Seanad Éireann díospóireacht -
Thursday, 28 Apr 1927

Vol. 8 No. 21

JURIES BILL, 1927.—REPORT STAGE.

Sir EDWARD BIGGER

I move amendment No. 1:—

Before Section 4 to insert a new section as follows:—

"4.—(1) Every woman to whom this section applies who is qualified and liable to serve as a juror in any administrative county or county borough shall be entitled, if she so desires, to be entered in the register of electors for the registration area comprising such administrative county or county borough as exempt from serving as a juror and while so entered shall be exempted from so serving.

(2) This section applies to unmarried women and to widows, and also to married women whose husbands are qualified and liable to serve as jurors in the same administrative county or county borough as that in which such women are themselves so qualified and liable."

I think it is only following up the amendment which we passed on the last day. I now leave it as a matter for the House itself to decide.

Mrs. COSTELLO

I second that.

MINISTER for JUSTICE (Mr. O'HIGGINS)

The Senator's amendment is following up the amendment that he moved and that was accepted by the Seanad in Committee when the word "male" was deleted in Section 3. As the Bill now stands women are prima facie qualified and liable for jury service. The present amendment, copied from the 1924 Act, enables women to seek exemption if they so desire. If this amendment is carried the Senator will propose to delete Section 16 by amendment 5 standing in his name. The effect and the net result of that would be to preserve the position created by the 1924 Act. My proposals, the official proposals, to deal with the question are contained in amendments 3, 4 and 6. Amendment No. 2, by the way, is a mistake and will not be moved. But my proposals bearing on this question are contained in 3, 4 and 6. Taken together these amendments in conjunction with the proposed new form for the first schedule give the women and other classes conditional exemption. That is, they will be regarded as exempt in the first instance, and they will be at liberty under the new form to apply to be placed on the jurors' list for jury service. There is no radical difference between the two except under the official proposals the cost and trouble of putting the women's names on the draft list in the first instance is avoided.

Under the Senator's proposal many women's names would have to be inserted in the draft list only to be deleted at a later stage. My other objection is that it throws the onus on women to seek exemption, and our experience of the 1924 Act is that women who desire exemption very frequently omit to take the positive steps to secure exemption and wreak their wrath upon the court officials and the judges when they get their summons for jury service, subsequently. They neglect to take the necessary steps to secure exemption and the result is that various panels are to a considerable extent deprived of their effectiveness because the names of women appear on those panels. Those women are exempted in court by the judge when they appear and make sufficient trouble there to secure exemption. Under my proposal, peace commissioners, doctors and other classes, including women, will not have their names put on the jurors list but it will be possible for any individual member of this class to have his or her name entered on the list on application. Now reading back over the proceedings when the 1924 Act was under consideration I made the interesting discovery that what I am now proposing was in fact the proposal of the women themselves in 1924, and that that proposal was rejected by the then Attorney-General, the present Chief Justice. Speaking in the Dáil on March 13th, 1924, he referred to the Women's Organisation, and so on and then he said:—"I discussed this matter with two or three of these deputations, and I understood from them that they would be willing, for the present at any rate, to have a provision by which only women who applied to be put on jury lists should be put on. That does not appeal to me because I do not think it would get the average woman;" and he goes on to develop his ground of objection.

What I am stressing now is that this proposal of mine was in fact the proposal put forward by the Women's Organisation in 1924, a proposal which was rejected at the time by the Attorney-General for reasons which he deemed sufficient when the matter was discussed. Well, the Attorney-General's preference, speaking of the Attorney-General of 1924, is a preference which was given statutory form; it has been tried and, I suggest, stands condemned on the administrative experience which it has got since 1924. The idea was that the women possessing rateable qualifications should be entered on the jury list and that there would be automatic exemption for any who applied. The theory underlying that was that by that machinery you would eliminate the reluctant woman juror. It has not happened in the past, and I submit it will not happen in the future. What has happened is this: You put on all the women—100 per cent.—who possessed the necessary rateable qualifications, and about 60 per cent., perhaps a little more, apply for exemption. And then of the balance, three-fourths turn up in court in response to their jury summons in a state of frenzied indignation and wreak that indignation on the court officials, the judges and everyone else, in a protest against the idea of their being expected to perform that function and duty. So that the 1924 Act is not working out as it was hoped it would work out. It has not resulted in the elimination of the unwilling woman juror, leaving only the balance who are perfectly prepared to perform that duty. It has been unnecessarily expensive and unnecessarily troublesome, and I submit it is a sounder and a saner thing to adopt the proposal which the women themselves made in 1924, namely, to exempt them as a class.

Give a prima facie exemption to a class, leaving individuals within the class who feel that, without any particular inconvenience to themselves or anyone else, they could undertake the duty, to notify that willingness on their part to the appropriate officer and thus procure the inclusion of their names in the list.

It is interesting to note that, while a good deal has been talked and written about this subject, no one in this House has proposed to return to the Act of 1919. People talked as if they were going to do it, and then they did not do it. I think there is a general recognition in both Houses that the Act of 1919 is not a practicable proposition; that it was right to depart from it, and departing from it the question arises as to the degree of that departure. There is really no question or principle as between Senator Sir Edward Bigger's amendment and the position I am taking up. There is the question only of administrative convenience and experience, and I suggest that on that ground I have it all the way. I submit it is a more sensible thing to ask that the small minority amongst the class that is willing to take service should take the positive step of notification, than to ask the 90 per cent. who are unwilling, to take the positive step of seeking exemption. That is the issue really which Senators have to decide. My proposals are embodied in amendments 3, 4, and 6, and I submit they are proposals that ought to commend themselves to the Senate.

CATHAOIRLEACH

The House, of course, will understand, assuming that the alternative proposals are accepted by the Senate, that the Government will accept those proposals in the Dáil.

Amendment put.

Sir EDWARD BIGGER

It is only sub-section (1) of the amendment I want put, not the whole section.

CATHAOIRLEACH

You do not intend to move sub-section (2)?

Sir EDWARD BIGGER

It is not necessary.

CATHAOIRLEACH

Then you should ask leave to amend it. Very well, now, I am putting the amended amendment.

Amendment put and negatived.

Mr. O'HIGGINS

I am not moving amendment 2. That was put down in mistake.

Government amendments:—

Section 15, sub-section (1). To delete in line 54 the word "women" and to substitute therefor the words "exempted persons."

Section 15, sub-section (3). To delete in line 8 the word "women" and to substitute therefor the words "exempted persons."

Section 16. To delete the section and to substitute therefor a new section as follows:—

16. —(1) Any person qualified and liable to serve as a juror but exempt from so serving by reason only of being included amongst the persons mentioned in Part II. of the First Schedule to this Act may apply in any year at the time mentioned in this section to the county registrar for the area co-terminous with or including (as the case may be) the jury district in respect of which he is so qualified and liable that his name be inserted in the general lists of jurors or the draft jurors lists (as the case may require) then being revised under this Act by such county registrar, and such county registrar, if satisfied that such person is qualified and liable to serve as a juror in respect of a jury district co-terminous with or included in his area and is exempted from so serving only by reason of being included amongst the persons mentioned in Part II. of the First Schedule to this Act, shall insert in such general lists of jurors or draft jurors lists (as the case may be) the name of such person, his place of abode, his trade, profession, calling, or description and the situation, description, and rateable value of the land in respect of which he is so qualified and liable as if he was not so exempted, and thereupon such person shall become and be qualified and liable to serve as a juror in respect of such jury district when and so long as the jurors list derived from such general lists of jurors or draft jurors list is in force.

(2) Applications under this section in respect of the general lists of jurors revised in the year 1927 shall be made before the 28th day of May, 1927, and applications made under this section in respect of draft jurors lists revised in any subsequent year shall be made before the 15th day of May in such year.

Mr. O'HIGGINS

I think, if I might, I would have amendments 3, 4 and 6 taken together, because, cumulatively, they represent the scheme, and the scheme is that the Schedule is divided into two parts, I. and II. In Part I. we place classes that we would not, for various reasons, have on jurors lists at all. We do not propose to allow any members of the classes contained in Part I. of the Schedule to serve on juries. In Part II. we are putting classes that we are prepared to exempt, leaving it open to individuals within these classes to notify if they are willing to undertake the burden of jury service. We put doctors, dentists, veterinary surgeons, and people of that kind, together with women in Part II. of the Schedule, leaving each one to appreciate his own circumstances and to decide for himself or herself whether they could undertake the burden of jury service.

That is the scheme, and Section 16 is altered to meet that. There is an alteration in Section 16 which, instead of referring to women only, refers to the classes contained in Part II. of the Schedule. I think it is an improvement on the Bill as originally introduced in the Dáil and into this House, and that perhaps Deputy Johnson in the other House was right when he said that the reasonableness of the thing I wanted to do was arguable, and perhaps could be established to be sound, but that the method by which we went about it was wrong. I should think from the point of view of women and women's organisations that it is preferable to have women set out in a portion of the Schedule together with these other classes of citizens, and to say we will exempt these classes, but if there are individuals within these classes who feel they could undertake jury service then their names will be entered on the jury lists on application. That is what is now proposed and I think it is an improvement.

CATHAOIRLEACH

I draw the attention of Senator Sir John Keane, Senator Barrington and Senator Sir John Griffith to this for it affects their amendments. They proceed on the assumption that there was only one part to the Schedule. There now will be two parts. The House will understand that the first Schedule will contain the classes who will not have the privilege of asking to be put on. The second part of the Schedule will include classes who are excluded and who may apply to be put on. I want Senators who have these amendments down to state into which part of the Schedule they propose to have their amendments inserted.

Mr. DOWDALL

I notice that medical practitioners actually "practising as such" are exempted, but when we come to registered dentists and pharmaceutical chemists it does not state that they must be "practising as such." I think to get exemption it should be set out that they should be actually practising their profession, and they should not be automatically exempted because at some time or other they were registered.

Mr. O'HIGGINS

I am prepared to accept that if the Seanad is willing.

Amendments put and agreed to.

Amendment 5 not moved.

Government amendment:—

Section 21, sub-section (3). To delete in line 15 the word "before" and to substitute therefor the word "after."

Mr. O'HIGGINS

This is merely to correct a printer's error which crept in when the Bill was being printed in its final form.

Amendment put and agreed to.

Mr. O'HIGGINS

There is a small matter with regard to the amendment we have just passed to which I would like to draw attention, and perhaps Senators would deal with it on this Stage, or possibly on the next. In amendment 6, the proposed new Section 16, in line 4 of sub-section (1) I would like to get in after the words "may apply" the words "in the prescribed form."

Amendment put and agreed to.

Sir NUGENT EVERARD

Will these prescribed forms be issued only to certain officers from whom they can be obtained on application? Supposing a woman was qualified to serve and wanted to serve where should she apply to get the form?

Mr. O'HIGGINS

To the County Registrar's office.

Government amendment:—

New section. Before Section 27 to insert a new section as follows:—

27.—Notwithstanding anything contained in this part of this Act or any repeal effected by this Act, every panel of jurors prepared after the passing of this Act, and before the 1st day of September, 1927, shall be prepared and the jurors named on such panels shall be summoned in the manner in all respects required by the law in force immediately before the passing of this Act and such law shall be deemed to continue in force so far but so far only as may be necessary for that purpose.

Mr. O'HIGGINS

This is merely to prevent confusion during the Easter and Trinity sittings of the court. It would be necessary that the old system of preparing panels and summoning jurors should remain in force until 1st September. The new system will come into force after the long vacation if the Bill becomes law.

Amendment put and agreed to.

Government amendments:—

Section 50, sub-section (2). To delete the words "summoning officer" in line 60 and to substitute therefor the words "master, registrar, or other principal officer of the court or Judge by whom the fine was imposed."

Section 50, sub-section (2). To delete in line 2 the words "the county registrar" and to substitute therefor the words "such principal officer."

Section 50, sub-section (3). To delete in line 4 the words. "The Summoning" and to substitute therefor the words "Such principal."

Mr. O'HIGGINS

These are merely to correct a slight error in the Bill. The officer who summons the jury is not necessarily the officer who deals with fines imposed by the court. These should be looked after by an officer of the court. The amendments seek to achieve that.

Amendments put and agreed to.

Mr. BROWN

I move:—

To delete the section inserted in Committee and to substitute therefor a new section as follows:—

58.—The following provisions shall have effect in every trial of a criminal issue which is tried with a jury and is prosecuted at the suit of the Attorney-General of Saorstát Eireann, that is to say:—

(a) the said Attorney-General or the counsel or solicitor representing him may at the time prescribed by this Act direct without cause shown any juror who has not been challenged to stand-by and thereupon such juror shall not then be sworn of the jury;

(b) if, before or when all the jurors whose names are entered in the panel and who are liable to be called for service in the jury have been called, a jury is obtained without including the jurors who have been directed to stand-by, such last-mentioned jurors shall leave the jury-box as soon as such jury has been so obtained and no such last mentioned juror shall be included in such jury;

(c) if, after all the jurors whose names are entered in the panel and who are liable to be called for service in the jury have been called, a jury is not obtained, a sufficient number of the jurors who were so directed to stand-by and are not successfully challenged under the subsequent provisions of this section, shall be sworn and included in the jury in the order in which the cards containing their names were drawn from the box;

(d) The said Attorney-General or the counsel or solicitor representing him may challenge for cause shown any juror who, having been directed to stand-by, is called to be sworn under the foregoing paragraph;

(e) Whenever a juror is challenged under the foregoing paragraph the cause shall be shown immediately upon the challenge being made and the Judge shall then allow or disallow the challenge as he shall think proper and such allowance or disallowance shall be final and conclusive;

(f) if any such challenge is so allowed, the juror so challenged shall forthwith leave the jury-box and shall not be included in the jury.

This proposed new section is in fact a verbatim copy of Section 58 as it appeared in the original Bill. The object of the amendment is to restore to the Attorney-General the unlimited right of stand-by which he possessed and which he does possess under the existing law. This is a matter of supreme importance. In my opinion this unlimited right of stand-by by the Attorney-General is absolutely necessary for the due and fair administration of criminal justice in this or any other country where the jury system prevails. What happened in Committee was this: Section 58 of the Bill preserved and defined the right to stand-by as it existed before and as it exists now. Senator Bennett proposed an amendment in Committee the effect of which was to put the Attorney-General in the same position as the accused in the matter of challenge, and to restore what the Senator described as a fair balance between the State on one side and the accused on the other.

I will come back to the question of fair balance later on. That amendment which abolished the unlimited right of stand-by of the Attorney-General and put him in the same position as the accused was carried by two votes in a House consisting of only seventeen of our members. I need scarcely say that was a most unsatisfactory mode of dealing with this vital question of criminal procedure. It only shows how important it is for members of this House to study, understand the Orders of the Day, and recognise the importance of amendments which do not seem to be important unless you study them. It also shows the importance of members remaining here until the end of the sitting, because it happened just before the close of the sitting that this drastic amendment was carried. Having been carried, it is necessary for me to state openly the reasons why the unlimited right of stand-by should be preserved to the Attorney-General. It must be the desire of every right-minded citizen that an accused person should get an absolutely fair trial; that is, he should be tried by jurors who are prepared to act without fear, favour or affection. That is secured, so far as the accused is concerned, by the right of challenge. The right of challenge has been slightly altered by the present Bill. The number of jurors whom the accused person can now challenge peremptorily is somewhat reduced. I think in no place can he challenge more than ten, and the ordinary number is five.

The Senate should understand what the meaning of a peremptory challenge is. A prisoner when he exercises that right need give no reason. The juror leaves the box and cannot serve even if it were impossible without him to get a juror to carry on the case. Therefore it means the absolute exclusion of that juror. If he happens to exhaust that right of peremptory challenge he then has the right to challenge every other juror on the list. If he can show to the court that a juror is not an impartial person as between the State and the accused the juror disappears. He cannot act. Therefore, so far as the accused is concerned there is an absolute security that no one will be put on the jury to whom he objects and who is not, in the opinion of the court, prepared to act honestly and fairly as between the State and the prisoner. It is true that the State has a right to stand-by; that is, that the Attorney-General or the person acting on his behalf has a right, when a juror is called, to order him to stand-by, but the Attorney-General acting for the State has no right corresponding to the peremptory challenge, because the juror ordered to stand-by only stands by; he is not excluded from the jury. On the contrary, if the jury list is exhausted and there are still vacancies on the jury, the jurors ordered to stand-by can be called again in their order.

Therefore the protection for the State in this matter is nothing like so great as the protection given by our existing law and by this Bill to the accused person. The present system embodied in this Bill works no injustice to the accused person. Senator Bennett's argument when he persuaded the nine Senators to vote for him on the last occasion was this, that there ought to be the same sort of fair balance between the accused and the State. There is no balance between the accused and the State. That balance is all the other way. All an accused person has to do is to get one juror out of twelve to take his view of the case, and that gives him the benefit of the doubt. The State, to convict the accused, has to get the twelve men; therefore there is no balance between the two. The balance is weighted against the State, and it is not a question of restoring the balance of fair play between the State and the accused. I said that this unlimited right to stand-by of the Attorney-General is necessary for the due administration of criminal justice in this country. The juror should be without fear, favour or affection. He should be without fear, and it is much easier to find the juror who is without favour than to find, in difficult and dangerous times, the juror who is without fear. He may be a perfectly honest and fair-minded man. He might be willing to give an honest verdict in an ordinary case, but there are times when that state of affairs does not prevail. Civic courage is not a universal virtue in any clime. It is not a universal virtue in this country. I do not say we are very much worse than others, but in dangerous times civic courage is always wanting on the part of otherwise perfectly honest men. It is not wise, fair or in the public interest to put the onus on the Government of having to challenge, for a cause, a man like that. It is rather bringing against him a charge of not being a person who can be trusted, in dangerous times, to do his duty as between his country and the accused person.

I therefore urge in the interests of the administration of justice in this country that it is absolutely necessary that this unlimited vital stand-by should be retained to the Attorney-General. This country ought to be forever grateful to the jurors who have acted on criminal cases during the difficult times we have gone through for the last three or four years. There is no doubt that the courage and the honesty which they showed have resulted in the establishment of law and order again in this country and if that kind of juror is to be looked for and to be found in this country it is necessary that we should retain the absolute right of stand-by on the part of the Attorney-General.

Sir NUGENT EVERARD

I second.

Mr. BENNETT

I should like to hear the Ministerial point of view.

Mr. O'HIGGINS

I favour the amendment. I opposed Senator Bennett's amendment on the Committee Stage and of course I could not, at all, have asked the Dáil to take any other view than that it should disappear from the Bill. I am very grateful to Senator Brown for having put the case for the restoration of the Bill to its original form so lucidly and ably. If I was silent it was because I felt that Senator Brown had performed the task better than I could.

Mr. BENNETT

I rise to oppose the amendment in its present form. Senator Brown went to considerable length and laid emphasis on the fact that the number of members in the Seanad when the amendment was carried was small. The amendment was served in due form and with due notice. It appeared on the Paper and was within the cognisance of every member of the Senate. Any Senator interested in the question of trial by jury, I submit, voted in the Senate division on that occasion. Senator Brown, with his extensive training in argument before jury and judges, said many things here, true, and yet he emphasised those points which suit his own case and glossed over the points that were disadvantageous to the amendment he proposed. He suggests that the proposal in the Bill is absolutely fair or more than fair to the accused. In that suggestion he glossed over one particularly interesting fact, that the right of peremptory challenge by the accused was diminished in the most extraordinary fashion by this Bill. How was it diminished?

The practice has been current in the country from which we inherit trial by jury that the prisoner has the right to challenge 35 jurors in certain cases and 20 jurors in other cases. In any case, under this Bill the prisoner has the right to challenge no more than five peremptorily. Mark how the right to challenge has been reduced, from 30 to 25, and now down to five, not 10, as suggested by Senator Brown. Section 56 (2) par. (a) of this Bill sets forth the number of challenges that are allowed to the prisoner in connection with criminal issues, which are the cases we are dealing with here, not civil cases, and it says:—

"In every trial of a criminal issue .... if there is only one accused person such person may challenge without cause shown five jurors and no more. (b) If there are two or more accused persons they may join in their challenges."

If there are two prisoners they can challenge ten jurors and no more. The old constitutional practice had been that they had a right to challenge 20. Yet we are told that this is to be in accordance with the Constitution. I would have thought that Senator Brown in his great anxiety that trial by jury should not be disparaged by an amendment of the Seanad, would at least have read the whole Bill and compared the facts and he would have seen on reference to Section 56, which I have read, the necessity for the amendment which the Seanad passed. He suggested that the prisoner's right of peremptory challenge is not interfered with. I ground my case in support of the amendment the Seanad passed, and against this amendment, on the one cardinal fact that the Bill takes away the right of the accused to the peremptory challenge he has hitherto had. If Senator Brown desires a compromise as between the amendment and the provision in the Bill, I would have thought he would have found some parity of reduction as between the right of stand-by by the accused and the right of stand-by by the State. If he suggested that we have that right now in our new State, and that we have jurors who are going to do their duty, and because we have more competent men we do not think the prisoner has any necessity for this peremptory challenge and therefore we shall wash it away, I might agree it would be a good thing to do. In doing that I should have thought Senator Brown would have suggested that we should have limited the Crown's right of stand-by. If we are to deprive the accused of the right of peremptory challenge I think we ought reasonably to depreciate the extent of the stand-by right to be exercised by the State. Such is not done. Everything stands against the accused. I say it is not right. The State ought to suggest some reasonable compromise such as saying: "We will only exercise the right of stand-by to the extent of 15 or 20, or to three times more or four times more than the prisoner's right of peremptory challenge." I should be prepared to accept such a suggestion as that. I urge strongly, and I do so in spite of what Senator Brown has said, that the balance is against the prisoner as compared with the constitutional practice hitherto in use.

The Minister, when the Bill was in Committee, made the case that there was no limit to the number of challenges by the defendant for cause shown. He made that case, and it was a true case, but then he knows that there is no limit to the State either in challenges for cause shown. It may be, I grant, that when the five men are ordered to stand by by the accused, the power to challenge them again is denied, and, therefore, what the Minister thinks is a great advantage for the defendant is no disadvantage against the State.

The right of the prosecutor is greatly strengthened by this Bill, and the right of the accused is greatly diminished. If the Government suggested it is impossible to find a jury with a sense of right, without the stand-by, then I suggest that trial by jury has failed in this country and ought to be scrapped. The State can empanel a body of men without fear, favour, or affection, even if there are fearful men, and there will be in every community. The stand-by to the extent of 15 or 20 will surely exhaust the number. The panel is carefully prepared; the array cannot be challenged in any way. Senator Brown suggested that the framing of the panel cannot be challenged, because it is taken away by this Bill, and swept away even though the challenger be a partisan of the Government. Whoever he may be, nothing can be done against the array. I say it is in the power of the State to select the panel of men absolutely fearless, without fear, favour, or affection, in such a case as this. Therefore, I submit the amendment the Senate passed, and which it is now sought to sweep aside as if it were not the opinion of the Seanad, should not be interfered with. This amendment ought not to be accepted.

I saw it suggested that a reasonable compromise might be made limiting in some way the power of stand-by. If so, I should be prepared to accept it. If you do not put in such a provision the old picture of Justice enthroned as an ennobling figure, with the scales evenly balanced, which to our young minds taught us many things, will be replaced by a picture of Justice enthroned with the scales still, but with the balance tilted as against the accused, and Justice will not be respected. Are we to train jurors to do their duty by branding them as sympathisers with felons? The way to teach them to do their duty is to show them that we trust them. Put pour confidence in men and you will make them respect you. Brand a man as an outlaw and he will be an outlaw. Senator Brown smiles, but he knows in his heart that these men are free from fear, favour or affection. Even when the panel is exhausted the resources of the State are not exhausted. The Minister knows that there can be a change of venue, so that whatever you may say about the amendment that we tried to make, and did make, to this Bill, if you brush away that without any consideration, I say that the fountains of justice will be tainted and juries in this country must disappear, and will be given an ample cause to disappear. I move that Senator Brown's amendment be not accepted, and I invite the Minister to make some reasonable compromise, and, if he does so, I will be prepared to accept such compromise.

Mr. O'HIGGINS

Senator Bennett insists——

Mr. BENNETT

I thought I invited the Minister to make his case following after Senator Brown.

CATHAOIRLEACH

Would you like to tell him what case he is to make?

Mr. BENNETT

I asked him to make it when the amendment was moved.

Mr. O'HIGGINS

Is the Senator challenging my right to speak?

Mr. BENNETT

I asked the Minister's opinion.

CATHAOIRLEACH

He is going to give it to you.

Mr. BENNETT

But I asked it previously.

CATHAOIRLEACH

Then why should you ask him for it again?

Mr. BENNETT

I did not ask for it again.

CATHAOIRLEACH

I understood that you stood up and made an appeal to the Minister to respond to your request.

Mr. BENNETT

Yes, as to a compromise.

CATHAOIRLEACH

Yes, and he is going now to say what he thinks about that.

Mr. O'HIGGINS

Senator Bennett insists upon discussing this amendment with reference to the question of the reduction in the number of challenges allowed to the accused. On that I want to point out that Senator Bennett put down no amendment, on the matter of the challenges allowed to the accused. So far as I recollect, he did not disagree with that regulation. We are entitled to assume that he considered it a reasonable reduction. I certainly considered it a reasonable reduction. The number of challenges peremptorily, without cause, allowed to the accused person in a case of felony in the past was twenty. If three persons were indicted, jointly, and did not agree to join their challenges, these three persons could challenge peremptorily sixty persons without cause. Now let us suppose three persons indicted on a particular offence, say, armed robbery, and that these persons were cute enough not to join in their challenges but challenge separately. They could dispose of sixty jurors. making quite a large hole in the panel, and in effect packing the jury in favour of themselves.

There is a joke among solicitors that when you have a bad case the thing to do is to get every man with a collar off the jury. I do not know if a collar is the acid test of integrity. I am inclined to think it is not. It has not been my experience that above the collar-line everyone is simply pure-souled, and that below it you have a majority of people who are otherwise. But it shows the point of view. Sixty challenges by three persons indicted for armed robbery are simply wholly excessive, when you remember that that is dealing only with peremptory challenges, and that there is no limit to the number of challenges for cause shown, neither under this Bill nor in the past. It is proposed to reduce the peremptory challenges to five, and I think you should be liberal and progressive enough—I had no idea Senator Bennett was such a conservative—to consider things on their merits and not by reference to what obtained in the past. What obtained in the past was not necessarily sacrosanct. The fact that twenty challenges were allowed in the past is no cause in itself why five challenges are now insufficient. I think five peremptory challenges to an accused person, or double that number, where there is any question of capital penalty in a case of murder or treason, is amply long.

What you have to decide in the case of the Attorney-General representing the State is this: Is it desirable to have him challenging for cause stated? Is his stand-by to be a silent one or for cause stated? If you were to put the Attorney-General representing the State in the position that he had no silent stand-by he would have to indict as a matter of routine every day in the courts persons other than persons in the dock. That would be the effect. Let us suppose there is a question of a jury panel and men charged with armed robbery, housebreaking or something of that kind. A person's name comes along in the panel. That person is known to the Attorney-General to be under supervision by the police in connection with the same offence. Is he to say that in court? I think it is a good principle that Counsel for the State should indict in court only the person in the dock. You should not put him in the position of having to make reflections on this man's character or that man's character; that he should have the right of a silent stand-by. The stand-by may be for any cause and consequently no uncharitable implications may be drawn. As Senator Brown said, it may be that in times of intimidation a man would not be sufficiently fearless to undertake the task of doing justice between the prisoner and the State. It may be also because the man in question has not a clear record in connection with the same offence. But it is undesirable I submit that the Attorney-General representing the State, should be put in the position that he would be obliged to cast aspersions of that kind on any person other than the person indicted.

Senator Bennett waxed rhetorical and talked of the balance as between the State and the prisoner. As Senator Brown pointed out had the prisoner secured only one dissentient out of twelve there is no conviction. Is that a balance? This stand-by of the Attorney-General is necessary and if Senator Brown had not put down his amendment it was my intention to attempt to reverse what nine Senators did on the Committee Stage. Certainly I would see that the Dáil rejected that amendment. I would be bound to do that and any person in my position would be bound to do it. The Senator in the most irresponsible way proposed the deletion of the Attorney-General's stand-by. He did not even take the trouble to provide for the Attorney-General having a challenge for cause shown, so that the Attorney-General had to accept on behalf of the State any jury that might happen to drift into the box by the hazard of the order of names on the panel. That is the Senator's idea of sound legislation in the interests of peace, order and justice in the State. He says now; of course, that it is up to the Minister to suggest a compromise. I have no compromise to suggest. I consider the Senator's amendment a foolish one, a thoroughly ridiculous one and I am surprised that nine members were found in this Assembly to vote for it. I am quite sure that the Dáil would have rejected it unanimously and I am quite sure now with the larger attendance in the Seanad that Senators will see the advisability of passing Senator Brown's amendment.

Mr. BENNETT

May I intervene to correct a statement of the Minister? He said that I made no arrangement for cause shown. My amendment reads

(c) In addition to the jurors directed to stand by under this section the Attorney-General or the counsel or solicitor representing him may challenge for cause shown any number of jurors.

Mr. O'HIGGINS

I withdraw so far. That simply brings us back to the position whether the Attorney-General should challenge for cause shown in court, or the Attorney-General's representative. The Senator knows the country, or he ought to know it. He knows that persons charged with particular offences are at pains to canvass jurors. They are at pains with such relatives and friends as they can muster to intimidate jurors. I know an instance where a Circuit Judge looking through a hotel window saw a juror underneath and a man's fist held in close proximity to his nose. The judge found out afterwards that the person in question was a defendant who had been on bail. With full knowledge of that, and that it is a matter of routine for persons who have pending litigation here in Dublin to come to town ten days or a fortnight before their case comes on—there is a well beaten track to get a copy of the panel and start an intensive canvass of the jury panel—the Senator comes in and talks in turgid rhetoric about the unfair balance between the State and the prisoner. There is not any such balance and will not be any such balance even under the provisions of this Bill as it stands.

If the Senator thought out the amendment the thing he would be bound to realise was that he was going to put the State's representative—the Attorney-General—in the position that he would have to be throwing charges and aspersions as a matter of routine every day in the courts on persons other than the prisoner. A man is charged with incendiarism or armed robbery, and known associates of his— people under suspicion in connection with the same offence—come along on the jury panel. Is the Attorney-General, in addition to indicting the defendant, to state "A B" is suspect of the same offence or that "A. B." is not believed by the State to have sufficient detestation of this particular form of crime to be allowed on the jury? That is the position under the amendment. It is an absurd position. It is wholly unsound. The Attorney-General's stand by, if he is to have one, must be a silent challenge. Senator Brown pointed out that it is not an absolute exclusion of the person named from the jury, because he is merely put aside and if the panel is exhausted he may ultimately be on the jury, whereas the prisoner's challenge is complete exclusion.

I think if the Senator understood the question and if he had any experience of the Courts, or had made any close study of the administration of criminal law, he would not come lightly into this House and ask Senators to agree with him that the Attorney-General's stand by was a thing of the past, and was no longer necessary for the administration of justice, and constituted an unfair balance as against the prisoner. The balance is on the side of the prisoner, and as long as the jury system lasts in this State the balance will be on the side of the prisoner.

Mr. BENNETT

The Minister accuses me of not giving the amendment thought. I gave it the greatest thought I was capable of giving it, and I endeavoured to put a case which I believe is a real case. I submit that to taunt me with having made no attempt to master the details of the case I tried to make is not reasonable and is positively discourteous.

Mr. O'HIGGINS

I did not like to believe that the Senator had given his amendment as much thought as he was capable of giving it. I am sorry to hear that he did.

Amendment put.

The Seanad divided: Tá, 26; Níl, 12.

Tá

• J. Bagwell.
• W. Barrington.
• Sir E. Bigger.
• P.J. Brady.
• S.L. Brown.
• Mrs. Costello.
• J.C. Counihan.
• Sir John Griffith.
• H.S. Guinness.
• P.J. Hooper.
• A. Jackson.
• Right Hon. A. Jameson.
• Sir John Keane.
• The Countess of Desart.
• J.G. Douglas.
• J.C. Dowdall.
• Sir Thomas Esmonde.
• Sir Nugent Everard.
• Dr. Gogarty.
• Mrs. Stopford Green.
• P.W. Kenny.
• The Earl of Kerry.
• J. MacLoughlin.
• J.T. O'Farrell.
• M.F. O'Hanlon.
• The Earl of Wicklow.

Níl

• T.W. Bennett.
• J. Dillon.
• M. Fanning.
• T. Farren.
• C. Kennedy.
• T. Linehan.
• F. MacGuinness.
• M. MacKean.
• W.J. Molloy.
• J. O'Connor.
• J.J. Parkinson.
• T. Toal.

Amendment declared carried.

13. Government amendment, First Schedule. To delete the Schedule and to substitute therefor a new Schedule as follows:—

FIRST SCHEDULE.

Persons exempted from serving as jurors.

PART I.

Persons absolutely exempted.

The Governor-General.

Members of the Oireachtas.

Members of the Defence Forces of Saorstát Eireann on full pay.

Members of the Gárda Síochána.

Persons holding any paid judicial office in Saorstát Eireann.

The Attorney-General of Saorstát Eireann.

The Comptroller and Auditor-General.

Members of the staff of the Oireachtas or either House thereof.

All officers and servants employed in any office attached to a Court of Justice or to the Chief Justice.

Persons holding any public office and paid out of public moneys or holding office under a local authority and paid out of local rates.

Persons in the employment of the Commissioners of Irish Lights.

Barristers-at-law actually practising as such.

Solicitors actually practising as such, including solicitors employed at a salary or otherwise to render services as solicitors exclusively to their employers.

Persons actually employed as clerks on work of a legal character by solicitors who are themselves exempted or entitled to be exempted as such solicitors.

Persons who cannot read or write and persons who from lunacy, imbecility of mind, deafness, blindness or other permanent infirmity are unfit to serve as jurors.

Mr. O'HIGGINS

I have already explained this amendment. The only comment I have to make is that I have made a small change so that those in the employment of the Commissioners of Irish Lights have been added. That is as a result of an undertaking I gave. I came to the conclusion that the most convenient course was probably to mention all these persons even though some of them cannot be qualified for jury service because they are not themselves rated occupiers of premises.

Part I. of First Schedule put and agreed to.

CATHAOIRLEACH

The second part of the amendment deals with Part II. of the First Schedule.

PART II.

Persons exempted but entitled to serve on application.

Women.

Peace Commissioners.

Clergymen in Holy Orders and other persons who teach or preach in any religious congregation and do not follow any secular occupation.

Licensed medical practitioners actually practising as such, including licensed medical practitioners employed at a salary or otherwise to render medical services exclusively to their employers or to any particular class of persons.

Veterinary surgeons actually practising as such.

Registered dentists.

Pharmaceutical chemists duly registered.

Persons actually employed as professors, schoolmasters or teachers in any university, college, school, or academy unless paid out of public funds.

Masters of vessels actually employed as such.

Duly licensed pilots.

Persons engaged in wholetime employment on the staff of any daily or weekly newspaper as editor (whether chief, subordinate or special), literary manager, writer of articles, reporter or artist.

Mr. MacKEAN

I move:—

First Schedule. Before "Masters of vessels actually employed as such" to insert the words "Commercial travellers whose business generally necessitates their absence from home for five days in the week."

On the Committee Stage of the Bill, when speaking to an amendment of mine, the Minister said: "The Senator suggests with a wave of the hand that we ought to include in this Schedule all commercial travellers." I want to point out that this amendment does not purport to include all commercial travellers, but only about 30 per cent. of them, namely, those whose business necessitates their absence in the country from their homes for five days in the week. I do not seek exemption for the other 70 per cent.—those commercial travellers who live in their own homes and have to go intermittently for a day or so to the country. The commercial travellers I wish to exempt are those whose business keeps them a whole week in the country and who only come home at the week-ends.

CATHAOIRLEACH

You mean those travellers who are absent from home day and night?

Mr. MacKEAN

Quite so. At the present time commercial travellers, owing to the great depression in trade, are having a very bad time in the country. The salaried commercial traveller is trying by doing double journeys and by working perhaps late into the night to keep up his returns. Unfortunately, as far as I know, these travellers are not very successful in that, but the condition of the commercial traveller who is working on commission is particularly sad. He is working at his own loss and at his own expense in the hope of better times to come. It is the opinion of commercial travellers. I am sorry to say, that these good times are not looming in the near future at all events. The Minister told us that individual hardship was never meant to be a criterion of abstention from jury service, but the fact that the commercial traveller is at a loss, that his firm is at a loss, and that his customers are put to great loss owing to the dislocation of business, certainly would make one feel that in the public interest such men should not be taken away from essential business to serve as ordinary jurors.

The Minister seemed to make a particularly strong point of the fact that in the North of Ireland an effort was made by commercial travellers to secure exemption from jury service, and it was unsuccessful. Since that time I have been in communication with travellers in the North of Ireland, and I find it is most exceptional for a commercial traveller whose business brings him constantly to the country to serve on a jury. It is the recognised custom in fact not to summon these men for jury service. The Minister told us about the North of Ireland and their high ideals of commercial integrity, and all that sort of thing. He said that they are, in fact, an ideal commercial community, but that even there commercial travellers are not exempted. I would point out to him that I know the North of Ireland and the commercial genius of its people, and I have found out since this amendment originally came up that it is not the custom to bring home those travellers from their work in the South to serve on juries. They are not going to upset their business in the South or the North either. Their business is too valuable to upset it.

That is a thing that the business people of the North of Ireland will not do. Of course the Minister told me on the last day that he could not argue with me if I went into the realms of prophecy but I am not going into the realms of prophecy when I say that they have every hope that in the immediate future not alone those commercial travellers for whom I seek exemption but all commercial travellers will be put on the exemption panel in the North.

Commercial travellers who go to the country have at the present time to mark out their journeys weeks beforehand. Of course it is a great upset to themselves and their customers if they do not turn up at the appointed time. At present shopkeepers are finding it very hard to get on themselves. For the last three or four years shopkeepers have been doing the work of banks. They have been financing small farmers, and the result of the depression in trade in the country is that farmers are not able to meet their obligations and the shopkeepers find it very difficult to keep as much stock on hands as they formerly did. Therefore it naturally follows that a traveller must be from home more frequently than formerly. Last week I was speaking to a traveller who represents one of the biggest boot houses in Ireland. I said to him that I was surprised that the tariff had not done considerably more to improve the boot trade in this country. He explained to me that the reason of that was that there is overproduction in England and that the demand for English boots in England is not as good as it was. Consequently they are dumping them in Ireland. This traveller informed me that he came home one Friday evening, leaving his motor van in the country, and discovered a jury summons awaiting him. He was kept ten days hanging about the Court and he discovered when he went back to the country that English and Scotch travellers in his line had completely scooped his customers.

A number of Senators here employ commercial travellers and a great many are identified with the commercial life of the country. I believe this amendment should appeal to their business sense. Commercial travellers have as high an idea as any body of citizens of their civic and national responsibility. Since the establishment of the Free State there was no body of men who more spontaneously and more promptly gave their allegiance to the Free State, and I think they should get some consideration from the Minister in this Bill. But commercial travellers do not wish to perform services of this kind, and I put it to the Minister that the reluctant juror, like any other worker who is reluctant, is generally inefficient. I would be glad if the Minister would see his way to accept this amendment.

Mr. O'HIGGINS

We had better get the proportions of this hardship, if it is a hardship. Under this Bill it is estimated by officials who are certainly competent to form an estimate that the individual juror in any area is not likely to be called upon for jury service more than once every three or three and a half years. Probably it might be even a little longer here in the Dublin area. That gives the measure of the hardship of which Senator MacKean complains. I did mention on the last occasion that this appeal for exemption has been pushed very insistently in the Northern area, an area in which the commercial traveller certainly plays an important part in the economy of that State, and that the application was turned down. I think part of the difficulty in arriving at any clear definition is as to who is a commercial traveller—the man who travels in connection with commerce. Senator MacKean himself attempted a definition in the Committee Stage, and he said that a commercial traveller was a man who went out into the country looking for money. That covered a great many things.

Mr. MacKEAN

I said that the definition of anything or anybody is the definition by recognised authorities. I said that the commercial travellers' organisation described the commercial traveller as a person who went into the country to get orders, collect money, and generally to look after the interests of his firm.

Mr. O'HIGGINS

Well, then in accordance with that definition an insurance agent would be a commercial traveller. He goes into the country looking for money and to promote to the best of his ability the interests of his employers and he clearly falls within the scope of the Senator's definition or attempt at definition. I am not sure that a rate collector who is in the employment of a county borough council could not slip in under that definition. He certainly goes looking for money and he would be covered by that portion of the definition. The fact is that if every organised class that has an association or some form of combination gets the idea of seeking exemption from jury service, whom will we have left?

Mrs. COSTELLO

Women.

Mr. O'HIGGINS

We may have, as Senator Mrs. Costello says, to fall back upon women. The commercial travellers are a class who make good intelligent jurors. They are capable of grasping and appreciating issues in cases arising out of business transactions and so on; they have an interest in upholding the sanctity of contracts, and so on. It is proposed to dispense them without any very clear idea of the numbers that would be covered or who would claim to be covered by the exemption. And really the claim is almost as difficult a matter as if it were a reality, because someone has to look into it, sift it out, and decide whether it is a valid claim or not. I think if the Seanad were to decide to exempt commercial travellers, a great many people would seek exemption under that head. It is true that Senator MacKean seeks to limit the exemption to persons whose business ordinarily demands an absence of five days in the week from their homes. But who is to decide that? He suggests in the hope of getting his amendment passed, that that would leave 70 per cent. of commercial travellers on the jury list. I am not as optimistic as that. I anticipate that if the amendment is passed, every commercial traveller, every man who can by any stretch of the imagination be termed a commercial traveller, would ask for exemption. Who is to decide how many days he is absent from home? What body are you going to set up to pronounce upon the validity of his claim?

Commercial travellers are not exempt in Northern Ireland and are not exempt in Great Britain. Those are two areas in which the commercial traveller is an important factor. But it has not been thought advisable in either area to exempt him from the burden of service which will fall upon every individual juror once every three and a half or four years. I have certain sympathy with Senator MacKean's case, but I put this suggestion to him. I put it that a man who is actually absent in the country on the day on which he might be required as a juror will, in fact, if that is established, be freed from any penalty for non-attendance; that it will always be considered an adequate excuse that the person was not available because he was in Cork or in Connaught on business connected with his employment. The onus will be on him to establish that. But once that is established, there could be no question of a fine for non-attendance. I think that the Senator knows that pleas of that kind have always met with very fair consideration. The proposal in the Bill is that there should be automatic fines and a subsequent remission on investigation. The investigation can be quite leisurely made, and inquiries can be made after the applicant sends in a written application for remission of the fine. A letter would be written into the appropriate official, the county registrar, and that letter will go before the judge in due course, and enquiries will be made through the ordinary channels, the police, and so on; and if the fact is established that this man was absent in the country the day he was required for jury service, there would be no question of imposing the penalty in that case, and it would be remitted.

I think that meets the case there is. The difficulty is the entire vagueness of the numbers that would be covered by the term. Quite a large number of people would claim to be commercial travellers and would claim to come within the four corners of the definition that the Senator suggested here on the last stage. A great body of people connected with the business life of the country would claim, and could claim, that they were commercial travellers, and the very fact that they claimed would put the onus on the administration either to accept their claim or to set up some body whose task it would be to investigate that claim. That is the difficulty I ask the Senator to see. It is probably these difficulties that I have pointed out which deterred the administration in Northern Ireland and Great Britain from entertaining this particular claim for exemption. It would mean an enormous mass of applicants, and these would have either to be accepted automatically or else some body should be set up to pronounce on them. That is not the task that one would like to take on nowadays, when the whole cry is to restrict administrative expenses, the pruning of officials, and so on.

If you accept in your Schedule this kind of exemption you must either accept instanter and off-hand all the large number of applications that will come in, or else set some person or body of persons to the task of investigating those claims—quite a formidable task. I ask the Senator not to ask us at this stage to be pioneers, or at least to allow us to wait until the claim has been accepted as an appealing one in some other area, and I have mentioned the two areas in which the commercial traveller is a more important factor than he is in our particular economy.

Mr. MacKEAN

The same sort of objections were raised when the railway companies were asked to give week-end tickets to commercial travellers, namely, that it would be impossible accurately to define a commercial traveller and know to whom those week-end tickets should be given. The railway companies are a highly organised concern, know their own business, and take every safeguard against fraud. They were quite willing to accept a letter from a firm guaranteeing that the person who made the claim was a traveller in their employment. Similarly, whoever would be drawing up the panel should regard a letter from a reputable person certifying an applicant for exemption to be a traveller in their employment as sufficient evidence that the person seeking exemption was a genuine commercial traveller. The Minister seems to have an extraordinary conception of what a commercial traveller is. I congratulate him and thank him that he did not, for the third time, make his joke about the elephant. It is because, perhaps, I am a commercial traveller that I think there is no body of men who stand out so distinctively as the commercial travellers. The Minister said that in the commercial hotels through the country they are readily known, because the hotels are regulated to suit them. That, I think, is a sure sign that somebody recognises them clearly as a definite body, and that certainly they are not the indescribable body of men the Minister wants to make out. The Minister says they will not be summoned on jury service oftener than once in three and a half years. That would equally apply to the people who are on the exemption list. On that list there are doctors, dentists, and various other classes of people none of whom would render jury service with half the inconvenience of the commercial traveller who may, for the purpose of serving on the jury, have to travel 100 miles perhaps to Dublin from Sligo or some other place, upsetting all his arrangements and dislocating his programme generally.

Mr. FARREN

In view of what the Minister has said with regard to this claim by commercial travellers for exemption I think the House ought not add any more to the list of exemptions. The Minister has distinctly stated that if the commercial traveller who is away from home on business gives sufficient evidence of that, nothing happens to him if he does not attend to serve on the jury, and for that reason I think no hardship would be inflicted on him. If the list of exemptions is to be extended I could put forward classes of people who would be more entitled to exemption than the commercial travellers. The engine-driver, for instance, and the railway guard who have to be on their trains to do the journey from Dublin to Cork or Belfast would be more entitled to exemption. Under the provisions of the Bill, as the Minister has stated, if they give sufficient evidence that they were engaged on their duties no penalty is inflicted on them.

Amendment put.

The Seanad divided: Tá, 17; Níl, 19.

Tá

• T. Westropp Bennett.
• William Barrington.
• James Dillon.
• Michael Duffy.
• Michael Fanning.
• Sir John Purser Griffith.
• Henry S. Guinness.
• P.J. Hooper.
• Cornelius Kennedy.
• Patrick W. Kenny.
• Thomas Linehan.
• Francis MacGuinness.
• James MacKean.
• William John Molloy.
• John T. O'Farrell.
• James J. Parkinson.
• Thomas Toal.

Níl

• John Bagwell.
• Sir Edward Coey Bigger.
• P.J. Brady.
• Samuel L. Brown, K.C.
• Mrs. Costello.
• The Dowager Countess of Desart.
• J.C. Dowdall.
• Sir Thomas Grattan Esmonde.
• Sir Nugent Everard.
• Thomas Foran.
• Mrs. Stopford Green.
• Arthur Jackson.
• Right Hon. Andrew Jameson.
• Sir John Keane.
• The Earl of Kerry.
• John MacLoughlin.
• Joseph O'Connor.
• Michael F. O'Hanlon.
• The Earl of Wicklow.

Amendment declared lost.

Amendment 15, by leave, withdrawn.

Sir JOHN GRIFFITH

I move:—

"First Schedule. To add at the end of the Schedule the words ‘Civil engineers and architects engaged in the active practice of their profession.'"

I have been asked by the Council of the Institution of Civil Engineers to bring forward this amendment, because the Bill withdraws a privilege enjoyed by civil engineers for many years. Exemption was granted to them more than 50 years ago, and it has been greatly appreciated by them and their employers. We appreciate the difficulty of the Government regarding persons describing themselves as civil engineers, or attaching the description, "civil engineers," to their names. At present, according to the list of the Institution, there are about 350 corporate members, and 200 of these are resident in the Free State.

Those at home are engaged as county surveyors, city or town surveyors, engineers to railways and tramways, engineers of waterworks, electrical and mechanical engineers, consulting engineers, and engineers in private practice. Very many of those engineers hold very responsible positions.

Their absence from their work will not be an advantage to the community or to their employers. The Institution of Civil Engineers of Ireland was founded in 1835 and received the Royal Charter in 1877. Its rules for admission of corporate members are stringent in regard to general scientific and technical education, and also practical experience. I sincerely trust the Minister will be able to see his way to grant us this request. It affects a comparatively small section of the community but, I submit, a very important one. When I was in actual connection with the Port and Docks Board they habitually applied for permission for me to be exempt, although I believe I was exempt under the general Act. I cannot help thinking that the Minister will see the force of this view. There is no doubt about those men being civil engineers, because they passed through the mill and are recognised by their professional brethren as such.

Mr. BARRINGTON

I support what the Senator has said, for several reasons. As Senator Brown pointed out, engineers have always been exempted. Someone said, I believe it was the Minister, that the exemption should be given in the interests of the public and not in the interests of the individual. I thought that was particularly so in the case of the engineers. Suppose some urgent work has to be done and the engineer is away for a fortnight on a jury and an accident occurs in consequence of his absence, is not that a serious matter, and is it not clear, in the interests of the public, that he should be exempted? In the next place, the number to be exempted is only over 300. The members are clearly defined and no question can arise as to whether they are engineers or not. We know that at present very serious floods have occurred in America, and that an area of country equal to about one-third of Ireland is under water. Supposing an engineer in charge of embankments is away several weeks at a time, is not that a serious consideration? Having regard to the small number involved and to the fact that they always had those privileges and that injury to the public might result from the absence of engineers, I think the Minister should consider the amendment favourably.

Mr. O'HIGGINS

Senators will agree with me that exemption from jury service ought not to be given haphazard or without the fullest consideration. If we get to the time when every block of people who join in an association push their claim sufficiently to get a motion down and secure their exemption, you will deplete your materials for jury panels very substantially. I do not object to amendments seeking exemption for particular classes, but I ask those, on whom it falls to consider claims of that kind, to consider them carefully and fully.

On this question of civil engineers, in the very valuable report of the Northern Ireland Committee which was set up to survey, in a comprehensive fashion, the question of juries, we have the following:—

"Civil Engineers:—We understand that any person can use the title of civil engineer as there is no statutory enactment restricting its use to the members or associate members——"

Mr. BARRINGTON

On a point of order, is the Minister correct in reading that, because here we propose to limit it strictly to the people who are members and who are defined as civil engineers?

Mr. O'HIGGINS

That is scarcely a point of order. I have referred to this Report quite frequently. It is very valuable, and we used it from time to time in the preparation of this Bill. I will deal with the Senator's point presently. I appreciate what Senator Sir John Griffith said, that here it is not proposed to give exemption to civil engineers merely, but to people possessed of a quite definite hall-mark in the way of qualifications.

"We understand that any person can use the title of civil engineer as there is no statutory enactment restricting its use to the members or associate members of the Institution of Civil Engineers of England or Ireland or graduates in engineering of any University in all the United Kingdom. Cases are by no means uncommon in which the title has been issued to persons anxious to avoid jury service. Furthermore, in principle, we see no reason why civil engineers, even when duly qualified, should not serve as jurors. There is nothing in the nature of their professional work to debar them from so doing, and we are of the opinion they would provide an excellent class of juror. It is quite an anomaly that they should be exempted from service whilst duly qualified architects are compelled to act."

That is the relevant extract from the Northern Report. The Committee felt that they saw nothing in the nature of the employment of those persons which demanded their exemption from jury service on grounds of public interest and we have agreed that the criterion should be public interest rather than personal inconvenience.

I am asked to envisage the position when the water main from Roundwood bursts and the engineer is absent on jury service. That, of course, would be a great calamity, but if we are to go into questions of that kind one can envisage certain minor disasters in which the absence of a plumber would be a great hardship. A pipe bursts in one bathroom and the house is rapidly flooding while the only plumber is absent on jury service. That would be quite a kindred situation too. I think we should simply ask ourselves if there is a sufficient case for exempting this block of persons because of public interest. Of course, 350 or 400 is not a very big reduction of the total panel, but it is some reduction, and if we keep on making small inroads of this kind we will eventually make a substantial subtraction from our list. If the Seanad passes this amendment, I will not take the line of asking the Dáil to reject it, while not guaranteeing that the Dáil will pass it. I ask that the Senator, applying the criterion of public interest, should put to himself the question of whether or not there is in fact a sufficient case for granting this exemption. Personally, I doubt if there is, and I think the kind of case sought to be established can be established with regard to other cases. The fact that it is not a very strong body numerically and all that is a factor which, of course, differentiates it from Senator MacKean's request which would involve some thousands of people. At any rate, I ask Senators to recognise that this burden of jury service is a serious matter, and that we should not exempt people, particularly those who would be very excellent material for jury service.

Mr. BARRINGTON

The Minister has alluded to this as granting an exemption. This is a case of taking away an exemption which has always existed.

Mr. O'HIGGINS

We are dealing with the position that we are either granting an exemption or withholding one.

Mr. JAMESON

I think Senator Sir John Griffith's amendment would appeal more to the House if he had been allowed to add the words at the end of the amendment "engaged in the active practice of their profession."

CATHAOIRLEACH

I suggested that he should insert those words.

Mr. JAMESON

I move that the words "engaged in the active practice of their profession" be added to the amendment. From Sir John Griffith's statement we learned that there are not more than 200 in the Free State. That is an appreciably small body of highly intelligent and trained men in an employment. If you take away the supervising engineer you might do a great deal of damage. The Minister talks about a plumber. The plumber might be very bad in regard to the house he was in, but he will not be anything like the engineer in a big shop where a great deal of men are employed. I think that those words ought to commend themselves to the Seanad. The Minister says that if we demand that one small exemption we may go on but I hope this is the end of the Jury Bill, and that we are not going to get an opportunity of asking for more exemptions. I do not see how any of us are going to get any further opportunity of proposing any other exemption.

Mr. O'HIGGINS

I would like to put a question to Senator Sir John Griffith. In Part I. you have this exemption: "Persons holding any public office and paid out of public moneys or holding office under a local authority and paid out of local rates." I wonder what proportion of the couple of hundred persons he mentions would, in fact, be exempt under that portion of Part I. of the Schedule.

Sir JOHN GRIFFITH

I should think nearly half.

Mr. O'HIGGINS

The person in charge of the water main from Roundwood is in that position.

Mr. GUINNESS

I support the amendment. In the past engineers have been exempted from jury service under the existing law and I am convinced that if they had not been exempted the companies in whose service those engineers were would have paid any fines that might have been necessary to retain their services. I know that for a fact.

Mr. BRADY

I hope the House will pass this amendment. Nobody will contest the view expressed by the Minister as to the undesirability of extending the area of exemptions. As he pointed out a large number of exemptions are in existence but those who are to be exempted by this amendment are members of a profession that has enjoyed exemption for some 50 years. The very point raised by the Minister as to the number of public officers already exempted makes it clear that if this amendment is passed but a very small body of people will be added to the list of exempted persons. I cannot help feeling that the Minister will not be very much disturbed if this amendment is accepted inasmuch as he frankly told us that he will not ask for its deletion when the Bill goes back to the Dáil.

Amendment put and declared carried.

CATHAOIRLEACH

The amendment of Senator Dowdall is purely formal and the Government has accepted it. It is to add at the end of the second part of the Schedule the words "Veterinary surgeons, resident dentists and pharmaceutical chemists duly registered and actually practising as such."

Mr. FARREN

I want to call attention to the second part of the Schedule with regard to clergymen in Holy Orders. Already clergymen in Holy Orders of all denominations and other persons who teach or preach in any religious congregation and do not follow any secular occupation were exempt under the ordinary law. I find now they are put into Part II of this Schedule which means that they are entitled to serve on making application. I suggest that their place is in the first part of the Schedule as intended when the Bill passed the Dáil. I think it is undesirable that clergymen of any denomination should be allowed to serve on juries and for that reason I hope the Minister will agree to put clergymen back in the first part of the Schedule.

Mr. O'HIGGINS

I have no very strong feeling on the matter, and I would be quite prepared to do what the Senator asks if the Senate generally feels it is desirable. I do not think we should take the lines of rendering jury service unattainable for clergymen. I would prefer to leave it as a matter of internal arrangement to each denomination as to whether its members would seek to serve or not. I doubt if leaving them in Part II. of the Schedule would result in having clergymen in the jury boxes. If there is a feeling of taking action in the matter, I am open for accepting the suggestion that they be put in Part I. of the Schedule instead of Part II.

Mr. GUINNESS

Are clergymen exempt now or not?

Mr. O'HIGGINS

They were exempt. But this suggestion was to put them into Part II., which would leave it open to individuals to apply and to undertake the duty of serving on juries. Senator Farren suggests that they should be left in Part I. of the Schedule. If there is any general view in favour of that, I am open to accept it.

Mr. DOUGLAS

I think that is the right thing to do, but I would ask the Minister are the words "do not follow any secular occupation" necessary. There are a few denominations where the persons who act as clergymen do so without any pay and earn their livelihood by other means. It seems to me the people in that capacity are more entitled to be exempt than persons who give their whole time to the duty of clergymen.

Mr. O'HIGGINS

I could not say what the case is for these words. It may not be a serious case. I imagine that these words are not original and that they are probably taken from some existing Act.

CATHAOIRLEACH

There are a number of persons teaching and preaching who follow other occupations. There is no doubt about that.

Mr. O'HIGGINS

Yes. There are such persons. I think Senator Douglas's suggestion is that the words might be deleted.

Mr. DOUGLAS

There are small denominations—I belong to one of them myself—where there are no paid clergymen, and I think such persons who have to earn their own livelihood are more entitled to exemption than other persons of that class.

CATHAOIRLEACH

If you leave out these words you would then embrace every person who teaches in a Sunday school.

Mr. JAMESON

Are there not denominations where the preachers and teachers are allowed to make their living in different ways? I think these words are really necessary.

Mr. DOUGLAS

I do not press the point. The word "teacher" is very wide and would embrace large numbers.

CATHAOIRLEACH

I understand the Minister suggests that the three classes, veterinary surgeons, registered dentists, and pharmaceutical chemists, duly registered, should be included in one class.

Mr. O'HIGGINS

It is only a question whether it would be better to mention each as an individual class and put in the words after each "actually practising as such."

Is it decided to transfer clergymen from Part II. to Part I. of the Schedule?

Question—"That paragraph 3, ‘Clergymen in Holy Orders and other persons,' etc., of Part II. of the Schedule be transferred to Part I."— put and agreed to.

Sir EDWARD BIGGER

I wish to call attention to the words in the fourth paragraph of Part II. of the Schedule, "licensed medical practitioners." Medical men in the universities are not given licences, so the term is wrong as a description. It should be registered medical practitioners. All the universities give degrees, M.D. or M.B., but they are not licences at all; it is a question of registration.

CATHAOIRLEACH

Is it not quite a common thing to confer a licence to practise as distinguished from a degree?

Sir EDWARD BIGGER

Yes, in the College of Physicians and Surgeons, but not in the universities.

CATHAOIRLEACH

It is in the University of Dublin. I conferred them myself.

Sir EDWARD BIGGER

It is not commonly done.

CATHAOIRLEACH

I think it is. I hardly recollect a session opening in which I did not confer them.

Sir EDWARD BIGGER

At the same time there are other universities that do not give them.

CATHAOIRLEACH

But your amendment would be excluding these men.

Sir EDWARD BIGGER

No. My amendment would refer to registered practitioners. It is intended for the purpose of registration.

Mr. O'HIGGINS

I think you would not have anyone legitimately practising medicine who is not registered and I think the term registered is better.

CATHAOIRLEACH

Very well, the amendment can be made at the Final Stage.

Report Stage concluded.