A NARRATIVE OF THE PROCEED OF THE Committee for preservation of the Customs, In the Case of Mr GEORGE CONY Merchant.  
By SAMUEL SELWOOD Gent.   printer's or publisher's device 
LONDON, Printed for William Sheares at the Bible in S. Paul's Churchyard, 1655.   

A NARRATIVE OF THE PROCEED OF THE Committee for preservation of the Customs, in the Case of Mr GEORGE CONY Merchant.  
FInding the expectations and discourses of men diversely 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 myself in some measure obliged, (having been employed in the soliciting of the whole business from the beginning, and knowing every foot step and period thereof) to give the Nation a true and faithful account of all proceed in the case: that so the evil hopes and expectations of some, and the groundless fears and censures of others, may be taken away. And the error of that unlucky question which hath been stated by occasion of the said case in so unseasonable a juncture, may be laid at the doors of those whose violence, weakness, 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, restless in their spirits, thirsting continually after change, quarrelling with  is present, and disliking all things wherein their own heads or hands are not called to be principal Actors or Advisers, who have taken occasion from this very business 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 several 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 Customs, that to this end the business 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 Customs, 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 less they suffer in their purses) being encouraged by these reports, and not discerning further than 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 always 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 ear of Greatness, to which they have access, with forged tales, and misrepresentation of other men's 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 Coneys (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 Coneys personal 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 lies 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 occasional and necessary, and not in pursuance of any design or combination as hath been insinuated.  
Nor is it likely if any such design 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 business, from the time it came before the Committee for Preservation of the Customs but do own Mr Coneys demurring to the jurisdiction of that Committee, and the sueing forth of his writ of Habeas Corpus upon his imprisonment to be the effect of my proper and peculiar advice unto him, grounded upon their not publishing the power by which they acted, and upon the illegality of the said Committees proceed, And not at all to start any unhappy question to the disturbance of the public peace.  
For, for my own part I profess 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 God's providence, without so much as enquiring into the lawfulness or unlawfulness 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 unlawful 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 bypast means of such obtaining what they will.  
And as to the particular question touching the Customs set on foot upon occasion of Mr. Coneys case, touching the decision whereof all men's minds 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 writ with any intention of striking at the payment of the Customs, or to introduce question of his Highness' power in reference to the present levying of the same; So I must do my Client that conscionable right as to aver that he never discovered to me any such intention or inclination in himself: but that he seriously apprehended the dangerous consequence of the unseasonable ventilation of this question let the decision in law fall which way it would: If thereby either on the one hand the letter of the law should be armed against the peace and safety of the Commonwealth to the advantage of the Male content & difaffected, or on the other hand the liberty and Property of the people after so vast an effusion of the blood and treasure of the Nation should in the issue of this question be either totally lost or at least subjected to the absolute will (whether good or bad) of any present or succeeding single Governor.  
And in the sequel of this ensuing Narrative I presume the Reader will find, that by the two First Warrants whereby Mr Cony was taken into and continued in custody, there were legal advantages enough to have been taken by Mr Cony whereby to have come off from his imprisonment, without the touching upon this string if the Committee had not after the writ brought, sent two several new Warrants to the Sergeant for his detention, in each of which they had taken care (though by reciting otherwise then according to truth) to mend the errors of the former: both which Warrants bear date after the teste of the Habeas Corpus, and the later of them not indeed actually delivered to the Sergeant, nor signed nor sealed by the Committee until the 24 or 25 of May last, which was after Mr Coneys Counsel had opened their exceptions to the former Warrants; And yet the said Committee have the confidence to make the said Warrant bear date on the eighth of February last, which was above three months before the making and delivery thereof.  
For the Reader may please to understand, that the first writ of Habeas Corpus was brought in Hillary term last, the Sergeant at Arms, in whose Custody he was, having then only two Warrants, the first for the attaching of Mr Cony, the second to continue him in custody, till pay meant of his Fine or further order of the Committee. But the Sergeant making no Return upon this first writ, we were forced to move for an Alias with a pain; before the return of which, (but after the Teste of the said first Writ) the Committee upon discovery of the errors of their former Warrants (to prevent his come off thereby) make a new Warrant to the Sergeant for Coneys detinue, until he should pay the fine of five hundred pounds, or be discharged by due course of law: And the return of the Alias being not till the last day of that Term, it could not be filled of Record until the first day of Easter term, for that the Counsel for his Highness moved (according to reason and the course of the Court) to have a view of the same before the filing thereof upon the first day of which term the return was accordingly filled, and afterwards upon opening the exceptions to the Sergeants Return, Mr Cony was turned over by rule of the Court to the Custody of the Marshal, & a day appointed for his Highness' Counsel toanswer the said exceptions: upon which day it appearing to the Court that the said Return of the Sergeant was not rightly directed, and so indeed no return at all in law, upon which the Court could not proceed, Mr Cony was remanded to the Custody of the Sergeant at Arms and a Rule of Court given for a Pluries Habeas Corpus to be awarded him returnable Crastino Ascensionis, which was two days after. But before the Return of the writ into Court (the Exceptions to the former Warrants upon which, without meddling with the great question, Mr Coney in the opinion of his Counsel might have come off, having been before opened as aforesaid) the Committee send a fourth Warrant to the Sergeant, antedated as aforesaid, wherein they mended the Errors upon which the former exceptions were taken.  
Now to what end this could be done, but to cut off Mr. Cony from all exception, but that of the legality of the power by which the Committee acted, and thereby to introduce and set on foot this so dangerous a question touching his Highness' power of levying Customs and other taxes for the necessary uses of the public, let every sensible man judge. Except it may be said that it was to justify the Rumour which was spread of a combination among the Merchants, or was an effect of weakness and precipitation, which will equally leave the guilt of such inconveniences as may ensue at the doors of the said Committee.  
For let the Reader take special notice thereby (as that which is the main, and (as I hope) justifiable end of my publishing this account) that this question might for ever have slept in silence, and no opportunity have been furnished thereby to further the designs of evil minded men to disturb the public peace, (notwithstanding Mr Coneys bringing of his writ) had it not been for this the Committees manner of proceeding, as well since as before the said writ brought.)  
For the prevention of which disturbance and the timely obvening of such wicked and dangerous designs as may shelter themselves and march under the Colour of a legal defence of the Nations rights, if his Highness shall find himself necessitated to enlarge the power of the Protectorship in order to the levying of monies, and thereby in succession of times (for in his days I hope it is not to be feared) the liberty and Property of the people of this Nation should become totally lost, and subjected to the absolute will of any one particular person. I suppose the whole Nation will easily see by the ensuing Narrative, and by what before hath been observed, to whom they must reckon themselves beholding for the benefit, whose Posterities doubtless will wear the Trophies of those public honours which will be rendered them by the people for so glorious a purchase.  
But I withhold the Reader no longer from the narrtive itself of the whole proceed which were as followeth. The Commissioners of the Customs upon the bare suggestion of certain matters of Fact against George Coney of London Merchant, without summoning him to appear and answer the same, do privately 
a The taking of Depositions in this manner being in the nature of an Inquisition upon a penal statute and not by Jury is contrary to law, and hath therefore been damned in several Parliaments as contra-fundamentall to the rights and liberties of the people.  take depositions. of witnesses upon the said matter. And that being done exhibit an Information or charge against him in their 
b This is contrary to all reason as well as to la, that the Informers themselves should have power to take Depositions, and that before any Information Depending: and the Defendentto bejudged upon that evidence.  own names. before the Committee for Preservation of the Customs in these words.  

To the Honourable the Committee for preservation of the Customs.  
A charge of fraud force, and misdemeanour humbly presented by the Commissioners for the Customs, against George Coney the elder, George Cony the younger, Robert Hawkins Constable, and others.  
THat the said Coney the elder and George Coney the younger and others did on the fourth day of this instant November, 1654. affront and abuse Theophilus Colcoke and others, Deputies for the Commissioners of the Customs in the execution of the trust to them committed, and particularly opposed, beat, or caused to be beaten some of the said Deputies when they peaceably entered the house of the said Coney, in which several great quantities of silks, for which no Custom was paid, were lodged.  
That the said Hawkins being Constable, and required by the said Deputies to assist them herein, the said Hawkins by force carried the said Colcoke to the Justice of the peace as a Felon, on purpose that the said silks might be conveyed away, which was accordingly done.  
All which was acted and done by the persons above mentioned in contempt of the Power and Authority of his Highness the Lord Protector and the Parliament, whom the said Coney much vilified; and in opposition to the laws and ordinances made concerning the Customs: to the prejudice of the Commonwealth, and loss in the Revenue of the Customs.  
Novemb. 6. 1654. This is a true copy examined by FRAN. MEVERELL Cler.   
By 
c Such warrant they had no powet to grant in any capacity whatsoever, especially being the Informants themselves. It is true the Commissioners of the Customs had formerly power by Ordinance of the 14. April 1645. and of the 16. Decemb. 1647. to constitute a Messenger who should have power to summon and attach, etc. and carry the offender before the Committee of Parliament, for Regulating the Excise, etc. But that Committee ceasing, the power of that Messenger ceaseth by impossibility of execution; and the Commissioners of the Customs have no power to give special warrant in the case by any Act or Ordinance whatsoever.  special warrant also under the hands of the same Commissioners (who, note, are the Informants themselves) Coney the elder is attached upon the Exchange at 
d This favours of direction given to the Messenger, and of malice in the directors, the defendant being a merchant, and was at that instant of time to draw bills for at least 4000 l. neither was there any necessity of such attachment when a summons would have served the turn, he being a person resident and of note.  high Exchange time; and carried in custody before the said Committee, as yet not understanding for what cause; the Officer 
e This savours of direction also, and is likewise contrary to law, for that no man ought to be denied a copy of that warrant by which is either attached or imprisoned, neither can there be any reason for it but malice and surprise.  denying him a copy of his warrant, and not so much as showing him the same till he came to the door of the Committee.  
Being carried in before the said Committee (
f It is contrary to the common light of nature that two parties coming before a Court, the one should have greater countenance than the other: and Col. Harvie behaved himself here more like a Judge then an Informant.  Colonel Harvy one of the Informants, sitting with them, and having been in 
g This was derogatory to the honour of a Court, to suffer themselves to be prepossessed by one party  private. with the Committee almost an hour before) the Information is read; to which Coney pleads not, but demands a Copy, and time to plead after advice with his Counsel.  
The Committee upon the motion Colonel Harvy (the Informant (note) as aforesaid) deny 
h No Court ought to deny any man a copy of his Charge, and 'tis the highest injustice that can be, for a Court to endeavour the surprise of any party, and there could be nothing less intended in such a denial.  him a Copy, and it is violently pressed by Colonel Harvy that he might be required to plead immediately, and that no 
i This was as ignorantly moved as unjustly, for that according to the Law of England no Court shall deny me to plead by Counsel, but in cases of Felony and Treason: and yet then also I shall have Counsel assigned me to advise with if I desire it.  Counsel might be allowed to speak for him.  
Cony being accordingly required to plead, allegeth on the contrary, the unreasonableness of such surprise, his own ignorance of the Law, and the absence of his Counsel; But in the mixture of his discourse being much and violently pressed by Colonel Harvey, And being at that instant also under the distemper of an Hectic Fever which after a long sickness had not quite left him, did incautiously let Fall, (but not by way of Plea) that he knew of nothing contained in the said Information that he was guilty of: yet because he knew not what prejudice he might do himself by making that Plea, he still insisted to have a Copy of the Information, and a day appointed to put in his Plea after advise with his Counsel.  
The 
k No Court can take that for a Pleading which I intent not for a pleading at the time of my speaking, & declare my intention at the same time as here Coney did; for by such declaration I refuse to put myself upon that issue; and if no issue be joined, no Judgement can lawfully be given, except where the matter can be taken pro confesso upon default when I was bound to plead and did not. But in this Case, first Coney was not by law bound to plead, the Committee having denied him a copy of the information. Secondly, the Judgement itself was not given by default, but recites as if issue had been joined: whereas indeed Coney declared himself expressly to the contrary.  Committee lay hold of this incaution of his words, and though Coney then immediately declared that he intended them not as a Plea, yet will needs have it understood, That he had thereby pleaded Not guilty to the Information: and thereupon call the Depositions to be read, 
l If issue had been joined, yet it was contrary to all law, reason, equity, good conscience, or common honesty, that such issue should be tried by the evidence of Depositions taken by the Informants themselves: and that before any Information depending.  which Depositions were taken by or before themselves as aforesaid. 
m There is nothing more visible in this whole Case than that a surprise of the Defendant was designed from the beginning; for mark, Coney is attached upon the Exchange, carried in custody before this Committee, not knowing any thing that was against him, required to plead o'er tenus immediately, to an Information, whereof he must have no copy; and Depositions ready taken against him privately in the nature of an Inquisition, by the Informants themselves, upon which the issue must be tried immediately: a proceeding so gross as I shall not need to observe any 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, Coney is asked by the Committee, what he had to say thereunto: he allegeth, that he had not yet pleaded, and insists as before to have a Copy of the Information, and a day to plead.  
In fine, after he was bidden to withdraw, and soon after called in again, a Copy of the Information was 
n If he pleaded before, why was he Ordered a Copy and a new day? if he had not pleaded, how could the Committee proceed to Judgement? doubtless he would have rather moved for Copies of the Depositions than for a Copy of the Information, if in his own understanding he had pleaded.  Ordered him, and the same day seven-night given him to appear and answer: against which day this ensuing Petition was drawn.  

To the right Honourable the Committee for Preservation of the Customs. The humble Petition of George Cony the Elder.  
Shows,  
THat of common right belonging to all and every Member of the Commonwealth of England, any person or persons standing charged in any Court of Law or Equity within the said Commonwealth, may have liberty to demur to the jurisdiction 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 Party, as for the avoiding of all Arbitrary proceed was admitted to be argued, without the Parties incurring the guilt of Contumacy, 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 jurisdiction 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 Customs, and not finding by the Common Law or Statute Law of this Commonwealth, or any Act or Ordinance publicly 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 Contumacy against Authority (to which he shall be always ready to yield a willing and cheerful obedience) if as in right only of a Free Member of the Commonwealth 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 find cause of Demurrer, your Honours being yourselves the proper Judges to determine the question, after your Petitioners Counsel shall first have been heard thereupon, the Petitioners purpose is humbly to submit to your judgements therein: and then afterwards to plead or answer over to the said Charge (if your Honours shall find the matters within your jurisdiction) according as by his Counsel learned in the Laws 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 etc.   
At the day Cony accordingly appears, but exhibits not the Petition, but verbally 
o He had good reason to demur to their Jurisdiction, not knowing by what Power or Warrant they sat, 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 Highness, which was never promulgated, nor so much as published in print, whereby it might be known.  demurs to the Jurisdiction of the Committee and prays liberty to argue his Demurrer.  
Whereupon being commanded to withdraw, the Committee without further hearing, or 
p If they had suffered their Jurisdiction to be argued, and had then overruled the Demurrer, the Defendant must have pleaded over, and therefore there was no necessity of such proceeding, unless to surprise him.  suffering their Jurisdiction to be argued, proceed to sentence; and Coney being called in again is 
q By the Statute of Magna Charta no Freeman shall be taken or imprisoned, or be disseized, etc. or any way otherwise destroyed, nor shall the King pass upon him but by lawful Judgement of his Peers, or by the Law of the Land. To this Statute there is no nonbstante in the Ordinance of his Highness, by which this Committee are empowered, and if there had, yet by the sixth Article of the instrument of Government, the Laws shall not be altered, suspended, abrogated or repealed, nor any new Law made, etc. 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 days.  
Cony having been served with this order of Judgement, and not performing the same, is afterwards by warrant of the said Committee of the 12th of December last directed to the Sergeant at Arms, 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 Customs.  
WHereas George Coney the Elder was by Order of the Committee, of the 16th of November last, Ordered to pay in to the Commissioners for the Customs for the use of the Commonwealth the sum of five hundred pounds of lawful money of England, on or before the 30th day of the same month of November, being so much imposed on him as a fine by this Committee for receiving goods not first duly entered at the Customhouse, opposing of the Officers of the Customs in the execution of their duty, and several other misdemeanours. And forasmuch as by Certificate from the Commissioners of the Customs, bearing date the 5th of this instant December; it appears, that the said George Coney 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 Highness the Lord Protector and his Council, bearing date the 2d of September last, Do order that the Sergeant at Arms attending the Parliament do forthwith apprehend and bring in safe Custody the body of the said George Coney the Elder before this Committee to answer his said contempt. And for so doing this shall be a sufficient Warrant. 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 Sergeant 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 judgement ought in reason to be revoked, having preceded the Defendants plea or defence which he was to make.  
That by the Law of England no person is compellable to plead o'er tenus, but in Cases of Felony and Treason.  
That the Defendant being a person not skilful in the Laws had demanded liberty to advise and to plead by Counsel, 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 urge, 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 Copy of the Information, and a new day to plead, after advise with his Counsel, they themselves had granted him a Copy, 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 suppressed.  
That whereas at his next appearance, instead of Pleading (which he neither had done before, nor was bound to do being surprised as aforesaid) he had demurred to the Jurisdiction of the Committee, he might of right do it by the Law, as well in that as in all other Courts in England.  
That to demur to the Jurisdiction of a Court is not to deny that the Court hath a jurisdiction (that being rather employed than denied by the Demurrer) but to inquire whether the particular Case in question be within such jurisdiction or no.  
That all Courts being Judges of their own jurisdiction, it ought not to give offence to demur thereunto, And therefore in the ordinary Courts of judicature, where the most grave and learned in the Laws sit as judges, such Demurrers never give offence, nor are denied to be argued.  
That the Committee being in like manner judges of their own jurisdiction; if it should happen that upon arguing the Defendants demurrer, they should overrule 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 Counsel.  
That peradventure the Defendant might plead the same Plea that was before pretended: and there was no reason for such extreme precipitation in this business, being only 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 Judgement, and by a Warrant then dated being the 19th of December last continue Cony in custody of the Sergeant at Arms, until he shall conform to the payment of the said 500li. or the said Committee shall further order.  
A Copy of which Order followeth in these words:  

Tuesday the 19th of December, 1654. At the Committee for preservation of the Customs.  
WHereas George Coney the Elder was on the 16th day of Novemb: last upon due proofs on oath adjudged and fined in the sum of Five hundred pounds of lawful money of England for receiving goods not first entered at the Customhouse, and for refusing the Officers of the Customs 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 & entered, and demanded to make search, as aforesaid, and committing also divers other misdemeanours 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 Coney the Elder being then personally present was upon the 16 of Novemb: aforesaid adjudged and ordered to pay the said sum of Five hundred pounds unto the Commisssioners for the Customs 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 Coney the Elder; And for as much as the Commissioners of the Customs have certified unto this Committee, that the said George Coney 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 Council bearing date the 2 of Sept. last, do order, That the said George Coney the Elder for his said contempt be and stand committed to the custody of the Sergeant at Arms attending the Parliament there to remain until he shall conform to payment of the said Five hundred pounds, or this Committee shall further Order; whereof the Sergeant at Arms is to take notice, and to receive him into custody accordingly.  
To Edward Birkhead Esq Sergeant at Arms attending the Parliament. 

john Stone.  
Will: Roberts.  
Adam Baynes.  
Gerv: Bennett.  
john Bockett.     
Upon Hillary Term last, by advice of his Council, Cony brings his Habeas Corpus in the Upper Bench, his said Council 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 Highness the Lord Protector, and his Council, bearing date the second of September last; yet there is no recital of what that Power, and Authority is: And the said Ordinance being never published, nor certified, and enroled 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 Highness of the second of September at large, yet the powers thereby given to that Committee, are not therein particularly expressed, but only in General, and by way of reference, to a former Ordinance of his Highness, viz. to put in execution the several powers given to the late Committee, for preservation of Customs, by his Highness and Council, which were as unknown to the Court as the former.  
Thirdly, there was no recital in the said Warrant of Commitment, that the Customs themselves were continued by any Ordinance of his Highness: For (de facto) all former Ordinances and Acts of Parliament, for continuance of the Gustomes, were actually expired, before the giving of this Judgement; And if there were any Ordinance of his Highness afterwards, for continuation thereof, such Ordinance ought to have been recited in the Warrant at large, otherwise the same not being certified, nor transmitted to the Court as aforesaid, the Court could not (for like reason as before) take any Judicial notice thereof, nor consequently, that the matters of Fact mentioned in the said Warrant, viz. Receiving of goods not first entered at the Customhouse, refusing the Officers of the Customs to make search, resisting and forcing them out of his house, etc. were matters within the Law punishable by Fine and Imprisonment. And if they could not judicially take notice of the matters of Fact, as such, then also it was to be presumed, they ought to discharge the Prisoner upon his Habeas Corpus.  
Fourthly, the said matters of Fact were not in themselves punishable (as they are there expressed and set forth) by any Act or Ordinance, either of his Highness, or of the Parliament, if the Acts and Ordinances themselves, had been well and fully recited.  
For first, Receiving of Goods, not first entered at the Custom-house is not penal; but importing and bringing from parts beyond the Seas, any goods by way of Merchandise, into any Port of England, etc. and the same to unlade, take or carry away, without payment of Custom, or Compounding, or agreement for the same, is the thing, that by those Acts and Ordinances is penal: But in this Warrant, the cause is said to be only for Receiving of Goods not Entered, and those not expressed, whether they were such as ought to have been entered or not.  
Secondly, Refusing an Officer of the Custom-house, to make search for such Goods, no otherwise expressed or described, then as Goods not entered in the Custom-house, is against no Act or Ordinance, either of Parliament, or his Highness whatsoever.  
Thirdly, Resisting and forcing of Officers of the Customs out of his House (expressed with no other circumstance than is here) as no Crime, or misdemeanour in the Law, or by any Act or Ordinance whatsoever: For there may be an unlawful Entry made into any House, by Officers of the Customhouse, or unlawful attempts committed by them in any house (though peaceably admitted) and consequently there may be a lawful resisting and forcing them out of my House, and it is not recited in this Warrant, that the Officers were in the lawful execution of their duty, but only that they came to search for Goods not entered at the Customhouse, without expressing whether they were such as ought to have been entered or not.  
And let not the profoundness of any man reply that these are idle quirks and quillits (as some men call all things in the Law that savour of Form) for in things of this nature a Court must have certainty before it, otherwise it ought not to give Judgement, and if any man thinks otherwise, he is fit to follow his private trade, than to meddle in matters of Judicature: For though as a private person I may in my conscience be persuaded that the goods here mentioned were intended of goods Imported, which ought to have been Entered at the Customhouse; yet as a judge I must not follow my private persuasion, but what appears by certainty of proof, or matter of record.  
Fiftly, whereas the Warrant was to continue the Party in Custody till he should conform to payment of the said 500 pounds, or that Committee should farther Order, This was a Commitment not warrantable by Law; For that there might be cause why he should be discharged by order of law, though he never paid the Fine at all.  
Upon these and other defects in the Warrant, M. Cony was advised and encouraged to the bringing of his Writ for the obtaining of his liberty, and not upon any other design whatsoever, especially not with intention to set on foot any Question touching his Highness' authority in levying of moneys for necessary uses and safety of the Commonwealth; which I believe every sensible man cannot but look on, not only as a dangerous but as a very vain question too in this Juncture of time, when (let the strict point and formality of the Law, be what it will, yet) the necessity of keeping up the Armies both by Sea & Land, not only for the safety of his Highness' interest, but of the Commonwealths also, (which is now twisted together with it) is so indisputable, as none but the passionate or injudicious can say, he sees it not.  
But (it seems) to the Gentlemen who proceeded against Mr Coney, the peace of the Commonwealth and Honour of his Highness was not of so dear and precious concernment as the justification of their own proceed, how irregular soever and deviating from the Authority given them: And therefore having first (under the specious pretence of his Highness' service in the discovery) begotten an impression that Mr Coneys bringing of this writ, was the effect of design and combination among the Merchants, and that impression (by the advantage of some seemingly pregnant circumstances) taking abundantly, they then resolved to drive him into so narrow a Compass, that he should have nothing to plead against his Commitment but to question his Highness' authority itself, by which the opinion of the design above mentioned would be made good, and the reputation of their proceed escape with thanks and reward, though at the price of endangering the whole Commonwealth in the question.  
But to proceed in the Narrative; When these gentlemen understood that Mr Cony had brought his Habeas Corpus, In the first place it was advised to the Sergeant at Arms (because of a small error in the writ by misnosmer) viz. that the writ was directed to Edward Birkenhead Esq Sergeant at Arms attending the Parliament, whereas his name is truly written Birkhead, and the Parliament was now also dissolved) that he should forbear to make any return at all: So we were forced to move for an Alias and after that for a Pluries, both which writts were also guilty of the like error (for that the Sergeant did not discover to us the reason of his not making any return, till being called in Court to give his reason he then discovered the error) and the Court allowing thereof (as indeed there was reason) that error abated the writts and we were forced to begin de novo, and to move for another original Habeas Corpus, wherein we took care to have the writ rightly directed; But neither yet could we obtain a Return thereof, because being a first writ he was not strictly bound to make his return; So we moved for an Alias with a Pain of forty pounds returnable the last day of Hilla●y Term, which was the twelfth of February last. But before the return of Alias, and after the Teste of the said First writ, the Gentlemen of the Committee, having it seems discovered the imperfections of their former Warrants, do sign and seal a new Warrant, which was returned with the other two warrants, as the cause of the Plaintiffs detainder, a copy of which Warrant follows in these words.  

At the Committee for preservation of the Customs.  
WHereas by a certain ordinance of his Highness Oliver Lord Protector of the Commonwealth of England, Scotland, and Ireland, and the Dominions thereto belonging, with the consent of his Council, bearing date the nine & twentieth day of December 1653. It is ordained that Sir William Robert's Knight, John Stone, Gervas' Bennet, John Hildesly, Richard Lucy, Edward Clud, Thomas Wood, Anthony Rouse, James Philips, and Nathaniel Barton Esquires, be a Committee for preservation of the Customs, and that they, or any three of them shall have power, and thereby have power and are authorized to take cognizance of all causes and persons which should be transmitted unto them by the Commissioners for the Customs in the custody of their messengers (who were thereby empowered and required to transmit accordingly) and further, to receive all such examinations and charges as should be taken by the said Commissioners or their Deputies, authorized under their hands and seals, and should be transmitted by the said Commissioners to the said Committee; for, or concerning any fraud, force, guile, or mis-behaviour by them or any of them committed touching the Customs or relating to the affairs thereof. And the said Committee were thereby authorized & empowered upon hearing the said charge and examinations taken as aforesaid, or such proofs as should be made before them to punish all such persons offending by fine not exceeding double the value of the goods in question, or by imprisonment, and if any person or persons by them fined should refuse payment of the said fine to the Commissioners for the Customs, for the use of the Commonwealth, to imprison every person so refusing, until such fine or fines be paid accordingly, as by the same ordinance more fully appeareth. And whereas afterwards by another Ordinance made by the said Lord Protector, with the advice and consent of his Council, bearing date the second day of September 1654. It is ordered that the above named Sir William Roberts, John Stone and Gervas' Bennet, and Adam Baines and John Bocket Esquires, be a Committee for the preservation of the Customs, and they, or any three or more of them, are thereby authorized and required to put in execution the several powers given to the late Committee for preservation of the Customs by his Highness and Council: and also put in execution the same powers relating to the Customs, as the Commissioners for Appeals were enabled to do, by an Ordinance of the 27 of March last in relation to the Excise, any Act, Ordinance, or Order to the contrary notwithstanding, as by the same last recited Ordinance continuing still in force more at large appeareth. And whereas George Coney the elder afterwards, that is to say, the fourth day of November 1654. did import and bring from parts beyond the seas unto the Port of London, by way of Merchandise in a certain ship or vessel, several quantities of wrought silk, to the value of one thousand pounds, and did unlade, take, and carry away the said goods and merchandizes without payment of Custom for the said goods and merchandizes, and without composition or agreement made for the same Custom, contrary to the form and effect of the Acts and Ordinances in that behalf made and provided: & did assault, abuse, & affront Theophilus Calcoke, & Richard Bartlet, then, & yet Deputies, lawfully constituted of the said Commissioners of the customs, in the execution of their place and office, whilst they were searching according to the power to them in that behalf lawfully given, in the day time for the said goods and merchandizes so imported and carried away by the said George Coney, as aforesaid, to the great prejudice of this Commonwealth, and contrary to the Acts and Ordinances aforesaid: of which said fraud, affront, force and mis-behaviour by the said George Coney committed as aforesaid, information was then forthwith given to Edmond Harvey, Robert Tichborn, Mark Hildesly, and Daniel Taylor, who then, & at the aforesaid time of making of the several Ordinances aforesaid, were, and yet, re Commissioners for the Customs. And the said Commissioners after due proof made before them that the said George Coney the aforesaid fourth day of November, 1654. had imported and brought from parts beyond the seas into the port of London by way of merchandise in a certain ship or vessel the aforesaid quantities of wrought silk, to the value of one thousand pounds, and had unladen, taken, and carried away the said goods and merchandizes as aforesaid, without payment of custom for the said goods and merchandizes, and without composition or agreement for the same custom, contrary to the form and effect of the Acts and Ordinances in that behalf made and provided as aforesaid; and assaulted, abused, and affronted the said Theophilus Calcoke and Richard Bartlet, in the execution of their place and office, whilst they were searching in the day time for the said goods and merchandizes, imported and carried away by the said George Coney as aforesaid, to the great prejudice of this Commonwealth, and contrary to the Acts and Ordinances aforesaid, and after due proof thereof made by the testimony of several witnesses upon oath made before the same Commissioners, who then had lawful power to administer an oath in that behalf, they the said Cmmissioners afterwards, that is to say, the sixth day of the same month of November, did transmit the said George Coney in the custody of Thomas Landsey, then and yet Messenger to the same Commisoners, together with such examinations relating to the aforesaid misdemeanours of the said George Coney, as were taken by the same Commissioners as aforesaid, unto this Committee, And thereupon afterwards, that is to say the sixteenth day of the same month of November 1654. The said George Cony appeared before this Committee, and was fully heard touching the premises, and after due consideration than had and taken by this Committee of the said Charge, examinations and proofs, it sufficiently appeared to this Committee, and this Committee did then find that the said George Coney the aforesaid fourth day of November 1654. had imported and brought from parts beyond the seas into the port of London by way of merchandise in a certain ship or vessel the aforesaid quantities of wrought silk to the value of one thousand pounds, and had unladen, taken and carried away the said goods and merchandises as aforesaid without payment of Custom for the said goods and merchandizes, and without composition or agreement for the same Custom contrary to the form and effect of the Acts and Ordinances in that behalf made and provided as aforesaid, and had assaulted, abused and affronted the said Theophilus Colcoke and Richard Bartlet Deputies of the said Commissioners of the Customs in the execution of their place and office whilst they were searching as aforesaid in the day time for the said goods and merchandizes imported and carried away by the said George Coney as aforesaid to the great prejudice of this Commonwealth, and contrary to the Acts and Ordinances aforesaid, and did adjudge the said George Coney guilty of the fraud, force and misdemeanour wherewith he stood charged as aforesaid, and thereupon this Committee did in the presence of the said George Cony adjudge and fine the said George Coney in the sum of five hundred pounds of lawful money of England for the offence aforesaid; which said sum of five hundred pounds was since demanded of the said George Coney, but he refused to pay the same. This Committee therefore in pursuance of the power and authority to them given as aforesaid do order that the said George Coney be and stand committed to the custody of Edward Birkhead Esq Sergeant at Arms, who is thereby required to receive the said George Coney into his custody accordingly there to remain until the said George Cony shall pay the said five hundred pounds or be discharged by due course of Law. Given under our hands and seals the eighth day of February 1654.  
To Edward Birkhead Esq Sergeant at Arms his Deputy or Deputyes. 

John Stone.  
William Roberts  
Gervas' Bennet.  
Adam Baines.  
John Bocket.     
but reason that his Highness' Council should have the view thereof before it were filled of Record, a rule of Court was given that the Sergeant should make such return as he would peremptorily stand to the first day of the succeeding Term, which was accordingly done, and then moved and granted to be filled.  
And the Plaintiffs Council afterwards being to open the Exceptions they had thereunto, found that the errors of the two former Warrants were amended by the last, But withal they found some error in this Warrant itself also, upon which such legal exception might be taken, as still without touching upon any question of the Authority, they conceived the Plaintiff ought to have been discharged.  
Which error was, That whereas by his Highness' Ordinance of the 29 of December, 1653, recited in the Return, the Committee therein named were to take cognizance of all Causes and persons which should be transmitted unto them by the Commissioners of the Customs in Custody of their Messenger (who were thereby empowered to transmit accordingly) It was recited in the said last Warrant that the Commissioners of the Customs did indeed transmit to the Committee the Person of George Coney in Custody of Thomas Lindsey then and yet their Messenger, together with such examinations as were taken by the same Commissioners; but it was not recited that they transmitted any Cause at all against the said Coney, as by the said Ordinance they should have done before the Committee could take cognizance thereof. And upon this exception they prayed Judgement of the Court. And a day being appointed for the Council of his Highness to answer this Exception, and the Return being that day read, The Court were of opinion that by reason that the said Return was not directed as it ought to have been, nothing lay before them upon which they could proceed to give Judgement. So for the present the Plaintiff was remanded into Custody of the Sergeant as before, and upon the Plaintiffs motion afterwards, viz: the 23 of May a Pluries Habeas Corpus was awarded him returnable Crastino Ascentionis, which was the 25 of May.  
After the teste of which Writ (and before the actual delivery of the Return into Court) the Gentlemen of the Committee taking notice (as it seems) of the Exceptions that had now also been opened to this third Warrant, upon which in probability he would come off, make a fourth Warrant to the Sergeant at Arms for the continuing of M. Cony in Custody, which they make to bear the same date with the former Warrant, viz: the Eighth of February last, which was above three months before the Warrant itself was made: And (the former Return being judged no return at all, because not rightly directed) the Sergeant in the Return which he was now to make upon the Pluries certifies this fourth Warrant with the other three, the said Warrant reciting that the Commissioners of the Customs did transmit as well the Cause as the Person and Examinations; by this means mending the error upon which the Exceptions to the former Warrant had before been opened, and thereby shutting this door also against the Plaintiffs escape: which to what end it should be done other than as much as in them lay, to cast a necessity upon the Plaintiff (unless he could subdue himself to a submission to their Arbitrary proceed) to except against the Authority of their Commission, is not easily to be imagined. And what the sad effects of so unseasonable a Question may be (let the beam of the Balance incline which way it will) I am almost afraid to think, if either the dutiful moderation of the Plaintiff, or the great wisdom of his Highness by a timely interposition do not find a way to quench those flames which their violent and irregular proceed have already in some measure kindled.  
I will not be so uncharitable as to charge the Gentlemen with any direct design against the Commonwealth, or the peaceable settlement of the Public affairs, because I believe them to be (as fare as well-meaning goes) men of better integrity; but give me leave to tell them (at how remote a distance soever from the sphere of their greatness they may look upon me) That the rigorous bent they have stood in ever since the beginning of this business, not to suffer Master Coney to obtain his liberty (when both in honour and prudence they might) by any other way but that of absolute submission to their Arbitrary proceed, (involving therein the Liberty of the whole Commonwealth) although peradventure it may not be the weapon itself, yet it hath at least furnished an handful to that weapon with which unquiet and distempered spirits do endeavour to wound the Public peace.  
And let it not here be enviously laid to my charge by any, that hereby I do in some measure presumptuously tax the wisdom of his Highness in his election of Public Ministers; for though I look upon his Highness as a Gentleman of as great discerning and parts as any Prince now living, yet I remember still that he is but a man, And in so troublesome and uncertain a condition of affairs, being to set up a building hastily, that the Commonwealth might not always lie in the field, and having been for the most part of these times more in action than peradventure in observation of persons, it is no wonder if he should be mistaken in the skill of some his workmen, especially in an Age when so many pretenders to supernatural aides and endowments (rather than true professors of experience) do thrust in their voluntary and unskilful hands unto the work.  
But however I trust it will be one step made towards the cure of this distemper, now we have discovered the cause and fountain of the disease. For let the discontented of whatever Interest or Faction know, that the bringing of this Writ of Habeas Corpus by Master Cony was not advised upon any such design as peradventure they have imagined, whereby to strengthen their hopes of New troubles to arise, in the waters whereof they mean to fish for themselves; but was the naked effect of mistaken zeal to his Highness' service on the one side, and of a just desire of enlargement on the other side. And therefore I shall advise them to return into themselves with peaceable resolutions, laying aside the vanity of their new-raised expectations, there being no great likelihood for new work upon this occasion to be made for the Hangman.  
I have but one word more, which I desire may not detain any other Reader than the Gentlemen themselves whom this Narrative hath concerned; who peradventure, to disarm the truth, may attribute my publishing hereof to private animosity, sprung from the sense of some unrighteous measure I have received in my own particular Case from some of them when they were Members of the late Committee for Inspecting of Treasuries: But in answer (if not in satisfaction) I shall pray them to be assured that as I do own the extraction and education of a Gentleman (how much soever their injustice hath outwardly devested me) so through the grace and mercy of GOD I am called to be a Christian. And therefore have at once both the Courage to call it Injustice, and the Charity to forgive it.  
FINIS.