1 Of ane horse cariand twa scheip.
“SCOTS law has many curious chapters, perhaps none more so than that which Sir John Skene printed under the comprehensive heading “Of ane horse cariand twa scheip and burning of ane miln.” Its terse and graphic diction ought to give it rank not merely as law but as literature. “Thir four chaptours,” says Sir John, in the margin of his Auld Lawes and Constitutions of Scotland, published in 1609, “are written in ane buke perteining to Sir David Carnegie of Kynnarde.” The original was in Latin, which is decidedly bettered by Sir John’s vigorous, expressive, and idiomatic translation into Scots.
“Ane Horse Carriand Twa Sheip” by Alex Eeles.
Ane man passand be the kings hiw way callis before him twa scheip bound together with ane tow and with the twa ends thereof: and be chance ane horse haveand ane sair back is lyand in the samine hie way: swa the ane of the scheip passes be the richt side,and the other Scheip be the other side, of the horse: And the tow quherewith they are bound tuiches his sair back: querethrow he is moved to rise up, and caries the scheip hingand the ane upon his ane side and the other upon the other side, here and there in sundrie places and throw the fieldis: untill he comes to ane open miln without ane keiper haveand ane fire in the miffe flure: and the fire being skattered the miln is brunt with the twa scheip and the horse. It is demanded quha sall answer for this skeath and damnage?
2. It is answered the awner of the horse sall pay for the twa scheip: because the Kings hie way sould not be occupied be the horse.
3. And the miller sall answer for burning of the miln for the horse and for the scheip and for all other skeath and damnage done in the miln, Because he left the miln open and fire in it without anr keeper.
Some readers of a legal periodical1 may remember that a poetico-juridical contributor to its pages made the foregoing dramatic episode and quaint quid juris [what right] the theme of a delightfully racy law lyric. The accomplished author of that poem, however, was not aware that, some centuries before the tale in his hands budded and blossomed into Scots verse, a formidable rival had tackled the same inspiring subject. Yet so it was.
The heterogeneous character of the material from which Scots law was evolved can never be better typified than by the history of the fugitive scintilla juris [spark right] above quoted, which was accorded a place by Sir John Skene as chapter 26 of the statutes of King David II. in the Acts of Parliament of Scotland, but which, with some disregard of the critical acuteness of Sir John, his nineteenth-century successor, the renowned record scholar, Mr. Thomas Thomson, did not see fit to include in the standard edition of the Scots Acts, edited by him. We have in the passage before us conclusive evidence that the compilers of Scottish law manuscript collections, drawing their information from most varied quarters, Scots, English, and French, did not scruple upon occasion to imbibe legal instruction from folk-lore.
The Gesta Romanorum, a collection of odd stories, with attenuated morals tagged on, which are odder still, is not exactly the work to which, in the present day, one would naturally turn for enlightenment upon the law of the land. But the writer of the above-cited passage in Sir David Carnegie’s “buke” was of a different mind. He took from the Gesta (chap. 163 in Oesterley’s edition) the identical story upon which his legal conundrum is constructed, cleverly turning it into a vehicle to explain the leading doctrine of the law of damages – the necessity of culpa to infer liability.
But it is almost certain he found something more than the story. If the copy of the Gesta which he used was not materially different from that now printed, he must have found at the end of the story a most extraordinary supplement. A young student, Celestinus by name, had, it was said, a school exercise set him which was no other than to compose a number of verses on these startling adventures of the horse and the sheep. His metrical powers proved quite unequal to the task and he was in sore tribulation, when opportunely there appeared an elderly man. This personage spoke to the despairing student, ascertained the cause of his trouble, and then revealed his own identity. In thus introducing himself he said, with an engaging frankness which must have disarmed all suspicion – “I am the Devil in human form, and the best poet that ever lived.” Then he obligingly offered to make the necessary rhymes – for a consideration, which even in those days was a very necessary element in contracts. The student in exchange for the verses mortgaged himself soul and body to the tempter’s service. Poetry must surely have been a better paying property then than now, for four lines of leonine Latin verse can scarcely be reckoned a handsome equivalent for the value to be given in return. Perhaps, however, then as now more depended upon the standing of the poet than the real quality of his wares. Be that as it may, here are the verses which are believed to constitute the entire poetical works of their sable and celebrated author, the optimus versificator [best poet] as he dubbed himself:-
Nexus ovem binam per spinam traxit equinam;
Lesus surgit equus pendet utrumque pecus.
Ad molendinum pondus portabat equinum,
Dispergendo focum se cremat atque locum.
Custodes aberant; singula damna ferant!
Not being lyrically gifted, I am content to let my translation limp in prose:-
A rope binding a pair of sheep passed over a horse’s spine:
He feeling the sore sprang up and a sheep swung on either side:
His horse load he carried to a mill,
Where kicking about the fire he burnt himself and the place.
The millers were absent: let them bear all the loss.
The student’s preceptor was struck, we are told, by the uncommon beauty of the lines! A cross-examination of his pupil, who at first claimed the piece as his own, disclosed the real authorship. It only remains to be said that, as of course a contract with Satan, even in the guise of supreme poet, was contra bonos mores [contrary to good morals], or anyhow admitted of locus poenitentiae [a place of repentance], means were easily devised whereby the dangerous bargain was rendered null and void. Plucked as a brand from the burning, Celestinus turned over a new leaf, and his memory survives only in connection with the unique and peculiar poem and the incident so strangely woven in a manner into the fabric of Scots law.”
1 Scottish Law Review, vol. vii. p. 366.
2 Concerning plough-irons.
“OUR Scottish historians one after the other, from Wyntoun and Bower down to Hailes and Tytler, dwell with satisfaction upon an incident assigned by them to the time when Thomas the good Earl of Moray acted as regent during the minority of King David II. The Regent had made a law, they say – although no such provision is to be found now in the statutes of that period – that the sheriff of each shire was to be answerable for all stolen plough-irons. They were not to be taken home at nights; they were to be left overnight with the ploughs on the field. If they were stolen the sheriff was to compensate the loss. A certain “greedy carle” saw his way to make a profit out of this. He hid his plough-irons in a peat moss, complained to the sheriff that they had been stolen, and on the strength of his claim received payment of their value. But the sheriff somehow got wind of the fraud practised upon him, with results which it may be best to let the reader glean from Androw of Wyntoun’s circumstantial narrative (book viii. ch. 24):-
He (I.e. the Regent) bade that ilke man alswa
Suld noucht fra thare plwys ta
Thare plw-yrnys: bot lat thame ly
On thare plwys or nere thar-by,
And gyve thai hapnyd stollyne to be
Till hym that aucht thame ordanyd he
The shyrrawe to pay schyllyngis twa:
And that alowyd to be alswa.
A gredy carle swne efftyr was
Byrnand in swylk gredynes
That his plw-yrnys hymsell stall
And hyd thame in a pete-pot all:
He pleyhnyd to the shyrrawe sare
That stollyn his plw-yrnys ware.
The shyrrave than payd hym schyllyngis twa
And efftyr that he dwne had swa
Swne a gret Court he gert set,
Wyttyng off that stwlth to get.
The dravere he gert and othir ma
Swa be examynyd that swne tha
Tald hym that the carle thame stall
And hym thaim in the pete-pot all
And tuk syne the payment.
Tharefore he lele jwgement
To the gallows e gert harle
And thare he gert hyng up that carle.
According to Bower (Scotichronicon xiii. 18) the man was tried, sentenced, and hanged for theft – the theft of his own plough-irons! As typical of the strong and peaceful rule of Scotland under the good Earl’s regency, this curious anecdote has hitherto been counted authentic. But not long ago I was surprised to find in the chronicle of a French author (Brevis Relatio in the Scriptores Rerum Gestarum Willelmi Conquestoris, ed. Giles, 1854, pp. 19-20), who wrote in the first half of the twelfth century, a passage materially affecting the credibility of the alleged incident in Scotland.
Richard, Earl of Normandy, grandfather of William the Conqueror (this Norman chronicle tells us), died in such fair repute that he was known as the father of his country. So great was the peace of the land in his time that ploughmen1 were not allowed to take their plough-irons to their homes. Whoever had these articles stolen needed only to complain to the earl, who straightaway made good the loss. One day a cunning ploughman’s wife stole her husband’s irons, and on the morrow when he discovered his loss he proceeded to the earl, complained, and received money to purchase a new set. On his return home he told his wife what had happened. She gleefully revealed the actual circumstances, congratulating him on now having both his irons and their price. But he, honest soul! went back and repaid the sum he had received, explaining at the same time what his wife had done. With the savage justice of the time, however, the earl caused the woman’s eyes to be torn out2 as a punishment for the theft.3
The close and at points almost verbal parallelism in these two stories of the Norman eleventh-century ploughman and the Scottish “carle,” who over-reached himself three hundred years after, makes it impossible henceforth to regard Wyntoun’s anecdote as a serious document for the history of Scots law. By the normal canons of historical criticism both can scarcely be true: the later-dated stands condemned as folklore, not fact.