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T••i••. 9 Jacob. Regis.
In this Term, I moved the Justices in Sergeants Inne in Fleetstreet, upon the Stat. 27 Jac. cap. 6. If the Ju∣stices of Peace may make a special Warrant to Consta∣bles, &c. to have the bodies of parties, who are to take the Oath according to the Statute before them: And it was Resolved by all, unâ voce, that they may; and that for two Reasons.
1. When the Statute gave power to Justices of the
Peace, to require any persons &c. to take the Oath; the Law implicite gave power to make a Warrant to have the body: for Quando lex aliquid alicui concedit, conceditur, et id sine quo res ipsa esse non potest.
2. It is against the Offices of the Justices, and the Au∣thority given them by that Statute, that they shall go and seek the parties: Then I moved, if in such case the Constables may break the Houses of the Parties named in their Warrants; and it seemed to Us all that they cannot, because they are not Offenders, till they refuse to take the Oath before them, or commit some Contempt to the King.
Note, If the person be fugitive in another County, he evades the Statute for the present; but he may be indict∣ed for Recusancy, and the Indictment be removed into the Kings-Bench, and they may make Process against them into any County of England. Also, if they are in their Hou∣ses, the Door being shut, &c. they may be indicted be∣fore the Justices of Assize, or Quarter-S••ssions; and then after a Venire Facias, &c. by force of a Capias, their Houses may be broken by the Sheriff, 10 Eliz. cap. 2. to which the 23 Eliz. refers.
Memorandum, Hill. 9 Jac. All the Justices of England, by the Kings Command, were assembled, to consider of these two Statutes: And in the beginning of this Term they were recited and debated; and after good conside∣ration and Conference together, It was Resolved by all, That if one be indicted for Recusancy, the Court may proceed by Process, upon the Stat. 23 Eliz. or by Procla∣mation, according to 28 Eliz. And that the Process up∣on the Indictment, and Venire Facias, and Capias, &c. and upon the Capias, the Sheriff, upon Request made to o∣pen the Door, (as in Seymans Case) and when by the Sheriff brought into Court, he may, upon refusal of ta∣king his Oath, be generally indicted, &c. But the Ju∣stices, upon the second day of Conference, did not speak to the other Point. And this Resolution being reported
to the Lords of the Councel a•• Whitehall, (all the Judges being present, 7 Feb. Hill. 9 Jacob. Regis. We were de∣sired to put our Resolution into Writing: I answered, The Judges never used so to do: But if the Attorney or Sollicitor came to us, we will deliver our Opinions to them ore tenus, but not in Writing.
At th•• third day, upon the Conference in this Term, it seemed upon the Statute 3 Jac. If Justices of Peace, upon Refusal before them, commit any person to Gaol with Bay••, and mention in their Warrant, the Tender and Refusal, then the Oath ought to be tendred again. But if the Mittimus do not comprehend the Tender and Re∣fusal, then they may be generally indicted, as upon Refu∣sal in ••pon Court. And it was Resolved, That the major number of Justices of Peace, who commit the Parties, have Election to commit to the next Assizes, or the next S••ssions: And observe, that two Justices (whereof one of the Quorum) by the Stat. 7 Jac. may commit any per∣son above the Age of 18. and under the Degree of Nobi∣lity, alt••ough he be not indicted or convict. And it was Resolved by all, That if the Indictment be commenced upon the Stat. 3 Jac. upon Refusal in open Court, then the Indictment may be short and general, &c. Not so, if the Indictment be upon the Commitment made by two Justices of the Peace. This is good of any person whatso∣ever.