Front Page Titles (by Subject) CHAPTER NINETEEN. - Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction
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CHAPTER NINETEEN. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
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Et si in die comitatus assise predicte capi non possint, tot milites et libere tenentes remaneant de illis qui interfuerint comitatui die illo, per quos possint judicia sufficienter fieri, secundum quod negocium fuerit majus vel minus.
And if any of the said assizes cannot be taken on the day of the county court, let there remain of the knights and freeholders, who were present at the county court on that day, as many as may be required for the efficient making of judgments, according as the business be more or less.
This supplement to the preceding chapter prescribed the course to be followed when press of business prevented some of the assizes on the agenda from being disposed of on the court day. The shiremoot lasted for one day only, and to hold an adjourned session of all the suitors would inflict hardship on those whose presence was required elsewhere. The framers of the charter here sought to provide for the presence of a sufficient supply of recognitors, without insisting on the continued attendance of the whole body of suitors. They were doing their best to give effect to two requirements of the Articuli Baronum not readily reconcilable, namely, that only those actually required as recognitors should be summoned (article 8); and that assizes should be “shortened” (article 13), implying the presence of sufficient recognitors for a rapid despatch of business.
The terms of Magna Carta made it clear that assizes in the normal case should be held in the county court—a point upon which the Articles had been silent. This was a salutary provision, since a healthy publicity accompanied the proceedings of the shiremoot. If there was more business than could be got through in one day, a compromise must be made between the claims of litigants wishing their pleas hastened and the desire of other people to be discharged from further attendance. The justices were directed to complete their labours on the morrow, but were forbidden to retain anyone in attendance except the actual parties to suits and a sufficient number of jurors. Those whom Magna Carta thus compelled to wait a second day were exactly those whose presence the Articles had required upon the first day. The discrepancy between the two documents might be explained on the supposition that the device of synchronizing the visit of the justices with the date of holding the monthly shiremoot was only thought of after the Articles of the Barons had been sealed.1
The Charter of 1217 made a different provision for the same contingency. Unfinished assizes need no longer be taken in their own county on the day following the county court, nor, indeed, on any other day. The judges received full authority to bring them to a conclusion elsewhere on their circuit according as it might suit their convenience. This concession to the justices, taken in connection with the further provisions of 1217, reserving all darrein presentments, together with other assizes of any difficulty, for the decision of the bench, shows a comparative disregard of the convenience of jurors, who might, in the option of the justices, find themselves compelled either to follow the assizes from shire to shire, or else to undertake the irksome journey to Westminster, from which the Charter of 1215 had relieved them.2
[1 ]Subsequent practice did not conform to this rule. One novel disseisin, or one mort d’ancestor, might be held by itself; and complaint was made in 1258 that the sheriffs proclaimed in the market places that all knights and freeholders must assemble for such an inquest, and when they came not, amerced them at will (pro voluntate sua). See Petition of Barons, c. 19 (Sel. Charters, 385).
[2 ]Subsequent legislation vacillated between two policies, actuated at times by a desire to restrain the discretionary powers of the justices; and at others by experience of the hardships inflicted upon litigants by inflexible rules. The Statute of Westminster II. (13 Edward I. c. 30) confirmed the power of the justices to reserve cases of mort d’ancestor for decision by the bench, and per contra allowed assizes of darrein presentment to be taken “in their own counties.” 6 Richard II. c. 5 curtailed the discretionary powers, directing that justices assigned to take assizes and deliver gaols should hold sessions in the county towns in which the shire courts were wont to be held. 11 Richard II. c. 11 once more relaxed this rule, alleging that it had resulted in the inconvenience of suitors. Authority was given to the chancellor, with the advice of the justices, to determine in what places assizes might be held.