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

order under the act of 1840. As the statute prescribed the number of challenges to the defendant, the court could not, therefore, proceed under the act of 1840, and by rule or order prescribe any other number, or none at all, in accordance with the practice of the state courts in that respect. The Federal statute was held to be exclusive of any other regulation on the subject, because to give any other number of challenges to the defendant would be inconsistent with the provisions of the Federal statute, even though the matter of peremptory challenge was provided for by the state practice. In such a case the power to provide by rule of court was to be regarded as excepted from the provisions of the act of 1840.

But, in giving by statute the right of peremptory challenge to the Government in certain cases, it does not necessarily affect the exercise of the power of the Government to challenge in this qualified manner. A conditional or qualified right of challenge is not inconsistent with the existence of the right of peremptory challenge given by statute. The two may co-exist, and the Government may exercise the right of peremptory challenge given by statute and in the same case exercise the qualified or conditional challenge, as in the case at bar.

It was stated in the opinion in the Shackleford case that unless the laws or usages of the State (adopted by rule by the Federal courts under the act of 1840) allowed it, the right should be rejected, and the practice conformed in that respect to the state law. But in North Carolina the state law permits such qualified right of challenge, and the court in this case made the order to follow the state practice, there being no United States statute on the subject.

In Pennsylvania, which is one of the States where the practice has always obtained, the Supreme Court held that a statute, giving peremptory challenges, does not take away this right of the Government. Haines v. Commonwealth, 100 Pa. St. 317, 322; Commonwealth v. O'Brien, 140 Pa. St. 555, 560.

To the same effect are the decisions in North Carolina. The

right remains notwithstanding the enactment of a law giving peremptory challenges to the State. State v. Benton, 19 N. Car. 196, 203; State v. Hensley, 94 N. Car. 1021, A. D. 1886.

The courts of Georgia and Florida are of a different opinion. Sealy v. State, 1 Georgia, 213; Mathis v. State, 31 Florida, 291, 315.

We are of opinion that the passage of the acts of Congress, granting peremptory challenges to the Government, has not taken away the qualified right of challenge under discussion in this case. As we have said, there is certainly nothing in the statute granting peremptory challenges to the Government to prevent its exercise of the other kind of challenge when permitted in the State, and where it has been adopted by the Federal court as a rule, or by special order as in this case. The exercise of this right is under the supervision of the court, and it ought not to be permitted to be exercised unreasonably, or so that the interests of the defendant might be unduly prejudiced. The court should take special care to that end.

In this case it appears that neither the Government nor the defendants had exhausted all their peremptory challenges when the jury was obtained. We think it plain that the Government's right of qualified challenge was not unreasonably exercised, and the rights of the plaintiffs in error suffered no injury by the course permitted by the court.

Another question argued arises upon the cross-examination by the district attorney, of the plaintiff in error Adams, who voluntarily became a witness on the trial on his own behalf and in behalf of his fellow-plaintiff in error. The crossexamination referred to the conduct of the witness on a previous voyage and on a different vessel, in regard to which nothing had been said on the examination of the witness in chief.

It has been held in this court that a prisoner who takes the stand in his own behalf waives his constitutional privilege of silence, and that the prosecution has the right to cross-examine him upon his evidence in chief with the same latitude as would

be exercised in the case of an ordinary witness, as to the circumstances connecting him with the crime. Fitzpatrick v. United States, 178 U. S. 304.

It is contended on the part of the plaintiffs in error that within this rule the cross-examination was improper, as the subject matter of the cross-examination had no tendency to connect the prisoner with the alleged crime for which he was on trial.

The district attorney on his cross-examination began with questions relating to the experience which the witness had had as a seaman, and asked him in regard to the vessels that he had sailed on. It appeared that he had been one of the crew, among others, of the schooner Benefit, for some fifteen months, whose captain was a man named Falkner. He was then asked if during the latter part of the fifteen months he was on the schooner he did not have trouble and try to create insubordination on board that vessel. This question was duly objected to by counsel for defendants, and the objection overruled by the court and an exception allowed. He answered that he was not logged, and then stated that the trouble arose from the cook giving them molasses to make tea, which he said was not right, and he and three other men went to the captain and asked him if he thought it was right, and the captain said they did not have sugar and would have to use 'molasses. The witness took the tea and threw it overboard; that he never went among the men and tried to create dissatisfaction among them; that the captain never threatened to put him in irons, and when he left the Benefit he shipped on another vessel named the Benj. Russell, where he stayed for over three months.

It is unnecessary in this case to inquire whether the crossexamination was within the prescribed limits, because the witness denied that he had had any trouble, or that he had ever tried to create any trouble, or that there was any insubordination on his part on board the vessel named. What he said in regard to the facts showed that there was neither trouble nor