Native, Not Roman
It is said in the State Papers by an English official in Ireland in Queen Elizabeth’s reign that, ‘this Feinechas is none other than the sivill law;’ and the saying is occasionally repeated even to the present time. That the statement is, however, none other than incorrect, might easily be shown by going through both the Civil Law and the Irish law seriatim. The present little treatise, without being at all designed for that purpose, will render this sufficiently obvious. There are no two systems of law of which I have any knowledge which do not contain some points in common. It would be strange indeed if men devising rules for the extensive field of human conduct, and for determining all sorts of rights and obligations, did not happen to hit upon the same expedient occasionally. Their doing so proves their common humanity. To prove the alleged derivation much more is required. But the fact is, that in the Brehon Laws such coincidences with Roman Law are really fewer than might be expected without derivation at all. The coincidences with Hindoo Law are actually more numerous; yet no one suggests that the Brehon Laws are derived from the Hindoo.
Some rules of church law, itself based on the later Roman Law, were introduced obviously by the Christian clergy, and affected mainly themselves and their interests. They are fewer and less important than might have been expected, owing to the Celtic organisation which the Church early assumed, and for many centuries retained. There is also the supposed resemblance which the collection of laws called the Senchus Mór bears to the Roman collections called the Digest and the Pandects. To press this as a proof of derivation would be absurd, for there is really no more in it than in the resemblance in distant perspective between two trees in a forest. The laws were collected as they existed; and if when collected they happened to resemble some other collection, there was nothing to wonder at, the laws could not help it, and it does not prove their derivation from that other. Analogies are very tempting, but often misleading; and such a superficial analogy as this would be a very unsafe guide. If the Brehon Laws had been at all derived from Roman Law, the resemblances would have been far more numerous, intimate, and vital, the whole juridical structure would probably have been different, and with the law itself some of the Roman technical terms would have been adopted, as in all countries that have really copied from Roman Law. None of those terms are found in the Irish manuscripts. Many of the Irish laws are as old as the Roman Law itself. Whether they are good or bad, creditable or otherwise to our race, they are essentially, substantially, and characteristically Irish. Sir Samuel Ferguson expressed the literal truth when he wrote that ‘The Roman (or Civil) Law is hardly traceable in them, except as regards ecclesiastical affairs, and that sub modo only.’
Without desiring to suggest whether they would or would not have been better if they had been derived from Roman Law, it may be interesting to point out that the Irish laws were in several respects more humane than the Roman. The Irish flaith-fine never at any time had power of life and death over the members of his household, as the Roman paterfamilias unquestionably had in early times. Then with regard to the treatment of strangers: at Rome, for a long time, an alien was an enemy, who might be ill used, whose property was res nullius which any Roman might seize, and who had no locus standi whatever before a legal tribunal. In Ireland a stranger was a person entitled to sympathy, his property could not be taken from him, and not alone was he heard in a court of law, but he was allowed to choose his judge. ‘Whenever a person comes over the sea to prosecute a cause, he shall have a choice of the Brehons of Erinn; and when he shall have come across the boundary of a province, he shall have his choice of the brehons in the province.’ We have already seen that unjust evasion of a stranger was punished as fraud.
There was much resemblance between the Irish laws and those of ancient Britain, so far as the latter can be discerned through the native Welsh laws, between which and the Irish there is a good deal in common. All British laws were modified under Roman sway, which Ireland escaped. Of course the laws of the Gaels of Scotland were originally our laws transferred to Scotland. They, however, underwent considerable change, for feudalism was vigorously forced upon Scotland in the Middle Ages.