thing to the Reader thereupon the bare relation sufficiently manifesting the injustice They containing three or four sheets of paper close written After the reading Cony is asked by the Committee what he had to say thereunto he alledgeth that he had not yet pleaded and insists as before to have a Copie of the Information and a day to plead In fine after he was bidden to withdraw and soon after called in again a Copie of the Information was n If he pleaded before why was he Ordered a Copie and a new day if he had not pleaded how could the Committee proceed to Judgment doubtlesse he would have rather moved for Copies of the Depositions than for a Copie of the Information if in his own understanding he had pleaded Ordered him and the same day sevenight given him to appear and answer against which day this ensuing Petition was drawn To the right Honourable the Committee for Preservation of the Customes The humble Petition of George Cony the Elder Sheweth THat of common right belonging to all and every Member of the Common-wealth of England any person or persons standing charged in any Court of Law or Equity within the said Common-wealth may have liberty to demurre to the Iurisdiction of the same Court And although it is true that the Judges of the same Court are the proper Judges to determine the question upon such Demurrer whether the matters are within their Jurisdiction or not yet it hath never been known that any such Demurrer was refused but as well for the satisfaction of the Partie as for the avoiding of all Arbitrary proceedings was admitted to be argued without the Parties incurring the guilt of Contumacie or stirring the passion of his Judges That to make the Parties capable of Demurring if there be just cause it is of necessity That that upon which the Jurisdiction of such Court is founded whether it be Common Law Statute Law Ordinance or Commission be known And therefore in all Courts that proceed by any new Authority that which gives the Authority whether Ordinance Commission or whatever ought as the Petitioner humbly conceives to be openly read published and promulgated or otherwise no person can be in contempt of the same none being bound to obey or Answer before such an Authority or Iurisdiction as is not known Now whereas the Petitioner standeth charged before your Honours upon an Information of Fraud force and misdemeanour exhibited against him by the Commissioners of the Customes and not finding by the Common Law or Statute Law of this Common-wealth or any Act or Ordinance publickly or legally promulgated what the Jurisdiction of your Honours in reference to the said Fraud force and misdemeanour pretended in the said Information may be The Petitioner humbly hopes he shall not be construed of any Contumacie against Authority to which he shall be alwaies ready to yeild a willing and cheerfull obedience if as in right onely of a Free Member of the Common-wealth of England and not otherwise he shall humbly pray a sight of such Ordinance Commission or other Authority by which your Honours are to proceed Upon which if he shall finde cause of Demurrer your Honours being your selves the proper Judges to determine the question after your Petitioners Counsell shall first have been heard thereupon the Petitioners purpose is humbly to submit to your Iudgments therein and then afterwards to plead or answer over to the said Charge if your Honours shall finde the matters within your Iurisdiction according as by his Counsell learned in the Lawes he shall be advised For his advising with whom afterwards the Petitioner shall humbly pray such reasonable time may be given him as to your Honours shall seem convenient And he shall pray c. At the day Cony accordingly appears but exhibits not the Petition but verbally o He had good reason to demurre to their Jurisdiction not knowing by what Power or Warrant they sate no man being bound to answer a Jurisdiction that is not known and that founded not in the Common Law but in an Ordinance of his Highnesse which was never promulgated nor so much as published in print whereby it might be known demurrs to the Jurisdiction of the Committee and prayes liberty to argue his Demurrer Whereupon being commanded to withdraw the Committee without further hearing or p If they had suffer'd their Jurisdiction to be argued and had then over-ruled the Demurrer the Defendant must have pleaded over and therefore there was no necessity of such proceeding unlesse to surprize him suffering their Jurisdiction to be argued proceed to sentence and Cony being called in again is q By the Statute of Magna Charta no Freeman shall be taken or imprisoned or be disseized c. or any way otherwise destroyed nor shall the King passe upon him but by lawfull Judgement of his Peers or by the Law of the Land To this Statute there is no nonbstante in the Ordinance of his Highnesse by which this Committee are impowred and if there had yet by the sixt Article of the instrument of Government the Laws shall not be altered suspended abrogated or repealed nor any new Law made c. save only as is expressed in the 30th Article which 30th Article relates only to the raising of money in cases of necessity and preventing of disorders adjudged in the payment of 500th in 14 dayes Cony having been served with this order of Judgment and not performing the same is afterwards by warrant of the said Committee of the 12th of December last directed to the Sergeant at Armes taken into Custody and upon the 19th of December is brought before the said Committee to answer the contempt as the said Order styles it which Order follows in these words Tuesday the 12th of December 1654. At the Committee for preservation of Customes WHereas George Cony the Elder was by Order of the Committee of the 16th of November last Ordered to pay in to the Commissioners for the Customes for the use of the Common-wealth the summe of five hundred pounds of lawfull money of England on or before the 30th day of the same moneth of November being so much imposed on him as a fine by this Committee for receiving goods not first duly entred at the Custome-house opposing of the Officers of the Customes in the execution of their duty and severall other misdemeanors And forasmuch as by Certificate from the Commissioners of the Customes bearing date the 5th of this instant December it appears that the said George Cony the Elder hath neglected to make payment of his said Fine in contempt of the said Order This Committee therefore in pursuance of the powers and Authority to them given by virtue of an Ordinance from his Highnesse the Lord Protector and his Councell bearing date the 2d of September last Doe order that the Sergeant at Arms attending the Parliament doe forthwith apprehend and bring in safe Custody the body of the said George Cony the
A NARRATIVE OF THE PROCEEDINGS OF THE Committee for preservation of the Customes In the Case of Mr GEORGE CONY Merchant By SAMUEL SELVVOOD Gent. LONDON Printed for William Sheares at the Bible in S. Pauls Churchyard 1655. A NARRATIVE OF THE PROCEEDINGS OF THE Committee for preservation of the Customes in the Case of Mr GEORGE CONY Merchant FInding the expectations and discourses of men diversly and dangerously engaged touching the Case of Mr George Cony merchant now depending by writ of Habeas Corpus in the Upper-Bench Insomuch that on the one side the peace of the Commonwealth on the other side the Credit of the Gentleman himself and on both sides the truth is thereby endangered I conceive my self in some measure obliged having been employed in the solliciting of the whole businesse from the beginning and knowing every foot step and period thereof to give the Nation a true and faithfull account of all proceedings in the case that so the evil hopes and expectations of some and the groundlesse fears and censures of others may be taken away And the errour of that unlucky question which hath been stated by occasion of the said case in so unseasonable a juncture may be laid at the doores of those whose violence weaknesse or design hath been indeed properly and immediately guilty thereof For true it is that on the one side there is a generation of men restlesse in their spirits thirsting continually after change quarrelling with what-ever is present and disliking all things wherein their own heads or hands are not called to be principall Actors or Advisers who have taken occasion from this very businesse to fill the minds of the discontented of all Interests with an expectation of some opportunity to spring from hence to serve the turn of their particular discontents To this end they have given out severall false reports of dangerous consequence which by way of impression or preparation may dispose the people to a dislike of the present Government as namely That the Merchants of London have combined together to overthrow the Customes that to this end the businesse of Mr Cony is purposely set on foot that under the conduct of his single case the whole design may march the more securely that they have made a common purse to bear the charges at law that they doubt not but to obtain Judgement of law against the Customes and in consequence to overthrow the payment of all other taxes in like manner not imposed by common consent in Parliament And the unsteady multitude whose judgement and affection for the most part is guided according to the more or lesse they suffer in their purses being incouraged by these reports and not discerning further then this immediate ease which they have fancied to themselves by the hoped for discharge of all taxes as aforesaid are hereby speciously drawn in and easily disposed when the opportunity shall ripen to assist the more dangerous and deep designs of the enemies of the Commonwealth In the mean time neither reckoning what may be the issues of the changes they affect nor measuring the present necessity which induces such levies nor considering that the common safety is involved therein But on the other side there is a certain sort of men such as indeed are alwayes swarming in the Courts of Princes described by the name of Flatterers or Sychophants men of low and abject spirits within themselves but outwardly of high and insolent deportment capable of all forms and impressions whatsoever which the present power inclines to who the better to raise or radicate themselves in places of trust and profit use to abuse the eare of Greatnesse to which they have accesse with forged tales and misrepresentation of other mens actions as much thereby imposing upon the Prince as the other sort did upon the people And some of these have not been wanting in this opportunity to represent this case of Mr Conyes though to a different end under the same notion of design and combination against the present Government which opinion by the help of a very small circumstance viz. Mr Conyes personall relation to a Gentleman not long since thought fit to be secured hath the more easily obtained the reputation of a truth To contribute therefore as much as in me lyes to the preventing of the inconveniences on both sides I do publish this ensuing Narrative which I avow to be the truth the whole truth and nothing but the truth And thereby I doubt not but it will appear that whatever Mr Cony hath done for the purchase of his liberty hath been all occasionall and necessary and not in pursuance of any design or combination as hath been insinuated Nor is it likely if any such designe or combination had been among the Merchants it could have totally escaped my knowledge who not only was conversant in all the passages of this businesse from the time it came before the Committee for Preservation of the Customes but do own Mr Conyes demurring to the jurisdiction of that Committee and the sueing forth of his writt of Habeas Corpus upon his imprisonment to be the effect of my proper and peculiar advise unto him grounded upon their not publishing the power by which they acted and upon the illegality of the said Committees proceedings And not at all to start any unhappy question to the disturbance of the publick peace For for my own part I professe obedience to the present Government and think I am bound so to do not for fear but for conscience sake And that I am herein to follow the conduct of Gods providence without so much as inquiring into the lawfulnesse or unlawfulnesse of those means by which the acquest of Power and Government is made my obedience thereunto not at all amounting to any justification of such unlawfull acquest in case any such were which for my part I must leave to the great Judge of Heaven and earth to determine but being fully grounded as I conceive upon that reason of the Apostles rule of like obedience which he gives to all Christians viz. For that the powers which be are ordained of God which I understand generally of all Governing powers which have once obtained in any Nation be the by-past means of such obtaining what they will And as to the particular question touching the Customes set on foot upon occasion of Mr. Conyes case touching the decision whereof all mens mindes are at present big with expectation for my own part also I am convinced of the necessity that induceth the continuance of that and other payments for the present although peradventure the formality of law may be wanting And as upon this ground I never advised the bringing of the writt with any intention of striking at the payment of the Customes or to introduce question of his Highnesses power in reference to the present levying of the same So I must do my Clyent that conscionable right as to averre that he never discovered to me any
Elder before this Committee to answer his said contempt And for so doing this shall be a sufficient VVarrant And all Officers as well Military as Civil are hereby respectively required to be aiding and assisting in the due execution hereof accordingly To Edward Birkhead Esq Serjeant at Arms attending the Parliament John Stone Will. Roberts Gervas Bennett A. Baynes Jo. Bockett To take off this contempt it was by me urged on Master Cony's behalf in effect as followeth That the Defendant in his own intention had not pleaded and therefore that the Iudgment ought in reason to be revoked having preceded the Defendants plea or defense which he was to make That by the Law of England no person is compellable to plead ore tenus but in Cases of Felony and Treason That the Defendant being a person not skilfull in the Laws had demanded liberty to advise and to plead by Counsell which by the Law he might and ought not to have been refused him That although upon advantage taken of some improvident expressions which fell from the Defendant in his Distemper the first day by way of answer to Colonel Harvey 's urgings and not by way of Plea to the Court the Committee did indeed forthwith call the Depositions to be read yet First upon his insisting afterwards to have a Copie of the Information and a new day to plead after advise with his Counsell they themselves had granted him a Copie and a new day accordingly which implied they were satisfied by the Reasons offered that they could not take those improvident Expressions as a Plea And again although they had not yet it was not reason he should be judged by the evidence of Depositions so taken in private by the Informants themselves without his knowledge and therefore that they ought to have been supprest That whereas at his next appearance instead of Pleading which he neither had done before nor was bound to doe being surprized as aforesaid he had demurred to the Jurisdiction of the Committee he might of right doe it by the Law as well in that as in all other Courts in England That to demurre to the Jurisdiction of a Court is not to deny that the Court hath a Iurisdiction that being rather implyed than denyed by the Demurrer but to enquire whether the particular Case in question be within such Iurisdiction or no. That all Courts being Judges of their own Iurisdiction it ought not to give offence to demurre thereunto And therefore in the ordinary Courts of Iudicature where the most grave and learned in the Laws sit as Iudges such Demurrers never give offence nor are denied to be argued That the Committee being in like manner Iudges of their own Iurisdiction if it should happen that upon arguing the Defendants demurrer they should over-rule the same according to Law The Defendant was ready according to the rule of other Courts to plead over as he should be advised by his Counsell That peradventure the Defendant might plead the same Plea that was before pretended and there was no reason for such extreme precipitation in this businesse being onely upon matter of a penal Statute at most the execution of which Statutes in the rigour the Law favours not All this notwithstanding the Committee affirm their former Judgment and by a Warrant then dated being the 19th of December last continue Cony in custody of the Sergeant at Armes untill he shall conform to the payment of the said 500li. or the said Committee shall further order A Copie of which Order followeth in these words Tuesday the 19th of December 1654. At the Committee for preservation of the Customes WHereas George Cony the Elder was on the 16th day of Novemb last upon due proofs on oath adjudged and fined in the summe of Five hundred pounds of lawfull money of England for receiving goods not first entred at the Custome-house and for refusing the Officers of the Customes to make search for such goods in the day time when they required the same produced their Commission in that behalf and for resisting the said Officers violently assaulting them and forcing them out of his house whereinto before they had been peaceably admitted entred and demanded to make search as aforesaid and committing also diverse other misdemeanors in contempt and disobedience of the Ordinances of Parliament of the 14 of April 1645. and 16 of Decemb. 1647. in that behalf made And whereas the said George Cony the Elder being then personally present was upon the 16 of Novemb aforesaid adjudged and ordered to pay the said summe of Five hundred pounds unto the Commisssioners for the Customes for the use of the Common wealth upon or before the 30th of November last Which Judgement and Order hath been since served and left in Writing at the house of the said George Cony the Elder And for as much as the Commissioners of the Customes have certified unto this Committee that the said George Cony the Elder hath neglected to pay in the said Five hundred pounds in contempt of the said Order This Committee therefore in pursuance of the powers and authority to them given by Ordinance from his Highness the Lord Protector and his Councell bearing date the 2 of Sept. last do order That the said George Cony the Elder for his said contempt be and stand committed to the custody of the Serjeant at Armes attending the Parliament there to remain untill he shall conform to payment of the said Five hundred pounds or this Committee shall further Order whereof the Serjeant at Armes is to take notice and to receive him into custody accordingly To Edward Birkhead Esq Serjeant at Armes attending the Parliament Iohn Stone Will Roberts Adam Baynes Gerv Bennett Iohn Bockett Upon Hillary Terme last by advise of his Councell Cony brings his Habeas Corpus in the Upper Bench his said Councell finding such error in the Warrants of his Commitment as they were of opinion that the Court would discharge him immediately upon the opening of the same For first although their said Warrant of the 19th of December it is expressed that the same was made in pursuance of the Power and Authority to them given by Ordinance from his Highnesse the Lord Protector and his Councel bearing date the second of September last yet there is no recitall of what that Power and Authority is And the said Ordinance being never published nor certified and enrolled in Chancery nor from thence sent by Mittimus into the Upper-Bench it could not be presumed that the Court could as Judges take notice what the said Power and Authority was and if so it must follow that the Court was obliged to discharge the Prisoner Secondly if they had recited the said Ordinance of his Highnesse of the second of September at large yet the powers thereby given to that Committee are not therein particularly expressed but onely in Generall and by way of reference to a former Ordinance of his Highnesse viz. to put in execution the