Dáil Éireann debate -
Tuesday, 24 Jul 1923

Vol. 4 No. 16

DAIL EIREANN COURTS (WINDING UP) BILL, 1923.—SECOND STAGE.

Mr. O'HIGGINS

This Bill is certainly belated. I imagine that the chief criticism to be directed at it is that these Courts with which it deals have been disbanded by the Executive Council and by the Provisional Government before it for the best part of a year now, and that there has been hardship on people who were litigants in those Courts, or had cases pending in those Courts, by reason of the fact that steps were not taken sooner for the proper winding up of their affairs. One can only meet that criticism by pleading the necessity for a sense of proportion in times like those through which we have passed, and by pleading also certain practical difficulties that arose in endeavouring to compile the necessary data for the Winding Up Bill.

You had through the country an improvised system of justice which was forged more as a weapon against the British administration in exceptional times and exceptional circumstances than as a definite system which would meet and answer the needs of normal times. It might be well that we would briefly survey that system and the Courts which functioned within it. Taking the lowest type of Court first, you had Parish Courts, having jurisdiction in their respective parishes for the hearing of small civil claims under £10 in value, petty criminal offences, taking evidence and returning serious offences for trial to Circuit Courts, cases arising out of cottier tenancies and monthly and weekly tenancies. Then there was the District Court or Constituency Court, having jurisdiction in the following class of cases:—Appeals from Parish Courts, civil claims from £10 to £100 in value, title cases and cases exceeding £100 in value or damage where no question of law arose, ejectments and actions hitherto brought to the County Courts. Then there was a special sitting of that District Court at which a Circuit Judge attended, and when that Court sat in special session with a Circuit Judge attending, its jurisdiction extended to criminal trials, civil claims not within the jurisdiction of the ordinary District Courts, equity cases and relief, such as certiorari, mandamus, quo warranto, and appeals from ordinary sittings of that Court.

The Supreme Court had unlimited jurisdiction over all civil and criminal cases, and also heard appeals from the Circuit Sittings of the District Courts. There is one matter that would need to be stressed when surveying these Courts and their jurisdiction; that is, that no one of those Courts, from the Parish Court to the Supreme Court, was given jurisdiction by the Dáil in licensing matters. That jurisdiction was explicitly withheld. It was the unanimous and emphatic view of members of the Dáil Cabinet at the time that it was inadvisable and unwise to attempt to assume jurisdiction in matters of that kind. I mention that because when these Courts reappeared during the Truce period they were not as careful and not as pure in their administration as they were in their first youth and enthusiasm. They gave in many places, or purported to give, certificates to people to deal in intoxicating liquor. They had no such jurisdiction. It was specifically and explicitly withheld from them. The only course open to my Department was to refuse absolutely, and in all cases, recognition of those certificates on the grounds that the Courts which professed to have power to give them were acting ultra vires in giving them.

Shortly after the Provisional Government was set up, and when the ordinary Courts, with their complete machinery, had been taken over by the Provisional Government, it was considered unnecessary to have any further duplication of judicial work, and accordingly the Dáil Courts were abolished and a Committee was set up by the Minister for Home Affairs in October last to deal with the outstanding business of those Courts. Deputies will remember the period of dual jurisdiction—or dual lack of jurisdiction, to be more accurate—and all the abuses that grew out of that period. People going into one Court and finding the weight of evidence against them moved into the rival Court for an injunction to stay the other party to the litigation from proceeding further with his case in the Court which seemed likely to decide against them. That anomaly could only be ended in the way in which it was ended, by a frank recognition of the fact that all the official Courts and all the official machinery of justice in the country had passed definitely into the hands of a representative Executive responsible to the Irish people, through their elected representatives in the Dáil, and the hastily improvised Courts that had been set up through the country to tide over an exceptional period were abolished, and the official State Courts were adopted.

The Committee which was set up in October last had considerable difficulty in collecting data throughout the country, but efforts have been made to collect, as far as possible, the records and accounts of the Dáil Courts, so as to facilitate litigants and claimants whose business remained unfinished, owing to the prevailing conditions. Owing to the fact that a number of Court Registrars and clerks adopted a hostile attitude towards the Government, it has not been found possible to obtain complete returns. In February and March last, it will be remembered that notices were published in "Iris Oifigiuil" and in the Dublin and provincial Press inviting parties whose decrees remained unexecuted at the date of the abolition, to forward particulars, with a view to having their decrees registered for subsequent enforcement. A special form of application was prepared and supplied to such parties for the purpose of having their decrees verified by affidavit. The total number of applications received from solicitors and litigants for these forms amounts to 10,000, and about half of the forms so issued have been returned and duly verified. The Ministry has made some progress already with the task of serving notices on the parties affected by these decrees, so as to give them an opportunity of lodging properly grounded objections, if any, to the enforcement of the decrees. The District Registrars and the Parish Clerks have, furthermore, been circularised to lodge final accounts and statements, and, excluding the Six County Area, about half of the District Registrars and about a quarter of the Parish Clerks have carried out these instructions. It will be observed that the Bill is drafted so as to enable the Judicial Commissioners to enforce delivery of these accounts in all cases. It is thought that very little definite objection will be urged to the Bill, and that the principal comment or criticism will be that it has been over-long delayed. Deputies will notice that it provides for the appointment of one Judicial Commissioner and certain Assistant Commissioners, to deal with different classes of business; to deal, in the first instance, with cases that were pending in the Dáil Courts, and Appeals from enforcement of decrees given in the Dáil Courts. The Assistant Commissioners may hear: "Any application for the hearing and the termination of a proceeding which was pending in a Dáil Parish Court or a Dáil District Court, any application for the hearing and the termination of an Appeal from a Dáil Parish Court which was pending in a Dáil District Court when the authority of such Court was withdrawn; any appeal from a registered decree of a Dáil Parish Court or an ordinary sitting of a Dáil District Court; any interlocutory application in any of the above mentioned cases." There will lie an appeal from any one of these Commissioners to the entire body. It is proposed to set up a Registry in which all decrees of the Dáil Courts that have not been executed will be registered, and after inquiry, and in the event of no appeal being made to the Commissioners, these decrees so registered will be binding on the UnderSheriff in the same way as decrees given by the ordinary State Courts, and will be executed accordingly. Certain sums have been due in connection with these courts and their operations which it has not been possible to pay, pending the passing of this Bill, and there are provisions in the Bill dealing with the financial aspect. Section 20 defines the general powers of the Commissioners: "For the purposes of this Act, the Commissioners shall have full power and jurisdiction to hear and determine all matters, whether of law or fact, which shall be duly brought before them under this Act, and shall not be subject to be restrained in the execution of their powers under this Act by the Order of any Court. The Commissioners, with respect to the following matters—enforcing the attendance of witnesses, the examination of witnesses orally or by affidavit, and the production of deeds, books, papers and documents; and issuing any commission for the examination of witnesses; and punishing any persons refusing to give evidence or to produce documents, or guilty of contempt in the presence of the Commissioners or any of them sitting in open Court; shall have all such powers, rights, and privileges as are vested in the High Court for such or the like purposes, and all proceedings before the Commissioners shall in law be deemed to be judicial proceedings before a court of record." Section 18 deals with the accounts of the Courts, and takes power to make payments which are found to be properly due. "Every person whose duty it was to receive or pay out monies in connection with any Dáil Court, or who came into possession of any monies for which he was accountable to a Dáil Court, shall within one month after the passing of this Act deliver to the Accountant a full and true account of all such monies, and pay to the Accountant for lodgment in the Dáil Courts Fund the balance appearing on such account to be still in his hands. Every person who has in his possession any accounts relating to the receipt or payment of any monies for which such person or any other person was accountable to a Dáil Court, shall within one month after the passing of this Act deliver such accounts to the Accountant." Then there is provision for default in rendering such accounts. The Committee which sat, and which was set up in October last, consisted of one of the judges of the Dáil Courts, Mr. James Creed Meredith; Mr. Nicholls, T.D., acted on that Committee also, and Mr. Goff, who is now a District Justice. The Bill is based substantially on the recommendations of that Committee, and it is hoped that it will be found to cover all the business that is outstanding from the winding up of that improvised system of administering justice. There have been cases, unfortunately, where people holding a decree of the Dáil Courts had judgments entered against them in the State Courts, and these judgments were acted upon. There was no remedy for that situation short of the introduction of a Bill of this kind. Steps were taken to put every possible obstacle in the way of that kind of thing happening. Solicitors were written to and urged to stay the proceedings, and were warned that this Bill was being introduced. I think we succeeded in keeping down the anomalies or hardships to a minimum pending the introduction of the Bill.

Dr. WHITE

I second.

Mr. GAVAN DUFFY

It is a curious coincidence that the Bill for the burial of the Dáil Courts should be introduced twelve months to a day exactly after the panic decision of the Dáil to kill the Dáil Courts. I dissented then, and I dissent now, from that decision, which I think was of little credit to the Executive, and I am sorry that this Bill does not propose that these Courts should be continued and perpetuated for certain purposes. I dissent wholly from the view that we have anything to be ashamed of in the Dáil Courts. I dissent from the view that they were incompetent, and I dissent from the view that they ought to be buried. I was sorry, in listening to the Minister, to hear no tribute paid to the men who ran these Courts in the face of great difficulties because they were loyal to the Government of the day. Men often, who could not take part in the armed conflict, but who wanted to co-operate as best they could, came forward at very considerable risk to themselves and to their businesses, and played a very fine part in getting these Courts going, and in administering them, and the country knows that it was extraordinary to see the justice and the skill with which people unversed in judicial matters managed these tribunals and the cases that came before them. It was a very great tribute to the common-sense of the people, as well as to the courage of those people, and incidentally the setting up of these Courts, which effectively smashed the British machinery except here in Dublin—smashed it and rendered it utterly useless—was one of the things which did most outside Ireland to make our name respected and to show up the fact that the English occupation was usurpation. It was a thing that had not been done in other countries. It was a striking thing, a great thing, and a thing of which we have a right to be proud. The Minister told us that some of these Courts engaged in licensing cases, and that they had no right to do so. Well, I have heard of one Court that dealt with a divorce case. When you have people who are not trained to this kind of thing administering the law, of course there will be mistakes and abuses, but it would have been more generous not to call attention to small matters of that kind, but rather to register the fact that these Courts were something we had reason to be proud of, and that they did their duty manfully and well. Of course they made mistakes, but in every case where you had men qualified—I do not mean technically qualified, but qualified as business men and men of common-sense, and qualified as decent human beings trying to do their best—wherever you had men not acting under personal or small motives, you did have a very large measure of success in these Courts set up by the Government.

I suppose it is admitted—I hope it is admitted—that at least until the Treaty was signed the only lawful Courts in this country during the fight with England were the Dáil Courts. The only lawful, legitimate Courts were the Dáil Courts; and in a country where law has naturally and properly been a matter for contempt and suspicion because it was administered against the people, it was something to have Courts which were the people's own, and it would have been worth a great deal to perpetuate a system of that kind in so far as it could be perpetuated in conjunction with the more technical machinery we have at hand, and which could easily have been perpetuated for matters of ordinary commercial disputes and any agricultural disputes which do not require a great deal of law, and which require mainly common-sense. It would have gone a long way to make the people feel the law was their own. Therefore I regret this Bill, designed as it is to abolish the last vestige of these Courts. The Dáil is aware that during the past twelve months—I think I would be accurate in stating a longer period— there have been a number of criminals awaiting trial. They have been waiting in prison until somebody would try them. I fancy it will not be disputed that they are still waiting in prison for somebody to try them. The Assizes from Dublin Castle could not go out, but if the Dáil Courts had been continued they could have gone out and administered criminal justice, and they would have fulfilled during that particular period a very useful function. Nobody can but regret that men charged with crime, however criminal some of them may be, should have to wait for a year in prison before their cases can be attended to. I had hoped that the Minister would see his way to communicate to the Dáil the Report of the Departmental Committee which he set up some time ago on this matter. After all, we are dealing with this Bill without much knowledge. We are acting very much in the dark, because these Courts, scattered up and down the country, are Courts of which some member will know something here and another member will know something there, but of which we have no adequate data to enable us to judge this Bill properly.

If one assumes, as the Minister assumes, that the Dáil Courts must go, this Bill may be in most respects a very admirable one; but we have not the data to enable us to judge that, unless we have in our hands at least the Report, which I believe was unanimous, of the men who were specially appointed by the Minister for Home Affairs to look into this matter. The Minister admits that hardships have occurred. This Dáil has no adequate means of judging whether those hardships are fairly met by this Bill, unless it sees what the men designated to report on the matter have to say about it. I fear the bureaucratic tendency which we have observed so often will again prevail, and that the Minister will consider that in the highest interests of the public safety it would be better not to give to Deputies the Report compiled by a Departmental Committee of his Department. If that decision is come to I regret it, but I do suggest that since it is the fact that persons have suffered, and perhaps suffered severely, because they obeyed the decree of the lawful Government of the day and went before Dáil Courts, it is our clear duty, if we claim to be successors of that lawful Government, to indemnify the people who suffered in that way. I do not know if the Minister has particulars of the number of cases where persons holding Dáil decrees were subsequently compelled to respond in money or otherwise to contrary decrees made against them by the other Courts. If there be only one such case—and there must be a number—it seems to me this Dáil cannot rid itself of the duty of doing justice to people who got into that trouble solely because they did as they were told by the lawful Government of the day.

It may be that the amount involved is not much. I hope that is so, and if it is so it will be all the easier for the Dáil to do the right thing and to see that these men at all events will not be penalised for doing what was right. There is one Section of the Bill which I view with no pleasure, and that is Section 2, Sub-section 3, whereby the Dáil is asked to provide that every Commissioner appointed under this Bill may be dismissed or removed at the pleasure of the Executive. That provision is very reminiscent of the Appeal Committee under the Public Safety Bill. What kind of justice will you get if you allow a Minister to appoint a Judge for a specified purpose, with the threat hanging over him that he may be dismissed at any moment? I suppose these Judges will not last very long, but their functions might last for 12 months and it seems singular that they cannot be assured of their tenure during good conduct for that period. I do not pretend to understand the reason for that Section, but I do emphatically say that the principle is wrong that any Judge, even though he be a Judge appointed only to wind up the Dáil Court business, should be liable to be dismissed at any moment by the Executive. That principle is utterly indefensible. The Minister, in Section 26, makes the important admission that it would be wrong to allow any proceedings to be brought against anyone, whether in the Dáil Courts or outside them, "either or on account of or in respect of anything done or omitted to be done under the authority of the decree regulating the Dáil Courts." In that connection I want to draw attention to a case which deserves more attention than it has received from the Minister.

It will be noticed that in this Bill there is no provision at all for those persons against whom decrees were given during the fight with the English by the English Courts because they did not attend those Courts to defend themselves. In other words, persons who obeyed the Government, which told them not to go near the British Courts, and who said "We will deal with the Dáil Courts alone," do not, as far as I can see, get any protection under this Bill in respect of judgments given against them in their business by the English Courts which they refused to attend. The Minister said he was anxious to cover all classes of cases to which those Dáil decrees were related. There is one class of case—I do not know how extensive it is or how many people are in that category, but I fancy there must be quite a number—of people who have had decrees of some kind or another given against them by the British Courts because they did not attend and because they took the advice and followed the order of their own Government.

I have here particulars of one case, which I say to the Minister is typical of others in this respect. It is a case that has been dealt with by the Minister's Department with a cynicism which is really surprising. In July, 1921, the Listowel Urban District Council received notice from a solicitor on behalf of a certain workman that he was taking proceedings in the usual way by way of arbitration in the County Court to claim damages for injuries which, as he alleged, he had received in the service of the Council, and which, therefore, the Council will be liable to pay. The Council on the 31st July, 1921, had this notice before their meeting, and they unanimously decided that they would ignore the summons.

Mr. O'HIGGINS

Give me the dates of that?

Mr. GAVAN DUFFY

The 31st July, 1921. That, I fancy, would be a few days after the Truce. The solicitor for the plaintiff was a gentleman who had been conspicuous for his advocacy of the Dáil Courts, and in the Dáil Courts he had, perhaps, more cases than any other practitioner. Therefore it is safe to assume that his client, who proceeded before the English County Court Judge, was responsible for this curious proceeding, and that it was not the solicitor who was responsible. The Council told the plaintiff that they would have nothing to do with the County Court, that they recognised the Dáil Courts only, because that was the order given to them by the Government. The plaintiff went on, all the same, and he recovered judgment to the amount of thirty-five shillings a week, a sum which last January, when proceedings were taken to enforce this decree, amounted already to nearly £200. It must be well over £200 now. There was an insurance company in the case, and when the decree was given, in the absence of the Council, against the Council by the County Court Judge, the insurance company refused to pay, and added that the plaintiff would not have recovered one penny if the case had been defended. The plaintiff did not try to enforce his decree for a long time. But he appears to have thought that last January would be a proper time to see that he would go out and get it. When he threatened to enforce this decree, got in defiance of the Government of the day from an English Court the Council very naturally wrote to the Government asking what they were to do. They first wrote to the Minister for Local Government on the 24th January, and I do not think they got a reply. They wrote to the Minister for Home Affairs on the 15th February a long detailed letter, setting out the case which I have summarised, and pointing out that they had acted throughout upon the orders given to them by the Government, which they recognised as the only lawful Government. Briefly, what followed was the first reply from the Department of the Minister for Home Affairs regretting that under the law as it stands that the Minister is unable to interfere with the decision of the County Court Judge. The local body then appears to have taken up the matter with the Minister for Fisheries, no doubt as Deputy for the district. The Minister for Fisheries extracted a memo. from the Minister for Home Affairs in which the amazing suggestion was made—and I invite the attention of the Dáil to this—"that there is no power to order a re-trial, that the Urban District Council would be well advised in making an effort now to compromise the claim." He calls it an effort.

Mr. O'HIGGINS

What is the date of that memo.?

Mr. GAVAN DUFFY

It is the 8th March, 1923, and is signed by the Minister for Home Affairs. The Minister says: "It must be admitted the present state of the law which penalises many who remained loyal to the Dáil Courts in troubled times is hardly satisfactory." Then he proceeds to say: "It should be noticed that the case in question is in a slightly different category. To begin with, the Urban District Council was made a party to the arbitration during the period following the Truce, in July, 1921," and then he proceeds to suggest that "the Council in question were not loyal to Dáil Eireann, and therefore not entitled to much consideration."

Mr. O'HIGGINS

You had better read all that.

Mr. GAVAN DUFFY

I was about to do so. It goes on "as to the best of my recollection during the more difficult period of the war the Listowel Council seemed to have remained politely indifferent to the very reasonable proposal of the Solicitor to have the case re-heard before the Dáil Circuit Court, it seems to me that their refusal to enter the Dáil Courts was inspired by motives other than purely patriotic motives." The Minister cannot have carefully read the proposals for a re-hearing, because the proposals for a re-hearing were declined simply on the grounds that it was too late to get the Insurance Company in Dublin interested in the case, to defend it. I think his information as to the conduct of the Council is very far from being accurate, as the Deputies from the District can testify. However, I do not want to deal at any unnecessary length with this case, but I do want to emphasise it as the kind of thing which is completely left out of this Bill. To conclude, there was a very effective answer from the Council. The solicitor to the Council observed that the Minister himself who is now Minister for Home Affairs, in referring to the two courts functioning in the country, had said: "Pending a settlement with the British Government, and pending the signing of the Treaty, they were not abandoning that fighting machine." This was referring to the Dáil Courts. Then he continues, "and they would have been very foolish to do so. Consequently, throughout that period they had people objecting to go into the British Courts. The decrees of the Court during that period might deserve examination and inspection when and where a more ordered state of things prevailed. It ought be open to the Minister to apply for a re-hearing of particular cases which occurred between July and December 1921, and for many months after." That purports to be a quotation from the Minister himself. The Solicitor to the Council also observed that if it was right to reopen Malicious Injury cases, and to reopen them because the Courts that gave the Malicious Injury decrees were notoriously biased and partial and unfair, if that were right when no notice has been given, how much more is it right when a Government itself prohibits people from going into English Courts, that specific power should be given to reopen undefended cases where there is any evidence that they were undefended because the defendant would not disobey his own Government. I ask the Dáil if that is not common justice. We are the successors—make no mistake about that —of the people who gave that order to the country at large.

Mr. O'HIGGINS

Has the Deputy any record of the prohibition?

Mr. GAVAN DUFFY

Do I understand the Minister to suggest that there was no prohibition from going into the non-Dáil Courts?

Mr. O'HIGGINS

I ask the question: Have you any record of the prohibition?

Mr. GAVAN DUFFY

I understand the Minister to suggest that there was prohibition from going into other Courts. I am lost in amazement at that at this time of day. I did not bring down here records of matters that are public knowledge and which every man in this Dáil knows. I have no doubt ample records could be produced if necessary. It would be very interesting to have a denial, from the Minister, if that is the case that is going to be made.

CATHAL O'SHANNON

It would be illegal to produce them.

Mr. JOHNSON

It would be .

Mr. GAVAN DUFFY

I have at least the record I have just read out from the Minister's own mouth, that people would be very foolish if they recognised the English machine. The Minister's Department wrote on the 29th May—this time it will be observed that a new stunt is discovered, a new reason against this unfortunate Council to prevent the Ministry from coming to the rescue—"I am to observe that it is very doubtful whether persons or corporations who neglected to apply for protection to the Dáil Courts in the proper manner and at the proper time will come within the scope of the proposed Bill. I should be glad to learn why in the case now under discussion application was not made to the proper Dáil Courts on behalf of your Council for an injunction to restrain the plaintiff from proceeding in the British Court. Had such an injunction been sought your Council's claim for reconsideration of the case would be admitted without hesitation." That matter was also dealt with very effectively in a long letter which, I think, it is unnecessary to read from the Solicitor to the Council. The Dáil will observe that the case for the Dáil Government at the time was that these other Courts were usurpers, that they did not exist as real Courts, and that you must not recognise them. If you take that stand you cannot in the same breath say if a case was brought against you in these legally non-existent Courts that you must go before the Dáil Courts and get an injunction, because the case of the Government is that it does not matter what a British Court says, it is invalid, it is nugatory—it is nothing. Therefore, why ratepayers' money should be wasted by applying for an injunction it is rather difficult to see, and it is only at the last moment that this particular brilliant excuse for not dealing with the Council's reasonable request was thought of in the Ministry of Home Affairs. The solicitor points out that never were people ordered by the Dáil Ministry to apply for injunctions which they considered both costly and useless, inasmuch as the injunctions when granted would have no effect whatever.

I do not think I need pursue that. It is too obvious, and even the Minister can hardly now stand over that particular line against the Council. This Council claims to have suffered more than any other public body in Kerry at the hands of the Crown during the period of the terror, and naturally were not favourable towards recognising British Courts or British Court summonses sent to them at a time when the Dáil Courts were sitting every fortnight. I could, but I think it is unnecessary, say a great deal more about the record of that Council which is now frowned upon by the Minister, but which, from my information, did its duty and did it admirably. Now, the last letter from the Ministry was dated 5th June to the solicitor, and in that letter, while repeating that the Council had been guilty of negligence because it did not apply for an injunction the writer of the letter says:—"The Ministry is, however, prepared to admit that the question involved is one which deserves very careful consideration, and it is still possible that a clause may be added to the draft Bill which, if approved by the Oireachtas, will bring such a case within the jurisdiction of the Judicial Commissioners whom it is intended to appoint." I will conclude that matter by reading the reply of the Council's Solicitor on the 14th June:—"My clients say, and I agree, that the only instruction they got at any time was to refuse absolutely to recognise the British Courts, and this they did, and brought all their cases in the Dáil Courts as provided by the rules issued by the Home Department. If, as is suggested, you require evidence to discriminate between persons who used the Dáil Courts and those who did not, my clients are prepared to prove at any time that the Listowel U.D.C. propagated and supported these Courts to an extent second to that of no public body in the country." Be that as it may, what is clear is that if this Bill goes through in its present form without dealing with cases of that kind, of which there must be a good many, an injustice is being done to people who were loyal to the Government of the day. I ask the Dáil, and the Minister, not to allow that injustice to be done, and to deal with the matter by a very small amendment to the Bill, for instance, an amendment in Section 26, where there is an indemnity to persons acting on the authority of Dáil Courts, or something of that kind. I submit in any case that where a person can prove that he acted honestly in declining to go before the British Courts, and that a case was decided against him in his absence, it is our clear duty to see that that person is not prejudiced by having done as he was told by the Government of the day.

Mr. FITZGIBBON

There is one matter, which seems to me to be a question of principle, involved in the Bill on which, I would like to have some light. It is contained in Section 27. The title describes it as "A Bill to provide for the appointment of Commissioners to dispose of cases which were pending in Courts established under the authority of Dáil Eireann, and to establish a Register of the decrees, and to make other provisions for the purpose of winding up the Courts aforesaid." If Section 27 means what it appears to me to mean, anybody who had any cause of action, that he might have promoted in any Court at any time since December, 1918, and who has been barred by some Statute of Limitation, or something of that sort from proceeding with it, from the date on which this Bill becomes law will have a further period of three months to go ahead with his cause of action. Whatever justice there may be in that it does not seem to me to have any connection with the winding-up of the Dáil Courts. It appears to me that the title of the Bill will require amendment in the direction of saying that it is "a Bill to authorise people to promote dead and gone causes again." Common sense has prescribed that many forms of action, assaults, breaches of promise and others of that kind, cannot be prosecuted after two years from the date on which the cause of action accured. I do not go into the question of debts which are dead after six years, but there are a number of comparatively trivial actions which are not permitted to be brought after a lapse of two years, for the simple reason that people are supposed to have forgotten or forgiven, and also because people against whom actions might be brought would have lost all the evidence they might have produced in their own defence. It seems to me extraordinary that in a Bill for the winding-up of the Dáil Courts such a Clause as this is included, which would enable anyone assaulted in January, 1918, to go on with that cause of action within three months after this Bill is passed. In ordinary law the claim would be dead and gone within two years. What in the existence of the Dáil Courts during a period, I think, of two or two and a half years would justify extending causes of action of that description from December, 1918, to some date in 1924? I rather think when this Section was framed the draftsman had some other matter in his mind, and used language that was far too wide to effect his purpose. After reading this Section in the ordinary sense, it seems to me the effect is to enable any person who had any cause of action that he did not prosecute in some Court, or within the proper time, that he may now go ahead, within three months after the passing of this Bill. Surely if a person had a cause of action there were two sets of Courts open to him. If he disapproved of the British Courts, the Dáil Courts were open. He could have gone there, and the proceedings he took would be validated or invalidated as the case may be. On the other hand, if he proceeded in the other Court he got his decree or got his action dismissed, and it was all over. Why people should now be given leave to proceed with claims that they did not think it worth while to prosecute in one Court or another since 1918 I fail to see.

Mr. JOHNSON

Deputy Gavan Duffy regretted that the Minister in introducing this Bill at this stage did not utter a word of praise for the work of the Dáil Courts during the period from their establishment to their supersession. I had to recall the great play that was made in the course of propaganda abroad out of the work of these Courts. I think it is not too much to say, outside perhaps the military activities—and even outside the military activities if one is speaking of the educational value of the respective activities—no other activity had anything like the same effect on the minds of the people of other countries, as the institution of the Dáil Courts, their successful work, the courage of the people who instituted them, and the popularity and confidence that attended them. Deputy Gavan Duffy spoke of this being the burial service, or used some words of that nature, of the Dáil Courts. I hope that is not quite the intention. I hope there will be, in the coming Bill dealing with the judicial system, some substitute for the Dáil Courts, certainly of the more popular Dáil Courts, which will encourage local confidence in local decisions, and encourage the idea that the Courts are enforcing popular law, with popular assent, and that the person who is administering the law is not someone imposed upon them from a central authority in Dublin, and to whom they must look as someone apart. The Dáil Courts, certainly in the smaller cases at any rate, were considered to be of the people, and their judgments were respected and honoured, though no doubt they caused as much dissatisfaction to the injured party as any other Court. Nevertheless, they were in the main accepted, and the decisions were fallen in with. I took the popularity of these Courts and their success as the beginning of a real popular code or system of law that should be taken advantage of, and be continued. I do not think for a moment that the District Justice system takes the place of the popular Courts, and I would hope that in any new measure, intended to deal with the judicial system, we shall have something to follow the popular Courts that were established by Dáil Eireann, in the early years of the recent struggle.

I had noted this particular Clause 27 of which Deputy FitzGibbon has spoken, and I had noted it in respect of a particular case that Deputy Gavan Duffy had cited, and, speaking as a layman knowing nothing, I am glad to say, about Court procedure, it seems to me to meet the case of the Listowel Council, and that it would give such a Council or such a litigant who had stood by the implied orders, if they were not the direct orders of the Government of that time, not to enter the British Courts, the opportunity of appealing against any decision of these Courts.

Mr. GAVAN DUFFY

There could not be any appeal.

Mr. JOHNSON

If I am wrong in that, then I think some section should be introduced into the Bill to protect defendants who refused to abide by the decisions or to enter the Courts at the time, but who had good grounds for a defence, and to provide some means for reviewing their case.

Mr. GAVAN DUFFY

If the Deputy would allow me I would like to point out to him that there could be no appeal because the case was undefended.

Mr. JOHNSON

That is another illustration of the unwisdom of a layman trying to understand legal technicalities. But there is another reason for taking note of this section, and I hope the Minister is going to show a bold front. I can imagine the hullabaloo across the water if litigants who got judgments in British Courts at that time are now to have their cases retried under this section. Deputy FitzGibbon pointed out that under this section all classes of cases might be retried.

Mr. FITZGIBBON

No, Deputy Johnson must have mistaken me. I did not say anything about retrying cases at all. This section has nothing to do with the retrying of cases, but this section enables people to bring actions that they never attempted to bring during these years.

Mr. JOHNSON

I am quite mistaken then. I have in my hand now a little book that was published under the auspices of the Minister for Home Affairs at that time, describing the work of the Courts of Justice, Civil and Criminal, in the Summer of 1920, and it is really a wonderful record, and I think the praise they get in this booklet published under his auspices was well deserved.

There is a small matter, but, perhaps, raising quite a significant point, that I would also like to draw the attention of the Dáil to, and that is in Section II. It is the phraseology of the first sub-section. It is not quite new of course, it is more or less the practice in some of these Bills. It reads:—"It shall be lawful for the Governor-General on the advice of the Executive Council to appoint a fit and proper person to be Chief Judicial Commissioner." It shall be lawful for him to do that. The phraseology rather suggests that it is optional, but reference to certain Australian Acts of this kind shows that the phrase is found to the effect that the Governor-General "shall appoint," which puts him in his proper place. Now I would urge upon the Ministry the desirability of not allowing enactments to fall into this habit, which would suggest that the Governor-General has the option of refusing the advice of the Executive Council upon such matters, and that we should, as a matter of common practice, if we have to introduce such a clause, recognise the position that that Officer of the State holds, and that we should say quite flatly that it is his duty to appoint such persons to an office that the Executive Council determines, and we should not suggest that he may do it and that it shall be lawful if he does it, which is rather to say it would be lawful if he did not do what he was told by the Executive Council. I hope the Minister will consider that, between now and the Committee Stage, and be prepared to accept an amendment upon these lines. In the main, I think, the Bill will probably meet the needs of the case, and that many of those people who have been seriously inconvenienced and more than inconvenienced, and have suffered a good deal, will have their grievances remedied, at least, to some extent by the passing of this Bill.

Mr. DARRELL FIGGIS

There was only one matter to which I wished to direct attention and Deputy FitzGibbon has already dealt with it, and that is Section 27. I think on the face of it Deputy FitzGibbon has made a pretty strong case against the right to let people come forward now and say that at such and such a time it was really their intention to have brought proceedings. We do not know whether such intention did ever exist. I think the prima facie case that Deputy FitzGibbon pointed out in regard to Section 27 is very strong, but lest it should be forgotten I want also to indicate that there is the opposite point of view. There are cases definitely and personally known to me that have been put before me in the last three months of people who had not in certain parts of the country Dáil Courts in which to proceed and who acting out of loyalty to the Government of the time and which they recognise as their Government did not proceed in the other Courts available for them and who, not having availed of these other Courts, now find their cases statute barred. While I think the Section might with advantage be tightened so as to be less liable to abuse than it appears now to be, I should be sorry that the Deputy's great influence in this Dáil would cause the clause so far to be tightened as to exclude every case however definite and genuine, and the definiteness and genuineness of which could be and should be investigated by terms somewhat the same as those, though possibly less stringent.

Mr. G. NICHOLLS

took the Chair at this stage.

Mr. O'HIGGINS

I cannot agree with Deputy Gavan Duffy that abolition of the Dáil Courts was unwise or unnecessary. My view on that is that the only unwisdom in our treatment of the Dáil Courts lay in the fact that we delayed overlong in abolishing them, and that we allowed the country and the commercial interests of the country to plunge about for many months in the chaos that was created by the dual jurisdiction, or the dual lack of jurisdiction, of two sets of Courts and two systems of justice. The Dáil Courts were, of their nature, occasional and provisional. They were a weapon forged, and hastily forged, in a special set of circumstances to meet the needs of a particular time. The British Petty Sessions Courts collapsed when their Executive arm withered, when the R.I.C. were compelled to withdraw from outlying stations throughout the country to the larger towns, and become in the fullest sense, an armed garrison, and when they ceased to be in any sense a police force. Then the Courts which were based on them crumbled. People resigned the Commission of the Peace, some of them voluntarily and out of sympathy with the popular struggle, and others under a certain suasion from Sinn Fein or the Volunteers, and the Petty Sessions Courts collapsed. Now that period was certainly a period of great restraint on the part of the people, of great selflessness, of great exaltation, and crime and minor abuses were at a minimum through the country. But it was necessary to provide some kind of rough and ready tribunals where people could get the minor disputes that are inevitable from every day life settled in a spirit of neighbourliness and equity, rather than in a spirit of strict law, and these Courts for a period did very useful service. That period I place in the summer of 1920. I have not statistics and I do not know how many of these Courts could be said, in any sense, to have survived the intensive campaign that began in the autumn of 1920, and lasted pretty well until the Truce. I know as from September, 1920, we who were here in Ireland heard very little about these Courts. I do not know what may have been heard by our representatives abroad, and I do not know to what extent that which they had done was useful in foreign propaganda. I have no doubt it was very useful, but, as I say, from September, 1920, we heard very little of these Courts until after the Truce. But after the Truce we would have preferred not to hear many things that we heard about them. These Courts, which had certainly a useful record when they appeared first and had won a good name and their meed of praise from professional people appearing before them, reappeared after the Truce only to be made the channels and the vehicles of corruption and abuse, and only to be used by people not in search of justice, but as an obstruction to justice. The system of plunging from one Court into another, seeking injunctions according as one thought the case was going to go, started about that time. It then became evident to any person with his eye on the signs of the times, and particularly evident to people in commercial circles, that if there was to be security for business enterprise in this country, If there was to be security for debt collections, and for these things on which all trade and commerce are based, that that period of dual jurisdiction would have to come to an end soon, and it became a question of how it was to end. There were really two ways by which it could end, the elimination of one or the other system, the elimination of the State Courts, or the formal adoption as State Courts of those hastily improvised tribunals that had functioned for a period throughout the country in opposition to the British Courts as they were at the time, or the elimination of these occasional improvised Dáil Courts.

Mr. GAVAN DUFFY

Or the amalgamation of both sets of Courts.

Mr. O'HIGGINS

The Dáil Courts had certain inherent defects. They were formed by a process of selection, and those who were selected to function in them were selected because of the prominence or the eminence which they had attained to in a revolutionary period by reason of the leadership which they had attained to in the Volunteers, perhaps, or in Sinn Fein. That fact gave them a hold over their communities and an influence in their communities which was useful for a period, for a period during which their communities were knit together by the bond of common resistance to British administration. I submit that these Courts had within themselves, by their very nature, the elements of dissolution. They were essentially occasional, and they could never have been adopted or adapted to meet the requirements of a normal situation. Further, you had this, unfortunately, that the movement which threw these Courts up was split from top to bottom; you had the poison and the bitterness of that split circulated into every hamlet and into every home in the country.

It was better in all the circumstances to let these rough and ready, improvised, tribunals which had done good work in a certain period go, with that record, like other weapons that we had to improvise for that particular struggle, and to face the fact that they had not within themselves the elements of a useful future for the country, or for the requirements of the people of the country. No man with any proper appreciation of the position through the country, the way the personnel of the Courts had gone, some one way and some another, would dream of trying to hold them together or to reforge them into any tribunal to meet the real practical requirements of the people with regard to the administration of law and administration of justice. Distance, they say, lends enchantment to the view. Deputy Gavan Duffy fighting, as I heard his colleague, Sean T. O'Kelly say, the battles of the Republic on the Continental front, may have formed a highly idealised conception of these Courts. I did not. I was close up to them, and I did not form a highly idealised conception of them. I realised that they were essentially occasional, and I face the fact, and I ask the Deputy to face the fact, that when they reappeared after the period of terror that they did not reappear with that same high morale, or with that same disinterested spirit that did characterise them in their beginning. There is nothing like standing up to things, and there is nothing to be gained by simply being a laudator temporis acti and saying that they were the most wonderful things in the world. They were not. They were faulty, and, in their later stages, many of them were corrupt. They were not wonderful things for the ordinary requirements of the people in their everyday life; they were far from it.

The Deputy dealt with the case of the Listowel Urban Council. I do not think, except that it be taken as a test case, or a typical case, that a detailed discussion of that particular case is relevant, but I want to say this, that I happened to be in the Dáil Department of Local Government and I could tell the Deputy—I do not propose to take the time of the Dáil with it— that the excess of patriotic fervour which prompted the Listowel Urban Council on the 31st July, 1921, to refuse to be represented as defendant in a case, because the Court was British, is certainly very surprising to me, in view of the things that I know of its record in earlier times. I even suggest to the Deputy that the considerations which prompted the refusal were not entirely foreign to the fact that the plaintiff, Carroll, had some personal and purely local unpopularity. Let him, to use a colloquialism, "put that in his pipe and smoke it."

Mr. GAVAN DUFFY

I know nothing about the personal merits of either parties, and I would ask the Minister to put this in his pipe and smoke it, that the only lawful Courts from July to December were the Dáil Courts—the only lawful Courts in the country.

Mr. O'HIGGINS

I put this to the Deputy that there was not an emphatic or a definite prohibition issued against going into the British Courts. The Dáil Courts were set up to provide an alternative tribunal for people who were unwilling to give any recognition to the British system, or the British administration. The Deputy knows, or ought to know, that throughout that whole time cases were heard in British Courts. People did go in and the objection was rather to initiating or to being responsible for initiating proceedings in the British Courts than appearing as defendant when others had initiated proceedings. The Deputy knows too that there was a certain class of business which the Dáil Courts did not attempt to assume jurisdiction in; they left the thing, in a kind of tacit way, to be dealt with by the other system of Courts. Generally, there are things with regard to that whole period about which the Deputy ought to furbish up his memory.

I have no objection to stating clearly the difficulty about putting in this Bill a provision to the effect that people who were not represented in British Courts, and who had decrees given against them, ought now to get an opportunity of appealing. I have no objection to stating that. If we put in, and we have not finally decided not to put in, such a provision it will bring to the surface all kinds of bogus cases, because for the most part the people who had proceedings initiated against them in the British Courts, and who did not appear or take any steps whatever to be represented, or to put a counter case, had no counter case to put. It is something that the Law Adviser is very reluctant to recommend that now, at this stage, after many months you are going to turn around and say that all decrees given during that period in which only one party was represented are to be reviewed by this occasional Commission which is being set up to wind up the business of these Courts.

Mr. GAVAN DUFFY

I ask the Minister to recollect that the people who have no counter cases to put do not stand to gain anything by having their cases reviewed. I am speaking of the genuine cases.

Mr. O'HIGGINS

The question is: can the Deputy give me genuine cases? Has he personal knowledge of half a dozen of these cases? We have not definitely closed our minds on this point. I am open to consider the matter further between this and the Committee Stage, but I am inclined to be quite conservative about it, and to warn Deputies against such a step as deciding to call into question decrees that were given so long ago and deciding that, without any particular data before them. I wonder how many Deputies have had it brought under their notice that it would be necessary or advisable to take that step. We have examined the matter very carefully in all its bearings, and we are not at all inclined to the view that it is wise, or that it is necessary to insert such a provision. This course of calling up things that were finished and done with and proposing to review them is always a doubtful step and a doubtful precedent to set. Deputy FitzGibbon commented on Section 27. Section 27 had this relevancy to the matter in hand, that recollecting the circumstances of the time —this conflict of jurisdiction, and the fact that the writ of any Court, if it was running at all, was running with a bad limp—it has to be faced that it is quite possible that people with quite a good case refrained from going into either set of Courts during that period fearing that the writ would not run.

Mr. DARRELL FIGGIS

I could give you such cases.

Mr. O'HIGGINS

We were so impressed with the aspect of things, so impressed with the fact, that to the ordinary quiet kind of person, who perhaps was not very partisan, it seems a useless expenditure of money, useless cost, to go into Court, and get a decree which was unlikely to be executed, the odds being 10 to 1 against. Neither the wheels of the British machinery, nor the wheels of such machinery as the Dáil could be said to have at its disposal, were turning very smoothly or very steadily, and we do think that many people refrained from litigation though having quite good cases during that period because of that particular condition of things.

This Section provides:—(1) If and whenever the time limited by any statute for instituting any proceedings in any Court of law or equity would, but for this section, have expired on any date between the 31st day of December, 1918, and the 16th day of April, 1922, such time shall be and is hereby extended for three months after the passing of this Act, and any such proceedings which shall have been instituted after the expiration of the time so limited by such statute and before the passing of this Act, or which shall be instituted before the expiration of three months after the passing of this Act, shall be deemed to have been instituted within the time so limited by such statute.

(2) This section shall not apply to any limit of time which can be extended by a District Justice under Section 6 of the District Justices (Temporary Provisions) Act, 1923 (No. 6 of 1923).

It provides that during a certain period, when the conflict was at its height, the operation of the Statute of Limitations shall be suspended, and it prolongs the time for entering suits. We have had considerable evidence, I can assure the Deputy, from the country of the necessity for some such extension, coming mostly from business people whose rightful claims are in danger of being statute barred by reason of the disturbed conditions during certain years.

Mr. JOHNSON

Will the Minister say whether the term "instituting" is intended to preclude the possibility of instituting an appeal and does it mean only the institution of a case entirely new?

Mr. O'HIGGINS

The word "instituting" in that section is equivalent to initiating proceedings. Except for a small matter of wording, that he seemed to dwell upon for a length of time out of all proportion to its importance, Deputy Johnson dwelt mostly on his hopes with regard to the coming Judiciary Bill. He expressed a wish that we would revert in some measure to something on the lines of the Dáil Courts.

Mr. JOHNSON

Arbitration Courts— that is, the smaller Courts.

Mr. O'HIGGINS

I think a discussion of that kind would be more relevant on the Judiciary Bill. But I want to simply stress the fact that the Dáil Courts had a period of glory and a period of usefulness, but that glory and that usefulness sprang very much from the self-imposed discipline of the people at that time, from the exaltation of the people of that time, from the selflessness which permeated them. I think it would be a very unsafe thing to say, judging from that entirely different set of circumstances, that such Courts, set up now in a different set of circumstances, would have the same success or the same utility. Let us face it, that a good deal of the high morale, a good deal of the elevating effect of that movement, has run out of the bucket within the last 12 months and that you have a different people and a different outlook in the country, that you have demoralisation, that men who collected tens of thousands of pounds in 1919 could not be set to that task now, for a sufficient reason. We need not delay going into the question of responsibility for that, but let us not shirk the fact here. Legislating for the people of the country and in the interests of the people of the country, it is our duty to take cognizance of what are relevant facts, and it is a relevant fact that you could not set to the work of administering justice equally, impartially and impersonally between man and man, many who did that work and did it well in the early months of 1920.

Question put: "That the Bill be read a second time."

Agreed.

Third Stage ordered for Monday.