I may use the phrase, in his own mind or any impression on his mind, and of getting rid of the Juror upon that peremptory challenge. The Prisoner has also, as your Lordships know, the right of challenging for cause after he has exercised his right of peremptory challenges, he has then a right to challenge for cause; the Crown has no right to a peremptory challenge ultimately and in the end, but the Crown has a right to challenge, and then is put to make out the cause of that challenge if it shall happen that through the medium of the exercise of the Prisoner's right of his thirty-five challenges and the exercise of the Prisoner's right of challenging for cause, a sufficient number of jurymen are not in attendance. 1 apprehend the right of peremptory challenge must be exercised first, or I would put this case to my learned Friend,-let me suppose that the Prisoner does not challenge some particular person in the outset, the Crown does, the juryman stands by, the panel is exhausted, and then the Crown is called upon to support its cause of challenge against a particular juryman; the Crown does not support its cause of challenge against that particular juryman, and yet, according to that which is contended for by my learned Friend, the Prisoner would have a right to challenge that juryman if he had not exhausted his own thirty-five, or if he had exhausted his own thirtyfive, to challenge that juryman for cause he could make

out.

Now what a most extraordinary proceeding would that be, and I would put it to your Lordships whether that which I state most positively has never been questioned, but which on reading the State Trials appears to have been always founded in practice is not also founded on the principle, that that which is the absolutely peremptory challenge must be made first to leave those remaining upon the panel, about whose capacity to serve (when I say capacity to serve I mean in consequence of any objection) questions may arise to be made out by evidence either on the part of the Prisoner or on the part of the Crown. I, therefore, humbly submit to your Lordship, with great deference but with considerable confidence,

that it is the constant course of proceeding, and that it is the reasonable course and the legal course of proceeding also, that the Prisoner is first to exercise his right, and then when he has relinquished the exercise of that right it is for the Crown to exercise a qualified right as to challeng ing without cause in the first instance, but making good that cause if necessary: that which always has been done, I apprehend ought to be done in this case, that is, of the Prisoner's Counsel signifying whether they challenge, challenging, or abstaining from challenge, before the Crown is called upon to exercise its right.

1

Mr. Justice Dallas. Will you give us the form of the proclamation?

Mr. Gurney. " You shall challenge them as they come to the book to be sworn, and before they are sworn."

·

Mr. Solicitor General. Lord Hale says, "If no challenge hinders, the jury are commanded to look on the Prisoners, and then, severally, twelve of them are sworn."

Lord Chief Baron Richards. With respect to the ques tion which has been discussed before the Court, I am myself of opinion, and I believe I have the concurrence of my learned brothers, that the usual and the proper course is in cases of challenges, that the challenge should be made before the oath is begun to be administered, the declaration to the Prisoner is, that he shall make his challenge when the Juror comes to the book to be sworn, and before he is sworn. It appears to me extremely improper to imagine that the oath is to be interrupted by any challenge: the oath is one and entire, and, from the time when the officer has begun to administer it, until he concludes it, is one and an entire thing not to be interrupted. I, therefore, am of opinion that the practice of the Courts is consistent with the principle that there should be no interruption in the course of the delivery of the oath by the officer to the Juror. I am aware that in many cases that rule is dispensed with from comity and tenderness, and there are many cases in which one would wish that that comity and tenderness should be discovered; but

we are now called upon to decide upon the rule. If that be so, then either side must conclude his intention to challenge before the oath is begun to be administered.

Then, with respect to the other part of the question before us, it seems to me quite clear upon the principle that the Prisoner is to declare his resolution first. It certainly is so in practice, about which, with the very small experience I have had, I can say I have no doubt, but others of the Court have had very large experience upon the subject, and I conceive it to be clear that it is according to the practice of the Courts that the Prisoner should first declare his resolution as to challenging. I think it is so upon principle also; he has his peremptory challenges, and then the rest of the jury lie in common between him and the Crown. The usual course has been as I understand, and I have no doubt of it myself that the officer has, from a sort of civility that has been adopted with great proprietý, addressed himself by looks to the counsel for the Prisoner, in order to know his intention; if he has said nothing, he has declared his intention not to challenge: he has submitted to the Juror, then the officer has been in the habit of looking to those on the part of the Crown, and, if they say nothing to him, they declare in effect their intention not to challenge. If nei ther side says any thing, the officer proceeds to administer the oath; after which, as it appears to me neither side have a right to interrupt him, for the oath is one and entire, and it is against decorum and propriety and good sense to interrupt it.

Mr. Justice Dallas. I entirely concur in opinion withi my Lord Chief Baron. The points which have been made in this case I understand to be these. In the first place it is insisted that the Crown is bound to challenge first, and that the Prisoner is entitled to wait till it be ascertained whether the Crown intends to challenge the particular Juror or not. With respect to that, if the question were entirely new, it would be necessary to discuss it upon principle; and upon principle I should have no doubt whatever, because I see no reason to distinguish

this case from any other, except to distinguish it in favor of the right of the Crown to challenge last; for, in proceedings of this sort, the Prisoner must be furnished with a list of the names of the witnesses before they are called to be sworn, and of the jury, in order that he may enquire into the circumstances of each, and he has a considerable time to come fully informed as to each: but, with respect to that, the question is not new, for we know perfectly well that there are a great number of questions that depend upon practice, and the course of proceeding that must be settled and decided by usage; and when, therefore, I find it stated from high authority that the usage has been uniform in this respect, that the Prisoner should decide whether he will challenge or not before the Crown makes its challenge, it would be sufficient to say that in this case I see no reason whatever to depart from that which has been the usual practice, and to decide that the Crown is bound to challenge first. Having given all the attention in my power to the arguments of the learned counsel for the Prisoner, they have not suggested a single observation that weighs at all with me, why now, for the first time between the Prisoner and the Crown, it is to be decided against the Crown in contradiction to uniform usage, that the Crown is to make the first challenge. On the first point I have no doubt, therefore, that the Prisoner is bound to make his challenge first.

Then that brings me to the second consideration, when is that challenge to be made? It is insisted that the challenge may be made at any time before the oath is concluded. With respect to that, first upon principle and public convenience, it seems to be a very inconvenient course of pro · ceeding, that the oath should be suffered to be repeated by the officer of the court till it draws to its close, all but the last word, and that then the counsel for the Prisoner may rise and make his challenge for the first time. Courts of justice will not, beyond a given extent, attend to what may be the consumption of time, and I hope that in this case whatever may be the duration of it. I know it will be as to the other learned Judges on the bench, and I trust

it will be as to myself, the time will not be attended to, if necessary to the due observance of justice; but it is a wise and salutary principle in all proceedings of this sort, and more peculiarly in one which, from its nature, must necessarily be long, that no time should be unnecessarily wasted. Will it not be an unnecessary waste of time, if it be a privilege which, without enquiring into the reasonableness of it, the counsel for the Prisoner may exercise, that the time of the Court may be employed unnecessarily in going through the form of reading the oath up to the conclusion of it?

But to quit for a moment the ground of principle and public convenience, how is it in practice? Here again it is uniform, for all those who have had occasion to attend trials of this sort, concur in stating that the practice has always been to make the challenge before the oath has begun to be administered; but it does not rest merely on the recollection of the learned Judges who have recently attended proceedings of this sort, but I have before me a book in which the rules and orders are collected as to the administration of this oath: and first as to the question, who is first called on, the Prisoner is called on "if he intends to challenge a Juror to speak, at the time that he comes to the book to be sworn, and before he is sworn ;" now in reason and common sense, what does that amount to but this, and the last words, if there should be any doubt, are an exposition of the meaning of the former, that before he is sworn, means as he comes to the book to be sworn, and therefore that the challenge must be made before the oath is commenced. And we find, in applying the course of proceedings, it is stated" Then the clerk of arraigns calls the first Juror, and desires him to look upon the Prisoner, and lay his right hand upon the book, and”—What if the Prisoner do not challenge him? "the cryer is then to swear him." So that the cryer is to begin to swear him when the Prisoner has omitted to challenge. Now, I do not mean to say, and I am sure the Attorney General would not contend, whatever the law may be in strictness of consideration, that it would