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Dáil Éireann debate -
Wednesday, 1 Aug 1923

Vol. 4 No. 22


(1) No action or other legal proceeding whatsoever, whether civil or criminal, shall be instituted in any court of law or equity in Saorstát Eireann for or on account of or in respect of any act, matter, or thing done, whether within or outside the area of jurisdiction of the Provisional Government or of Saorstát Eireann, since the 27th day of June, 1922, and before the passing of this Act, provided such act, matter or thing
(a) was done or purported to be done for the purpose or in the course of the suppression of the state of rebellion created by the attempt to overthrow by force the lawfully established Government of Saorstát Eireann (including the Provisional Government), and
(b) was done in good faith, and
(c) was done or purported to be done in the execution of the duty of the person doing the same, or for the public safety, or for the enforcement of discipline or otherwise in the public interest, and
(d) was done by a person holding office under or employed in the service of the Provisional Government or the Government of Saorstát Eireann in any capacity whether military or civil, or by any other person acting under the authority of a person so holding office or so employed.
(2) If any such action or proceeding as is mentioned in the preceding sub-section has been instituted, whether before or after the passing of this Act, it shall be discharged and made void, subject in the case of an action or proceeding instituted before the passing of this Act to such order as to costs as the court or judge may think fit to make.
(3) This section shall not prevent the institution or prosecution of
(a) any proceedings by or on behalf of the Government of Saorstát Eireann or any Minister or Department of that Government, or
(b) any proceedings in respect of any alleged rights under, or breaches of, any contract, or
(c) any civil proceedings founded on negligence in respect of damage to person or property, or
(d) any proceedings respecting the validity or infringement of a patent, or
(e) any proceedings under the Damage to Property (Compensation) Act, 1923 (No. 15 of 1923), or
(f) any proceedings for enforcing or otherwise giving effect to any final judgement given by any court in Saorstát Eireann before the passing of this Act and from which no appeal lies by law or is pending at the passing of this Act.

I understood, sir, that, the evening would be fairly well advanced before we would reach this Bill. I move the first section.

An Leas Ceann Comhairle took the Chair at this stage.

I move an amendment to Section 1: "In Sub-section (1), line 26, to insert immediately after the word `or' the words `the Government.' " It is an obvious drafting amendment. "The area of jurisdiction of the Provisional Government or of the Government of Saorstát Eireann."

"The jurisdiction of Saorstát Eireann" surely is more correct? That is the phrase that is used in the Constitution. After all, the Saorstát is the State, that is to say the organisation, and I think the phraseology in the Constitution deals with the area of jurisdiction of Saorstát Eireann.

It would read: "Whether within or outside the area of jurisdiction of the Provisional Government, or of the Government of Saorstát Eireann.""Saorstát Eireann" is already in the third line of the first clause.

That is true. The clause reads: "No action or other legal proceeding whatsoever, whether civil or criminal, shall be instituted in any Court of law or equity in Saorstát Eireann." That is the geographical entity, but the area of jurisdiction of the Provisional Government is one thing, because the Provisional Government was set up to cover a particular geographical area. The State was not established, but when it is it is the State, Saorstát Eireann, and that is a political entity. I think the term "the jurisdiction of the Government of Saorstát Eireann" is not correct.

I think it would be slightly out of balance if in one case the term "Government" was used, and in the other the term "Government" were not used, because obviously it is intended that the jurisdiction should so run as to have been within the area of jurisdiction of some Government or other. I take it that Saorstát Eireann defines the geographical position in the first three lines, and the Government comes in, so far as this jurisdiction is concerned, in the other place.

Amendment agreed to.

I move to delete, in Section 1, Sub-section (1), line 25, the words "act, matter or thing done" and to substitute the words "military act."

The section as it stands reads that no action or other legal proceedings whatsoever, whether civil or criminal, shall be instituted in any Court of law or equity in Saorstát Eireann for, or on account of, or in respect of, any act, matter or thing done. Now, the object of my amendment is to confine the indemnity to military acts. It seems to me that the words that I desire to have deleted give too wide a scope to the indemnity. Acts of Indemnity, as a general rule, are not so wide. They are wide enough to cover the necessary, and essential illegalities committed during a war or insurrection in order to preserve the State. But I think it has been the invariable rule to make them as narrow as was consistent with the spirit in which the act was conceived.

Now, we have not had much time to consider the wording of this particular Act, and it may be that my reading of it is at fault. If that is so, I hope the Minister will be in a position to correct it, but as it stands I take it that the words of the section cover everything. Any acts not covered by previous Acts of Indemnity, known to history would be covered by this particular Act. There is only one other case of an Act so wide, that I ever heard of; that was the Act which the Jamaica House of Assembly attempted to pass in 1886, to cover the illegalities of the Government of that place, and it was not allowed. No one in this Dáil— and those of us on these benches as little as anybody else, less perhaps than anyone else, would desire this Dáil to pass any Act or Section of an Act that would leave it open to anybody to call into use the powers of disallowance which nationally and legislatively is altogether objectionable to us. But I believe that the retention of these words would make that possible. I therefore beg to move the deletion of the words I quoted, and the substitution of the words "military act." I admit that the words "military act" would require a definition later on.

I do not know whether the Deputy has observed that there are four provisions in connection with those powers taken here, that any act, matter or thing is restricted within the ambit of these four (a), (b), (c) and (d). The only other War Indemnity Act was the British Act of 1920, in relation to the European War and our own Indemnity Act in relation to British Acts passed in the winter of 1922, and all are in practically the same words as this Bill. As to the all-embracing character of the words mentioned by Deputy O'Shannon, they are all restricted within these four provisos, “done in suppression of rebellion.”“Done in good faith.”“Done in the execution of the duties of persons for the public safety,” and for persons holding office or employed in the service of the Provisional Government or the service of the Saorstát. The words “military act” would scarcely describe these correctly. One can understand that in the course of operations, such as had to be undertaken to deal with the disturbances that had then taken place for a very considerable time that it is more than possible that information reached important centres which if it were known to persons who were subsequently inconvenienced, which is a very mild term to use—possibly an action might lie or some proceedings could be taken in respect of such information. Such information did come, it came from private civilian sources, and it is due to these people who, having undertaken the public duty possibly entailing serious consequences for themselves without any hope of gain because there were no rewards that these persons who endangered their lives and property in order to serve the State should certainly be covered in a clause such as this. It will also be observed in proviso (d) that it is proposed to grant immunity to certain persons other than military persons. I think in view of the pecular circumstances of the disturbances that it is absolutely essential that we should safeguard from attack, possible loss or persecution persons who so acted in the terms of the four Sub-sections (a), (b), (c), and (d), and for these reasons I hope the Deputy will withdraw the amendment.

This Bill was read a second time yesterday, and it was agreed to, because it was felt that there was necessity for an Indemnity Bill, and, therefore, the principle of it was agreed to. I little thought when I agreed to that, and not having had time to read the Bill, that I was agreeing to the principle of the Bill which indemnified every person who claimed to act, or who was acting under the authority of some Department of State for any act he may have done within this last year.

That is what the Bill amounts to in effect. The production of this Bill, in its present form, and the hurrying of it through as we have been obliged to do, in a sense, obliged to acquiesce in it in ignorance, leads one to have to say more on this stage than otherwise would have been necessary. The Minister has referred to the provisos under Section 1. It seems to me that the provisos mean nothing. The Section says that no action shall lie "whether civil or criminal for any act committed provided that such act was purported to have been done in the suppression of a state of rebellion, or was done in good faith, or that it purported to have been done for the public safety, or for the enforcement of discipline, or otherwise in the public interest, or that it purported to have been done by a person holding office or acting under the authority or a person so holding office, or so employed," The only paragraph in that Section which may be said to be of any value whatever is that such an act should be done in good faith. We are told later on that every act shall be deemed to have been done in good faith unless the contrary is proved. We are asked, therefore, to say that any person who can persuade the Minister to give his certificate that he was a servant of the State, or was acting under the authority of a servant of the State, may have done anything at all within the last year, and will be indemnified unless the complainant can prove that it was not done in good faith.

Now, that is an almost impossible condition, and to prove that a man was not acting in good faith is almost beyond possibility. Unless the complainant can prove that a man was not acting in good faith then we are asked to indemnify that man against trial or against any penalty for theft, loot, cruelty or killing, maiming or any offence almost that can be conceived, or which may be stretched into a possible act done in the public interest. If he purported to be acting for the suppression of the rebellion, or purported to be acting in the public interest, or was acting under the authority of some person holding office in this State, he may claim to have been acting in this way, and so far as that goes he is indemnified, provided the complainant cannot prove that he was not acting in good faith, then he is indemnified against any action. That is what the clause means, so far as I can read it, and it would require a good deal of argument, I think, to prove the contrary. The amendment that Deputy O'Shannon moves attempts to restrict this indemnity to a military act, and, as he pointed out, there would be need for a definition of a military act, but it would not include loot, cruelty, or many of the other offences that have been alleged against persons acting under the authority of other persons holding office or employed by the Government. I think it is desirable to limit this indemnity to those who have been acting, shall we say, in the first case under military authority and in a military manner.

The proceedings of the last year have been pretty generally under the authority of the military forces, and no indemnity ought to confine itself, as far as this section is concerned, to such acts. I am surprised that the Ministry should try to indemnify every person practically who claims to have acted to suppress the rebellion, and for any act that they may have accomplished or have been guilty of in the course of that suppression. I would ask the Minister to think again about this matter. I do not know if the amendment proposed is of a kind which will fit the needs of the case, but it is another instance where we are unable to give proper consideration to the Bill. I do not think we should be invited to pass a Bill of this sweeping indemnifying character without proper consideration. I would desire that the Committee Stage of the Bill should be deferred for a couple of days so that we could really analyse it and get some information about it.

I think the Dáil may possibly have forgotten the Act that I mentioned before, the Indemnity (British Military) Act, 1923, which was passed by this Dáil. If it will not weary Deputies, I will read the first section of that Act. It is:—

"No action or other legal proceeding whatsoever whether civil or criminal shall be instituted in any court of law or equity in Saorstát Eireann against any person for or on account of or in respect of any act, matter, or thing done after the 23rd day of April, 1916, and before the date of the passing of this Act, by any person or under the authority of any person who, at the time when the act, matter, or thing was done, held any office under or was employed in the service of the British Crown or the British Government in any capacity, whether naval, military, air force, police, or civil, provided such act, matter or thing was done or in good faith purported to be done in execution of the duty of the person doing the same, or in exercise or execution of any authority conferred on such person or on the person under whose authority such person was acting by any statute of the British Parliament or any statutory or other order of the British Government, or was in good faith purported to be done for the maintenance of the then existing form of government in Ireland, or for the public safety or otherwise in the public interest: Provided that nothing in this Act shall be construed to prevent any person from instituting or prosecuting any proceedings under the Indemnity Act, 1920, or from claiming or obtaining any payment or compensation under the said Act which he might have instituted or prosecuted or claimed or obtained if this Act had not passed."

There is certainly no difference in substance between these two clauses, and I put it to the Deputies that in the one case there was Statutory authority for most of the acts that were permitted —certainly statutory authority, far exceeding the authority which this Dáil conferred upon the military, and which the Executive Government conferred upon other people in order to safeguard the State. Those acts were done in good faith by those persons, for the safety of the State. They were not promised nor were there undertakings solemnly entered into between the Government and those agents of theirs that such an Act as this would be passed. There was no necessity; they did not ask for it. I believe that they trusted in the sincerity of the various regulations, orders, and resolutions, passed by the Dáil in order to safeguard the State. In this case we are giving no more and certainly no less than we gave to the late enemy, which was given as an act of grace, in good faith carrying out our part of the bargain that was made, when the instrument called the Treaty was signed. To that extent I think it is due to those who undertook, at grave peril to life and limb and property, dangerous duties during that period when there was no statutory authority whatever behind them, except the one authority—the authority for the preservation of the safety of the people of the country. To that extent I think they were entitled to ask for practically the same conditions. The terminology may be a little different, the construction of the clause may not be the same, but the sense is the same.

We have been about ten or eleven months here now, and nothing, I think, has been more striking, even up to this last week, than the capacity of the Ministers to make false analogies, to see only one-half of a position, or, if they see the other half, to ignore it. The President has mentioned two Acts of Indemnity, the British one and the Saorstát one of last year. There is no analogy at all between them and this one. No matter how closely corresponding the words of this one and the construction of it may be to our own act of last year, the circumstances are altogether and completely different. An Act of Indemnity passed either here or in Britain at the conclusion of a National war is a different order of Act of Indemnity from one passed to indemnify the military and other servants of the State after or passing out of a period of insurrection or rebellion. There is not quite a complete analogy. The nearest thing to analogy would be the Acts of Indemnity passed in South Africa in 1915 or passed in other parts of the world in somewhat similar circumstances, even Acts passed here in Ireland by the Irish Parliament after the Insurrection of 1798. All these Acts were framed for a somewhat similar purpose to the purpose of this Bill before us. But the Act that we passed, and which the President properly describes as an act of grace to the enemy, whose forces had been fighting here, is not the same kind of Act at all. All the circumstances are quite different. It was, as a matter of fact, argued here in this Dáil that it was even more than an act of grace, that it was intended for one thing, to prevent anything in the nature of reprisals—which were a likely enough thing, under certain circumstances—against certain servants of the British Government, when the British Government had made a Treaty of Peace with the Irish people, and, on the other hand, to be a kind of appeal from the newly-constituted Government of what was to become the Saorstát to the British Government to be reciprocal in its extension of grace. The President will remember well that the Seanad held up that Act, for some time, because the Seanad thought, or some members of the Seanad thought, that the reciprocity was not forthcoming from the British side. On appeal the Seanad changed that attitude and allowed that Act of Indemnity to pass, but it was not an Act of Indemnity in any sense of the word like this one. This is an Act to indemnify servants of the Saorstát, not an Act to prevent Irish citizens from taking action against those who had fought against them during the period of war.

I am surprised that the President should attempt an analogy. Take, for instance, the British Acts from 1793 on to the passing of the Irish Parliament. Those Acts were not as wide or as sweep as this one. In fact an action was taken against one man named Fitzgerald for cruelty to prisoners in the Insurrection of '98. The Act of Indemnity then in force did not protect him, and as was usual in those days, with that particular class of Government, they passed a special Act to prevent his proper punishment. An excellent authority says of those Acts—and the judgment is just as good in regard to most Acts, as, for instance, the South African Act of 1915, and other Acts of Indemnity, having the same object as this Act—"Reckless cruelty to a political prisoner, or still more certainly the arbitrary punishment or the execution of a political prisoner would in spite of the Indemnity Acts have left every man concerned in the crime liable to suffer punishment." This Act is intended to get away from all that. This Act casts its net so widely that practically everything can be pleaded to have been done in good faith, or to come under the provisions of this Act.

The plea that an Indemnity Act passed here to deal with the circumstances of the last twelve months or so should be less wide than an Indemnity Act passed by the British Parliament in 1920, to cover actions that might have been taken either by the military or civil authorities, or persons acting under the military or civil authorities in Britain during the great war, does not hold water. If it were necessary the argument is entirely the other way. You had a situation during the great war in what was then the United Kingdom, in which you had machinery that was established and working very definitely under statutes and regulations against an enemy that was absolutely outside the territory with which the British Indemnity Act of 1920 purported to deal. Here without machinery set up by Statute, without proper regulations for the guidance of the people who were either military employees or civil employees of a Government only coming into being, of necessity you had a much less trained personnel, much less guidance in the matter of taking action and following up matters than you had in the British case. Therefore, there should be all the more reason why the Government, in passing an Indemnity Act covering that period, should make that Act most embracing.

It is due to the individuals who rallied to form the military machinery for the Government, or who rallied to form the civil machinery for the Government, and who acted in authoritative military and civil capacities to deal with a state of insurrection here that the Government would make the fullest possible provision for their indemnification. The acts that are being dealt with under this Act, are acts that will stand the test of each one of these particular sub-clauses (a), (b), (c) and (d). You are dealing with acts that, under the particular circumstances that existed here were done or purported to be done in the course of the suppression of rebellion, and not only that, but in addition to that were done in good faith; in addition to that were done in the execution of the duty of the person who carried out the same; and in addition to that were done by persons holding office under and employed in the service of the Government for the time being, or by any person acting under the authority of a person so holding office or so employed. I submit that the provisions for indemnification that are made there are the minimum that this Government could place in an Act that was intended to cover reasonably those servants, whether military or civil, who brought the State through the difficulties and the dangers of the last twelve months.

If the provisions of this Act, as the Minister for Defence suggests, are the minimum provisions for an Act of the kind, I wonder what the maximum provisions would be. His analogy is false again. He quite conveniently ignores the failure of the President's analogy between our own act of last year and this one. The failure is just as striking in the case of the British Act of 1920 in this respect, that every Act of indemnity after a state of insurrection or martial law had either in statute or in declaration or in some other form, provision made not only for indemnity of officers and servants of the State, but for amnesty of those who had been in arms or in rebellion against the State. The British Act was at the conclusion of an external war, and after the conclusion of a treaty of peace between the combatants concerned. The British Acts for which indemnity was required were undertaken against a combatant with whom they had then made peace, just the same as our Indemnity Act of last year applied to combatants who were, or who were deemed to have been, at war with us. But the Ministers have made no attempt on this occasion, and have nothing to show that there is anything like a treaty of peace between the combatants. They will deny even that there were combatants at all. They will refuse amnesty to them, and unlike States elsewhere, will not bring the military regimé, and the military domination to an end at the same time as they ask for an Act of Indemnity. Everywhere martial law has been declared at an end where an Act for this purpose has been brought in—in South Africa and everywhere else. But not here. The Ministry, and presumably the Legislature, will leave it to the courts to declare that a state of war no longer exists.

I want to follow up that line of argument. Are we to take it that every case that may have required indemnity up to to-day will come under this Act, and that after this Bill becomes law every person who acts outside the law will be liable to all the penalties of the law. That presumably is the intention.

Certain acts have been committed, and I think it would be well to give a concrete case, perhaps the simplest case, which I think I can show would indemnify the culprit, if there be such, from penalty. A man is kidnapped, and is not found. He may be under arrest somewhere unknown to the authorities. Let us assume for the sake of argument that there are some grounds for the suspicions that have been abroad, and, of course, I think, it is admitted that there have been extra-legal and unauthorised acts committed. Let us assume that this is one of them. Under this section, if the culprit were found and he claimed that he was acting, and his intentions were to act to help in the suppression of the rebellion, that he was acting in good faith, that he believed he was acting in the public interest, and that he was acting under the authority of some other person, nameless, who was employed by the State, he is indemnified, under this Bill, from any consequences, provided that the aggrieved person is not able to prove that he was not acting in good faith. That is going very much further than the Act which the Minister quoted in support of the case for this Bill. If the Minister will introduce that Act as a Bill, with the necessary amendments, I am prepared to support it, and that Act, bear in mind, was passed under exceptional circumstances. The Minister appealed to the Dáil to pass it, not as a bargain, and we supported him because we felt that as a generous gesture this indemnification of British police and soldiers for wrongful acts would secure a quid pro quo from the British Legislature and the release of all Irish prisoners in British custody. It was not examined, and it was a case of wiping the slate clean. They had no longer authority, and there was no need to pursue a vendetta, and in view of that, this Act was agreed to. A similar Act might still be agreed to, applied to those who have been acting unlawfully and purporting to act with the authority of the Government. This Bill goes very much further indeed than that Indemnity Act, and it clears every person for any act that he may have committed, provided that the aggrieved person is unable to prove that the offender was not acting in good faith, as I said earlier, an impossible proposition—or, carrying the matter still further, that the Executive Minister may give a certificate that such a person was acting in the execution of his duty. But even that is not necessary. Under Section 1 the man need not require this certificate. All he has to do is to claim that he was acting in good faith and that he purported to be acting to suppress the rebellion. The Minister for Defence quoted these four provisos, and said that they were cumulative, but the accumulation means nothing at all, when all the man has to say is “I believed I was acting in good faith,” or, “I believed that I was suppressing this rebellion, and I believed that I was acting in the public interest.” The Bill simply wipes out every offence, reasonable or unreasonable, justifiable or unjustifiable. It practically wipes the slate clean for every offender, no matter what the offence has been, and I do not think the Dáil is prepared to do that. The Minister tells us that we have not got to a state of normality. As President Harding once said, we have not got to complete peace and quiet. The Military Authorities, the Police Authorities, the Protective Force, the Civic Defence Force, and such other forces as there may be, of which we know nothing, are all to be allowed or encouraged by this Bill to do things outside their lawful authority. That is not the intention certainly, but that would be the effect if conditions remain as they are represented to be, that a state of peace has not yet been reached You are telling the forces, by giving them this indemnity, that there will be another Indemnity Bill at a later stage, and giving them a loop-hole to do things which are not in accordance with discipline, and are not justifiable according to the law. I think this Bill goes entirely too far in wiping the slate clean, and I say, I would be prepared to support an Indemnity Bill couched in the phraseology of the Act which the Minister has quoted, but I would confine it to that phraseology, and would ask the Minister to consider that proposition.

I have already dealt with the very important difference between the position of a person acting under the authority of the British Government, and a person acting under the authority, but not under the statutory authority, of the Provisional Government, as it was then called, or Dáil Eireann, or Saorstát Eireann, or this Dáil. I do not subscribe to, nor do I admit, that Deputy O'Shannon has proved anything in the case that he has put up. He said that I drew false analogies—I think that was the term he used—and he gave no proof whatever, but got lost in the mazes of the various reasons that he gave in proving that there was no analogy He instanced the case of an amnesty. We are prepared to give an amnesty; we are prepared to give it now; we were prepared to give it all along. We offered one; we offered a second, and in what way were they taken? What is the use of offering an amnesty to a person who will not avail of it? The Deputy has apparently not looked up Sub-section (2) (a), or Sub-section (3) (a):“This section shall not prevent the institution or the prosecution of any proceedings by or on behalf of the Government of Saorstát Eireann, or any Minister.” I do not know exactly what the Deputy has in mind when he says the aggrieved person is precluded from taking action. It is not the business of the aggrieved person to take action with regard to kidnapping. The Government is there for that purpose. If this information is given to us, if we are supplied with information that persons are engaged in kidnapping or doing anything unlawful, or exceeding their duty, or anything of that kind, or taking action not in good faith, I will undertake, on behalf of the Government, to have such persons prosecuted, and there is no necessity for the aggrieved person to think that the onus lies on him to discharge the functions of a citizen in regard to that. While the present Government is in power we certainly owe a debt, a very serious debt, to those who undertook to carry out the instructions and orders that were given them by the Government and by the Dáil. Acting as they did, for the purpose for which they acted, on the instructions which they got, it is our duty to give them this indemnity. We would be failing in our duty if we did not do so. We would be failing in our duty if we did not exceed the terms of the British Act insofar as the difference of the case requires different treatment.

This Act deals with matters, acts, and things done up till the date of the passing of the Act. If normal conditions are restored there is no necessity for any future Indemnity Act. If Deputies are satisfied that normal conditions are restored, they have it within their power to act accordingly. Deputies know perfectly well that normal conditions are not restored. They are in the gradual process of restoration, they have been approaching normality, but there is no objection, none whatever, on the part of a single member of the Executive Council, or any body I believe in the Dáil, to give an amnesty, if the amnesty be accepted in the faith in which it is given, in good faith, and if there is a wiping of the slate, a clean wiping of it. But we are not going to take, nor are we entitled to take, any risks with regard to that, or to offer that which will be spurned, as it has been already spurned. If information is given to us as to the identity of persons engaged in kidnapping, or engaged in doing anything unlawful, or exceeding their duties, or anything of that sort, I undertake to carry out the duties of the Government in regard to the wishes of the Dáil, and of our own judgment with regard to that, and that is to prosecute any person who has exceeded his duty, and has not been acting in good faith, and who otherwise is not, a true citizen of the State in regard to the execution of his duties.

The Deputy did not mention if he thought the time was ripe for an amnesty. Even when things did not appear any thing like so favourable as they do now, it was offered, and it was availed of by some, but not by all. With regard to cases of alleged cruelties, or anything of that sort, I have often before pointed to the fact that we had a very large number of prisoners, a very good evidence of the fact that those engaged in suppressing the rebellion suppressed it with every possible amount of mercy. I have already stated on more than one occasion that these exaggerated stories of cruelties we have heard are the natural outcome of persons who are disappointed in not having carried out what they set out to do. I mentioned on one occasion that we know of those exaggerations, and that we were ourselves witnesses to them in the old days, and that we know how easily they are started and with what zest the people will believe them. Only a short time ago, it will be within the recollection of Deputies, it was alleged at a public meeting, that a body was found riddled with bullets, and a withdrawal, apology or explanation of that had to be made. Remember the particular grounds alleged, a note was washed up for another person to read. In other words it did not matter a damn if another person read that, but when Simon Pure read it, it was another matter.

It is now 7 o'clock, the time fixed for private business.

There is no other business, and I think we will go on with this.

The President has informed us that owing to the pressure of public business it would be expedient that private business be not proceeded with, and in deference to that, Dr. White and myself have agreed not to proceed.

Amendment put and declared lost.

I beg to move: "To delete the words `or purports to be done.' My reason for this is to make sure that there is not any mere statement of the person who committed the act that he believed he was doing it for the suppression of the rebellion. I would be inclined to withdraw this amendment, and my opposition to the clause, if the Minister will insert an amendment on the lines of his speech when he spoke of the acts done in obedience to instructions, and the carrying out of orders. That would meet my objection.

May I interrupt the Deputy? When I said acts done under instructions, I meant resolutions passed here and the authority given here, not instructions that were given. I do not know anything about any other instructions, that I think the Deputy has in mind. I had a different thing in my mind.

I had nothing in my mind about instructions given. I had in my mind acts that were done outside instructions by people who pretended they were acting under instructions, but can hide behind the pretence that they were acting under instructions. I do not want to indemnify those people, and this clause will indemnify them, notwithstanding what the Minister says about Sub-section 3, which says the Government will not be prevented by the section from instituting or prosecuting proceedings. Certainly they will not be prevented, but I think that there are many occasions where an aggrieved person can bring actions. If they cannot prosecute in criminal courts, they can bring actions for damages, and this section deals with civil or criminal cases, and an aggrieved person can bring a civil action against an offender, or one whom he alleges to be an offender. I maintain that this Section will allow people who did acts in defiance of instructions to claim indemnity, and to escape liability. If provision could be inserted in this section, where the person would be acting in obedience to the instructions of his superior officer, then there would be a liability to prove that he was acting under the instructions of the superior officer, and the indemnity then would cover the illegal acts of people who were acting on their own initiative, and their own authority.

It is no use blinding ourselves to our beliefs that men have sallied forth from barracks and gone into houses and smashed up houses and stole things from houses. Now, deliberate destruction may be a criminal offence, or it may be a civil offence; it may be either. The Government are not prepared to prosecute in the criminal court. A civilian who suffered that damage can sue in a civil court, but if this Section passes I maintain that every person is indemnified against these Acts; all he has to say is he was properly acting in the suppression of rebellion, or that he acted in good faith believing he was acting in suppressing rebellion. If the Minister will insert some words to the effect that he was acting under the instructions of a superior officer, it would go a far way to meet my point, I think the liability to trace the direction would go far to establish responsibilities, and we could find out whether there was responsibility or whether it was the act of a criminal pretending to act in good faith in the suppression of rebellion at the instigation of the Government. No man should be indemnified unless he was able to afford this proof.

The Bill makes it perfectly clear that the act must have been done in good faith. Sub-section (1) (b) says “provided such act, matter or thing was done in good faith.” There is no question of “purporting to be done in good faith;” it must be distinctly established that the act was done in good faith. With regard to things done, or purporting to be done, it is quite possible that action has been taken, and that the person taking that action was perfectly satisfied he was taking it for the purpose and in the course of the suppression of a state of rebellion, and that later, and in calmer times, it could not be sustained that the act was reasonably or even justifiably taken in the suppression of rebellion. If in the circumstances in the mind of the officer, the man in the discharge of his duty acted in perfect good faith, and if the act he did was an act that it was necessary to take at the time, then this Act of Indemnity here is in-ended to cover such act as that. You cannot get away either from acts taken on a person's own initiative. Anybody who knows the circumstances in which the present state of war developed knows how events were almost entirely dependent, in the earlier stages, on men sizing up their local situation and acting on their own initiative, and taking action with a view to preventing the spread of disturbance in their area, or definitely putting down disturbance there. In some of the actions taken it would be absolutely impossible to define a very clear authority running step by step up to the Army Council or the Minister for Defence that could be reasonably put up in a court, and asked that it be regarded with a line of authority running step by step down to the man who took action in June, July or August, or later days. The Bill is intended to cover a period in which we were depending on men taking their own initiative and dealing with the situation immediately around them, and dealing with it in very difficult and hurried circumstances. Therefore, the amendment cannot be accepted.

Amendment put and negatived.

I beg to move the deletion of paragraph (c) of Sub-section (1) of Section 1. The paragraph reads: “(c) was done or purported to be done in the execution of the duty of the person doing the same, or for the public safety, or for the enforcement of discipline or otherwise in the public interest, and.” I am taking this course because I want to find out what is the meaning of the paragraph, and to draw attention to its import. The words in the paragraph that an act may have been done “in the execution of duty” may be satisfactory, and no doubt if the person could show that he was executing his duty in doing this Act, then that would be a reason for indemnification. But it is said in paragraph: “or for the public safety, or for the enforcement of discipline or otherwise in the public interest.” It may purport to have been done for the public safety, for the enforcement of discipline or in the public interest. Either of these conditions would satisfy the paragraph. I would ask if the Minister would agree to the insertion of words somewhat on these lines: “In the execution of the duty of the person doing the same, or in obedience to instructions issued by a superior officer.” These alternative propositions seem to me to exclude the possibility that the man was even doing his duty in carrying out the act for which he is to be indemnifified, and I would like to hear what the Minister has to say on that point.

All these sub-parargraphs are cumulative, that is to say the thing must be done under (a), it must be done in good faith; it must also be done under one of the sub-heads of (c), and it must also be done under (d). To entitle a person to indemnity he must come in somewhere under every one of the sub-heads. The sub-heads (a), (b), (c), and (d) are not alternative; they are all cumulative, and, therefore, if you were to delete (c), you would be deleting a series of things one of which must be proved in addition to (a), (b) and (d). Therefore, to delete anyone of these sub-heads is to increase the immunity, already very great, that the Act gives to a person who has committed an offence. To say that they must be done under the section in the execution of the duty of the person, or must be done in obedience to the orders of a superior officer, would defeat the intention of the section, because that would cut out the possibility of an honest mistake, which I think was contemplated by the draughtsman in drafting the Section. If a man, say, were sent down with orders to arrest A.B., and, in honest mistake, he arrested C.D., that would have been an act not done in the execution of his duty, because his duty was to arrest A.B. But it would be purporting to have been done in the execution of his duty, because he was trying to obey his orders and failed under (b), and made a mistake. That is the man whom the sub-section protects, and that protection in an Act of this kind is a protection that is invariably inserted. To delete any one of these sub-heads would be to increase the immunity that, I say, is already very great.

I must say that I quite realise that, but I said when I was moving the deletion of this paragraph that I was doing so for the purpose of extracting from the Minister some further explanation, and I saw no other way of getting the information than by moving the deletion of the paragraph. I am not convinced by the arguments of Deputy FitzGibbon that there is no liability upon the person to show that the act, which he carried out, requires an indemnity. It is possible that a criminal act was done in obedience to instructions. The case quoted by Deputy FitzGibbon was, of course, a very simple one, and would not need the elaborate provision of this section. I am thinking of the criminal acts, responsibility for which could be evaded by this section, coupled with a later section which the Minister for Defence conveniently forgot. Sub-section (2) of Section 2 says that every such act "shall be deemed to have been done in good faith unless the contrary is proved."

Amendment put and negatived.

Question put: "That Section 1, as amended, stand part of the Bill."
(1) A statement in writing signed by an Executive Minister certifying any of the matters mentioned in this section shall be conclusive evidence of the matters so certified, that is to say,
(a) that any act, matter, or thing complained of in any such action, or other legal proceeding as is mentioned in Section 1 of this Act was done in the execution of the duty of the person by whom it was done;
(b) that at the time when any such act, matter, or thing as aforesaid was done, the person by whom or under whose authority the same was done held office under or was employed in the service of the Provisional Government or of the Government of Saorstát Eireann.
(2) Any such act, matter, or thing as aforesaid, if done by or under the authority of a person holding office under or employed in the service of the Provisional Government or of the Government of Saorstát Eireann shall be deemed to have been done in good faith unless the contrary is proved."

I beg to move the deletion of Sub-section (2) of Section 2. That Sub-section seems to me to complete the white-washing process. I say it is impossible to prove that a person was not acting in good faith. I think the liability of proving that he was acting in good faith is on the person who committed any act.

The Minister drew attention to the paragraph in Section 1, that one of the provisos was that the act for which the indemnity was sought was done in good faith, but this sub-section says that "the acts shall be considered to have been done in good faith unless the contrary is proved." The smashing of a man's furniture cannot be defended, I think, in normal circumstances. If a number of men go into a house in the execution of their duty and proceed to smash the furniture within that house, those smashers should be held liable to prove that they were acting in good faith. They should not be deemed to be innocent of malice until the owner of the furniture was able to prove that they were not acting in good faith. I would recognise quite clearly that if we were only dealing with acts of military or police which were in excess of their duty, due to over-zeal and perhaps a misunderstanding of their responsibilities, that this phrase and this section might be quite satisfactory, but I can see every possibility within this Bill, and especially a sub-section of this kind, that these acts, which, as I have stated, were criminal acts, and were done, as I believe, in defiance of authority, are going to be whitewashed, and there will be no liability. I think that the assumption of good faith in such cases is quite unreasonable. We should not assume that an act of that kind was done in good faith. If we had had more time to prepare amendments for this Bill, we probably would have put in amendments which would be more in keeping with the act of legislation, but in the absence of proper time and proper consideration, I am forced to propose amendments which are probably going beyond my desire and my intention. I feel that this assumption of good faith in the case of acts which are obviously criminal acts is too gratuitous altogether. I certainly hope that we shall have time to introduce amendments before the Report Stage—amendments which can have a little more consideration before they are framed. In the meantime I will move formally that Sub-section (2) be deleted.

It would seem be suggested by the last speaker that this Dáil wanted to whitewash people in the case of loot and in the case of every ignominious act the Army did. I think every Deputy in this Dáil who reported any cases to the Minister for Defence got any satisfaction that was sought. I know myself, and I know from other Deputies that I discussed the matter with, that our requests were acceded to the very fullest. It seems to be assumed that acts were not done in good faith. People who have nothing to do with the construction of an army either now or at any other time, and who were not engaged either in 1916 or in the late war with the Army, do not know how difficult it is to keep an army together. I would submit that nobody should by any means suggest that this Dáil directly or indirectly connived at anything that was done irregularly by the Army.

Deputy O'Donnell's argument, if I might call it an argument, might be all right—I do not say it would be—if the Act only applied to the Army and members of the Army, but the Act applies to many more than members of the Army. Deputy O'Donnell does not seem to realise that it applies to anybody and everybody who has purported to be a servant of the State and acts as a servant of the State in good faith, unless that somebody can prove that he did not act in good faith.

I submit that the sub-section here is perfectly reasonable, and that it is perfectly reasonable in respect of servants of the State whose actions are covered by Clause 1, to accept that they acted in good faith until it is proved to the contrary. I submit that it would be quite unreasonable to expect that such men would have to come forward and prove in some Court, or to some person's satisfaction, that they did act in good faith. It is quite reasonable that the sub-section should be there. It would be quite unreasonable to think that any clause in this Bill is intended or will have the effect of whitewashing or cloaking or of giving immunity to any person against whom it could be proved that he entered a man's house and smashed up his furniture.

Amendment put and declared lost.
Motion made and question put: "That Section 2 stand part of the Bill."
(1) Every military court or committee or tribunal (in this section called a military tribunal) established since the 27th day of June, 1922, and before the passing of this Act by the military authorities of the Provisional Government or of Saorstát Eireann for enquiry into the cases of or for the trial of persons taken prisoner as military captives by the military forces of the Provisional Government, or persons charged with offences, shall be deemed to be and always to have been a validly established tribunal, and every sentence passed, judgment given, or order made before the passing of this Act by any such military tribunal shall be deemed to be and always to have been valid and to be and always to have been within the lawful jurisdiction of the tribunal.
(2) As soon as may be after the passing of this Act there shall be established by an Executive Minister a Board of Commissioners consisting of not less than two members, all of which shall be persons who at the date of their appointment hold or have held judicial office in Saorstát Eireann.
(3) The Board of Commissioners established under this section shall have power to review, and on such review to confirm or reduce, but not to increase, any sentence of penal servitude or imprisonment imposed by a military tribunal on any person, whether such person was or was not at the date of such sentence ordinarily subject to military law.
(4) An Executive Minister shall immediately on the establishment of such Board of Commissioners make rules regulating the procedure of such Board, and making provision whereby any person who at the date of the passing of this Act is serving a sentence of imprisonment or of penal servitude imposed by a military tribunal may apply to such Board of Commissioners for the review by such Board of the sentence so imposed on him.

I move to add after the words "Provisional Government," the words "or of the Government of Saorstát Eireann."

Amendment agreed to.

I desire to move the deletion of Sub-section 1 of Section 3. The section is a section that deals with the courts, the courts that have been operating, and the body of Commissioners which it is proposed to set up to review those sentences. The sub-section says that "every military court or committee or tribunal established since a certain date and before the passing of this Act by the military authorities"—and so forth—"shall be deemed to be and always to have been a validly established tribunal, and every sentence passed, judgment given or order made before the passing of this Act by any such military tribunal shall be deemed to be and always to have been valid, and to be and always to have been within the lawful jurisdiction of the tribunal."

In the first place there are three different bodies mentioned here—military court, committee, or tribunal, and there is nothing in the Act to define what is meant in this section by a military court or committee or tribunal. There is nothing to show whether the same thing is meant by a military committee as by a military court. As we know, the position of the Army has been, not in a political sense, but in the legal sense, somewhat irregular. Steps have been taken to regularise and legalise that position. But while there are definitions in that other Bill, there is no definition defining these courts or committees or tribunals. I do not think it is right that the Dáil should permit this section to stand. In the first place, we do not know how many prisoners have been condemned by the bodies mentioned in the section. We do not know the sentences that have been imposed upon them and we do not know either the composition of the bodies that passed those sentences, or in any of the cases, except perhaps a few, the nature of the offences which the Courts were set up to try. In addition to that, all these courts have sat absolutely in secret. They are not courts known to the law. Even if they were regularly established military courts, their actions as courts have not been known to the law. But we are now asked, without knowing anything about them, without knowing whether all of them had authority from what are described as the higher military authorities to put the seal of validity on every decision they have come to. No doubt, further on there is provision for review, but before that provision is arrived at, we are asked in the sub-section to make everything they did valid. I submit that the Dáil should not do that, and I move the deletion of the sub-section.

The Deputy has not explained to us what alternative there was to that particular method. These military tribunals, committees or military courts were authorised by Resolutions of the Dáil, and they acted on the instructions they got from the Dáil. They passed certain sentences. The only delay that can possibly take place with regard to the revision of the sentences is the delay from the passing of the Act and the setting up of the body of Commissioners. The deletion of this first section would scarcely affect the issue because obviously unless there is a proposal put forward that persons so convicted were to be released their cases would not be affected by the exclusion of Section No. 1, and they would apparently remain in military custody without any validation of their sentences. A validation is necessary in respect of officers and committees and others who took on themselves this duty without statutory authority, and simply by Resolution of the House at a time when the public safety demanded some such action. It is certainly due above all others to the military courts or tribunals. I would myself consider it a very serious dereliction of my duty if I did not bring forward this section. I think I was responsible, in the first case, for introducing those resolutions to the Dáil. They had no statutory authority. They have none now. They were passed by a majority vote of the Dáil after very considerable discussion. On more than one occasion has it been mentioned to me by officers in high positions that they fully realised the seriousness of their position. I think the Deputy will, on reconsidering the matter, withdraw his objection to this particular sub-section because of its implications. I am sure it is only due to those officers who undertook such very, very serious responsibilities on our resolution here, and if ever a thing was done in good faith, that was certainly done in good faith. It was a painful, arduous, and I might almost say a brain-racking duty that fell upon them, and they did it by our direction, under our resolution here, and without any other authority than that. I do not know how otherwise it would be possible to validate—and it is only a temporary validation—all those sentences until they are reviewed as provided for under Sub-section (2) of this clause.

I have, on occasion, found it, or deemed it to be, my duty to criticise the President and the Executive Council on certain matters. However, I do not like to let this opportunity go by without putting something into the scale on the other side. I have made it my duty, within the last three or four months, to make inquiry through solicitors and otherwise into the procedure of these military tribunals. I am bound here in fair honour to testify that in every case it has been stated that those who have been present at the tribunals have found them anxious and desirous only of achieving justice, and anxious and desirous of throwing their weight on behalf of the person arraigned if such could at all possibly be done. That has been the united testimony, and I would like to state here that that has been testified to me even by solicitors who have been there on behalf of prisoners, and who, for other reasons, have not at all been predisposed in favour of these military tribunals. That has been their testimony, that they have been just tribunals, and that the officers who have sat on them have in every case endeavoured to temper justice, and to temper justice as far as it could possibly be tempered with every consideration for the prisoner. Seeing that that is the case, I think it would be very hard and very unjust if we now were to do anything that would fail to make those sentences, which so far have no legal cover, illegal, as they would continue to be. I therefore urge that the amendment be withdrawn, or not persisted with, but that this clause be passed in order that validity should be given to judgments that were entered into with every care, and certainly with every desire, so far as I have been able to discover, to administer justice fairly as between all parties.

The Deputy probably has had better opportunities for finding out the course of justice in these Courts than other Deputies. I, for one, am under this disability, that I do not know what number of military courts or committees or tribunals, or what kind of military court or committee or tribunal has been established. I know, of course, that the Dáil authorised certain courts to be established, but other courts may have been established; there may have been other tribunals or other committees besides those authorised by the Dáil. We do not know. "Every military court or committee or tribunal established since the 27th day of June, and every sentence passed by such court or committee or tribunal is to be validated." It is a pleasing thing to have perfect faith, but my name is Thomas.

A very good name.

Doubting Thomas.

I have certain doubts, and I am not prepared to assume that the acts of the military authorities have all been strictly in accordance with the authorisation. At least, if this section is persisted in, we ought to have a phrase included that such courts or committees or tribunals shall be those set up under the authorisation of the resolutions of the Dáil. But we are also in this difficulty, that we know nothing about the sentences passed, the extent of them, and, if they are imprisonments, the length of these imprisonments. People may have been sentenced to all kinds of penalties unthinkable. We do not know. I say "may." I am suggesting extremes, but this validation of everything that may have been done by a military authority, and possibly some things that cannot be undone, is very wide indeed. I think that before we are asked to pass this, the secrecy of these courts should have been cancelled, and we should have had some report from the military authorities as to the number of trials that have taken place, the extent of the sentences, and the kind of the sentences, so that we would know what we were validating—at least, to have some idea that we are not authorising acts which, if our eyes had been open, we would not have authorised. Deputy Figgis often quotes business practices, and the President is very fond of the analogies of the business man and his practices. I wonder do they regularly advise the giving away of blank cheques, because that is exactly what is meant here. I would ask the Minister to give us a report of the kind of courts that have been set up, the cases that have been tried by these courts, the number of prisoners that have been sentenced, and the length of their sentences, if they are imprisonments, or what other sentences have been passed. Then we would know if we were doing the right thing in validating these sentences; but this provision is practically asking us to say, "Whatever you have done was right, whatever you have done was lawful, and if it was not lawful we will make it lawful." I am not prepared to do that without having some further light on the subject.

Deputy Johnson while speaking looked at me with such an air of mild and beneficent challenge that I am moved to reply to him, and I would ask him in that regard to contemplate what is the alternative of such a paragraph as this. He has stated that I have quoted business practices and procedure. I hope that business practice and procedure will always be observed. He asks, "How many business firms give away a blank cheque." I think it is a little late in the day to speak about that. Whenever a business house did give away a blank cheque to anyone of its agents, and that agent filled it in, the business house would have to honour that cheque. What is the alternative to this? Let me put it in terms of ordinary procedure, such as Deputy Johnson, I am perfectly sure, experiences every day and every week. Take the head of any department of a firm. Matters come across that particular head's notice of certain acts done by a subordinate of which he does not entirely approve, of which he may even deeply disapprove, but these acts were undertaken by that subordinate in good faith. They may be most injurious acts. What does the head of the department do in this instance? He settles his account with the subordinate for the future, but he backs him for what he has done in the past, and this is the case entirely between these persons and this Dáil, which is the head of this firm.

An Ceann Comhairle resumed the chair at this stage.

It is perfectly true that other tribunals than those established under the Resolutions of the Dáil of September or October last may have been set up. Let us say that there were. I do not know. Let us imagine that certain sentences were given that were harsh, injurious, unjust. What is going to be done by this Dáil with regard to those sentences passed by tribunals set up by certain responsible persons? Will you repudiate them now? I hardly think that that would be persisted in. The right action surely is to see that these acts are rectified for the future and that in so far as any injustice has been done in the past, the persons who suffered from that injustice shall have it amended as far as can be done, but that the servants, who acted in good faith, shall be supported in the action that they took in such good faith, and that is all that is endeavoured to be done here. The alternative is to repudiate the subordinates of what I described here as a business house, and I do say that that would not be done anywhere if these subordinates had acted in good faith, believing that they had a good and sufficient charter.

In any case the best commendation that this sub-section requires is just to imagine, and to contemplate quietly this alternative, and this alternative means that there would be no confidence in any person so appointed if they did act in excess at any particular moment of the letter of legislation, because there was no time to have provided that legislation. I believed at the time that we should have formulated these military courts last autumn more carefully than we did, but this Dáil by its majority framed them in a certain way, which Deputy Johnson described——

Which Courts?

I am talking about the courts of October 28th. If the Dáil, having come to that decision, instituted certain courts then, then the Dáil is responsible for what its agents did, but Deputy Johnson says—what about the courts in between that and June 27th. What I say about these courts is, that these in any case would have to be undertaken, and their sentences reviewed, but the responsibility would have to be undertaken by this State for what was done by State servants or earlier courts. Therefore, the only correct and just procedure is to validate what has been done by these courts, and correct, if possible, any injuries that might have arisen, and to rectify the future. That surely is all that this section endeavours to do.

My intention in moving the amendment was not at all to prevent the Act of Indemnity from extending to those officers who sat on courts. I recognise with the President that they are as much entitled to get indemnity for their acts, as any other officer, but we have got no information as to the number of sentences, or the nature or extent of the sentences which we are asked to validate. Deputy Johnson has asked for some information, but we have not got the information. Now, I come to Deputy Figgis. It must be because we are coming to the end of our tether that Deputy Figgis is getting as bad as a Minister, as bad in one sense.

He has forsaken the angels.

And improving in another sense, because if I might put it in common language, he would on the doctrine he has just enunciated make a lovely boss. If in the past an employe of Deputy Figgis did something that he did not quite approve of, or in fact something he strongly disapproved of, Deputy Figgis would most generously and kindly, and with the greatest christian spirit, forgive him, and stand over what he did.

Though the Dáil is not a business firm with a managing director, I do not think that the practice of ordinary business houses is the practice as described by Deputy Figgis. On the contrary, I have come across a few cases, at all events, of servants of such houses getting the sack for doing things that the managing director did not quite approve of, and in other cases of such servants being, if they exceeded their authority, prosecuted by the business house. You see it is not all quite so simple as Deputy Figgis would lead us to believe. With intelligent anticipation, if this amendment were not carried, I was about to suggest another amendment that the validation should only apply to those courts on which there was either a majority of people with legal knowledge and experience, or except in purely disciplinary cases, a majority of officers of a certain rank. So far as the Dáil knows, some of the courts may have been courts of lieutenants, and some of them may have been courts of corporals, or courts of privates, and they may have been dealing out rough and ready justice in giving pretty severe sentences. We do not know what kind of sentences. We have not got any of this information, and because we have not, I suggest that we should not with our eyes closed swallow the section as it is in the Bill.

The Deputy, I think, is mixing up two matters which are very distinct, and which ought to be regarded as distinct. In the first place he is doubting, I expect, the judgment and wisdom of the various military tribunals, as they are called here, in passing certain sentences. I take it that is the main objection, that they may have exceeded their authority.

We do not know.

That they may have done things which, if it were not for the disturbances that were taking place would not have been done at all. That is not the essence of this section at all; it is that men acting under our instructions, and fortified by resolutions passed by the Dáil here, undertook serious and responsible duties, which for years to come may possibly be painful recollections for them, but which they did at our bidding and under our instructions. I am sure from what I know of them that they had no more distasteful duty to do during the whole period of these disturbances than performing the duties prescribed in the regulations. They require now an indemnity for carrying out the duties which we ordered them to carry out. Bear that in mind. That is the main concern, and, therefore, our main concern is if they exceeded their duty, if they were unable to weigh properly the cases before them, if they were lacking the wisdom of Solomon in deciding the issues put before them, that is provided for in Sub-section 2. But no amount of argument can get over the fact that you must indemnify them for doing their duty at our bidding. The Deputy may have been against it. I say our bidding. It was the responsibility of the whole Dáil; and it is now the responsibility of the Dáil to honour the cheque they drew, as my very able and very learned and very distinguished friend, Deputy Figgis, has said.

The matter for the moment as to how many sentences there were is not a concern of ours now. The fact is that these officers functioned under instructions issued to them here, and functioned in the majority of cases, I firmly believe, against their own goodwill and desire, but functioned in accordance with their duty as officers carrying out their duty to the State. The Deputy, I think, made a very serious mistake when he said that he was prepared to consider the validation of certain sentences passed by officers of a certain rank, but to exclude from the benefit of his beneficent feeling unfortunate lieutenants. It may be a misfortune that a man was not of a higher rank than a lieutenant if he acted on one of those tribunals. But once he acted, he is entitled to this indemnity, and that is the essence of this proposal. Any judgment he passed may be wrong, but that does not withdraw from his right and privilege to demand from us now an indemnity for that. It was an act of duty. For instance, it might have been determined that only members of the Dáil should act; that only Colonels or Major-Generals or Lieutenant-Generals, or even only the Commander-in-Chief himself, should have acted. If so, that was our mistake. We cannot blame the Lieutenant if he did not, perhaps, possess a University education, if he did not possess legal experience or the judgment that years of experience of the world would give him. All the decisions in these courts—and this is an important thing to bear in mind, and may relieve the Deputies' misgivings or scruples on the matter of decisions and sentences— all these decisions and sentences were reviewed by two members of the Army Council; they were Major-Generals, I presume, because I think that is the lowest rank that is allowed on the Army Council. My association with the Army was very remote, and my rank was not above that aspersed by the Deputy, although there were many in the ranks who rose to be Major-Generals, and the Deputy can gather from that what form I would have shown if I had remained in the Army.

The Minister has ridden away on an assumption not justified by the phraseology of this sub-section. The military authorities may have established tribunals which were not authorised by this Dáil. As a matter of fact, there have been tribunals established within the Army that have not been authorised, and people have been punished by these tribunals. "Every military court or committee or tribunal established by the military authorities"—that is altogether too wide. I can understand the strength of the argument that if this Dáil authorised the establishment of courts and gave authority to certain persons to be upon these courts, and gave them a wide discretion as to the kind of sentences they might inflict, then these courts and the officers constituting these courts are entitled to some indemnity, but only these courts, only these tribunals, only these committees set up under the direct authorisation of the Dáil. If there were other courts set up in the Army by the military authorities—and we have no definition of who the "military authorities" may be under this Bill; they may be subordinate authorities or little groups of men in barracks who constituted themselves into courts, and tried certain people and executed sentences on people, and these military courts or tribunals or committees and their acts will be indemnified by this section. Does the Minister intend that any such court should be validated?

I never heard of any.

No; but they may have existed without your knowledge. The President a moment ago said his knowledge of the Army is remote. Some people whose knowledge of the Army is very close think differently in regard to the setting up of these courts, tribunals, and committees which existed for the execution of rough and ready justice such as the Minister for Agriculture is so fond of quoting.

Might I intervene for a moment to say that there is no intention whatever to include any such order as is mentioned by the Deputy. Military tribunals here are tribunals set up by order of the Army Council, or under regulations issued by them.

Will the Minister agree to insert words which will ensure that military courts, committees, or tribunals are those which have been authorised by resolution of the Dáil?

I do not know whether that would exactly cover it, and I am not sure but that a certain order under one of these regulations was laid on the Table of the Dáil. I cannot remember what the precise method of adoption was on that particular order that was placed on the Table. I do not think it was adopted. I cannot quite say what happened to it. I think the motion was that it was to be negatived, and that the motion did not pass. Obviously anything that would be set up in that way would not be a tribunal set up by resolution of the Dáil, but under regulations or something of that kind. There is certainly no intention to take cover for any illegal operations that may have taken place, and it is denied, as far as I am concerned, and so far as any member of the Executive Council or the Commander-in-Chief is concerned, that such courts ever existed.

My whole point is this that there are courts within the Army, or shall I say that there may be courts within the Army. I will go further and say that there are courts within the Army which may, under the latter part of the Section, be defined as military courts, military tribunals or military committees set up by the military authorities. This latter is a phrase that is undefined. These courts may have imposed sentences and carried out sentences, and I am not prepared to validate these acts. Perhaps the Minister will agree to insert words which would ensure that these military courts, military tribunals and military committees referred to in this sub-section are such as have been established with the authority of the Dáil, however that authority may have been conveyed, whether after the courts were set up or before the courts were set up. If that assurance is given then I am prepared to advise my colleague to withdraw his amendment for the deletion of this Section, but I want the assurance that the tribunals referred to are duly authorised tribunals by the Dáil.

Surely the question that Deputy Johnson proposes is answered in the wording of the sub-section. Deputy O'Shannon suggested that I might make a lovely boss. I do not know whether I would or would not. I had some experience of speaking with subordinates, and I have always supported them in any action that was authorised, and that is the whole basis of my argument that these things are authorised. Deputy Johnson asks a long series of questions as to whether these courts are or are not authorised, and whether all the courts covered by the section were or were not authorised. The words that I draw attention to are the words in the fourth line of the section where it says, "by the military authorities." Surely authority has only one meaning, and a very clear meaning. An authority is a corporate person, or an individual person who is authorised, and the word has no other meaning. If there are irregular courts set up, these courts were not set up in the plain meaning of the phrase "military authorities," and surely, therefore, they are not authorised courts. It is not a far stretching of argument to suggest that authority is an authorised person, and it is upon these words that the whole of my case has been swinging, that is that a thing has been authorised. Certain military authorities have been set up by this Dáil, and these military authorities have brought certain military courts, tribunals or committees into existence. Therefore, these military courts, tribunals or committees have acted under the authority of this Dáil. What I am particularly concerned in at the present moment, irrespective of the policy that was undertaken at that time, its rights or its wrongs, is that having given such authority, that that authority should now be validated. As to these other tribunals, of which I have heard for the first time and of which Deputy Johnson says he has knowledge, and which he tells us are set up in the Army and may have done all sorts of irregular things, I do not believe that by any possible extension of the wording of this Section, that they could be conceived as being covered by the phrase, "established by the military authorities."

Amendment put.
The Dáil divided; Tá, 11; Níl, 40.

  • Tomás de Nógla.
  • Riobárd O Deaghaidh.
  • Tomás Mac Eoin.
  • Liam O Briain.
  • Tomás O Conaill.
  • Aodh O Cúlacháin.
  • Séamus Eabhróid.
  • Liam O Daimhín.
  • Cathal O Seanáin.
  • Domhnall O Muirgheasa.
  • Risteárd Mac Fheorais.


  • Liam T. Mac Cosgair.
  • Donchadh O Guaire.
  • Uaitéar Mac Cumhaill.
  • Seán O Maolruaidh.
  • Seán O Duinní.
  • Micheál O hAonghusa.
  • Seán O hAodha.
  • Séamus Breathnach.
  • Pádraig Mag Ualghairg.
  • Peadar Mac a' Bhaird.
  • Darghal Figes.
  • Deasmhumhain Mac Gearailt.
  • Ailfrid O Broin.
  • Risteárd O Maolchatha.
  • Pilib Mac Cosgair.
  • Domhnall Mac Cárthaigh.
  • Earnán Altún.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraic O Maille.
  • Seosamh O Faoileacháin.
  • Fionán O Loingsigh.
  • Séamus O Cruadhlaoich.
  • Criostóir O Broin.
  • Caoimhghin O hUigín.
  • Proinsias Bulfin.
  • Tomás Mac Artúir.
  • Séamus O Dóláin.
  • Aindriú O Láimhín.
  • Liam O hAodha.
  • Proinsias Mag Aonghusa.
  • Eamon O Dúgáin.
  • Séamus O Murchadha.
  • Liam Mac Sioghaird.
  • Tomás O Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Micheál O Dubhghaill.
Amendment declared lost.

I move to report progress.