On , an English merchant named George Cony refused to pay customs duties that had been established by Oliver Cromwell’s government without its having bothered to go through parliament, and thereby called into question the legal underpinnings of the whole regime.
Emily Cooper’s The History of England (1877) summarizes the case this way:
A merchant named Cony refused in , to pay the Customs dues, on the pretext that they were illegally imposed by the Protector, because unsanctioned by Parliament. The Commissioners of Customs fined Cony £500 for his refusal. This also he refused to pay, and Cromwell, who had been on friendly terms with this merchant, remonstrated personally with him, when Cony reminded the Protector of the words which he had himself used in the Long Parliament: “The subject who submits to an illegal impost is more an enemy of his country than the tyrant who imposes it.” Cromwell grew angry, and sent Cony to prison. He claimed his liberation by writ of habeas corpus, and three eminent lawyers pleaded so strongly in his favour that Cromwell was alarmed lest taxes should be refused generally, and the lawyers were temporarily imprisoned. Sir Peter Wentworth, who had also refused to pay taxes on the same ground, was induced to yield by the earnest commands of Cromwell.
Sir James Mackintosh’s History of England puts it this way:
One man questioned his authority, and appealed to the laws. George Cony, a merchant, refused the payment of certain custom duties, on the ground of their not being levied by authority of parliament, referred to the opposition of Rolls, Valentine, and Chambers, in a similar case, to Charles Ⅰ., and recalled to the memory of Cromwell his own expression in the long parliament, — “that the subject who submits to an illegal impost is more the enemy of his country than the tyrant who imposes it,” He was committed to prison, and brought up by writ of habeas corpus. His counsel, Twisden, Windham, and Maynard, maintained the illegality of both his imprisonment and the tax, and were committed to the Tower for seditious licence of speech. Cony next maintained the same views in person with such force that he shook the conviction or shamed the conscience of the bench. Chief-justice Rolle gave in his resignation, and Glyn was appointed in his room. Between Glyn’s management and the power of the protector, Cony was induced to exchange for safety and contempt a perilous situation which would have associated his name with that of Hampden.
Lord Clarendon, a little closer to the event and with some skin in the game (as a Royalist during the Civil War), remembered it this way:
When [Cromwell] had laid some very extraordinary tax upon the city, one Cony, an eminent fanatic, and one who had heretofore served him very notably, positively refused to pay his part, and loudly dissuaded others from submitting to it, “as an imposition notoriously against the law and the property of the subject, which all honest men were bound to defend.” Cromwell sent for him, and cajoled him with the memory of “the old kindness and friendship that had been between them; and that, of all men, he did not expect this opposition from him, in a matter that was so necessary for the good of the Commonwealth.” But it was always his fortune to meet with the most rude and obstinate behaviour from those who had formerly been absolutely governed by him; and they commonly put him in mind of some expressions and sayings of his own in cases of the like nature: so this man remembered him how great an enemy he had expressed himself to such grievances, and had declared “that all who submitted to them, and paid illegal taxes, were more to blame, and greater enemies to their country, than they who had imposed them; and that the tyranny of princes could never be grievous but by the tameness and stupidity of the people.” When Cromwell saw that he could not convert him, he told him that “he had a will as stubborn as his, and he would try which of them two should be master.” Thereupon, with some terms of reproach and contempt, he committed the man to prison; whose courage was nothing abated by it, but, as soon as the term came, he brought his habeas corpus in the King’s Bench, which they then called the Upper Bench. Maynard, who was of counsel with the prisoner, demanded his liberty with great confidence, both upon the illegality of the commitment, and the illegality of the imposition, as being laid without any lawful authority. The judges could not maintain or defend either, and enough declared what their sentence would be; and therefore the Protector’s attorney required a farther delay, to answer what had been urged. Before that day Maynard was committed to the Tower for presuming to question or make doubt of his authority, and the judges were sent for and severely reprehended for suffering that license. When they, with all humility, mentioned the law and Magna Charta, Cromwell told them, “their magna f—— should not control his actions, which he knew were for the safety of the Commonwealth.” He asked them, “Who made them judges? Whether they had any authority to sit there but what he gave them! and, if his authority were at an end, they knew well enough what would become of themselves, and therefore advised them to be more tender of that which could only preserve them,” and so dismissed them with caution that they should not suffer the lawyers “to prate what it would not become them to hear.”
One of the main engines by which the parliament thought to carry its purposes, was the denial of the supplies. But they formed in this an erroneous opinion of the man with whom they had to contend. Cromwel did not suffer himself to be shaken by the difficulty to which he was thus exposed; he did not allow it to be doubted for a moment whether he could carry on the affairs of the public without their assistance. He had recourse to that article in the Government of the Commonwealth which said, that the protector and council shall have power to raise money, and to make laws and ordinances for the welfare of the nation, till the parliament shall otherwise order. The ordinance of assessment for the maintenance of the army and navy expired on the twenty-fourth of December; and on the eighth of February the council issued a fresh ordinance, enacting an assessment to continue till the twenty-fourth of June following. The rate was fixed at sixty thousand pounds per month; and, as the enemies of Cromwel had disseminated the idea that he would impose a more burthensome taxation, the public in general were delighted with his moderation, and quietly submitted to what was required.
Another form of attack was commenced on his government, which with less resolution and constancy on his part would have threatened the most serious consequences. So long ago as , while the parliament was still sitting, one Cony, a merchant in the city, refused to pay certain custom-house duties on the goods he imported, on the pretense that they were not imposed by a legal authority. For this offence he was brought before the commissioners of customs on , and condemned in a fine of five hundred pounds on . Refusing to pay the fine, he was committed to prison on for contempt. A writ of habeas corpus was moved for in his favour in the following term; but the question stood over beyond Easter on account of some technical informalities. He retained three of the most eminent counsel at the bar, Maynard, Twisden and Wadham Windham, to plead for him; and the question came on to be heard on .
This was an affair of vital importance to the government of Cromwel. An ordinance had been passed by the lord protector and council on , for the continuation of the duty of customs for the four succeeding years; and it was under the authority of this ordinance that the duties of customs were at present collected. But the question was, whether those who issued this ordinance had power to make a law. It was a maxim among the professional men, that the written laws of England were statutes, acts or edicts, enacted by the people assembled in parliament; and no maxim seemed more essential to the existence of national freedom. The power of the council to make laws hinged upon the authority of the record called the Government of the Commonwealth. But, if brought into a court of justice, what was this record? It was a document, prepared by the council of the army, and sanctioned by the principal officers of state. This could not for a moment stand the scrutiny of men bred in the technical habits of the courts, as being of force to change the essential dicta of the English constitution.
On the other hand the necessity of the case seemed to supersede all objections. The old government of the state had for the moment perished; and it was indispensable, that the affairs of the nation, as they respected its internal peace and its foreign relations, should be administered in the best mode that offered itself. This was the ground upon which Cromwel stood. And he thought scorn that the public welfare, that a power which he had so hardly earned, and a government which commanded general deference at home and abroad, should be subverted by the nice disputes, or the elaborate deductions, of a band of lawyers.
It was a terrible dilemma into which Cromwel was driven by this case of Cony; and it required equal prudence and firmness to extricate himself from it without mortal injury. If he gave way, if Cony came off victorious in the contest, his government was gone; or, to speak more accurately, it would from that time forward have been a government of violence and military force only. Every one, excited by the example of Cony, would have resisted every tax, and would have defended their resistance on the same grounds that he did.
Cony’s counsel appear to have done full justice the case of their client; and Maynard in particular urged such arguments, and inforced them with such vigour, as, if ceded to, would have shaken the government to its basis. The cause was argued on ; and Maynard and his fellow-pleaders were sent to the Tower, on the charge of having held language destructive to the existing government.
The case did not end here. , Cony, unsupported by counsel, presented himself at the bar of the upper bench, and did such justice to the situation in which he was placed, that Rolle, who presided in the court, felt utterly at a loss what to determine. What grammarians call the sign of the dative case, the preposition to, before “Oliver Lord Protector,” being omitted in Cony’s answer, the decision was postponed; and his next appearance being on the last day of term, the affair was ordered to stand over to the next term. In the mean time Rolle represented the difficulties under which he laboured in such a manner to Cromwel, that he received his writ of ease on ; and in the following week Glyn was appointed to succeed him as lord chief justice of England. Maynard, Twisden and Windham had previously on their submission been discharged from confinement; and Cony was prevailed upon by some means to bring his cause no more before the court.
Frederick Andrew Inderwick’s The Interregnum adds some additional details, though it seems deliberately biased in favor of the Cromwellian position:
When the judges returned to town, and Trinity Term commenced, an event occurred in the Upper Bench which has been universally commented on, as showing Cromwell’s disregard of law and of liberty where the interests of his Government were concerned. Three of the leading counsel of the day — Serjeant Maynard, Serjeant Twisden, and Mr. Wadham Windham — were committed to the Tower for words spoken in court on behalf of their client, a certain Mr. George Cony. All writers, including Hallam [Constitutional History], speak of the case as being somewhat obscure as to the facts, it not being reported in any of the books; but all concur in censuring the conduct of the Government in regard to the three counsel. And yet, without a true knowledge of the facts, no judgment upon the conduct of Cromwell or his Government can be safely arrived at. The immunity of counsel in defending their clients is doubtless one of the great strongholds of English liberty, and yet this immunity is not altogether without restriction. A case would be conceivable where a counsel in his speech might appeal to the crowd to rescue his client, and thus bring terror and violence to bear on the judge. Such conduct would not be beyond the reach of the law. It is a recognised rule of law that when a counsel, regardless of his instructions or of the fair limits of argument, goes out of his way to slander any person, he is subject to an action in respect of words so spoken. And for misconduct in court the judge may exercise over counsel the process of contempt either by fine or committal to prison. I have found among the records of the Council of State the report upon which their action was taken, and from that and the newspapers of the day I have gathered the following facts, which I believe to be accurate, and from which the reader can draw his own conclusions.
Mr. Cony, a City merchant, dealing in Spanish wine, whom Clarendon describes as “an eminent fanatik,” and who combined a hatred of the Government with a dislike to taxation, had refused to pay certain customs’ dues, payable under an ordinance of the Protector, continuing an excise duty which had existed since , if not much longer. The power to make such ordinance was conferred on the Protector and his Council by the Instrument of Government, which contained the following clauses:—
Art. Ⅵ. — The laws shall not be altered, suspended, or abrogated, nor any new law made, nor any tax, charge or imposition laid upon the people but by common consent in Parliament, save only as is expressed in the ⅩⅩⅦth Article.
Art. ⅩⅩⅦ. — That a constant yearly revenue shall be raised … which revenue shall be raised by the customs and such other ways and means as shall be agreed upon by the Lord Protector and his Council, and shall not be taken away or diminished, nor the way agreed upon for raising the same altered, but by the consent of the Lord Protector and the Parliament.
The Protector was also empowered with the advice of his Council to make other binding ordinances during the intervals of Parliament, and he had in fact by virtue of such instrument and by ordinance appointed all the judges, and had lately conferred on Mr. Twisden and Mr. Maynard the degree of the coif. Mr. Cony, having refused to pay these dues, was committed to the Serjeant-at-Arms by the Council of State, under the powers conferred on them by the Long Parliament. He thereupon moved for his habeas corpus in the Upper Bench. The account of the affair, reported to the Council by Mr. Zanchy, the Solicitor to the Commonwealth, was that on Mr. Cony’s case being called on for argument of the habeas corpus, and the counsel for the Commonwealth being engaged in various other courts, he went out to fetch them, and on his return he found Serjeant Twisden — who afterwards as a judge earned for himself an unenviable notoriety for ferocity of demeanour, and who is specially known for his conduct in that respect at the trial of John Bunyan — arguing Mr. Cony’s case. He was contending that the Protector had no power to make any ordinance in regard to customs and excise, and accordingly that no duties or customs were then payable by any law whatever. “He insisted much on the taking away the Star Chamber, and urged that subjects were not to be imprisoned nor their goods attached, but in a legal way and on trial by jury,” and he discussed at length the orders of the Council, and the ordinances under which the commissioners sat at the receipt of custom. The Attorney-General, in his reply, wondered that the Serjeant should speak so much against the present authority, being that under which that court sat, and by which Mr. Cony expected justice. Serjeant Maynard spoke but little, and Mr. Wadham Windham said nothing at all. As the result of Mr. Zanchy’s report all these counsel were summoned before the Council of State, when the Lord Chief Justice was also requested to attend. Every member of the council, including the Protector, was present. The counsel were called in one after the other, when it was resolved “That all three be committed to the Tower, and that His Highness sign the warrant for their commitment for using words tending to sedition and subversive of the present Government.” These “three learned and profound lawyers” accordingly went to the Tower, whence, on , they humbly petitioned for their release, and Serjeant Maynard was discharged. On the Serjeant Twisden petitioned again for his release. He pleaded the case of his wife and seven children, regretted that what he had said in his client’s cause should have excited His Highness’s displeasure, and disavowed any intention to provoke sedition or discontent. Mr. Wadham Windham, except for his wife and seven children, petitioned to the same effect, and not long after they also were released. Meanwhile Mr. Cony’s case was postponed from time to time. He refused to employ counsel, though several offered their services, and, according to tradition, the matter was settled before the following Term, when Serejant Glyn took his seat as Lord Chief Justice of the Upper Bench. The commitment of these counsel was undoubtedly an arbitrary act on the part of the Council of State, and on general grounds indefensible. But on the other hand it must be borne in mind, not in justification but in palliation of the business, that these two serjeants were among the leading men of the time; that these Ordinances of Cromwell’s were authorized by the Instrument of Government which had been accepted by the nation and passed by Parliament: that the proposition of Serjeant Twisden, that no excise or customs whatever were now legally payable (the words that were the gist of the offence) might have given rise to a general repudiation of the payment of customs and excise, and have led to trouble and conflicts from one end of the country to the other.1 Cony was a firebrand of the [John] Lilburn type, encouraged by the cavaliers for the purpose of injuring the Government, and the combination of Cony, the fanatic, as party, and Twisden, the cavalier, as counsel, supporting his opposition to the payment of any taxes whatever, was one calculated in every way to rouse the susceptibilities of the Protector and the Council of State. It seems improbable that Serjeant Maynard would willingly have lent himself to this course, although his action (if indeed he was correctly reported) in regard to Lilburn may have given rise to the suggestion, and the three counsel probably had to thank the indiscretion and the Royalism of Serjeant Twisden for their temporary detention in the Tower. At all events it was so regarded at the Restoration, when Serjeant Twisden was at once made a judge as a reward for his loyalty to the Royal family, and Mr. Wadham Windham was shortly afterwards, in , also appointed to a seat on the King’s Bench. Serjeant Maynard’s intervention in the matter seems, however, to have had no very great effect upon Cromwell, who, in , appointed him Serjeant to His Highness the Protector, and afterwards, as is suggested, his Solicitor-General, a post which he certainly held under Richard.
A great deal has been made of this case to the prejudice of Cromwell by panegyrists of the Restoration, and by writers on constitutional history, and undoubtedly it can only be justified from the point of view of a ruler, on the ground of necessity and that the injury to the Commonwealth by permitting the course of Mr. Cony and his counsel to pass unnoticed was greater than that of interfering with the privileges and rights of the Bar. I can hardly believe, however, that the public of that day took a very serious view of the position, or that the presence of lawyers in their midst was so lovely in their eyes that they found themselves either pained or outraged by hearing that three of their number had, like so many of their fellow citizens in that generation of troubles, spent a few days in the calm and secluded atmosphere of the Tower. Mr. Cony, who withdrew, or, as is said, was coaxed out of his case, appeared again before the Council in the following autumn under circumstances which seem to favour the suggestion that some sort of a compromise had been made with him. He seems, in disregard of the navigation laws which had, since the time of Richard Ⅱ., forbidden the importation of foreign wine in foreign bottoms, to have been in the habit of importing his Malaga wine in any ship, British or foreign, that happened to suit him; and, in , war with Spain having in the meantime been declared, he was expecting the immediate arrival in the Downs of a Dutch ship with a consignment of Spanish wine. “I and my friends,” said he, in a petition to the Protector, “cannot safely bring our goods into the port of London without your leave; but you lately promised me your favour on any reasonable request; therefore I beg speedy leave to bring in my ship and goods.” Matters of trade and navigation were, however, matters for the Council of State, and the petition was accordingly sent on to that body, with a note of a somewhat similar application to Parliament in January, 1652-3, which had been at that time favourably received. The Council sent this forthwith to their Committee, who, on , reported “to signify to George Cony — on his petition to import Spanish wine in a Dutch vessel — that the Council thinks not fit to do anything in the matter at present, since the granting thereof would be contrary to the Act of Navigation.”2 It is said, on what grounds I know not, that the Chief Justice had scruples in regard to Cony; if so, he was not the only judge who showed his independence.
- An Act of the Long Parliament (Statute 1653, c. 38) had continued the customs and excise till . An ordinance of the Protector and his Council (Ord. 1653, c. 15, 20th March, 1653–4) continued them till . The Parliament, 1656, confirmed and again continued the customs and excise.
- He was heard of again in , when “the rabble of the town of Canterbury” were trying to get him chosen as their member.
Some contemporary newspaper articles by Gilbert Mabbot read:
Westminster, — …Serjant Mainard, Serjant Twisden, and Waddam Windham, were yesterday taken from the bar in Westminster Hall, and sent prisoners to the Tower; the cause is not knowne, but vulgarly given out for beeing of Councell for one Cony against the Commonwealth, who refused to pay custome for goods, and beeing committed by the Committee for Preservation of Customes, brought a Habeas Corpus, upon which his tryall should then have beene, but the certain truth heerof your Honour may expect by the next.
Westminster, — The trew cause of Serjeant Maynard, Serjeant Twisden, and Waddham [Windham’s] commitment to the Tower was for theire pleading to the Court, that the ordinance of his Highnesse and Councill for receiveing the customes was noe better than a private order of a Councill table.
Westminster, — The Court of Upper Bench granted an al[ia]s Habeas Corpus to Mr. Coney (error being found in the former), which was fil’d on and judgment should have been given thereuppon, but deferred till the first day of the next terme. The 3 lawyers comitted to the Tower have petitioned for liberty, acknowledging and being sorrowfull for theire erroure, but yet his Highnesse hath done nothing therein.
George Radcliffe wrote in a letter at the time ():
In England there is great expectation what wilbe comme of Conyes busines; it is put off till the next terme, and mens eyes are attent upon it, as more concerned then at any thinge which happened these many yeares[!]. Cromwell, when he committed Maynard and Twisden and another lawyer, tould them that, if they would have Magna Carta (which they had talked so much on in Westminster Hall), they must put on each a helmet and troope for it! And now they see what they fought for. Here is the liberty of ye subject.
On , Joseph Jane wrote of his worry that the civil disobedience was fizzling out, with the lawyers petitioning meekly to Cromwell to be let out of the Tower:
I doubt of the generality of refusers to pay taxes, in regard those lawyers peticion soe soone; and Maynard doubles his soe spedily, it seemes he is resolved to content the Protector in termes. I had an apprehension of good effects of it at first, but this back-slydinge somewhat cooles me; and I see Whitlock yet continues the scale, who was sayde to have given over.