THE PRESIDENT'S MOTION. - CLAUSE 3

(3) And whereas the Government recognising the force of such representations has sanctioned the doing by the Army Authorities of all or any of the following matters and things.
(a) The setting up of Military Courts or Committees for the enquiring into charges against persons in respect of any of the offences hereinafter mentioned provided however that every such Military Court or Committee shall include as a member thereof at least one person nominated by the Minister of Defence and certified by the Law Officer to be a person of legal knowledge and experience.
(b) The enquiry by such Military Courts or Committees into the cases of persons charged with any of the offences following that is to say:—
(I.) Taking part in or aiding or abetting any attack upon or using force against the National Forces.
(II.) Looting, arson, destruction, seizure, unlawful possession or removal of or damage to any public or private property.
(III.) Having possession without proper authority of any bomb or article in the nature of a, bomb or any dynamite, gelignite or other explosive substance or any revolver, rifle, gun or other firearm or lethal weapon or any ammunition for such firearm.
(IV) The breach of any general order or regulation made by the Army Authorities.
and the infliction by such Military Courts or Committees of the punishment of death or of penal servitude for any period or of imprisonment for any period or of a fine of any amount either with or without imprisonment on any person found guilty by such Court or Committee of any of the offences aforesaid.
(c) The removal by Army Authorities of all or any persons taken prisoner, arrested or detained by the National Forces to any place or places whether within or without the area of jurisdiction of the Government and the detention or imprisonment of any such persons in any place or places within or without the area aforesaid.
(d) The regulation and control of the sale, possession, transfer of and dealing in revolvers, rifles, guns and other firearms.

I move the adoption of No. 3 down to (d). With regard to what I said yesterday about these Army regulations, or orders, being laid on the Table of the Dáil, an amendment will be moved at the end of Clause 4 which will provide for that. It will also provide for the maximum penalty which will attach to any such general order or regulation.

There is an amendment on the paper in your name.

Yes, but it is not so complete. It reads: "Provided, however, that, as regards such general order or regulation as aforesaid, the same shall be laid on the Table of this Dáil, and shall take effect on the expiration of four sitting days thereafter, unless this Dáil shall have previously passed a resolution disallowing same."

It is to be presumed the words "Army Authorities" will now read "Army Council"?

The first paragraph is to read: "The doing by the Army Council," and the last paragraph, "The removal under the authority of the Army Council." Perhaps we would take the motion as it actually is, with the general assumption, in accordance with the amendment already passed, that the words "Army Authorities" will now read "Army Council," and we will take amendments as they arise.

Amendment (c)—“In the third paragraph, at the end of Sub-section (a) to read: `One person of legal knowledge and experience appointed by the Minister for Defence,' instead of the words that now conclude the sub-section.”

Before that comes forward, there is an earlier matter I spoke to you about with regard to Paragraph 3, which you suggested might be met if I were to hand in, in writing, an amendment. I will do so, but I am reluctant to do it if it is going to be opposed, because on a matter of this kind, where I am in such entire agreement with the Government, I do not care to be proposing an amendment as if opposition were there, when there is really no opposition at all. In this Clause 3, as it reads, it states that the Government has done—the Ministry, that is to say— has done such a thing. Clause 4 states this Body, then, is asked to come in, and —to use an expression which was used yesterday—confirm as by way of rubber stamp something it could not very well avert. I am rather anxious, if the Ministry will consider the matter, to introduce, right here, in this paragraph, responsibility of the Dáil for undertaking such action, by setting forth the reason and cause of such order in the form of words: "Now, therefore, this Dáil, recognising the force of such representation, and the perilous state of the country, and recognising further that, in the absence of Civil Courts, extraordinary courts and processes are rendered necessary to deal with persons conspiring to set aside and defy the authority of the Irish people, sanctions the doing by the Minister for Defence of all or any of the following acts." I would move that, if I may. I have it written out here. I do not care to press it if the Government will oppose it and keep to the form they have here. I think the form I am suggesting puts them in a stronger and better position, inasmuch as it enables this Dáil at once to assume authority of its own initiative, and not because some Committee has gone ahead and done work which the Dáil is merely to confirm after it has been done.

The amendment will be proposed, substituting "Army Council" for "Minister for Defence."

This amendment cannot be accepted. The fact is that the Ministry actually did sanction these things some time ago, although not yet acted upon, and there is no valid objection, and can be no valid objection to the recital of that fact. It is a very proper thing for the Government, in the first instance, to sanction this emergency method, and it is preferable that it should be done as an executive and administrative act approved by Parliament rather than an act of an administrative or executive kind directed by Parliament. There is another objection to the amendment as it stands, which is that there is not a complete absence of civil courts. The fact is that, owing to the terrorism and a variety of things, civil courts are not, and would not, for many purposes be effective, but they are there.

In that case I will not press my amendment. I only say the effect of my amendment would be that this Dáil would be made primarily responsible for this very grave act that is about to be undertaken, and the effect of the Minister's statement is that the Dáil is only secondarily responsible, because the act has been already undertaken apart from its responsibility. I think that is a very unfortunate statement to be made in this Dáil.

The amendment is, by leave, withdrawn.

I beg to move as an amendment. At the end of paragraph (a) Clause 3 (Military Court or Committee shall include as a member) to add the words “who shall be President of the Court.” The intention is to provide that the person of legal experience who shall be appointed to each Court shall preside over the Court. I think nothing further need be said in favour of that, and I beg to move it.

Mr. O'HIGGINS:

There is very little objection to what is the object of this amendment; in fact, this legal gentleman will be the pivot man of the Tribunal, but it must be remembered that this resolution entrusts a certain task to the Army, and, having done that, to make this gentleman, who should act rather as an adviser to the Court and one who is to help them and to weigh up accurately the value of the evidence and so on—to make him President is almost taking back again from the Army what you had entrusted to them. It seems to us that, while a military officer should be President of the Court, he would understand that his professional assistant was more skilled in the appreciation of evidence and so on than he would be by the nature of his particular occupation, and he would rely a good deal upon the professional assistance that would be supplied. I think it is objectionable to make a lawyer President of the Court.

I think the Minister does not appreciate that what he said now is not quite consistent with the document as drafted. The draft proposed by the Government says:—"A legal man is to be a member of the Court," not by any means their adviser, or a man in the position of the Judge Advocate. He is to be a legal man nominated by the Minister and certified by the Law Officer to be a person of legal knowledge and experience, but he is to be a member of the Court and not its legal adviser. I think there is every reason for the proposal of Deputy Johnson.

I oppose the proposal that this legal adviser should be the President of the Court. There is no reason why the Army Council and the Army Authorities should not carry on this Court. All that is necessary is that some person with full legal knowledge capable of weighing properly the evidence should advise the Court. That is all that is required. If you accept this amendment, you are giving authority with one hand, and withdrawing it with the other. That will not do. You must have it one way or the other. Personally speaking, I have no respect whatever for any legal adviser, because all legal advisers, as I know them, could be compared with some of the members of this Dáil in that they will play-act with words and play with phrases and start every sort of devilment you could possibly imagine. But if you come down to hard realities there is not one drachm of common sense in all their legal knowledge, because every bit of the legal knowledge they have is seen through a British glass. I do not care the weight of my finger for them. Make the President of the Court an Army Officer who thoroughly understands and thoroughly appreciates the position, and even though he is in arms against some other Irishman, or if some other Irishman is in arms against him, yet at the same time he can appreciate that position, and he can be just and he can have full sympathy and appreciation of the other man's position. That is the man to make President of the Court, and do not put the fellow who can advise him in the position. The President of the Court can use his own discretion.

The proposals themselves promise that there shall be more than one member of the Court; the President is merely the President of the Court; and that that Court shall include not more than one person —as it must—who is certified by the Law Officer to be a person of legal knowledge and experience. Presumably there is some intention in that, and presumably also that person with legal knowledge will desire to have a say in the judgment, and not merely say "ditto" to the President, whoever he may be. And I am tempted to say that probable Presidents of Courts have declared in public that if they had caught a certain individual, that if they had been assured that that certain individual was guilty of a certain act, they would there and then have shot him dead. That is the statement of the Deputy who has just sat down, a man who has undoubtedly done his utmost, so far as public speech is concerned—and that is the only criterion that I have—to ensure that the military forces shall be the servants of the civil authority. I give him credit to the utmost that he, more than any other man, so far as I know, in the country, has laid it down emphatically time after time that the military forces should be the servants of the civil authority.

But even he, not having that legal knowledge and legal training, allowed himself to say, in the cool of a court, that if he had known that a particular individual had been guilty of a particular act, he would have shot him there and then. That is one of the things we want to try to guard against.

I would shoot him now.

We want to try to guard against that; and I want to protest against a suggestion that has been made that it is out of our regard for the Irregulars and their acts. It is out of regard for the good name of the Army itself, and for the good name of the nation, and to protect the Army from the risks and the dangers to its good name that will follow the adoption of this. I would say, further, that the danger arises, not to the participants in the warfare, but to the people who may be assumed, or presumed, or suspected of being participators in the warfare, and who may eventually be found to be perfectly innocent. I maintain, however little respect members of the Ministerial benches may have for the lawyers, that there is something in legal training, and there is something to be said for legal training, and in a Court of this kind it is an advantage, and I am sure it will be a protection to the Army and to the good name of the Army to have the President of that Court a man of legal training.

Will the Deputy mention on what particular occasion I made that reference?

The enquiry into the death of General Adamson.

Quite correct. If I was sure of the man who murdered General Adamson, and if I met him on the street, I would shoot him. The reason I would shoot him then was because there was no law but the law that was vested in me as the Competent Authority of the area. Pass the law that is now asked for, and there would be no necessity for me to shoot him, because there would be a legal method of dealing with that individual.

Surely that is not sufficient reason why the President of this Court would not be a man of legal experience. One of the primary reasons why we oppose these regulations is because we object to any Court having the powers specified here, and because of that Court not being in the proper sense of the word a judicial Court. Deputy Sean McKeon has said some things just now which, to my mind, seem to make it more necessary that the more judicial you can make the Court the better. It may be, if we follow something the President said yesterday afternoon, that the Senior Officer, who may be acting as President of the Court, would be trying for life some of the people to-day who were fighting against him last night. It is not, I think, in human nature that that officer could preside over that Court and, being the Senior Officer, could look on that case and weigh the evidence with that impartiality and that spirit of judicial fairness which would be got from someone else. There is no Army that I know of in any part of the world that does not purposely get supplied from the Civil Authorities when Military Courts are likely to be called into use. There is no Army that does not get from the Civil Authorities a sufficient supply of legal gentlemen, trained in all these things, in order that there may not be the least doubt, either in the mind of the prisoner before the Court or in the minds of the people, that that prisoner is going to get the strictest justice. The utmost effort should be made to give persons coming before those Courts justice. Now, Deputy McKeon and others who have gone through British Courts-martial know that, whatever may have happened under the Black and Tan regime or under the later stages of Greenwood's regime, where Military Courts were held there has not been a single Irish prisoner who would not have preferred the British system of Military Courts, because at those Courts they took care to provide all the legal help that could be got. In my own experience the President was often chosen because of his legal knowledge. We protested again and again that these were not courts in the true sense of the word, and that they were merely committees with the power to execute, and that is what you are setting up now—committees with power of execution and deportation. I support the amendment as strongly as I can. Although we differ from them in many things, the more legal men you have, the better for the Army, and the better for the men into whose hands you are putting this great responsibility over life and death.

The only man sympathetic to me was an officer, and not the legal adviser. The legal adviser there was afraid of his life to open his mouth.

It is not a question of sympathy, but of justice.

As for justice the fellow who offered all the justice was an officer.

It is the intention to get from the civil side men with legal training, the best that can be got, to help us in this work. For the purpose of their duties with us and for the period of their service, they will be vested with military rank. The particular type of rank is not yet decided, whether it will be a senior or a junior rank, and the chance of an officer sitting on any Court Martial being President of the Court will depend upon the rank of the other officers associated with him.

Will the Minister for Defence allow me to point out to him one thing which I think he has overlooked in the British Court Martial system which, personally, I consider to be an admirable one once you leave out the political element; you have it expressly provided that every Court Martial sentence, and all Court Martial proceedings are to be sent to the Judge Advocate General for review, so there is a definite check on mistakes. Here we have not got that check, and for that reason the motion proposed by Deputy Johnson has an added importance.

I do not think, at the moment, it is apparent what kind of check you have. There is no reason why it could not come before the Judge Advocate General or any similar person who exists in that capacity, and the intention is that sentences in all these cases will come at any rate to some headquarters for confirmation.

I asked the Minister yesterday whether there would be a Judge Advocate General. I may have misunderstood him, but I thought he said not.

If there is I am perfectly satisfied, but that is not expressed.

We are dealing here with the powers we are going to get, and then we will deal with the regulations under which we will put these powers into action.

I suppose those courts will be open to the public or the Press?

It is not our intention that these Courts will be open either to the Press or the public. The person charged will have the benefit of legal assistance to whatever reasonable extent is possible, and will have power to examine witnesses.

The Amendment, "To add at the end of Section (a) `who will act as President of the Court,”' was put and lost.

I interrupted Deputy Figgis, unwittingly, when his amendment was reached. May I ask permission to have it moved?

I will not give permission. People who put amendments on the paper should be ready to move them when called upon, and neither the President nor anyone else should interrupt them.

Quite content, sir.

I move Amendment (3). I said yesterday I was in sympathy with the motion before the Dáil, on the assumption that this important amendment or the spirit of it was accepted. I was in sympathy, shortly, because I felt that the nearer you get in this business to the pure military spirit the nearer you will get to justice. In every war the bitterness comes not from the military, but from the civilians.

You know very little about war when you say that.

It is essential, particularly when there is no definite system of defined military law—it is essential that these general principles under which the military are empowered to act should be fairly laid down. I ask the members to realise that in this motion, as distinct from the later motion on the paper dealing with the question of prisoners of war, I am distinctly not raising the question of status, as to which I know there is difference of opinion. I am not asking you to say that the Irregulars are legitimately taking the action they are taking. I am not even asking you to say that they should be treated as belligerents. Those are separate questions. The immediate question now is, can we have a definite basic principle upon which those rules shall go; and my suggestion to the Diál is that there can be no more satisfactory basic principle for drastic action such as is proposed—no more satisfactory principle than that which has international recognition as its basis. I can deal with this matter very shortly by referring the Dáil to two or three passages from conventions and regulations mentioned. The amendment reads: "Provided that no punishment (as mentioned in the Clause) shall be inflicted otherwise than in pursuance of an Ordinance by the Commander-in-Chief based upon the principles laid down by the Hague Convention of 1907 `concerning the laws and customs of war on land' and the Regulations annexed thereto, such Ordinance to be made and promulgated for the information of all concerned as soon as possible." It is based upon this bedrock principle that law, military law or any other law, must be certain and must be public. That is why I refer you to the promulgation at the end. Now, the Powers in 1907 came to a Convention in which they declared that the contracting Powers shall issue instructions to their armed land forces, which shall be in conformity with the Regulations respecting the law and custom of war on land, and the Powers in coming to these provisions or resolutions, after several clauses say:—"According to the views of the High Contracting Parties, these provisions, the drafting of which has been inspired by the desire to diminish the evils of war, so far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations, and in their relations with the inhabitants. It has not, however, been found possible at present to concert stipulations covering all the circumstances which arise in practice. On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in default of written agreements, be left to the arbitrary opinion of military commanders. Until a more complete code of the laws of war can be drawn up the High Contracting Parties deem it expedient to declare in cases not covered by the rules adopted by them, the inhabitants and the belligerents remain under the protection and governance of the principles of the law of nations derived from the usages established among civilised peoples, from the laws of humanity, and from the dictates of public conscience." Now, in my amendment, I use the words "based upon" to meet the case which will be obvious to all the members of the Dáil, that these regulations were intended, primarily, not for civil war. Nevertheless, the basic principles of these regulations are principles of universal application, and so much of them as is inapplicable one would not expect the Minister for Defence to apply. Therefore, I urge in the resolution that the order should be based upon the principles enunciated here. I need say very little more about that, except to quote you another passage or two. I want to impress upon the Dáil the desirability of treating the men as soldiers, and to let them know they are going to be so treated, in order that this measure may not be regarded as the Propagandist will seek to have it regarded, as a signal for a vendetta. We do not want that. Whether you consider this is war or not, I do. The judges did, the other day. Whatever you call it, there are some general rules that ought to be applied. Tell the people on the other side that you are going to base your action on these rules. Now, there are four distinct sorts of offenders recognised in these cases—or four distinct kinds of offences, and I should say these are:—(1) Violations of the recognised rules of warfare by members of armed forces, (2) illegitimate hostilities in arms committed by individuals who are not members of the armed forces, (3) espionage and war treason, (4) marauding. These things, mind you, cut both ways. There are very severe provisions here, and if the Irregulars are not observing the laws of war—certainly things have occurred which no one can defend—I suggest to the Minister for Defence, and I hope he will be with me in this, that the very fact of treating these men according to the rules of war will have its reaction upon any of them who break those rules themselves and it will tend to diminish the infraction of those rules of war of which we have been told in the Press. There are, I say, things that cut both ways—things such as making use of poisoned and otherwise forbidden arms and ammunition, killing of the wounded, refusal of quarter, treacherous request of quarter, maltreatment of dead bodies in the field, ill-treatment of prisoners of war, breaking of parole of prisoners of war, firing on undefended localities, abuse of the flag of truce, firing on the flags of truce, abuse of the Red Cross and badge, and other violations of the Geneva Convention, use of civilian clothing by troops to conceal their military character during battle, bombardment of hospitals and other privileged buildings, poisoning of wells and streams, pillage and purposeless destruction, ill-treatment of inhabitants in occupied territory. It is forbidden to declare that no quarter will be given, and the use of dum-dum bullets is forbidden. At all events, the short argument for some such principles being adopted is that it has behind it the experience of the Nations. There are things in it which are inapplicable in civil war, where men on one side are not uniformed at all. But, taking it all round, it establishes principles, and if we are told those principles will be the basis of the Ordinances of the Commander-in-Chief, we shall know that in our civil war here we are applying a code which has the sanction of international usage. I think that would be valuable to the cause which we are defending.

What about ambushes without any warning?

I beg to second the motion.

Regarding these Ordinances, they include measures for dealing with attacks upon the National forces, looting, arson, destruction or damage to public or private property. Now, we hear great speeches about humanity, and so on. Those are the offences, and the penalties attaching to them are down in the next paragraph. We have all heard of The Hague. Some of us do not know what went on at The Hague, or what was said at The Hague. I do. I heard of it. I am after hearing of it now. The Deputy, I think, did not go to any great pains to let us know what all these high contracting parties did. We know they pledged themselves to great things and broke their pledges. These are our regulations here, and if they are objected to let us know in what particular they object to them, and if there is anything wrong, put in something that we have not put in. That is, I think, the business of the Dáil.

The Minister of Defence has the whole thing in the Manual of Military Law.

I support Deputy Gavan Duffy's suggestion, and in supporting it I want to say a word or two about what the President said now. The President said if there is not enough—or if the right things are not in the regulations, then let the Dáil put them in. There is no use at all in trying to alter that resolution, because anything that is intended to make this thing look even decent—not alone to be decent, but to look decent—is not to be put in, is not going to be put in by the Ministry and the Ministry's supporters in this Dáil. Certainly, I have definitely come to the conclusion that there is not the least use at all in attempting to amend these things—not the least. There is talk about humanitarianism, talk about The Hague, and a whole lot of things, and the putting into practice and the setting up of these Courts is going to be a test not only of the humanity of the people, but a test whether, even in this age, there is any civilisation left.

The suggestion is nothing short of a monstrous one that the Ministry is using any means whatsoever to prevent any Deputy here from voting freely. If there be any means whatsoever—any undue influence on any man— brought to bear on any Deputy here not to vote freely on this or any other question, then the sooner it is stated here the better. We have heard over and over again that those who vote in support of this or that proposal brought forward by the Ministry vote unfreely, vote as if under some sort of compulsion, vote as if they were compelled to be part of some machine. These suggestions come to us from what I do not hesitate to describe as the most efficiently regimented party in this Dáil. (Hear, hear.) Now, sir, I merely make that statement in order to clear the air or with regard to the fact and this particular amendment before us. And having made that statement, I go further and say that I trust every single Deputy here present will not vote en bloc, but give attention to this thing, and vote for or against it as the merits are brought before them. The seconder of the amendment seconded it apparently for no other purpose than to discharge that attack, because he himself——

On a point of explanation, I do not second the amendment.

The Deputy supported it.

I supported it.

He supported it apparently for no other purpose than to discharge that attack, because, to judge from what he said, he knew absolutely nothing of what the principles of The Hague Convention provided. Perhaps he did; but if he did, it is a pity he did not give us the facts instead of imaginary fictions.

A Chinn Comhairle, I did not, as a matter of fact, say that the Ministry or anybody else was bringing any particular kind of undue pressure on its supporter, but that Members supporting them, and I will remind the Minister for Education that yesterday afternoon the Minister for Home Affairs asked Deputies, as he has asked them on several occasions, each of them to weigh carefully when about to vote on this, to consider the thing, to treat the thing as if the whole matter depended on his vote alone. Now, he did that when we were discussing the Constitution. The Ministry have been pretty well doing that all along since we came in here. We are quite agreed on that, and we heard him all the time on that. But before we did we wanted the Teachtai to weigh these things in their own minds. The Minister for Foreign Affairs yesterday pooh-poohed the idea of humanitarianism. The President almost goes so far as to do the same to-day.

I must object to that. I said plainly and distinctly that if we have gone too far, show us where we have gone, and if we have not gone far enough, show us where. You have done neither one nor the other, and you know it.

The Minister for Education says the most perfectly regimented machine is on this side of the Dáil. Now, if the Minister for Education, or any other Minister knows anything of my colleagues who sit beside me here, they know that on these questions—on every one of these questions—each and every one of them is as free to vote and say what he likes as I am, or as any Teachta in this Dáil, because, as a matter of fact, there are many questions in which we leave the utmost freedom, but there are many ways of bringing in pressure than by regimenting your Teachtaí. I think the impression certainly that I have got, if not the impression of every Teachtaí, is this, that when the President gets up and says this thing must be done, we have got to do this thing, then the majority of the Dáil without exercising, in my opinion, any judgment at all——

You do not know them as well as I do.

They vote straight. I did get up not in order to explain The Hague Convention or anything else, but I think I know if not quite so much, almost as much as the Minister for Education——

It would be easy for you. (Laughter.)

Because I made a certain study of that, but it is not the words of this thing that matters, it is the spirit. It is the spirit in which this whole debate has been carried on, and I did get up not to exactly ask the Ministry to adopt Deputy Gavan Duffy's suggestion, but to express my own personal feeling, that there is no use in saying or making any attempt to amend this, as the Ministry get up and oppose it, and when they do that the majority of the Dáil will vote against it.

May I ask how often is it in order for a Deputy to make a speech in the same kind of way? Does the Deputy think if he repeats a statement twice no additional proof is required?

I must remind Teachtaí that we are discussing an amendment moved by Deputy Gavan Duffy, which has some connection with the Hague Convention, and any further discussion about the regimenting of the Dáil, or portion thereof, is out of order. The Minister for Education's questions I think answered themselves.

They were meant to.

With regard to the amendment, I want to say that we feel from every point of view it would be wrong to bind ourselves by such a clause as this, or to do what it would propose as it is much more likely to open up avenues for us by which we might seek to inflict perhaps very drastic punishment upon those we are out to punish, no doubt, at the present time. We have our own intentions with regard to the length to which we wish to go in dealing with this matter, and it would be very inadvisable, I think, by passing Clauses that might, by binding us in certain ways, open up certain other ways of defending ourselves by any regulations that were violations of the recognised rules of war. What was marauding? What was espionage. What was the illegal use of weapons of one kind or another? It would be therefore much better to leave them to the intentions we have at the present moment than that we are to be confronted to consider this, that or the other were maraudings or violations of the rules of war, and say they are definitely punishable by death. The great high contracting parties have made Europe what Europe is to-day.

There is only one thing I urge might not be pressed. I think the general principles underlying this Ordinance, the principles laid down in this august Assembly, might be remembered in this Dáil when we come to deal with the actual provisions themselves as they will be put before this Dáil later on by the Minister for Defence or the Ministry.

Amendment put and lost.

Instead of the amendment as it stands in my name, No. 4, I would ask your permission, sir, if I may, in view of the debate that occurred yesterday, and that has made the amendment as it stands unnecessary and incomplete, to substitute for it an amendment in this form, i.e., to say that the words "and the infliction by such Military Courts of the punishment of death or penal servitude," etc., right down to the end stand, and that these words be added:—

"Provided that the punishment of death be not given save in respect of offences set out under Sections (1), (2), (3). Provided that no such sentence of death be executed save under the counter-signature of the President and the Ministry by and with the authority of the Ministry. Provided that such Military Courts be set up within areas scheduled from time to time by the Minister of Defence, or areas within which Civil Courts are not open and are not capable of being held; and provided, lastly, that no person may be removed from one area to another for the purpose of creating jurisdiction of such Courts."

These are the four extra provisions. They were dealt with yesterday in one form or another. They were, I understand—I was not present on the occasion (laughter)—in answers to questions by myself that the punishment of death would not be given save in respect of offences set out under certain sections. That proviso I have put here. It was stated that such offences would come under the Ministry. That proviso I have also put here. It was stated by the Minister for Defence, unless I misunderstood him, that it would not be necessary to set up such Courts in all parts of the country, but that there were certain parts of the country in which Civil Courts would be set up. The last two provisos I have put in here to enable this resolution to square with the Constitution put forward by the Government in their draft. That provided in the first place that where Civil Courts can be set up they shall be set up. Where Civil Courts are set up, as long as they continue to function, the people within these areas shall be tried by Civil Courts, and shall not be removed to other areas for the purpose of creating military jurisdiction.

Is there any portion of that amendment accepted by the Ministry?

We would undertake, as far as the Civil Courts being established in any area, that we would not remove a prisoner from that district to an area in which they are not functioning.

If a prisoner committed an offence in that area and cleared out of it, it might be absolutely necessary to bring him back to that area.

Take No. 2. One of the cases which has come under my notice is that of the destruction of waterworks or private supply to a town. That is only property, but it really strikes at more than property. Certainly any such interference as that, where a huge number of people would be concerned, and who would suffer from that inconvenience, perhaps causing their death, would, to my mind, merit the death penalty. Therefore, I would not agree to exclude No. 2. It reads: "And on the infliction by such Military Courts, provided that the punishment of death be not given, save in respect of offences set out under Sections 1, 2, and 3." Of course, by including No. 2, I do not say that if a man steals £5 he is going to be shot for it.

"Provided further that no such sentences of death be executed except under the counter signature of the President of the Ministry, by and with the authority of the Ministry, and provided further that such Military Court is set up within areas scheduled from time to time by the Minister for Defence, or areas in which the Civil Courts are not open," and so on. Well, I think I take that down to the "Minister for Defence."

"Provided that punishment be not given, save in respect of offences set out," and also "Provided that no such sentence of death be executed save by the counter signature of the President and the Ministry, and by and with the authority of the Ministry." There is a provision later on in which we say there may be further regulation which may entail the death penalty. Does this amendment limit that? "And further that such Military Courts be set up within areas scheduled from time to time by the Minister for Defence." I think we can agree with that.

"Provided that the punishment of death be not given save under Sections 1, 2 and 3 set out above." That is unnecessary, because with regard to No. 4 you are going to provide it at the end.

"That no such sentence of death be executed except under the counter signature of the President of the Ministry, by and with the authority of the Ministry." Now, I think nobody wants to take upon themselves the individual responsibility for bearing that authority, and my own feeling in the matter is that we could very well leave the affirming authority for all sentences passed by these Military Courts in the hands of any two of the Army Council.

"Provided further that such Military Courts be set up in such areas scheduled from time to time for Military Courts by the Minister of Defence." Now, there are eight Command Areas in the country, and in each of these Commands at the present time it might be necessary to set up Courts to deal with offences occurring there. I suggest you tackle the question of controlling the areas for which these courts may be set up by a receding method, because at any moment it may be necessary to set up Courts in any of these eight areas, and we ask for authority for that, particularly in view of the type of offences that are being committed in them at the present time. You are faced with the question of reestablishing your courts. You will have areas in the country in which your civil courts will be set up. We ask for authority to establish these. Let us have this receding method from time to time in areas from which the Military Authorities will be drawn. Not only have you to consider the fact that you have to provide Courts in certain areas, and that you cannot safely withdraw this authority from certain areas until you can satisfy yourself that you have set up Courts which will be unfettered or unrestricted by any interference or threats of violence. I do not agree with this.

"Provided lastly that no person shall be moved from one area to another for the purpose of creating jurisdiction of the Courts." Now, we are not anxious to bring a very great amount of trade to these Courts, and I think you may take it our intention is that offences will be tried in the Command Area in which they are committed. That provision might give a situation in which you would have one belt of the country without Civil Courts and another belt of the country in which you have Civil Courts set up, but not quite established, and other courts put fairly on their feet. Cases will arise where persons who commit offences in one belt of the country will slip over to another belt which has passed completely into the hands of the Civil Administration. I think we should have authority to return such persons to the particular area in which they committed their offences. I myself do not want any of these amendments, as I do not wish to put on the Army Council, or any two members of it, the painful duty of confirming death sentences. I do not think it is necessary that these death sentences should go before the whole Army Council.

I must say, sir, I find it a little difficult to follow the procedure of the Ministry from one day to another. I put these two items in that are now being objected to, because they were offered by the President of the Ministry yesterday evening. I understood the President did definitely state that the punishment of death would be confined to certain sections. Some of us may think that they should not be confined to these sections, but, however, these are the statements, I understand, of the President.

I am prepared to stand by that statement.

It was also stated by the President that the Ministry would have the confirmation of these sentences. These proposals of mine were put forward for the purpose of giving effect to the Ministerial statements in this Dáil. A criticism was made yesterday that two Government documents were put before the Dáil on the one day, and that they did not square easily with each other, and I put in this amendment for the purpose of getting these documents to square with Article 69 of the Constitution put before us by the Government. Quite clearly under them if a man commits an offence in an area of a Military Court where a Civil Court cannot run, and if that man runs to a Civil Court in an area from where Military Courts have been withdrawn and Civil Courts could not be set up, it is clearly right that that man should be taken to the area in which he committed the offence, and not where he happened to be taken. That was clearly foreseen in Article 73 of the Constitution, which they themselves issued. I urge the Government to take that because, to use a now familiar phrase, it does implement the Constitution and it does implement Presidential assurances.

May I say, if I was under sentence of death I should far prefer that the stay of execution should be in the hands of two members of the Army Council rather than in the hands of the Ministry?

I understood the President to say last night, and I understand him to say now, that the Ministry are prepared to confine the death penalty to death sentences coming between 1, 2 and 3. I understood him to say a few moments ago that he had no objection to the amendment of Deputy Figgis down to the part "punishment of death shall not be given except in respect of the indictments in 1, 2 and 3. I suggest that the sentence should be carried out by some high authority. I understood from what he said last night that that authority should be the Commander-in-Chief and the Minister of Defence. So far as I am concerned, if I was being tried as a prisoner I would be satisfied to have the justice of the sentence left in the hands of either, and not have it brought before the Ministry at all. We know there is a natural tendency for people to be merciful, but I believe that the Army Authorities who have tried the particular cases in question are the best authority to deal with such a matter. I do not see why the signature of the President and the whole Ministry should be required. They have now added the regulations, which certainly satisfies me. They are that these cases should be laid before this Dáil, who will have the power to say what penalty is to be inflicted for any breach of these. That seems to preserve our authority over the penalty to be inflicted, and unless this Dáil thinks that some of these regulations cover an offence for which the death penalty should not be inflicted, the Dáil can cut it out. Therefore, it seems to me that if the Ministry would accept this amendment, that no such death penalty should be inflicted, it is quite clear that they do not want to set up Military Courts except in areas where they are really wanted.

There are several parts in this amendment, and the question of the distinction with regard to the death penalty between 1, 2, 3, and 4 hardly arises at all, now. In so far as No. 4—"The breach of any general order or regulation made by the Army Authorities"—is transferred, I understand, to the very end of the resolution, and carries with it the amendment to be moved by the Minister for Home Affairs, providing that any such order or regulation shall be laid on the Table of the Dáil, and the Dáil shall define the punishment.

I am quite willing. I understand the pledge was the President of the Ministry. I think it may be just as well the Commander-in-Chief.

I am not referring to the question of the counter-signature at all. I am discussing the nature of the penalty. The nature of the penalty does not arise now, in so far as it will come on at the end, and there need not be a discussion on it at all now. The next point in the amendment, as I understand it, is, if the death penalty is inflicted by a Court Martial is there to be a counter-signature, and, if so, by whom?

I understand the pledge was that it would be the President or the Minister for Defence. So long as there was some person, I think it would be an advantage certainly. A pledge was given, but it was only for the sake of putting it into effect that I brought it up here. I suggest it might be two members of the Army Council, without mentioning any names.

The amendment is therefore altered. We have not yet been supplied with any copies of the amendment.

The amendment was handed in.

The amendment proposed is to add certain words to the end of Clause 3, Section (b). The Clerk will read the words.

CLERK of the DAIL:

To add the following words: "Provided that no such sentence of death be executed except under the counter-signature of two Members of the Army Council."

The amendment was put and declared carried.

As regards the remainder of the amendment, there is a question of scheduling certain areas by the Commander-in-Chief.

The Commander-in-Chief's point was that at the present moment it might be necessary to schedule the whole of the areas in command. Then they would be so scheduled, and as it became possible in one area after another to set up Civil Courts, we would be informed of that, and so as the Legislature here, we would know what was being done, and would have an intelligent interest in the progress of the setting up of these Courts.

Mr. O'HIGGINS:

With regard to that I have only to say that Civil Courts, of a kind, will be set up very rapidly, practically throughout the whole country, but these Civil Courts will not be of the kind that could deal adequately or reliably with the class of offences set out in this resolution; and, giving the Army this particular task does not mean that in no area in which these Military Courts sit will there be a civil jurisdiction of any kind. There will be the ordinary civil jurisdiction for the ordinary offences, and concurrently with it there must be in many places Military Courts also. The people that I propose, from my Department, to send out to the country, in place of the British R.M.'s that have been withdrawn, will not have a jurisdiction that would enable them to deal with those people.

Then they would be scheduled as areas within the meaning of the phrase.

Mr. O'HIGGINS:

Yes.

I will ask the Clerk to read the Amendment with regard to the Scheduling of Areas.

CLERK of the DAIL:

To add the following words:—

"Provided further that such Military Courts be set up within the area scheduled, from time to time, by the Minister for Defence."

Amendment put and declared lost.

There is a last matter of the removal of prisoners from one area to another.

The last of that is conscquential on the loss of the third.

That is therefore withdrawn.

Four is withdrawn.

In addition to amendment 5, standing in the name of Deputy Gavan Duffy, I have received an amendment from him which, I think, properly goes before the one that is actually on the paper.

I propose to move the omission from the paragraph of the words, "whether within or without the area of jurisdiction of the Government," and the words "within or without the area aforesaid." This is the Spitzbergen part of the resolution, and we have had no explanation from the Government of the necessity for it. We do not know where this desert island is, we do not know when this new Armada is setting out. It does seem a little odd for the Free State, before it is born, to start colonisation. Strange things happen in our days. I think this thing does not need any speech; it is obviously the wrong thing. Before we are invited to agree that captive Irishmen be sent to some island in a latitude we know not, and under a flag we know not, we must have some very good reason from the Ministry. I do not know what reason would be good enough to justify such a procedure, but until we hear the reason we cannot say. It is conceivable there may be some reason to justify it. At all events what is proposed is to deport prisoners and to give the Ministry general powers to deport them, and all we are told is that they are in negotiation for the acquisition of an island. I suggest that is not sufficient for the Dáil to act upon. Let the Government tell us, frankly, what they mean, where is the island, what class of prisoner is going to be sent there, with whom are they negotiating, and above all what is the justification for this extraordinary procedure, and what jurisdiction will Dáil Eireann have over the gentlemen whom you relegate to a desert island, perhaps St. Helena.

Mr. O'HIGGINS:

One would think from the speech of Deputy Gavan Duffy that he had just returned from the Continent and that he had very little knowledge, or appreciation, of the things that have been taking place in this country, for some time back. He does not remember for instance, what took place in Dundalk, where there was a large concentration of prisoners, and those prisoners were released, and it took quite a lot of time, and the loss of very valuable lives, before that particular area was again under effective control by the Government's forces. Now the bald fact is that a large concentration of prisoners within the country is a menace, and the bald fact is, that a large concentration of prisoners in an area near Dublin is a standing menace to the State and the Government, and to the capital of the country. There are probably more arms in the possession of the Irregulars than they have men to use them, and an escape, or a release, on a large scale, and the sudden arming of the released prisoners, may very materially affect the military position. That is, as it seems to me, a lay-man—for my period of service in the army was very short, though very brilliant—certainly the position. Now, as to the island, granted that it is an island, I don't see that it makes very much difference where it is. If it were a peninsula, the narrow neck running out from the mainland might be supposed to transmit certain sentimental thought waves that would keep the prisoners comforted; but, granted that it is an island, I think it does not matter whether that island is five, seven, or seventy miles from the Irish coast. Granted that the climate is good, and that the conditions there are reasonable—and it is the intention of the Government to see that they are reasonable—I think that the curiosity that arises as to the exact latitude, or the exact whereabouts, of this island is to be deprecated at the moment.

Well, the British tried this game with the Egyptians, and sent them to Malta, but they had very soon to send them back again.

Amendment put and lost.

I beg to move as an amendment at the end of Clause 3, Section (c) to add the words “Provided that every such prisoner shall be considered and treated as a prisoner of war.” The Ministry will, perhaps, do me the justice to admit that this is not an afterthought. I have been hoping that they would take this course from the early stages of the war, and I hope to hear to-day that the Minister for Defence agrees with this proposal. I propose to detain the Dáil very shortly on this amendment, because I think it is quite clear, without argument, that the prisoners should be treated as prisoners of war. There is good authority for that proposal—not an authority binding upon this Dáil, but an authority entitled to the greatest respect from this Dáil. An International Conference of the Red Cross was held at Geneva last year, and it was attended by delegates of distinction and eminence from fifty different countries, and they passed a certain resolution, after certain questions had been examined by special Committees. One of these questions was the treatment of persons taken prisoners or interned as political suspects in time of civil war. I have the resolution here. The countries represented included South Africa, Argentina, Australia, Germany, Great Britain, Canada, Denmark, Spain, Greece, Hungary, India, Italy, Japan, New Zealand, Norway, Holland, Poland, Roumania, Russia, Servia, Sweden, Switzerland, Czecho-Slovakia, and Turkey. After examination, as a result of the report of the Committee they resolved as follows:—“This 10th Conference deplores the boundless suffering to which prisoners and internees are sometimes subjected in countries where civil war is raging, and it holds that persons imprisoned for reasons of State in time of civil war ought to be considered and treated by the belligerent parties as prisoners of war, that is to say, according to the principle of The Hague Convention of 1907.” I have tried to give as accurate a rendering as I can of that resolution, the original of which is in French. And I think there can be no dispute as to the meaning of the text, of which the French print is in the hands of the Minister for Foreign Affairs. It clearly means and recognises that there are two classes of persons whom you imprison in time of civil war—the soldiers whom you capture and the civilians whom you think it necessary to intern— and this Conference considers that both classes, whom they bring together in the French phrase I have tried to render as persons imprisoned for reasons of the State, should be treated as prisoners of war. I may be told, and perhaps will be told, by somebody that the prisoners taken in fact get as good treatment as prisoners of war. I do not know whether they do or not. But I think it is important that there should be a definite code governing their treatment. There is a definite code governing the treatment of prisoners of war. I think, further, that even if the treatment accorded to the present prisoners is prisoner-of-war treatment you ought to give them that status which they have claimed from the beginning, and I do not think it is any answer to say “Oh, they are outlaws and rebels.” You have here an expression of International opinion from persons familiar with war because of their war work, not binding I agree, but entitled to the greatest respect, and showing that people in the position of the Irregulars ought to be treated as prisoners of war. And to grant that treatment to them by naming them as prisoners of war would remove the grievance which they feel. Surely it cannot be the policy at the moment of the Government to increase bitterness over questions of that sort when there are so many questions about which people may disagree more reasonably. There is no reason for discrimination here against these prisoners. They are our fellow-countrymen; and let me remind you that in the American Civil War, great as the bitterness was, the Yankees decided that they would give the Southerners the treatment of prisoners of war, though I believe at the beginning they did not recognise them. If this wretched affair goes on long enough we too shall have in the end to do that. Why not do it now? Obviously it is right here if it is right in the view of those forty-nine or fifty countries I have cited. Why should it not be right in Ireland? I say one thing more. Prisoner-of-war treatment is drastic treatment, but it is just; it is not any favour you are conferring by conferring prisoner-of-war treatment, unless for the civil internee, you consider the conferring of the status as a favour. It is drastic treatment. Nobody knows that better than the Minister for Defence, but it is treatment under a definite code, which anybody can see for himself—a definite code open to the public and based upon well recognised principles of justice. I suggest that the Government will be putting itself right in the eyes of the country over this matter if it takes what is the better stand, and says we will agree to give prisoner of war treatment to these men. I hope the Minister for Defence will support this amendment.

I beg to support this amendment. Let us just examine what the original position was. The men whom the Ministry now refuse to regard as Prisoners of War were in military occupation of the larger section of what is now known as the Free State, when the Four Courts were attacked. They had advanced, mile by mile, in order to reconquer that territory in the interest of the Free State. If they were in military possession, and military means were used against them, why does the Ministry now stick its head in the sand and refuse to recognise them as Prisoners of War? There is no other status possible for them and you will have to recognise that sooner or later, and you may as well do it sooner, and the sooner you do it the better. It may be hard because they are just our own countrymen; but, I advise the Ministry to look back, a few months, at the time when they were dealing with the English. The English did not want to treat their prisoners as Prisoners of War, but as murderers and criminals, and the arch murderer was Dick Mulcahy. If a man is to be executed for an ambush at the present time, is it not as wrong now as it was then? If an ambush is wrong in the streets of Dublin to-day, it was wrong when Dick Mulcahy ordered it. If you treat them as Prisoners of War you cannot execute them. The Minister for Defence dis tinguishes them in three different classes —Politicians, Criminals and Soldiers. I take that as correct. Criminals you can deal with in a criminal manner, but the backbone of the men opposed to you are the soldiers of the former Republic, and we are the traitors to that Republic. Those who voted for the Treaty were traitors to the Republic. We are the rebels, and they are the patriots. I voted for the Treaty, and I submit I swallowed my oath, and every one of you who voted for the Treaty swallowed your oaths for the Republic. Do not disguise the fact, and do not take refuge behind——

This matter is not relevant to what is under discussion.

I submit these men should be treated as Prisoners of War. It is the only way you can treat them and they deserve it. They fought. The only ones deserving consideration fought well for Ireland and deserve more from Ireland, and deserve other consideration from their own comrades in this Dáil.

When we were dealing with the English we had a very, very small percentage of that material which it is wished now to get, called Prisoners of War, giving us a helping hand. And if we do divide the people against us into three classes, the percentage of No. 3 class, that we are dealing with at the present moment, is a percentage that is a very, very high one. You would not be dealing fairly with this country, or with the people of the country, if at this particular moment, before you have been able to sift the material that you have and divide these different classes from one another, you threw over all that material that we have got in prisons in Ireland the grand high cloak of a prisoner of war. We have lost, as I said yesterday, the sense of the meaning of words to-day, and words that it was proper for us to use with regard to certain people and certain actions, it is not proper for us to use them in the changed circumstances. I do not approve of this amendment, and I am not prepared to throw over the material which is inside the prisons now, and which is working outside the prisons, the cloak of prisoners of war.

Amendment put and lost.

All through we have changed "Army Authorities" to "Army Council," and then in one or two places we have made further verbal changes, as, for instance, in the second paragraph, which reads towards the end of it "that the Army Authorities should have power to detain in places within or without." We want to make the change "that the Army Council should have power to authorise the detention in places, whether within or without." Those are consequential verbal changes of the word "Authority" to "Council."

The change has been made.

Well, then in the next paragraph—"Whereas the Government, recognising the force of such representation, has sanctioned the doing `under the authority of the Army Council,' instead of by the `Army Authorities."'

That is only a verbal change.

They are entirely consequential. Then in Paragraph C—"The removal under the Army Council of all or any person taken prisoner." I now move that Clause 3 as amended be put and inserted.

The Clause as amended was adopted.