U.S. Supreme Court
United States v. Shackelford, 59 U.S. 18 How. 588 588 (1855)
United States v. Shackelford
59 U.S. (18 How.) 588
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. chanroblesvirtualawlibrary
"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."