Deputy Johnson has given notice that he wished to raise some matter on the adjournment.
ADJOURNMENT DEBATE. - CAHIRCIVEEN ARRESTS.
In reply to a question I put respecting the arrests of two men at Valencia, Co. Kerry, the Minister gave an answer which I think rather discloses a state of things in the mind of the authorities in that district which calls for some attention. I hope I am right in believing that they have gone further than the Minister would approve. The case dealt with is something as follows:—There has been a family dispute, lasting as long as five years over the ownership of a farm.
took the Chair at this stage.
The eldest son is not a farmer. Since he was eighteen years of age he has been employed in the Western Union Cable Company and he is now 53. The second son, aged 44, committed the crime of getting married in July, 1918, and that was a grievous offence in that family. The circumstances of the courtship and marriage I know nothing about, but it was such as to give offence to the father, and the father made a will in favour of the elder brother, who had never worked on the farm and who knows nothing whatever about farming. For five years back no work has been done on the farm and no cattle have been sold off the farm. The quarrel has continued up to date. I am assured that there has been for five years past a regular refusal to ferry cattle from the island to the mainland. There has never been any interference by the R.I.C. or the military during that time, and there has never been a breach of the peace in connection with the dispute. It is important to note these facts. It is a family quarrel and the people of the district, the labouring people at any rate, including the ferrymen, have taken the side of the brother who was the farmer, and who was dispossessed of his expectations. The father died about a year ago and, presumably, the brother with the grievance thought there was his opportunity to press his claim and take advantage of the fact that he was the only farmer in the family. At least he was a farmer, but the ostensible owner, the legal owner, was not a farmer. However, there has been some family quarrel. In the early part of this year—and I take this from the Minister's answer—the son who claimed the land, because he had farmed the land under the father, was arrested and charged with illegally removing cattle from the land of his mother. The Minister says he was allowed out on bail on giving an undertaking not to interfere illegally with the land again. Then the Minister goes on to say: "It is reported that since that date O'Driscoll continued to conspire with others, including James Burke and Jeremiah Murphy, with a view to preventing Mrs. O'Driscoll from using the land or from having her cattle conveyed to and from the mainland. Burke and Murphy are boatmen plying for hire between Valencia and the mainland; and, while conveying the cattle of others, they refused to convey those of Mrs. O'Driscoll. In consequence of this refusal they were warned that if they persisted they would be arrested and charged with conspiracy. On the 19th ultimo they again refused to convey Mrs. O'Driscoll's cattle, while accepting for conveyance the cattle of other people. They were then arrested and, with John O'Driscoll, were brought before a District Justice who allowed them out on bail on their giving an undertaking that they would not again interfere with Mrs. O'Driscoll in the management of her farm, and on a further undertaking by Burke and Murphy to convey her cattle at the usual charges when required to do so." These ferrymen are unlicensed ferrymen; they own a boat which they use for conveying cattle and passengers to and from the mainland. The contention of the authorities in that area, as described by the Minister's answer, is that they must be obliged under threat of arrest to convey cattle in their boat whether they wished to or not; that they have no option to refuse customers or accept customers; they have no option whether to accept employment or refuse employment by a particular customer or employer. If the Civic Guard say they must, well they must, or be arrested. That strikes me as rather serious and an exhibition of arbitrary power that ought not to be tolerated.
These two ferrymen who have constantly refused for the past five years to convey cattle from this farm were taken into custody by Sergeant Connolly of the Civic Guard, Valentia, and their boats commandeered although they were private property and the ferry an unlicensed one. The cattle were loaded into the boats by the military authorities and ferried across by Commandant Griffin and his men. The two ferrymen were conveyed to Tralee, 50 miles away, and were put into prison. The Minister expanded his reply and stated that the men were charged with conspiracy, and that this refusal to accept employment from Mrs. O'Driscoll, or the refusal to convey Mrs. O'Driscoll's cattle in their boat from the Island to the mainland, was merely a part of the conspiracy. I know nothing about any other activities, and the Minister has given no information as to any other activities, of these men or of any conspiracy. It is stated that they interfered with the working of the land. I know nothing about that. I take it from the Minister's own answer that they were arrested for refusing to convey cattle belonging to Mrs. O'Driscoll from the Island to the mainland. I believe, and I hope my belief will be justified by the statement the Minister will make, that the Sergeant acted beyond his authority; that it is not the policy of the Ministry to compel people under threat of arrest to work for others for whom they do not wish to work, or to hire out their boats to convey cattle or passengers that they are not prepared to hire their boats to. If these men had interfered with the owner of the farm when taking her cattle to the mainland I could have understood the attitude of the Civic Guard, but why there should be a new policy inaugurated in regard to this domestic quarrel, at this stage, I cannot understand. As I explained it is an old-standing family quarrel. One section of the public sides with one son and another section sides with the other son. The quarrel has continued for five years but these boatmen have never acted as ferrymen for this woman's cattle during that time. The Civic Guard comes along and says, "henceforth you must," and because they refuse they are arrested, taken 50 miles away, and put into prison. They are charged with conspiracy and released, having given an undertaking that they will do what the Civic Guard tells them they must do. I think that requires some explanation, and I hope the Minister will disavow the action of the Civic Guard in that locality, and make it clear that there is no compulsion to be imposed upon a man to work for another man or for another woman, when he does not wish to do so.
Deputy Johnson may make his mind quite easy on this. There is nothing in this case which menaces the right to strike. He asks why after five years a new policy should be inaugurated with regard to this family quarrel. I trust he does not suggest that illegalities, by virtue of the fact that they have continued for five years, acquire a sacrosanctity that raises them above the intervention of the law, or the agents of the law. With regard to this case I want to clear the ground. I do not admit the Deputy's suggestion, that these two ferrymen were entitled to discriminate between cases of the same kind, solely on the basis of the identity of the owner of particular goods. I do not admit that. I am not joining issue on it at the moment, but I do not admit it and I want to mark that. There is a case on record of a man who simply occasionally hired out a barge, and who was held liable by the courts for damage to goods in transit, through no fault of his own, the basis of the decision being that by long custom and by constantly holding himself and his boat out for hire he had become in law and in fact a common carrier, with all the obligations that that implies. Now, it may well be—I do not state it positively—that these two ferrymen, Burke and Murphy, by virtue of constantly plying between Valencia and the mainland, had become by custom common carriers and are not entitled to discriminate, in the manner they have been discriminating, against Mrs. O'Driscoll.
As I say, that is not the point I am joining issue with the Deputy on, but I want to clear the ground and I want to mark the fact that I do not accept his contention that that discrimination was perfectly lawful. I am afraid that I will have to inflict on the Deputy a certain amount of technicality and it will be a consolation to him to know that he has more or less brought it on himself. I have looked up a definition of criminal conspiracy and I have gone to the highest authority available. I have found that—
"Criminal conspiracy consists in an unlawful combination of two or more persons to do that which is contrary to law, or to cause a public mischief, or to do that which is wrongful and harmful towards another person, or to do a lawful act for an unlawful end, or by unlawful means, or wrongfully to prejudice a third person. The offence is at common law a misdemeanour. The gist of the offence lies not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to effect such purpose nor inciting others to do so, but in the forming of the scheme or agreement between the parties. The combination to injure a third party without just cause or excuse is a criminal conspiracy, although the wrong intended, if done by one individual, would be a wrong and not a crime. To refrain from dealing with a person is lawful; but an agreement between several to so refrain and to induce and compel others to so refrain is a criminal conspiracy."
I hope the Farmers' Union is listening.
Mr. O'HIGGINS
The point I really want to stress is this, that these ferrymen were arrested and tried, not for the act of refusal to convey Mrs. O'Driscoll's cattle, but for criminal conspiracy with John O'Driscoll to injure his mother in the conduct of her business, the act of refusal being in itself evidence, and very material evidence, of the offence of conspiracy. The ferrymen were arrested, legally arrested; they were brought before a District Justice; they were remanded on bail, I think on certain conditions. They were arrested and, with John O'Driscoll, were brought before a District Justice who allowed them out on bail on their giving an undertaking that they would not again interfere with Mrs. O'Driscoll in the management of her farm, and on a further undertaking by Burke and Murphy to convey her cattle on the usual charge if required to do so. There was a fair in Cahirciveen on the 19th ultimo; the ferrymen were conveying the cattle of the islanders; they discriminated against Mrs. O'Driscoll and that was held to be material, almost conclusive, evidence of the existence of a conspiracy between these ferrymen and her son John to injure this woman in the conduct of her business. Now, the five years. We all know what the five years have been. It brings us back to 1918. One can well understand that in the situation which existed in this country between 1918 and 1923, the rival authorities, conflicting for jurisdiction in this country, had very much more on their hands than matters of this kind. I regard it as a good sign that a situation has come in which it is possible to deal with the illegalities that have existed for five years. I regard it as a sign that the situation in the country to-day is promising, and possibly, in areas, more normal than it has been at any time for five years. As for the length of time, there is no prescriptive right to crime. The Deputy is mistaken if he thinks that I do not stand over, and stand over very fully, the action of the police in this matter. One point I will yield to him and that is this, that if it were the police who took the boat belonging to these ferrymen to convey Mrs. O'Driscoll's cattle they were exceeding their duty.
The military.
Mr. O'HIGGINS
The police and military were mentioned in your question.
My information is that the military took the boats. I beg your pardon. The boats were commandeered by Serget. Connolly but the cattle were loaded by the military and the Guards and ferried across by the commandant and his men.
Mr. O'HIGGINS
The military have certain broad powers and discretion in the existing situation in the country, so broad that the courts do not hold themselves at liberty to enquire into the legality of their acts. If the police, in the first instance, moved in taking the boats from the ferrymen, and themselves convey the cattle from the island to the mainland, they were doing something that exceeded their duty and their jurisdiction. One other point I want to make is with regard to common carriers. If these men have in fact and in law become common carriers they are rot entitled to discriminate between the goods of one person and the goods of another. It would be, of course, for the aggrieved person to move against them.
In the courts.
Mr. O'HIGGINS
In the courts. I want to say all that I am conceding to the Deputy. Possibly there was an excess of duty if the Civic Guards used the boats themselves to convey Mrs. O'Driscoll's cattle from the island to the mainland. If the military did it is another matter. They have very broad powers in the existing situation in the country, and they have been charged with the restoration of order. If they considered it was part of their duty in the task of restoring order to interfere in the matter, we are not entitled to enquire into the legality of their act. If the Civic Guard did it they were exceeding their duty, and their right. Also I want to yield, on the common carrier point, if that is so that it would be for the aggrieved person to move in the Courts, but I am not standing on that leg. I am standing on this, that the charge on which the two ferrymen were arrested, and the charge which was formulated against them before the District Justice was the charge of conspiracy. They were not charged with the act of refusing to carry these cattle but with criminal conspiracy and joining with John O'Driscoll to interfere with his mother in the conduct of her business, and the fact of refusal was very clear evidence of conspiracy.
I hope the Minister will read a similar definition of sedition.
I have listened to the statement of Deputy Johnson and it did strike me, knowing nothing of the facts beyond what is stated, that it was fairly clear these men were common carriers, and if so they committed an actionable wrong in refusing to carry the cattle. The persons who did that wrong laid themselves open to a civil suit at the prosecution of the person whom they had aggrieved. It seemed to me from the statement of Deputy Johnson that it turns upon the question whether they had committed any crime. I understood that they had been arrested for refusing to carry the cattle of the woman in question. I do not think they could have been lawfully prosecuted for that, but when the other side of the case was heard it seemed reasonably clear that there was a fair ground for charging them with the criminal offence of conspiracy to injure Mrs. O'Driscoll, and it seems to me there was justification for arresting the men. It seems perfectly clear on the statement of the Minister that they could not have been arrested for the mere offence of refusing to carry a particular person, but the law is quite clear that a common carrier has no right, if he has room in his conveyance, to refuse any passenger or goods tendered to him for conveyance with the ordinary freight that he charges for it. The fact that this ferry was unlicensed does not to me seem to affect the matter at all because it is an arm of the sea, and any person who chooses can ply backwards and forwards for carrying goods and passengers.
The Minister has laid down a very important doctrine in the statement he has made which, as Deputy Johnson has pointed out, simply amounts to this, that a worker may not refuse to work for a particular person or do a particular work for a person.
Mr. O'HIGGINS
Pardon me, if the Deputy would not mind me intervening. There is this exception to the conspiracy code: "but no agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen is punishable as conspiracy, if such act, committed by one person, would not be punishable as a crime." The Trades Disputes Act definitely marks an exception to the conspiracy code. I was just afraid that the Deputy was about to develop a point that was needless, as that aspect of the matter is already dealt with in the Trades Disputes Act.
I want to put it to the Minister, would the Trades Disputes Act cover certain railwaymen who refused to carry certain cargoes this time three years? On that occasion, am I not right in saying the Minister and his colleagues applauded their action?
Mr. O'HIGGINS
If the Deputy puts down a question I will endeavour to answer it.
The Dáil adjourned at 9 p.m.