State v. Bradford

FROM STRAFFORD CIRCUIT COURT. *Page 189 By article 87 of the constitution, "all writs issuing out of the clerk's office in any of the courts of law shall be in the name of the state of New Hampshire, shall be under the seal of the court whence they issue, and bear teste of the chief, first, or senior justice of the court; but when such justice shall be interested? then the writ shall *Page 198 bear teste of some other justice of the court to which the same shall be returnable; and be signed by the clerk of such court." Similar provisions are contained in Gen. Stats., ch. 203, sec. 2.

If a venire is such a writ as is contemplated by the constitution, then the venires issued in these cases were fatally defective, the language of the constitution being explicit, that all writs issuing out of the clerk's office shall be under the seal of the court, and bear teste of the chief or senior justice.

An examination of the files in the clerk's office for Strafford county discloses that from 1775 to 1815 venires were under the seal of the court; and that from 1815 to the present time they have borne the seal of the court in the years 1846, 1855, 1856, and 1857 only.

In Hillsborough county, from 1771 to 1800, venires were under seal; from 1800 to 1840 they were generally, but not always, under seal; from 1840 to 1858 they were not under seal; since 1858 they have been under the seal of the court.

In Rockingham and Cheshire counties, for over one hundred years the venires have generally been under the seal of the court; but in none of the counties of the state, so far as an examination has been made, have the venires ever borne teste of the chief or any other justice of the court.

If the framers of the constitution, in 1792, intended to include writs of venire under the provisions of article 87, it is unaccountable how the practice for the twenty years immediately preceding, and for the eighty-four years subsequent to that time, has uniformly been opposed to those provisions. The fact that such writs have never borne teste of the chief or senior justice of the court, and for a large portion of the time have not been under seal, has the force of a practical contemporaneous exposition; and the construction thus given and acquiesced in affords very strong ground for holding that by the term writ, as used in the constitution, is meant that class of writs of mesne process by which civil actions are commenced, and writs of execution by which the judgments of the court are executed. The venire, although technically called a writ, is rather an order of the court issued to the several town-clerks, directing and empowering them to select the requisite number of persons to serve as jurors. So the precept issued by the governor for an election to fill a vacancy is sometimes called a writ. So, also, the warrant for a town or school district meeting, and a warrant for the collection of taxes, are sometimes spoken of as writs. But they have no resemblance to the precept usually called a writ, whereby an action is commenced or the judgment enforced.

No exception lies to the action of the court in excusing certain jurors. None were excused except such as the respondent claims were illegally drawn; and the court has so long exercised the power of excusing jurors for reasons that have been deemed satisfactory, without its power so to do being questioned, that it must be regarded as firmly settled that the court has such power, and that the exercise of it in the discretion of the court will not ordinarily be revised. *Page 199

LADD, J., concurred.