DEPARTMENT OF HOME AFFA - Decree as to purported exercise of public functions ¹

1. See Appendix 4.


presented a Decree as to Purported Exercise of Public Functions (Appendix¹). He said the Decree arose out of some discussions in the Ministry with regard to the action of the judges of the English courts before whom their men were being tried for carrying arms and other alleged offences against the enemy invader and the action of the enemy court in refusing to uphold what was really their own constitution, in allowing the military to destroy the property of what they called British subjects, the property of Irish citizens, without compensation. These judges and others of the English courts, High Court and County Court judges also offended against the laws of the State by granting huge sums for compensation to policemen, soldiers and their relatives and by trying to cripple public bodies.

These enemy officials had allied themselves with the military in trying to intimidate the country into surrender. That had been tolerated long enough and it was now proposed to give the Ministry power to deal with them in any way they thought fit by regulation by "fine, imprisonment or otherwise" which would include the death penalty if same was found necessary.

Of course the power the Dáil gave the Cabinet in the Provisional Decrees Order two days ago was sufficient to permit of regulations being made to deal with these people, but it would have to be brought up again at a subsequent meeting of the Dáil for ratification and it was better such legislation should be the act of the Dáil itself.

The Decree was framed so that it would not interfere with the Truce. It would be a war measure to come into force after the Truce. He mentioned that while they were likely to aim directly at judges and the like the Ministry might think it necessary to deal with all kinds of English civil servants in the country.

seconded the adoption of the motion. He said such an enactment was absolutely essential if they were to get administration into their own hands. The enemy courts had taken action to prevent Republican courts acting. For some time this suppression of the Dáil courts was not very successful but with the incursion of the huge enemy forces into the country steps should be taken to prevent people resorting to enemy courts again. He thought it was the proper course to adopt and one that met with the general approval of the Dáil. The courts were an essential branch of administration and this Decree would make them more successful.

submitted three objections. First he pointed out if it was proposed to inflict the death penalty under this Decree the Minister owed it to this House and to the citizens to say so in plain terms. He submitted it would be a monstrous thing if the Chamber let death sentence pass under the words "Fine, imprisonment or otherwise". He strongly urged that it should be said in plain language. The second point was that barristers did not appear to be included in the list of persons named. He suggested they should be included. His third objection was that the Dáil would have no control over the regulations made and he suggested there would be added "such regulation as the Minister may make shall be submitted to the next meeting of the Dáil or the Grand Committee".

thought the powers asked for were not at all too severe. They all knew what it meant for them if the enemy captured any Republican court functioning during the war and he considered no Decree could be too strong. If they were going to fight they would have to take off their gloves to it. Most drastic powers should be put into the hands of the Minister for Home Affairs.

asked if any provision was made for a case of monies in America or other foreign countries which would require a British court order as no other order would be accepted.

said if he understood the Deputy for South Dublin (G. Duffy) rightly he did not object to the death penalty as such. He would not like to pass this Decree unless he got power to inflict the death penalty. Of course if the judges continued to be responsible for the execution of men like Allen without legislation of this kind he did not believe it would be possible to deal with these judges. If necessary he would move an amendment to make it clear to include the death penalty.

said if the death penalty was being imposed this Chamber should know there was sufficient control to secure for men being tried for their lives a fair and legal trial.

said the regulations, which would be issued by the Ministry, would provide for the trial. He had no objection to including barristers and solicitors in the list of the enemy service when the time arrived.

He was sorry they had no control over the position of persons wanting to take out probate or orders relating to money in foreign countries. Their court decrees would not be recognised in such cases, but provision would be made to issue permits to enter the enemy courts for such matters.

Solicitors and barristers were not in the pay of the enemy government and he would not like to class them with the paid officials, but under the other Decree they had there would be nothing to prevent a regulation from being issued when required.

moved as an amendment that the words "or otherwise" be left out. He objected to the death penalty being enforced unless the Decree stated it clearly and also provided that any sentence of death should not be carried out without reference to some civil authority which would have power to withhold or give sanction for such penalty.

pointed out the Decree meant a complete prohibition of the use of enemy courts. Many applications were sent to his Department by public bodies to bring cases in the enemy courts which could not be dealt with in Republican Courts such as hostile ratepayers who refused to pay rates, tenants of cottages, etc. Then they had a class of rowdy inmates in the S. Dublin Union who had always up to this to be dealt with in the English police courts. He did not think it possible to deal with such cases under war conditions.

thought too much stress could not be laid on the tremendous powers sought under this Decree. Every safeguard should be taken lest by any chance they should descend to what had been done by the enemy.

said the Decree would not be much good if it did not include solicitors as it was this class urged their clients to go into the enemy courts. He was in favour of the inclusion of the death sentence in the penalties. They should remember they had no jails and the more drastic it was the more effective it would be. They were met by very drastic penalties on the other side. This Decree would have no effect if the most drastic powers were not given to the Minister for Home Affairs.

supported the view of the member for South Dublin (Gavan Duffy). If the Minister could not set up some civil tribunal to stand between the subject and these courts he would vote for the Decree.

also agreed with the view put forward by the member for South Dublin. He suggested a death sentence should not be carried out till ratified by a committee of the Cabinet. Any drastic powers given to the Minister for Home Affairs should be [as] drastically safeguarded as they could make them.

explained that the regulations setting up the courts would have to be laid down by the Cabinet. If it was the wish of the Dáil, he would have no objection to a provision that the death penalty should be ratified and confirmed by the Cabinet.

asked were they to understand the Decree would not come into force during the Truce.

asked would due notice be given to such offenders that their actions came under such a tremendous Decree.

thought the whole question was not as clearly appreciated as it might be. They were in a state of war, and the enemy was trying to prevent their functioning by taking over the civil administration as far as he could. They would have to proceed in this matter as the American colonists proceeded in their time. The latter had to adopt a most drastic system against the loyalists to prevent them from helping England. He agreed with every word said about safeguards but the point was what were they to do if they were not going to be futile. If they approached this matter in a half hearted way they would bring about more suffering than by more drastic action.

It was the intention of the Ministry if the war went on to root out every enemy Department of civil administration in the country. It was the Minister of Defence said they were striving with their weakest arm to defeat the enemy's strongest arm. They should try with their strongest to defeat his weakest. If they were going to succeed in this effort to establish their Government they would have to be firm and get a system which would prevent the loyalists from giving aid to the enemy. How were they to do that if the British courts and civil officials were allowed to carry on. They should definitely proscribe those courts and activities in a public order forbidding their functioning and then they would do so at their peril. They could not wage war with their hands tied behind their backs. Serious circumstances need serious and determined action. If the war went on the Cabinet was going to issue orders forbidding enemy civil functions step by step and they would declare them enemies and traitors. He agreed there was a necessity for safeguarding the lives of everyone resident in the country but they could not be futile. Any safeguard that could be set up in reason he was willing to adopt it. He did not think it was fair to have sentences referred to the Cabinet for consideration. They could set up an appeal tribunal.

said if there was a right of appeal to a tribunal sitting in Dublin he would withdraw his objection.

said he would strongly support there should be such an appeal. He was quite willing it should be provided for.

There was another point and that was the difficulty of apprehending offenders and bringing them to trial and it might ultimately be necessary for them to ask for more drastic powers still.

thought full powers should be granted now as it might not be possible to have such a full meeting again for a long time. Under the conditions of a new war there would be far less opportunity of arresting those people.

supported S. Etchingham's views. He knew comrades of his in their graves today over scrupulousness about trials.

asked did the Minister intend to include the highest officials in the enemy service in this country.

replied the Decree went from top to bottom.

instanced the case of the judge who tried Allen's case. What happened was the judge was asked by them to function, so that if they charged him under this Decree it would be dealing with him because he refused to function in a certain way. He would have a very good defence. If the Bill was for the purpose of dealing with the judges who did all the somersaults recently he thought it should be redrafted in some respects.

thought they were basing all their remarks on a wrong conception of the situation as it existed now and as it would exist after the termination of the Truce. He said they should look at it from the stand point that the English government here was an usurpation and that every official whether a member of the armed or unarmed forces had no authority for his position. Any official who was acting for the English government whom they did not exempt was guilty of treason to the Irish side and that should be the basis of anything they did with regard to any of those officials. It was not a question of preventing those officials from functioning, but a question of not allowing the British government to carry on any functions at all in this state.

If hostilities were resumed he believed they would be on a much more definitely military scale than before the Truce and that they would be forced to have a standing army. Under such circumstances he thought the English government would not allow any civil functioning to go on save any useful to themselves. It would be to the Republic's interest to stop all these people, declare a certain thing treason with a penalty of death and then those English officials could have no grievance. He would rather see a general thing drafted that would give the Cabinet those powers and the details worked out by the orders afterwards provided they had an understanding as to the general principle of the thing.

agreed with the Minister for Finance as to the condition if war was resumed; in which case it would devolve on the Ministry appointed today to act as a committee of public safety. And it would be that Cabinet's duty and responsibility to issue Decrees from time to time declaring such a thing treason. A civil enemy of this Government was entitled to be treated as a civil enemy and not as a military one, and if the basis of this Decree was that civil enemies were to be treated as military ones without appeal to the civil tribunal he must oppose that portion of it.

assured the Dáil that every point of view expressed here would find expression in the Cabinet. If the war was resumed it was going to be a fight of life and death and the Minister for Home Affairs seeing the general powers already conferred on the Ministry would withdraw the Decree.

pointed out that anything that was done under the Provisional Orders Decree had to come up for ratification at the next meeting of the Dáil. He thought the Dáil as a body ought here and now vest the Ministry with power to destroy by every means that the Ministry could think of not alone the lives of the individuals but the machinery of the enemy government.

said a matter of this sort was so serious it should be a government motion. He differed from the Minister of Home Affairs in the point that he would prefer to commit only the Ministry first and not the Dáil as a whole, and they could do this under the powers already given them. Any action taken could be ratified afterwards by the House or the Grand Committee and he was therefore asking the Minister for Home Affairs to be content with the powers of the Provisional Orders Decree and he would ask him to withdraw the Decree. It was a question of very wide scope and would have to be dealt with by the Cabinet as a whole.

proposed the Dáil accept the President's proposal.


Decree withdrawn.