A statute of the fifth year of Edward
III. provides that no man shall be attached, nor his property seized
into the king's hands, against the form of the great charter and the law
of the land. In the twenty-fifth of the same king it was enacted, that
"none shall be taken by petition or suggestion to the king or his
council, unless it be by indictment or presentment, or by writ original
at the common law, nor shall be put out of his franchise or freehold,
unless he be duly put to answer, and forejudged of the same by due
course of law."[351] This was repeated in a short act of the
twenty-eighth of his reign;[352] but both, in all probability, were
treated with neglect; for another was passed some years afterwards,
providing that no man shall be put to answer without presentment before
justices, or matter of record, or by due process and writ original
according to the old law of the land. The answer to the petition whereon
this statute is grounded, in the parliament-roll, expressly declares
this to be an article of the great charter.[353] Nothing, however, would
prevail on the council to surrender so eminent a power, and, though
usurped, yet of so long a continuance. Cases of arbitrary imprisonment
frequently occurred, and were remonstrated against by the commons. The
right of every freeman in that cardinal point was as undubitable,
legally speaking, as at this day; but the courts of law were afraid to
exercise their remedial functions in defiance of so powerful a tribunal.
After the accession of the Lancastrian family, these, like other
grievances, became rather less frequent but the commons remonstrate
several times, even in the minority of Henry VI., against the council's
interference in matters cognizable at common law.[354] In these later
times the civil jurisdiction of the council was principally exercised in
conjunction with the chancery, and accordingly they are generally named
together in the complaint. The chancellor having the great seal in his
custody, the council usually borrowed its process from his court. This
was returnable into chancery even where the business was depending
before the council. Nor were the two jurisdictions less intimately
allied in their character, each being of an equitable nature; and
equity, as then practised, being little else than innovation and
encroachment on the course of law. This part, long since the most
important of the chancellor's judicial function, cannot be traced beyond