SEC. 804. Talesman for petit juries.—When, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the by-standers sufficient to complete the panel; and when the marshal or his deputy is disqualified as, aforesaid, jurors may be so returned by such disinterested person as the court may appoint, and such person shall be sworn, as provided in the preceding section. 24 Sept., 1789, c. 20, s. 29, v. 1, p. 88; 3 Mar., 1865, c. 86, s. 1, v. 13, p. 500.
See post, $ 819, where the right to challenge petit jurors in criminal cases is regulated, p. 301.
SEC. 805. Special juries in the circuit courts. When special juries are ordered in any circuit court, they shall be returned by the marshal in the same manner and form as is required in such cases by the laws of the several States. 29 April, 1802, c. 31, s. 30, v. 2, p. 167.
SEC. 806. New York.-No jury shall be drawn for service exclusively in the circuit court for the northern district of New York at the adjourned terms thereof required by law to be held at Albany and Utica, but the jury drawn to serve in the district court held at the same times and places with said adjourned terms shall be used for the trial issue of fact arising in civil causes in said circuit court, and the verdicts of said jury, and all proceedings upon the trial of said issues, shall be of the same effect as if the said jury had been drawn to serve in the said circuit court.
4 July, 1864, c. 245, s. 2, v. 13, p. 385.
Sec. 807. Vermont, when petit jury to be summoned. - The clerk of the district court for Vermont shall not cause a petit jury to be summoned or returned to any session in which there shall appear to be no issue proper for trial by jury, unless by special order of the judge. 29 April, 1802, c. 31, s. 29, v. 2, p. 167.
SEO. 808. Number of grand jurors; completing jury. -Every grand jury impaneled before any district or circuit court shall consist of not less than sixteen nor more than twentythree persons. If of the persons summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the bystanders, a sufficient number of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed, and there are not in attendance other jurors sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that purpose. 3 Mar., 1865, c. 86, s. 1, v. 13, p. 500.
SEC: 809. Foreman of grand jury, appointment and powers of.–From the persons summoued and accepted as grand jurors, the court shall appoint the foreman, who shall have power to admminister oaths and affirmation to witnesses appearing before the grand jury. 3 Mar., 1865, c. 86, s. 1, v. 13, p. 500.
SEC. 810. Grand juries, when summoned.-No grand jury shall be summoned to attend any circuit or district court unless one of the judges of such circuit court, or the judge of such district, in his own discretion, or upon a notification by the district attorney that such jury will be needed, orders a venire to issue therefor. And either of the said courts may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, whenever, in its judgment, it may be proper to do so. But nothing herein shall operate