coke oath before justice Trin James justice of peace may make a special  warrant to constable c to have the body of party who be to take the oath  accord to the stat James c before they what process and what proceed shall he  have in case of recusancy   b et ref ib W and m saint c Geo saint cap Geo cap  Geo cap in this very term I move the justice in sergeantsinn in fleet street  upon the statute year James cap which give power to two justice of peace to  require any person or person c and in some case one justice of peace only if  the justice of peace may make a special warrant to constable c to have the  body of party who be to take the oath accord to the statute before they and it  be resolve by all One voice that they may and that for two reason when the  statute give power to justice of peace to require any person or person c to  take the oath the law implicile give they power coke to make a warrant to have  the body before they for when law to some degree some to go away to go away et  id without quo res self be non to be able a it be against the office of the  justice and of the authority give they by the statute that they shall go and  seek the party and principal in a case of so great consequence then I move if  in such case the constable may break the house of the party name in their  warrant and it seem to we all that they can for that they be not any offender  until they refuse to take the oath before they who have authority to tender it  to they or commit some contempt to the king and a so where a statute give a  justice jurisdiction over a offence it impliedly give he power to apprehend  any person charge with such offence bane v methuen bing coke report er p  insomuch as they be not yet offender nor be indict or charge by any matter of  record their house can be break b by warrant make by construction upon the  statute by which authority be give c to require they to take the oath vide  statute throw and see in it that baron and baronesses as to the tender of the  oath need not to be indict c for these word of or above the say age or degree  be to be intend of the same age and above the say degree or otherwise the  first clause concern baron shall be idle vide those who have power to tender  the oath to they of the nobility have power to commit they upon refusal to the  common gaol by the general Act and if any person or person be of the age of  eighteen year or above shall refuse to take the say oath duly tender c which  clause extend to all before note if the person be fugitive in another county  he evade the statute for the present but he may be indict for recusancy and  the indictment may be remove into the king bench and they may make process  against they in any county of England also if they be in their house the door  be shut c then they may be indict either before the justice of assize or  before the justice of peace at the quartersession and then after a venire  facias c by force of a capias their house may be break by the sheriff vide  stat Elizabeth c to which the statute of Elizabeth refer c such process be  give in case of not repair to church as in indictment of trespass which be  venire facias cap c memorandum hill term James all the justice of England by  commandment of the king signify by the Lord chancellor be assemble to have  consideration of these two statute and in the beginning of this term the say  point be recite and debate and after good consideration several and conference  have all together it be resolve by all if one be indict for recusancy the  court may proceed by process upon the statute of Elizabeth or by proclamation  accord to the statute of Elizabeth and that the process upon the indictment  for recusancy be when fac capias c which be the process in indictment of  trespass and upon the capias the sheriff upon request first make to open the  door may do it accord to the resolution in Seymanes case and when the sheriff  have bring he into court he may upon refusal of take his oath be general  indict as before justice of assize or in open session of the peace upon  refusal before they but the justice upon the second day of conference do not  speak to the other point and after this resolution be report to the lord of  the privycouncil at Whitehall in the presence of all the justice of England  the seven day of Feb in termin consecrated hill king and the Lord chancellor  desire that we shall put our resolution in write to which I answer that the  judge never use to put their resolution in write but that if the attorney or  solicitor come to we as the ancient use have be to our predecessor we will  deliver our opinion to they again over as far as but not in write coke at the  three day of the conference in this very term it seem upon the statute James  if justice of peace upon refusal before they commit any person to gaol without  bail or mainprize and mention in their warrant the tender and refusal then the  justice of assize or justice of peace ought to tender the oath again and to  have a special indictment for the word of the Act James be and if the say  person or person or any other whatsoever c so that this word other exclude the  person who be commit for refusal but it seem if the Millimus of the justice of  peace c do not comprehend any tender and refusal of the oath then they may be  general indict as upon refusal in open court for the court can take notice of  the former tender and refusal in such case and it be resolve that the major  number of the justice of the peace who commit the party have election to  commit either to the next assize or the next session for the word of the  statute be in the disjunctive some may be more apt to be commit until the next  assize and some until the next session and it be to be observe that two  justice of which the one be to be of the quorum by the statute James may  commit any person above the age of eighteen and under the degree of nobility  although he be not indict nor b Vid note c Seymanes case   b coke report er p  convict c but a justice of peace can commit any unless they be prosecute  indict or convict c accord to the statute James and it be resolve by all that  if the indictment be commence upon the stat James upon refusal in open court  the indictment may be short and general of what the party be indict c and not  so if the indictment be upon the commitment make by two justice of peace this  be good of any person whatsoever but in such case if the miltimus be especial  comprehend the tender of the oath and refusal there ought to be a special  indictment and refusal in open court also if the justice of peace make a  special miltinbus then the indictment ought to be special sure to recite that  the party be indict or present c in certain accord to the statute James and  that he refuse before one justice of peace or otherwise in open court but if  the millimus be general as be aforesaid then the indictment before justice of  assize at the assize or justice of peace at the session of peace may be  general upon the statute of James