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 [Page 2]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 [Page 3]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 [Page 4]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.

[Page 5] 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 such intention or inclination in him­self: but that he seriously apprehended the dangerous consequence of the unseasonable ventilation of this que­stion [Page 6]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 bloud 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 succeding single Go­vernour.

And in the sequele 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 legall 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 writt brought, sent two se­verall new Warrants to the Serjeant for his detention, in each of which they had taken care (though by reciting o­therwise then according to truth) to mend the errours 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 Serjeant, nor signed nor sealed by the Committee untill the 24 or 25 of May last, which was after Mr Conyes Counsell 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 moneths before the making and delivery thereof.

For the Reader may please to understand, that the first [Page 7]writt of Habeas Corpus was brought in Hillary term last, the Serjeant at Armes, 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 ment of his Fine or further order of the Committee. But the Ser­jeant making no Return upon this first writt, we were for­ced to move for an Alias with a payne; before the return of which, (but after the Teste of the said first Writt) the Committee upon discovery of the errours of their former Warrants (to prevent his come off thereby) make a new Warrant to the Serjeant for Conyes detinue, untill 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 filed of Record untill the first day of Easter terme, for that the Counsell for his Highnesse 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 terme the return was accordingly filed, and afterwards upon opening the exceptions to the Serjeants Return, Mr Cony was turn­ed over by rule of the Court to the Custody of the Mar­shall, & a day appointed for his Highnesses Counsell toan­swer the said exceptions: upon which day it appearing to the Court that the said Return of the Serjeant 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 Serjeant at Armes and a Rule of Court given for a Plur [...]es Habeas Corpus to be awar­ded him returnable Crastino Ascensionis, which was two dayes after. But before the Return of the writt into Court (the Exceptions to the former Warrants upon which, without medling with the great question, Mr Co­ny [Page 8]in the opinion of his Counsell might have come off, having been before opened as aforesaid) the Committee send a fourth Warrant to the Serjeant, antedated as afore­said, wherein they mended the Errours 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 Highnesses power of levying Customes and other taxes for the necessary uses of the publick, let every sensible man judge. Except it may be said that it was to justifie the Rumour which was spread of a combination among the Merchants, or was an effect of weaknesse 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 speciall 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 designes of evil minded men to disturb the publick peace, (notwithstanding Mr Conyes bringing of his writt) had it not been for this the Com­mittees manner of proceeding, as well since as before the said writt 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 le­gall defence of the Nations rights, if his Highnesse shall find himself necessitated to enlarge the power of the Pro­tectorship in order to the levying of monyes, and thereby [Page 9]in succession of times (for in his dayes 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 doubtlesse will wear the Trophies of those publick honours which will be rendered them by the people for so glorious a purchase.

But I withhold the Reader no longer from the narrtive it self of the whole proceedings which were as followeth. The Commissioners of the Customes upon the bare sug­gestion of certain matters of Fact against George Cony of London Merchant, without summoning him to appear and answer the same, do pri­vately The taking of Depositions in this manner being in the nature of an Inquisition upon a penall statute and not by Jury is con­trary to law, and hath therefore been damned in severall Parlia­ments as contra-fundamentall to the rights and liberties of the people. take depositions of wit­nesses upon the said matter. And that being done exhibite an Information or charge a­gainst him in their This is contrary to all reason as well as to lavv, that the In­formers themselves should have povver 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 Customes in these words.

[Page 12] By Such warrant they had no pow­et to grant in any capacity what­soever, especially being the In­formants themselves. It is true the Commissioners of the Cu­stomes 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, &c. and carry the offender before the Committee of Parliament, for Regulating the Excise, &c. But that Committee ceasing, the power of that Messenger ceaseth by impossibility of execution; and the Commissioners of the Customes have no power to give speci­all warrant in the case by any Act or Ordinance whatsoever. speciall warrant also under the hands of the same Commissioners (who, note, are the Informants themselves) Cony the elder is attached up­on the Exchange at 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 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 surprize. denying him a copy of his warrant, and not so much as shewing him the same till he came to the door of the Committee.

Being carried in before the said Committee ( It is contrary to the common light of nature that two parties coming before a Court, the one should have greater countenance then 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 This was derogatory to the ho­nour of a Court, to suffer thēselves to be prepossessed by one party. private with the Committee almost an hour before) the Information is read; to which Cony pleads not, but demands a Copy, and time to plead after advice with his Counsell.

The Committee upon the motion Co­lonell Harvy (the Informant (note) as aforesaid) deny No Court ought to de­ny any man a copie 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 lesse intended in such a deniall. him a Copie, and it is violently pressed by Colonel Harvy that he might be required to plead immedi­atly, and that no 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 Counsell assigned me to advise with if I desire it. Counsell might be al­lowed to speak for him.

Cony being accordingly required to plead, alledgeth on the contrary, the un­reasonablenesse of such surprize, his own ignorance of the Law, and the absence of his Counsell; 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 Hectique Feaver which after a long sicknesse 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 doe himselfe by making that [Page 14]Plea, he still insisted to have a Copie of the Information, and a day appointed to put in his Plea after advise with his Counsell.

The No Court can take that for a Plead­ing which I intend not for a plead­ing at the time of my speaking, & declare my intention at the same time as here Cony did; for by such declaration I refuse to put my self upon that issue; and if no issue be joyned, no Judgment 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 Cony was not by law bound to plead, the Committee ha­ving denied him a copie of the information. Secondly, the Judgment it self was not given by default, but recites as if issue had been joy­ned: whereas indeed Cony declared himselfe expresly to the contrary. Committee lay hold of this in­caution of his words, and though Cony 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, If issue had been joyned, 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. There is nothing more visible in this whole Case than that a surprize of the Defendant was designed from the beginning; for mark, Cony is attached upon the Exchange, carried in custo­dy before this Committee, not knowing any thing that was against him, required to plead ore tenus immediately, to an Information, whereof he must have no copie; 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 grosse 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.

[Page 15] 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 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.

[Page 19] At the day Cony accordingly appears, but exhibits not the Petition, but verbally 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 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 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 30 ^th Article, which 30 ^th Article relates only to the raising of money in cases of necessity, and preventing of disorders. adjudged, in the payment of 500 ^th in 14 dayes.

[Page 20] Cony having been served with this order of Judgment, and not performing the same, is afterwards by warrant of the said Commit­tee of the 12 ^th of December last directed to the Sergeant at Armes, taken into Custody, and upon the 19 ^th of December is brought be­fore the said Committee to answer the con­tempt (as the said Order styles it) which Or­der follows in these words:

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, [Page 23]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.

[Page 24] 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 19 ^th of December last continue Cony in custody of the Sergeant at Armes, untill he shall conform to the payment of the said 500 ^li. or the said Committee shall further order.

A Copie of which Order followeth in these words:

[Page 26] 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 seve­rall powers given to the late Committee, for preservation of Customes, by his Highnesse and Councel, which were as unknown to the Court as the former.

Thirdly, there was no recitall in the said Warrant of Com­mitment, that the Customes themselves were continued by any Ordinance of his Highnesse: 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 Highnesse 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 Judiciall notice thereof, nor consequently, that the matters of Fact men­tioned in the said Warrant, viz. Receiving of goods not first en­tred [Page 27]at the Custome-house, refusing the Officers of the Customes to make search, resisting and forceing them out of his house, &c. 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 Highnesse, or of the Parliament, if the Acts and Ordinances themselves, had been well and fully recited.

For first, Receiving of Goods, not first entred at the Custom­house is not penall; but importing and bringing from parts be­yond the Seas, any goods by way of Merchandise, into any Port of England, &c. and the same to unlade, take or carry away, without payment of Custome, or Compounding, or agreement for the same, is the thing, that by those Acts and Ordinances is penall: But in this Warrant, the cause is said to be onely for Receiving of Goods not Entred, and those not expressed, whe­ther they were such as ought to have been entred 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 entred in the Custom-house, is against no Act or Ordinance, either of Parliament, or his Highnesse what­soever.

Thirdly, Resisting and forcing of Officers of the Customes out of his House (expressed with no other circumstance then is here) as no Crime, or misdemeanor in the Law, or by any Act or Ordinance whatsoever: For there may be an unlaw­full Entry made into any House, by Officers of the Custome-house, or unlawfull attempts committed by them in any house (though peaceably admitted) and consequently there may be a lawfull resisting and forcing them out of my House, and it is not recited in this Warrant, that the Officers were in the lawfull execution of their duty, but onely that they came to seach for Goods not entred at the Custome-house, with­out expressing whether they were such as ought to have been entred or not.

[Page 20] And let not the profoundnesse 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 fitter to follow his private trade, than to meddle in matters of Judicature: For though as a private person I may in my conscience be perswa­ded that the goods here mentioned were intended of goods Imported, which ought to have been Entred at the Custome-house; yet as a Iudge I must not follow my private perswasion, but what appears by certainty of proof, or matter of record.

Fiftly, whereas the Warrant was to continue the Par­tie 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 payed 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 designe whatsoever, especially not with intention to set on foot any Question touching his Highnesses authority in levying of moneys for necessary uses and safety of the Common-wealth; which I believe every sensible man cannot but look on, not onely 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 Highnesses interest, but of the Common-wealths also, (which is now twisted together with it) is so indisputable, as none but the passio­nate or injudicious can say, he sees it not.

[Page 29] But (it seems) to the Gentlemen who proceeded a­gainst Mr Cony, the peace of the Commonwealth and Ho­nour of his Highnesse was not of so dear and precious con­cernment as the justification of their own proceedings, how irregular soever and deviating from the Authority given them: And therefore having first (under the spe­cious pretence of his Highnesses service in the discovery) begotten an impression that Mr Conyes bringing of this writt, 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 Compasse, that he should have nothing to plead against his Commitment but to question his Highnesses authority it self, by which the opinion of the design above mentio­ned would be made good, and the reputation of their proceedings 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 Serjeant at Armes (because of a small errour in the writt by misnosmer) viz. that the writt was directed to Edward Birkenhead Esq Serjeant at Armes 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 errour (for that the Serjeant 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 [Page 30]the errour) and the Court allowing thereof (as indeed there was reason) that errour abated the writts and we were forced to begin de novo, and to move for a­nother originall Habeas Corpus, wherein we took care to have the writt rightly directed; But neither yet could we obtain a Return thereof, because being a first writt 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 fol­lowes in these words.

[Page 37] but reason that his Highness Councell should have the view thereof before it were filed of Record, a rule of Court was given that the Serjeant 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 filed.

And the Plaintiffs Councell afterwards being to open the Exceptions they had thereunto, found that the er­rours of the two former Warrants were amended by the last, But withall they found some errour in this War­rant it self also, upon which such legall exception might be taken, as still without touching upon any question of the Authority, they conceived the Plaintiffe ought to have been discharged.

Which errour was, That whereas by his Highnesse's Ordinance of the 29 of December, 1653, recited in the Returne, the Committee therein named were to take cognizance of all Causes and persons which should be transmitted unto them by the Commissioners of the Cu­stomes in Custody of their Messenger (who were there­by impowred to transmit accordingly) It was recited in the said last Warrant that the Commissioners of the Customes did indeed transmit to the Committee the Person of George Cony 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 Cony, 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 Councell of his Highnesse to answer this Ex­ception, [Page 38]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 Judgment. So for the present the Plaintiffe was remanded into Cu­stody of the Serjeant 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 actuall 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 Serjeant at Armes 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 moneths before the Warrant it self was made: And (the former Return being judged no return at all, because not rightly directed) the Serjeant 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 Customes did transmit as well the Cause as the Person and Ex­aminations; by this means mending the errour upon which the Exceptions to the former Warrant had be­fore been opened, and thereby shutting this dore 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 Plaintiffe (unlesse he could subdue himselfe to a submission to their Arbitrary pro­ceedings) [Page 39]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 Ballance incline which way it will) I am almost affraid to think, if either the dutifull moderation of the Plaintiffe, or the great wisdome of his Highnesse by a timely interposition doe not finde a way to quench those flames which their violent and irregular proceed­ings have already in some measure kindled.

I will not be so uncharitable as to charge the Gentle­men with any direct designe against the Common­wealth, or the peaceable settlement of the Publick af­faires, because I believe them to be (as farre as well­meaning goes) men of better integrity; but give me leave to tell them (at how remote a distance soever from the spheare of their greatnesse they may look upon me) That the rigorous bent they have stood in ever since the beginning of this businesse, not to suffer Master Cony to obtain his liberty (when both in honour and pru­dence they might) by any other way but that of abso­lute submission to their Arbitrary proceedings, (invol­ving therein the Liberty of the whole Common-wealth) although peradventure it may not be the weapon it self, yet it hath at least furnished an handfull to that weapon with which unquiet and distempered spirits doe endea­vour to wound the Publick peace.

And let it not here be enviously layed to my charge by any, that hereby I doe in some measure presumptu­ously tax the wisdome of his Highnesse in his election of Publick 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 [Page 40]man, And in so troublesome and uncertain a condition of affaires, being to set up a building hastily, that the Common-wealth might not alwaies 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 supernaturall aides and endowments (rather than true professours of experience) doe thrust in their volun­tary and unskilfull 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 designe 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 Highnesse's 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 [Page 41]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 doe 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.