There are five amendments to this Bill. I have informed Deputy Fitzgerald-Kenney that amendments Nos. 1 and 2 are out of order, No. 2, of course, being consequential on No. 1.
Treason Bill, 1939—Committee.
I have not had an opportunity of consulting Deputy Fitzgerald-Kenney. Perhaps, Sir, you could give the grounds for ruling them out of order.
Certainly. The Treason Bill as read a Second Time contemplated punishment for treason as defined in the Preamble— that is, as defined in the Constitution. Amendment No. 1 seems to prescribe punishment for a form of treason not identical with the form set out in the Constitution and is, therefore, not in order. Were I to pursue another aspect, I might say that the Constitution can only be amended by an express Act.
Might I suggest that this Bill is to implement the Constitution and the Constitution sets certain limits beyond which the Bill implementing it cannot go. I put it to you, Sir, that the amendments proposed by Deputy Fitzgerald-Kenney do not go beyond the definition of treason that is given in the Constitution. They do not interfere with the definition that is given in the Constitution. They seek to limit the application of some of the words and, therefore, I submit that amendment No. 1 is quite within the four walls of the Constitution. If it were an amendment that went beyond the Constitution then it could be ruled out of order on the ground that it exceeds the Constitution. My contention is that the Constitution does not lay down anything about treason. It says it can only consist in that. It does not say it must consist in that. It says that it cannot consist in anything more than that. In that definition, the phrase "levying war" is used. The purpose of the amendment is to restrict the power given, but not imposed, by the Constitution. Constitutionally, there is no necessity for this Bill being introduced. The Bill does not make its introduction necessary but, when the Government undertakes to implement the Constitution, it may, I suggest, go the full length of the powers granted in the Constitution or fall short of them. The purpose of the amendment is to fall short of these powers and, in view of these considerations, I ask you to revise your decision.
As to the Deputy's contention that it was not necessary to introduce this measure, the Chair has nothing to say. Deputy Fitzgerald-Kenney, in the course of a fairly long exchange of notes, backwards and forwards, on Friday night, admitted that the offence of levying "constructive war" would go unpunished, according to his amendment. This Bill contained a certain principle, approved on Second Reading. In my opinion, the purpose of the Bill is to define the punishment for treason, as set out in the Constitution. To limit that definition now would be to go against the principle of the Bill. For that reason, I have ruled out the amendment. The amendment would prescribe punishment for offences different from those in the Constitution, to a certain extent, and I might go further and say that it would mean the redrafting of the Bill in other respects.
May I suggest that, in the amendment which the Taoiseach has down, there is the possibility of dealing with other offences. Secondly, when the House assents to the Second Reading of a Bill which provides punishment for what I might call direct treason and constructive treason, as this Bill does, it is surely within the power of the House to strike out one of these—namely, constructive treason—leaving the real treason to stand. The purpose of the Bill would still remain. Article 39 of the Constitution is purely negative. It says it shall consist only of that. It does not say it shall consist of that but, rather, that it cannot consist of anything more than that. Even if this amendment were accepted, we should still be keeping the purpose of the Bill which, with all respect, I understood from the Taoiseach, to be to provide against real treason. The case made was not that the other treason was unimportant but that "constructive treason" would not be so interpreted by the courts. The purpose of the Bill is to deal with real treason. The purpose of the amendment is to see that it does not deal with something that, we gathered the last day, was not the purpose of the Bill—constructive treason.
If it is within your province, A Chinn Comhairle, would you indicate whether, in fact, we are enacting all words in this Bill between "Whereas," in line 10, and "treason," in line 21? So far as I can recollect, this is the first Bill in which we have had an ornamental preamble of this kind. After line 21 we have the words "Be it therefore enacted by the Oireachtas as follows." Is the Oireachtas enacting lines 10 to 21 or is it only enacting what follows line 21, because we have no definition of "treason" in this Bill? We have got a definition of "treason" in a negative sense in the Constitution. Are we incorporating in this Bill the decision that treason means the negative thing it does mean in the Constitution or is the transference into this Bill of the substance of the Constitution intended to be an interpretation of "treason" for the purpose of this Bill? The House ought to know whether it is enacting lines 10 to 21 or whether it is enacting only what follows, the other portion being merely an ornamental preamble.
I would remind the Deputy that there was a preamble to the Constitution and that there were also preambles to other Bills brought before the House. I remember that there was a preamble to a Bill introduced in 1923. It is not an innovation.
Is there any example later than that?
The Constitution.
I submit that the Constitution was not a Bill proper. It is not bound in the statutes of 1937, because it is not an Act.
In my opinion, the House would enact the whole Bill from line 10. As to the point raised by Deputy O'Sullivan, the Chair cannot go into the niceties of real and constructive treason. That is a matter for argument between constitutional lawyers. It is not within my province. In my view, it is not legitimate either to narrow or to widen the main purpose of this Bill, which is to punish treason, defined. The House approved on Second Reading of that definition and the amendment submitted by Deputy Fitzgerald-Kenney differs, to a certain extent, from this definition and would leave certain forms of treason unpunished. For that reason, I feel obliged to rule the amendment out of order.
I accept your ruling, but I suggest that by that ruling you are deciding the question of the distinction or non-distinction between real and constructive treason. I understood you to disclaim any such intention, but in practice that is what your ruling amounts to. It means that we cannot separate them by amendment and rule out one of them. I also ask you to reconsider your general statement that we are bound to exercise to the full extent the powers given in any Article of the Constitution. I suggest that there is an effort here to go short of the full powers by making a distinction between real and constructive treason and I further make the point that there is no positive definition of treason in the Constitution. The Chair may remember a celebrated occasion when a lawyer was consulted by those who are now the Government as to whether a certain oath to be taken implied any such thing as an oath. If there was any foundation for that argument I submit that there is a great deal more foundation for the argument that there is no positive definition of treason in the Constitution and that there is no definition in this Bill. You may say that that is a matter for the Government. I am not denying that, but really this will make for difficulty in dealing with any Bill ever brought in to deal with the Constitution.
I do not take upon myself the duty of deciding whether any Bill is contrary to the Constitution or not, as laid down in Article 46 of the Constitution. Who should take cognisance of it I do not know. The Chair is not so much worried about the interpretation of the Constitution as the principle of this Bill. Its Second Reading did lay down certain principles, and in the opinion of the Chair this amendment runs counter to those principles. On that I have ruled and the matter is closed.
Deputy Norton rose.
The Chair has given a ruling.
What I want to ask is whether you ruled that we were enacting lines 10 to 21, and, if so, does that define treason for the purposes of this Bill, because if it does it defines treason in a very negative sense, and we are entitled to stop there at that type of treason conceived within those lines.
I do not admit that what is actually being enacted is a question for the Chair. That Preamble will be put to the House for approval or disapproval.
Is it the definition of treason for the purposes of this Bill, because that affects the amendments as to what treason means?
I take it that the Preamble and the Long Title show the principle of this Bill. The Preamble is taken from the Constitution.
For the purposes of amendments as to what is or is not treason, are lines 10 to 21 a definition of treason?
The Deputy is rather late in suggesting amendments now.
We have amendments on the Committee Stage having their roots in that discussion. They would come in again on the Report Stage.
Question proposed: "That Section I stand part of the Bill."
I want to point out our main objection to Section I as it stands, and I am sorry that the Taoiseach and the Government could not see their way to meet the reasonable case that was made out. As I understand the section as it stands, it uses technical words, words which have been given a technical sense, and interpreted in the courts—both the Constitution and the Bill do that— namely "levying war." It was pointed out clearly here the last day that those technical words have been interpreted by the courts to embrace a large number of offences which nobody in this country in normal times would suggest should deserve the penalty of death. Take a type of offence which was known when I was a very young man, say 30 or 35 years ago so as to avoid all recent controversy. Take the offence of cattle driving. As I understand the decisions of the court, if a number of people engage in cattle driving, not to interfere with the rights of John Browne, but if they engage in cattle driving so as to bring pressure to bear on the Government to alter the law, they are guilty of levying war. I am not going into the phrase as to what treason means. I am going into the phrase as to what levying war means, and levying war has been ruled by the courts as embracing a case of that kind. If one person or three or four people do an illegal thing of that kind, use force, even merely, say, cattle driving for the purpose of bringing undue pressure to bear on the Government to change the laws, be they social, political or economic laws, they are guilty of levying war. It was pointed out here on the last day that this and similar offences have been ruled by the courts to come under the technical phrase "levying war."
"Levying war" is a technical phrase, and it has been interpreted by the judges. I hold that the House is not at liberty to assume that it will be interpreted otherwise by any other set of judges. We were fully in accord with the Government in prescribing the supreme penalty for a real case of treason, but, as there is an opportunity of bringing legislation up to date and into harmony with modern conceptions, there should be a distinction made in the Bill and in the section between real levying war and constructive levying war. It may be said: "The judge will not decide that; the juries will decide that." I think the judges will feel themselves bound to interpret according to the precedents that have been set before them. I do not think an ordinary judge will conceive that he has any other option. But leaving that aside, there is another aspect of the case which possibly has escaped attention. With a certain amount of relevance on the last day when discussing the Second Reading of this Bill the Taoiseach, by anticipation, referred to another Bill, and pointed out the close relationship between the two Bills. Under Part V of that other Bill, special courts may be set up, and any of the ordinary offences may be scheduled if the Government is convinced that the ordinary courts cannot deal with them. Any of those offences may be scheduled by the Government, and will come before the special court. Therefore, it may be the special court which will be enforcing the penalty so far as this is concerned. I understand that the special court can deal with offences and impose the penalty which is prescribed by law for those offences. We are now prescribing by law what is the penalty for the technical offence known as "levying war." We say that that penalty is death, and no other penalty.
Now, as I said, what levying war is can only be decided by the precedents, and they were quoted here by Deputy Fitzgerald-Kenney on the last day. It may be said, of course, that if it went before the jury they would throw it out. But it may not go before the jury; it may go before the special court. Therefore, for the offence, say, of cattle driving, if the Government chooses—the Government can bring other charges—to bring that charge, legally it would seem as if we were enacting that those people should be tried for treason. The charge can be brought, and if the charge is brought there is only one penalty prescribed. I admit that in 99 cases out of 100 the Government would not do anything of the kind; they would not bring a charge of this kind which would involve the penalty of death for the offence, but we are legislating to that effect. That is my objection, and at any time it likes any Government could do that. That, Sir, is altogether too drastic. Whilst we are in full agreement with the Government so far as real treason is concerned, we think it is highly regrettable that when opportunity offered a clear distinction of that kind was not made. I doubt if there is any definition of treason that could be administered by any court. That is a matter for the lawyers and not for me, but I doubt if there is any definition of treason which could be administered by any court. There is only repetition of the Article in the Constitution and that is purely negative. I am assuming the Bill is not futile and that, therefore, the court will have to interpret this as being the definition of treason. I do not know what it will interpret, but the court will take the words "levying war" in the only sense in which it can take it, and the penalty in that case will be death.
On the last occasion we discussed this Bill a difference of opinion arose between the Taoiseach and myself as to whether, in fact, the Treason Bill did not go much wider than the Treasonable Offences Act of 1925. I then contended, and still contend, that the new Treason Bill goes much further than the Treasonable Offences Act of 1925, because in the new Bill treason consists, amongst other things, of levying war. When we come to interpret what levying war is we get no assistance from the Bill. I should like to know if we are thrown back as to what levying war means, to British statutes or British legal judgments. If we are, levying war then can consist of a variety of things, and shall not consist of the overt act of levying war in a positive fashion. The whole question of what actually constitutes levying war is a matter on which there is need for a considerable amount of clarification in the Bill. Levying war in the Bill is treason, and is punishable by death, but in British statutes and British judgments levying war, in fact, means offences which are punishable in the Offences Against the State Bill, lesser than actual death. Is it possible, for instance, for a person who incites any member of the military or police forces maintained by the Government to mutiny to be charged with levying war for the purposes of the Bill? British statutes and British legal judgments would indicate that it is possible to charge a person who incites to mutiny in the case of members of the police or military forces with levying war. A person tried under the Offences Against the State Bill could be charged with levying war and might have to suffer the penalty of death. Under the 1925 Act, that person could not suffer the penalty of death, because it prescribed that levying war constituted treason. A person could also be indicted in this Bill for misdemeanour under a separate section, and the punishment was much less than death. I should like the Taoiseach to say where exactly we stand, and what constitutes "levying war." Does it include in this Bill a sentence that is less than that in the Act of 1925?
Before we get more involved about this, perhaps we should make our minds clear on a couple of points. First of all, there is Deputy O'Sullivan's interpretation of Article 39 of the Constitution and the word "only" which occurs in that Article. My interpretation is that "treason shall consist only..." and there is reference then to a number of matters. Treason is defined as meaning these things, and these things only. I take it that the definition in the Constitution is the exact definition and does not merely prescribe the upper limit. There is an upper limit and a lower limit. The definition excludes anything but the things referred to as constituting treason. That is the first point as to the meaning of the word "only" in Article 39. The next point is, if treason is defined in the Constitution can we vary the definition here? This Bill is intended to prescribe the punishment for treason and nothing else. Therefore, we have definitely in it punishment for the offence which is described as treason in the Constitution, and none other. Are we to interpret the Constitution here? I say we cannot do so. That will have to be left to the courts. Deputies can interpret the word "only" in different ways. Different Deputies take different interpretations. Strangely enough, we heard nothing of these different interpretations when Article 39 was going through in a previous Dáil. There did not seem to be any question then as to what levying war meant. We seemed to be satisfied with the definition, and it went through without much discussion. That could not be said of many other Articles in the Constitution. It may be possible to interpret this in different ways, but, ultimately, the courts will have to interpret it and say what is the right and proper meaning to be attached to the words as we find here. An interpretation would be given by the courts of the phrase "levying war". I would take it that a modern court interpreting the words would bear in mind what the Parliament was that passed them, the conditions under which they were passed and approved, and the people who enacted them. I would say that judges interpreting the words would interpret "levying war" in the plain, common-sense meaning, and would not be fishing up decisions of 200 or 300 years ago.
Of 200 or 300 years ago?
Probably most of the cases referred to on the last day were based on decisions 200 or 300 years old. As far as I know they were 200 or 300 years old. Are the courts going to give to the words "levying war" a meaning which the average person would not give to them? On the other hand, if we take the direct levying of war, I think there might be as much discussion about the meaning of that expression and of the full significance of the word "direct," as there might be about the phrase "levying war" by itself. We have to leave that to the courts, and the less we try to tamper with it here the better, from the point of view of plain common-sense interpretation. As to the suggestions about the meaning of constructive levying of war as suggested by old court decisions, I think we are on far safer ground if we take the definition in the Constitution for what it is, and leave it to the courts to say what the meaning is, and, I think, they will inevitably decide, according to the plain meaning of the words, and would not be constrained or bound by old decisions. It might be informative and interesting, from the point of view of legal history, to go back and consider these things, but I do not think that they would be regarded at all as cases which would constrain the judges of the present day, in the present circumstances.
With regard to the point that has been made by Deputy Norton that this is wider, I do not think he has made any case whatever. If he read the Treasonable Offences Act, 1925—I sent him over a copy the last day—he would find that "levying war" occurs in that and that any interpretation given to it in the past would, if anything, be narrowed down by the new set of circumstances in which these words were enacted by the people as a whole. In the enactment of it the meaning they were naturally going to attach to it was the broad, simple meaning, which has not been questioned. It was not questioned here when it was being passed and it was not questioned in the country. The plain meaning of "levying war" is what the Deputies would understand by the direct levying of war.
With regard to the question of its being too wide, all that was done in the Constitution was to condense the part that referred to treason and to make sure that offences which, under the old law, and before the passing of the Constitution, might possibly have been held to be treason will not in future, from the time of the passing of the Constitution, be regarded as such.
I think, therefore, that there is no need whatever for the amendment that is put forward. That is the advice that has been given to me by the legal department: that there is no need whatever for it, and that, in fact, it would be full of dangers of various kinds to try to modify the Bill by breaking up treason into a lesser and greater treason or anything of that sort, or by retaining only a reference to treason in a restricted sense. I think I have nothing further to say on the point.
Might I put this question to the Taoiseach? Is the incitement to mutiny or is an attempt to set up a body which purports to be a Parliament levying war for the purposes of this Bill?
I would say no, but again, I am not the court.
Could we not, therefore, put into this Bill a section which says these do not constitute levying war?
No, I do not think so. I think the matter is sufficiently clear.
The Taoiseach met all sorts of suggestion continually asked for in a calm and reasonable spirit by not making the slightest concession. I wonder does he ever read the law reports and is he under the impression that judges are not bound by previous decisions because they happen to live at the present day? I wonder is his knowledge of Irish history so confined as to think that the Fenians were active 300 years ago? And yet, one of the cases cited by Deputy Fitzgerald-Kenney had reference to the Fenians. That was not 300 years ago. The main case cited by him actually was with reference to the Fenians and their activities against Scotland Yard. I may not know much about the Fenians, but I do know of Scotland Yard by reading detective stories and I wonder whether that was 300 years ago. We have not got out that an attempt to blow Scotland Yard up by nitroglycerine goes back 300 years, but, at least, we have got one thing out. All through the debate on the Constitution I was left under the impression—I am glad now to see erroneously—that the judges were not the people to interpret the Constitution. I think it was put forward here by the Taoiseach that it should not be the function of the courts to interpret the Constitution. Interpreting the Constitution is a political business.
Do not put things into my mouth.
I know I am misinterpreting the President. No one can help misinterpreting the President.
The Taoiseach.
No; it was the President said it then, Sir. I know that nobody can help misinterpreting him, but I have certainly stood up in this House again and again and pleaded that the judges were the people who would interpret this Constitution and could only take a certain meaning out of it. I understood at the time that the line was taken up by the then President, the present Taoiseach, that, after all, it should not be the courts that interpret these things. But the courts, despite what the Taoiseach says, may be bound by precedent. They may consider themselves bound by precedent. Why not legislate against that possibility? He says he does not know what the judges are going to decide, but his whole conduct in regard to this section is that he does know what they are going to decide. They are bound by precedent and they may decide that levying war must be interpreted in that way, if that is put before them. But the Taoiseach gaily gets up and says that no modern judge would do that. But why not take the steps to see that they cannot do it? It is our business, when we are passing laws which are to be interpreted by a judiciary, to make things as clear as we can and limit the things as much as we can so that an extraordinary variety of judgement may not be possible. The most that the Taoiseach can say is that they may not interpret according to precedent, but against that, equally well, they may. Why not put it out of their power to give that too broad interpretation? The Taoiseach says that that is amending the Constitution. It is doing nothing of the kind. In that case if you bring in implementing legislation, you could never add or take away from the actual words of the Constitution. What we want is to define a certain word that is in the Constitution, namely, "levying war." The Taoiseach says that the word "direct" will not do it. Let him do it in any other way then, so long as he defines it. But, it is a new idea of interpreting the Constitution that, once the Constitution is passed, the Legislature dare not define any of the terms in the Constitution. That is more or less the line taken up now by the Taoiseach.
As regards the word "only," supposing the Taoiseach leaves the word "only" out of Article 39, how will the interpretation differ from the one he has given now? Not at all; will it?
I will deal with that.
It would then read, "treasion shall consist in levying war against the State, or assisting any State or person or inciting or conspiring with any person to levy war against the State," and so on. That means that it consists in that, but you put in the word "only" and the word "only" has a meaning.
It has, of course.
Therefore, it means that it cannot be more than that. The Taoiseach gave his definition, which is not the definition of an ordinary man and is not interpreted in the circumstances of the ordinary use of English. It is only the Taoiseach making a political statement, and, as he knows perfectly well, in time to come he will have ten different explanations of what he meant by this word "only" and will be asking for power to put them into the records. So, at last, there will be a printed record of what he really said and really meant. But he is not at all meeting the point deliberately now, even when his attention is called to it. He says, "What happened in 1925?" and what happened in 1925 was good enough for us.
Of course, it is.
I am glad to hear it. I will leave that aside. I am not going to give the opportunity to the Taoiseach of explaining what he meant in 1932. He need not think I will. I am doing nothing of the kind. I know perfectly well that he would be much more fluent on that than in interpreting an Article of the Constitution or a paragraph in the Bill. I refrain entirely from giving him that opportunity and, if he brings it in, I am not responsible for his bringing it in. I want to make that perfectly clear. What we want is to give the Government power to deal with real treason and not to give them absurd powers that could easily be put aside, at least, that they need not claim and can avoid getting by defining the words "levying war." Again and again we have been asked here to help the Government, to give it support. Never have I known any reasonable case put forward by these benches, when we accept principle, even for the slightest modification, that has never been anything else except trampled on by the Taoiseach. He has done nothing to get the support of a general body of public opinion behind the things that he professes to be interested in. I hold, Sir, that this is an illustration and I see no good in prolonging this discussion because I know perfectly well from experience that the more reasonable the case that is put to the Taoiseach the more unreasonable will he make it appear.
The Taoiseach says, when he is quoting British legal definitions of what constitutes "levying war" that these decisions are 300 years old at a minimum. It is not 300 years since the Treason Felony Act was passed in Britain. It was passed in 1848 and John Mitchel and Michael Davitt were tried under that Act. There is also the case of another Fenian, Gallagher, having been tried in 1883 under the same Act, and one of the charges against him in connection with his indictment was that he "levied war against the Queen to compel her to change her counsels and to intimidate or overawe the House as a Parliament." That was levying war in 1883, approximately 56 years ago. The trial judge in that case said that if what the prisoners did was to compel her Majesty or her Ministers by force to change the present Constitution, or to alter the relationships between England and Ireland, or even to set up a separate Parliament in Ireland, it would constitute an indictment on that count: so that, even in 1883, levying war consisted of much less than the overt act of actually waging war against the State.
We have that type of definition of the phrase and the Taoiseach tells us that he feels sure the judges would interpret it in the light of the circumstances existing to-day and of the circumstances under which this Bill was passed; but what the House is really being asked to do is to pass the present Bill and to allow the judges, who have no responsibility whatever to the people, to tell us what constitutes treason. The judges may be perfectly estimable citizens, well versed in law and learning and culture, but the judges of this country have no power whatever to prescribe for the people of the country what constitutes treason within this country. That is a task for the community, acting through its legislative assembly. This is its legislative assembly and it is the task of this legislative assembly to say what it will punish for treason and will not punish for treason. It is not the task of a judge to prescribe what treason is, nor to prescribe the punishment for treason. That is the function of the Legislature and we ought to write down in black and white, in clear and simple language, what we mean by treason and what punishment we will prescribe for it, and let the judge then try whether, in fact, a person is guilty of treason as set out in an Act of the Oireachtas, and deal with the case in accordance with the punishment prescribed.
The Taoiseach asks us; "Enact this Bill and leave it to the courts." He feels sure that the judges will not do this, or will not do that, that they will not be guided by musty old British judgements, but will have an up-to-date look at the legislation and see in what circumstances it was enacted and what the Taoiseach said when it was being enacted. That is not the way we ought to pass legislation here. We ought to be precise and definite as to what constitutes treason and what the punishment is for treason, and we ought not to be relying on ancient British definitions of the term. When this Bill is passed and the judges are left to interpret it, we will find that the judges—and judges in what may be described as the English-speaking countries in the main inevitably draw inspiration from previous judgements in British Courts, in the Privy Council and the House of Lords—will incline in that direction, unless we prevent them from doing so by defining "levying war" as constituting something other than the ancient definition as evolved by British Courts down through the ages.
It is very hard to deal with Deputy O'Sullivan because he goes round and round and round, until in the end we do not know where we are. I stand on the interpretation of the word "only." I think it is a commonsense interpretation which any man who reads the paragraph will take from it. "Leave the word out," the Deputy says. Because, since it is put in, it must add something. Sometimes words added do not add a great deal, but in this case——
There is a lot of that in the Constitution.
The Deputy is not a bad hand at it either. This word does add something. It adds emphasis because treason might, on account of the older interpretation and connotation of it, suggest a number of other things. We say that it consists of these things, and these things only. Surely that is the ordinary common-sense interpretation of the word "only." With regard to the cases of treason felony to which reference has been made, it was a statutory offence. It was not treason at all, in the proper sense of the term. There are relatively few cases in modern times of treason. These were statutory offences. We also have this question of what the courts will do. The British themselves regard these old cases in law as obsolete and not binding, and I am informed that writers of textbooks, Roscoe, for example, hold definitely that they would be regarded as obsolete and would not be accepted as a basis by modern courts. The Deputy tells us that in cases of this kind, we ought to make sure. I accept that principle. Deputy Fitzgerald-Kenney tried his hand at it and it was not able to pass the Chair.
Was that against the definition?
I believe it is not possible to do it in that way.
The Chair was not ruling on whether it was possible to do it that way.
The Deputy sent up an amendment——
May I suggest that the Chair be left out of this? I suggest, in order to preserve the amenities of the House, that the Chair be left out of the business altogether.
Oh, no.
If the Taoiseach hides behind the ruling of the Chair, we must discuss that ruling.
I understood the Taoiseach to say that it was hardly possible, within the rules of order, to amend Section 1.
The Taoiseach says that, in attempting to define what treason meant, Deputy Fitzgerald-Kenney was not able to get a definition which passed the Chair. That seems to imply that the Chair was ruling on what constitutes treason.
The Chair ruled on the definition which is in this Bill and in the Constitution. The Constitution cannot be amended except by an Act purporting expressly to amend the Constitution.
It is quite clear to anybody who approaches the matter seriously that you have a definition in the Constitution, and if you try to deal with that definition by modification or anything of the sort you begin to interpret it. You constitute the Legislature as the body to interpret the Constitution. That is an obvious difficulty. There is only one direction in which the slightest glimmer of hope was held out, and that was to provide punishment for certain of the offences mentioned in the Constitution, and not to implement the Constitution in regard to others. In other words, it was suggested that, having defined a most serious offence in the Constitution and got it passed by the people, we should make a dead letter of it by not implementing it. I do not think that is the proper way to treat the Constitution. I think we can depend here on the judges in interpreting the Constitution in the plain sense and plain meaning of the terms, and judges who have not hesitated to put aside recent decisions will not go back 200 or 300 years in order to find out whether levying war would be something different from what the words would convey to an average person at the present time.
The Deputy finds fault with us because we do not take amendments from the Opposition, as he says. Whenever they have put forward a case that could be met or a case in which there was a point we have endeavoured to meet them. Of course, we differ from the Opposition on a number of things.
Not on this. They are trying to help you.
As I say, we differ from the Opposition on a number of things and, of course, their view is that when we differ from them we should take their view and not our own. Is that the complaint?
Is there any difference now?
I am not going to bother now about the differences. I am dealing with this Bill at the moment, and apparently there is a difference of opinion on the part of the Opposition as to what should be in this Bill, a difference between what they think and what we think, and they want us to give way to them. We believe that they have not made a good case, and I do not believe in giving way to a person when a good case has not been made. We have no set views about this; it is simply a question of implementing the Constitution in a straightforward way. Deputies on the opposite benches, however, want to bring in a certain point by way of amendment and cannot do it, but apparently they want us to do something at which they themselves tried their hand and failed in doing. We do not see any reason at all—and no case has been made for it—for interfering with the Bill as it stands in regard to this first section and the definition, which is really a repetition of the definition in the Constitution. Consequently, even if the amendment had come along here and had passed the Chair, I would have been constrained to oppose it.
Well, thank the Lord, Sir, that this is not one of the things on which the Government has a set view. We learned that in connection with every Article of the Constitution when it was going through. I am dealing with the speech of the Taoiseach, and our experience is the same to-day as it was then, when he told us that he had an open mind on every Article of the Constitution and then shut it to every suggestion that was made. He is doing the same to-day. There are differences between us on this Bill, because we do not think that the penalty of death should be imposed for constructive treason.
That is not true.
That is the difference, in practice.
It is only the Deputy's interpretation of it.
Yes, certainly. I suppose the Taoiseach wants me to adopt his interpretation when, even in the case of the Fenians, to which Deputy Fitzgerald-Kenney referred, he could not be convinced as to the matter of 300 years but still repeated "300 years."
It is a case of treason felony.
I am speaking of the case quoted here by Deputy Fitzgerald-Kenney, concerned with the attempt to blow up Scotland Yard.
It is a case of treason felony, and if the Deputy would read it up he would see that.
I am dealing with what "levying war" means, and I was quoting a case dealing with levying war. I wanted a definition of that, and that was dealt with in a case in which the Fenians were being tried, and the definition was laid down there in that case by the Lord Chief Justice. But, of course, having said that it was 300 years old, according to the Taoiseach, the Fenians must have been tried 300 years ago. What are the judges to do, according to the Taoiseach? First of all, he is practically sure now that the judges will not be bound by previous judgments. That is an extraordinary view to take. If they are, if they do look at them at all, they will not be influenced by them. My case is met if they are even influenced by these judgments. I do not undertake to say for certain that they will be bound by these judgments, but they may be bound by them, and we ought to prevent them from being bound by that particular definition of "levying war." That is what we are arguing for. According to the Taoiseach, the only interest the present courts have here is that these previous decisions are, as I understand him, objects of archaeology for them or objects of historical interest. I cannot take that view of the way the laws are being administered here; it would be against the whole system of law and the whole administration of the law, and I do not know on what the Taoiseach bases his view that the judges will ignore the whole practised training they have got—why?—merely because, in the month of July, the people of Ireland passed or gave their assent to this Constitution and read the thing so very carefully that really they knew what the word "only" meant in Article 39. If the judges have to try to decide, not what this House meant, but what the ordinary people of Ireland meant, in the plebiscite of 1937, I do not envy them their job in that particular case.
Now, the Taoiseach says that this is not a proper way to treat the Constitution. First of all, what has been done? He has laid down the principle that we cannot interpret two words in the Constitution, namely, what "levying war" means. Because it is in the Constitution, it is uninterpretable by the ordinary man or by the Legislature. That is the proposition we are asked to agree to—that once a thing gets into the Constitution, we cannot interpret it. That is an amazing position to take up. Secondly, the judges, apparently, are the only people who can do that. We are to give them no help as to what we mean. If the Taoiseach is afraid that interpretating two words in the Constitution is unconstitutional—because that is all it can mean—that you must go before the court to find out what "levying war" means before this House can take it upon itself to say what is the meaning, because these words are in the Constitution—surely, that is not the way to treat the Constitution. In addition, another thing that the Taoiseach has done is to bring in an unamendable Bill. He says that Deputy Fitzgerald-Kenney tried his hand at amending the Bill and that the reason he could not do it is because the Bill is unamendable. I do not believe that the Bill is unamendable. I do not think it is beyond the power of the Parliamentary draftsmen to draft an amendment framed to meet the wishes of the Opposition in this particular matter. As long as the section stands as it is, I can only take it—I am speaking now of my interpretation which, from the point of view of commonsense, I suggest, stands at least as high as that of the Taoiseach —that the Government is determined to include, in the phrase "levying war," a much wider circle of offences than have been mentioned.
The Deputy knows full well that nothing we have said justifies that. Quite the contrary. Everything we have said indicates that we believe that "levying war" means what the average person would take it to mean and that it would be so held by the judges. When I have spoken about this Dáil interpreting the Constitution the Deputy should clearly understand what I meant. If he does not understand what I meant, perhaps I should represent it to him in another form which will make it clear. If the House does take upon itself the interpretation of the Constitution, that interpretation will not be binding as against the interpretation which the courts will make of the Constitution. The Constitution is the fundamental document, and any interpretation, narrowing or expanding it, which we may attempt to make here, would be held to be null and void ultimately. Again, with regard to the courts interpreting the Constitution, surely I never said that the courts would not interpret the Constitution. Will the Deputy get the phrase or the place where I said it?
I will read all your speeches in the Constitution debates, I am sure.
I am sure if he did the Deputy would not find that. All I said, if I spoke about the interpretation of the Constitution by the courts, was that I held that they would not adopt the same strict method of dealing with the Constitution; that it would be interpreted more liberally by them than an ordinary Act of Parliament. I believe that is true. In other words, that what I have called several times to-day the plain, commonsense meaning would be taken. In regard to Acts of Parliament, there would be probably a stricter line taken. Of course, I knew the courts would interpret the Constitution. Who else was there to interpret it? But I did hold, and do hold, that in interpreting the Constitution the courts would approach it in a different frame of mind. Their attitude would be different from the attitude in which they would approach the interpretation of the ordinary law. If we here attempted to define or limit the Constitution in any sense in which that definition seemed to differ from the Constitution, the courts would hold that the Constitution is the fundamental document, and we could not here by simple legislation modify it.
The only glimmer of a line in which one could meet the points made by the Opposition would be to avoid attaching a penalty to what was regarded by the Constitution as a crime. We have not stated that what the Deputies call constructive treason was, in our opinion, treason, or that it was a kind of crime for which the death penalty was prescribed. My argument has been that that was an attempt to use —and I repeat it—two or three-century-old cases that had been decided in the courts with respect to treason and try to apply them in the conditions of to-day. I do not think it would be done. I do not think there is any use in speaking any more, so far as I am concerned, in the matter.
The Taoiseach accused me of putting an interpretation on his words that was not there. I am putting an interpretation on his action. I am not trying to interpret the Taoiseach's words—far be it from me. I am trying to interpret his refusal to do a certain thing, and that is why I say, and repeat, that for the constructive levying of war we are legislating that the penalty shall be death, and that is the only penalty. The Taoiseach speaks of what the ordinary man means by certain things. We have had an interesting illustration of it this evening, namely, the Article of the Constitution. To him it is plain as meaning one thing. To me, I can assure him, it is equally plain as meaning something else. Neither of us is a lawyer. I would be the last person who would like to be offensive to the Taoiseach, but I must take it that these two ordinary common-sense and conflicting meanings are the real meaning of the Article. That is a bit too much to ask of me, even to please the Taoiseach—to believe that two conflicting common-sense points of view like that can both be true. There is the same thing about the section itself. I am judging the Government's intention by their action, not by the web of words with which the Taoiseach tried to wipe out the whole business. I hold that the Taoiseach has given no reason whatever; he has not attempted even to meet the case put forward. I shall not deal with the other matter I referred to. It was not touched upon. In my opinion, it is not a judge who may interpret this. It may be the special tribunal that will interpret this.
I stress the point that in 99 cases out of 100 in which a knotty question is submitted to the judiciary they are guided by the previous interpretations or decisions of the courts. The technical phrase, "levying war," has one meaning and one meaning only, and that is anything that can be construed as doing something that is liable to upset or compel the Government to do something that the people who are levying war want them to do. Deputy O'Sullivan has pointed out that cattle driving to compel the Government to change the law would be levying war, and that it has been so interpreted. When a case arises it will be referred to the Attorney-General to frame the charge, and the first thing the Attorney-General's Department will do is to take down old tomes, some of them 300 years old, to see exactly how the charge should be framed. I have gone through it myself and I know something about it. There will be half a dozen alternative charges prepared, but they will be sure to put in the one under which the biggest penalty can be imposed, and that is treason. There will be a charge of treason, then treason felony, and there will be alternative charges right down the line.
We are told that the judges will interpret whether it is a minor or a major offence. But it is possible that the Government of the day in its wisdom may decide that the case is to be tried by a military tribunal or the equivalent of it, and the result will be that there will be no difficulty in their deciding what constitutes levying war If they find that a person is guilty of levying war, they must automatically find him guilty of treason and, therefore, the only punishment is death; because, having found him guilty of levying war, he is found guilty of treason. I think that is an astonishing attitude for the Government to take up when there can be no question about it. I hold that the Oireachtas is supreme and that it can make its decisions on a question like this different from the British decisions, and that there is no reason why it should not. Therefore, I think that the definition of treason should be very positive and not left in this nebulous form—that a judge is to decide what the Taoiseach thought on this or that particular day, or what Deputy O'Sullivan thought was the intention of the Oireachtas.
Is there any real difficulty on the part of the Taoiseach in saying what exactly in his view constitutes levying war? I asked him whether an attempt to overawe Parliament constitutes levying war. I asked him whether any incitement to mutiny on the part of members of the military or police forces constitutes levying war. These are categories of offences which have been described as levying war under previous British legal decisions. The Taoiseach said no, that these were not levying war within the meaning of this Bill. Therefore, apparently, the Taoiseach has no difficulty whatever in making up his mind on what exactly constitutes levying war for the purposes of the Bill. The one way in which we can make sure that the judges will not go back to the hoary vistas of British legal judgments is to set down what exactly we think constitutes levying war in 1939. I should like to know from the Taoiseach, as he is able to give a ready answer to two very important aspects of what constitutes levying war, why he would not make an effort to set out what in fact does constitute levying war for the purposes of this Bill. There can be no real difficulty.
The Taoiseach does not want any ancient conceptions of the levying of war. The Taoiseach does not want conceptions of levying war which consist of taking cognisance of a situation which now happily no longer exists here in relation to our imperial master of other years. The Taoiseach wants to take a view of levying war based upon conditions as they exist here to-day. What, therefore, is the difficulty in making an effort to say that levying war consists of so-and-so in the light of present-day circumstances, instead of making it possible for some very old and liverish judge—they can be both, you know— to come along and say, "In my opinion, so-and-so constitutes levying war." According to British legal judgments, it was treason at one time if, having decided to make love to the king's eldest daughter, you decided afterwards that you would not do so. That constituted treason at one time under British legal judgments. I do not say that there is the possibility of anybody being arraigned by the Attorney-General on that charge to-day. But we ought to make sure at any rate, before turning away from that point. We can do it if the Taoiseach makes an effort to set down what "levying war" means. So far we have not seen any effort made to do that. We are told "trust the judge"; let the judge decide it. That is what we are told. I am opposed to giving that function to the judge because that is not part of the functions of a judge. It is the job of the Legislature to protect itself. There is no case for allowing a judge, responsible to nobody, not even to those who appointed him, to decide what constitutes treason. I am strongly opposed to giving a judge that power.
There is no use in trying to persuade the Opposition. In this particular matter, they are chasing shadows——
Chasing the Taoiseach.
The Taoiseach is more substantial than that.
I do not know about that. We have got up to most of the things we have been chasing.
And surpassed.
The Taoiseach got up to Fine Gael.
There is a great complaint from the Opposition. They complain that the Government will not "accept our view." I have repeatedly told Deputies and assured them that there was no question of any personal bias in connection with this matter. The instructions were that we wanted to implement the Constitution and have the crime of treason based on the Constitution and no further back. The points that were put up by the Opposition on a previous occasion were discussed with our law advisers. I have given you the substance in what I have said to-day of the arguments that we used against those put forward by the Opposition. I constituted myself for a moment the judge between the two of these. That is my responsibility. I believe that the arguments put forward by the legal advisers to the Government are sound. Might I say to Deputy Norton as a final statement that we cannot define treason here. Is not that clear?
It is not clear.
Wait a minute now. Any definition of treason that we give here may not possibly be substituted for treason as defined in the Constitution. That is clear. The definition in the Constitution is the definition that will go. I can understand the Deputy if he means that we are to leave aside the implementation by refusing to provide punishment for anything that might be regarded in the Constitution but for which we do not wish to have the penalties of treason. That is a line of country we are exploring, because it is the only line I see open to meet the point. But the moment you explore that line of country you get into new difficulties such as those regarding the use of the word "direct." Suppose you say "direct levying of war." I say to Deputies that it is very much easier to say what a thing is not than what a thing is. Take the particular case. I ask "Is that a pen?" and one can say straight off "It is not." It would be very difficult for me to give a definition of a pen which would be all-embracing and which would meet every case. It is easy enough to have a certain test, but Deputies must remember that "levying war" would be interpreted in a particular case in the light of all the circumstances attending it. It will not be a case of defining it in a vacuum or in a general abstract way. When a judge is dealing with a particular charge of treason, say, a charge made against a particular group of individuals who are indicted for treason, there would be a particular set of circumstances there in the light of which it will be decided whether there was, in fact, a levying of war or not. I think it is very much better to leave it in that position, depending upon commonsense and the fact that the Constitution was passed here in 1937. The definitions referred to are held by English legal authorities as obsolete. I do not fear the things that the Opposition seem to fear in this. I do not see any way of remedying them without introducing other difficulties which would be just as serious. That is why I am suggesting that we leave the matter as it is.
I did not intend to intervene in this debate. It is beyond me and a bit beyond the ordinary Deputy in this House to usurp the functions of a Constitutional lawyer. But the Taoiseach did invite us in this House, on the Second Reading of this particular Treason Bill, to suggest improvements; he said that if we offered any fair criticism we would be met. He said he would meet any reasonable objection put forward by the Opposition. We had objections. To the non-legal mind, the main objection was that the penalty of death might be enforced for certain offences, for which, in fact, we did not think the penalty of death should be enforced. The Taoiseach said that treason cannot be defined and a number of other people say the same. There is the definition of treason in the Constitution. Treason is defined here in the Bill as in the Constitution and it is defined amongst other things as levying war. The Taoiseach says that we cannot even define levying war. So the position is that we can define neither "treason" nor "levying war." During this debate the Taoiseach has been good enough to say that certain things did not constitute "levying war." Might I suggest to the Taoiseach that, in order to meet some portion of our objections, if he or his legal advisers cannot define what levying war is, that they can at least define, as the Taoiseach has admitted, certain things that are not levying war? Will he bring in a section to this Bill to say that certain things are not levying war so that we may be sure that there will be some things, at any rate, under the head of treason, or under the head of levying war, in respect of which a person will not incur the death penalty if convicted of it?
With regard to what the Taoiseach said on the matter of being out-of-date, may I quote two lines from Deputy Fitzgerald-Kenney's speech? "I shall read from Archbold Criminal Law, 1934 edition." I am afraid that the legal advisers of the Taoiseach must have read the figure "9" upside down, and thought that the edition was 1634 and not 1934. To suggest that a view of the law that is put down in a well-known textbook in the year 1934, two years after the new dispensation came in here, is obsolete, is absurd. All that one may say is that the Constitution is nearly as obsolete in that case.
What is the new line taken up by the Taoiseach and the legal advisers of the Legislature, so far as we are concerned? It is "we do not know what we mean, but we will ask the judges to know what we mean." That is what the argument amounts to. The Taoiseach says that the word "treason" is defined in the Constitution, and then makes a virtue of the fact that we do not define it. His attitude is we will leave it to the judges to know what we mean both in this measure and in the Constitution. The whole thing is absurd.
There is an aspect of this Bill on which I would like to have some information from the Taoiseach. I am wondering whether the phraseology used has any special meaning. We find that in sub-section (1) of Section 1:—
Every person who commits treason within the State shall be liable on conviction thereof to suffer death.
And this is how sub-section (2) of the same section is phrased:—
Every person who, being an Irish citizen or ordinarily resident within the State, commits treason outside the State shall be liable on conviction thereof to suffer death.
The English language is, surely, not so restricted that it is impossible to combine these two types of offences "within" and "without" in the one section. Would the Taoiseach tell us what the phrase "commits treason outside the State" means in the case of an Irish citizen, or a person not being an Irish citizen ordinarily resident within the State?
I do not know if there is any use replying time after time. I pointed out before that you had the same thing in the 1925 Act. The obvious meaning is that a person can commit one of these offences of treason outside the State, whether he is an Irish citizen who does it, or a person who is ordinarily resident here and is outside the State when he is doing one of the things set down as treason in the Constitution.
At the risk of annoying the Taoiseach, I want to try to get some enlightenment from him as to where exactly this carries us. On the last occasion that we discussed this I said that the King seemed to be, if not actually an organ of government, at least to be closely related to the organs of government, and that, in fact, he was as much as organ of government as the Revenue Commissioners or any other body functioning as part of the machinery of government. The Taoiseach denied on that occasion that the King was an organ of government established by the Constitution, but the fact remains that in 1936 a Bill was very definitely passed here—in my view, as I then said, I think it was passed with indecent haste—constituting the present King as King for the purposes for which the previous person was King. We were told then that the King, in his new capacity, was an organ of our external relations; that we have, in our external relations, to appoint Ministers to different States, and that we receive credentials from Ministers appointed by those States to represent their countries here. We have passports issued to Irish citizens entitling them to travel in various States with which we are not at war, and protection is afforded to our citizens——
Will the Deputy relate that to the Bill before the House?
I will if I get the chance.
I fail to see what passports have to do with the Bill.
I want to show that this gentleman, the King, in fact functions as an organ of government in our external relations. What I want to ascertain from the Taoiseach, seeing that we are passing a Treason Bill, is whether, in fact, the King functions in that capacity: as an organ of government in the de facto sense, or as an organ of government established by the Constitution, and really exists to the extent that an Irish citizen who is engaged in a war on behalf of another power levying war against that King, not perhaps in his function as King here, but in his function as King of some portion of the Commonwealth, is capable of being indicted and charged with treason. In other words, to put it more succinctly: is it an offence against the King, and, to the extent and in so far as we use it, treason within whatever definition of treason exists in this Bill? I want to make sure that it is not possible for any of our people to be charged with treason for an offence against the King, whether it consists in levying war against him in his capacity of King of some country in the British Commonwealth, or whether it consists, according to the ancient British legal decisions, in refusing “to remain constant with his eldest daughter.”
I do not know that I can say any more on this than I did on the last day. I do say very definitely that the King in no respect comes under this Bill. It has no relation to him whatsoever.
I would like to put this point of interpretation to the Taoiseach. Suppose you have a German who is normally resident here, that war breaks out, and that this country is attacked. Our neutrality is broken and the country is at war with Germany, not through any will of our own. Is the German who has been normally resident here guilty of treason under this Bill?
I am afraid I would have to get that case put much more fully than the Deputy has done before I would venture an answer.
I have taken the case of a German who has been ordinarily resident here. Let us say that he has been here for the last ten years. He is not a citizen and has not taken out naturalisation papers. Supposing within six months' time we get involved in a war through no will of our own. We are attacked and our neutrality is broken. That man is in the German Army that is attacking us and making war on the country. Is he guilty of treason under this Bill? It is merely a question of interpretation.
I do not think in the case of another State that that would be regarded as treason. It would depend. We have got to see what is right and natural. There are certain practices and certain accepted rules of international conduct which would have to be taken into account by anyone dealing with a particular case of that kind. There is the possibility, of course, of a person of that sort being regarded as having returned to his former allegiance.
He had that allegiance.
Or returning to his allegiance. He would not be regarded as a subject of this State.
He need not be a subject—ordinarily resident here.
I will have that particular matter considered somewhat more fully.
The Taoiseach need not look into that point.
Whenever the Deputy puts forward any particular thing worth examining, it will be examined.
Question put: "That Section 1 stand part of the Bill."
The Committee divided: Tá, 62; Níl, 29.
Tá
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Boland, Gerald.
- Bourke, Dan.
- Brady, Brian.
- Brady, Seán.
- Breathnach, Cormac.
- Breen, Daniel.
- Breslin, Cormac.
- Carty, Frank.
- Childers, Erskine H.
- Cooney, Eamonn.
- Corry, Martin J.
- Crowley, Fred Hugh.
- Derrig, Thomas.
- De Valera, Eamon.
- Flinn, Hugo. V.
- Flynn, John.
- Forgarty, Andrew.
- Friel, John.
- Fuller, Stephen.
- Gorry, Patrick J.
- Harris, Thomas.
- Hogan, Daniel.
- Humphreys, Francis.
- Kelly, James P.
- Kelly, Thomas.
- Kennedy, Michael J.
- Lemass, Seán F.
- Little, Patrick J.
- Loughman, Francis.
- Lynch, James B.
- McDevitt, Henry A.
- MacEntee, Seán.
- Meaney, Cornelius.
- Moore, Séamus.
- Moran, Michael.
- Morrissey, Michael.
- Moylan, Seán.
- Mullen, Thomas.
- Munnelly, John.
- O Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Grady, Seán.
- O'Loghlen, Peter J.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- O'Sullivan, Ted.
- Rice, Brigid M.
- Ruttledge, Patrick J.
- Ryan, James.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Tubridy, Seán.
- Victory, James.
- Walsh, Laurence J.
- Walsh, Richard.
- Ward, Conn.
Níl
- Bennett, George C.
- Benson, Ernest E.
- Brennan, Michael.
- Burke, Thomas.
- Byrne, Alfred (Junior).
- Cogan, Patrick.
- Corish, Richard.
- Cosgrave, William T.
- Costello, John A.
- Davin, William.
- Doyle, Peadar S.
- Everett, James.
- Fagan, Charles.
- Hickey, James.
- Hughes, James.
- Hurley, Jeremiah.
- Keating, John.
- Keyes, Michael.
- MacEoin, Seán.
- McMenamin, Daniel.
- Morrissey, Daniel.
- Mulcahy, Richard.
- Nally, Martin.
- Norton, William.
- O'Higgins, Thomas F.
- O'Sullivan, John M.
- Pattison, James P.
- Redmond, Bridget M.
- Ryan, Jeremiah.
Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Doyle and Bennett.
Question declared carried.
SECTION 2.
(1) Every person who encourages, harbours, or comforts any person engaged in committing treason shall, unless he satisfies the court that he did not know and had no reason to believe that the person encouraged, harboured, or comforted was so engaged, be guilty of felony and on conviction thereof shall be liable to a fine not exceeding £500 or, at the discretion of the court, to penal servitude for a term not exceeding 20 years or imprisonment for a term not exceeding two years or to both such fine and such penal servitude or imprisonment
Amendment No. 2 fails, being consequential on amendment No. 1.
I beg to move amendment No. 3, standing in the name of Deputy Fitzgerald-Kenney:—
In sub-section (1), line 47, after the words "so engaged" to insert the words following: "or that he was constrained so to do by a reasonable apprehension of death or of serious bodily violence to himself or some other person residing with him or of grave destruction of his property."
This amendment needs no explanation; it is clear. It really only means that the person shall not be punished if, in addition to the reason for non-punishment given in the section, "he was constrained so to do by a reasonable apprehension of death or of serious bodily violence to himself or some other person residing with him or of grave destruction of his property." It is a question as to whether the Government will accept that or not.
We think that the first part of this amendment is unnecessary because, I understand, in law it would be regarded as a good defence that a person's life was in danger or that he was in grievous bodily danger. The rest of the amendment is wider. It is questionable whether we should attempt to bring in the principle that possible danger to one's property or to somebody who might be living in the house should be regarded as a good defence. Taking it on the whole, we do not see any reason why the existing position should be changed in regard to that matter. We think that any defence of that sort would naturally be taken into account when all the circumstances of the particular case would be before the court deciding the matter, but we do not think that we would be justified in introducing a new principle such as would be involved in this question of danger to property or to any person living in the house. We do not intend to accept the amendment.
I am not going to argue the matter or to express surprise at the Government's attitude. The Taoiseach believes that the courts would take these circumstances into account, as the law stands, but far be it from him to see that the courts will take them into account! "They may or they may not; we give this up." Am I seriously to be told that when the House puts in an exception here, namely, that the accused person did not know or had no reason to believe that the person whom he harboured was engaged in committing treason, that other exceptions, though not mentioned, will also be considered by the courts? Still, it is necessary to put in lack of knowledge. I take it for granted that the Government is convinced that it is necessary to put in lack of knowledge as a ground of being acquitted. It is necessary to do that, but the Taoiseach would not think it necessary to put in a threat to the person as an excuse. Unfortunately, we are laymen in this House. Unfortunately, it is the duty of laymen in this House to pass legislation. I hold it is all the more necessary then to state explicitly the exceptions in this section. There is neither rhyme nor reason in the attitude taken up by the Government. A threat to the person is dealt with by the ordinary law, we are told, but if there is a threat to his wife or children it is not wise to have that dealt with here. They are classed as property according to the new Constitution we are implementing. It would be unwise to do it, we are told. First of all, I cannot understand the Taoiseach's interpretation of the ordinary law in view of the provisions of the Bill. Secondly, I cannot dismiss the wife and family of the person in question as airily as the Taoiseach has done. "It is not worth while making provision for them"—that is clearly what he says. As regards the individual himself, that is an offence against the ordinary law. Ignorance is not, but fear is. A very interesting interpretation, if it will stand. It is not our business to make the Judiciary clear as to what we mean! That is the attitude taken up here.
Arising out of the remarks made by Deputy O'Sullivan, I take it that the case the Prime Minister has made against this amendment is that the ordinary law of duress would furnish the excuse that is stated specifically in this amendment. Speaking generally, so far as I understand the Prime Minister's point, it was that no offence would be committed because there had been duress. I should like to point out in that connection that we are here creating a statutory offence of a type somewhat different from anything that existed before, and even though the point made by the Prime Minister might have some substance in it, it will certainly not take away from the force of this section if this amendment be accepted. I rather think that it will weaken the defence of duress, if such a defence is put up, that it is not mentioned in the Bill as an excuse, particularly having regard to the fact that there is one specific excuse mentioned in the section, and it can be argued that because one excuse is mentioned, another excuse left out, therefore it was not intended that the excuse left out should be taken into consideration at all. There is a well-known Latin maxim dealing with that, with which I need not worry the House. That is a serious objection to the Prime Minister's point, but I think it should be taken into consideration.
I have given serious consideration to that already. In my statements I distinguished between the two parts of the amendment. One part was covered by the ordinary principle of duress and I said that the other was too wide. There is, of course, the point made that when you mention one exception specifically, you are excluding others. I was going to use that as a reason for not putting in other exceptions. Here the particular exception mentioned is of such an obvious character, that it simply makes the person not guilty at all. It is not a question of knowing a thing and then weighing up one set of consequences against another. The amendment puts the individual concerned in a position in which he would have to weigh up the consequences of engaging in a treasonable practice which might result in death and against the danger of immediate bodily harm. In the other case, I think everybody will admit that the exception mentioned is one which would make a person absolutely not guilty because, when the thing was happening, he was not aware of it but you put upon him the responsibility of satisfying the court that he was not aware of it. With regard to "grievous bodily harm," the proposal seems to be too wide. The reference to a person in the house might include more than a member of one's family—wife, mother or child. As regards the question of property, one has to consider where to draw the line. Would these things not be properly regarded in a particular case as being a justification? It seems to me that, in so far as the act was not a completely free one but one which was forced, that would be taken into account in a particular case. It is better to have the particular set of circumstances considered in that way than to limit the matter here. It seems to me that our limitations will either go too far or not go far enough. Having considered the matter, our view is in favour of leaving the thing as it is.
I should like the Taoiseach to let us know whether any consideration was given, in the drafting of this Bill, to the position of a wife vis-á-vis her husband in respect of sedition. Under the 1925 Act it was provided that—
"every person who commits any of the following acts, that is to say... (c) conspires with any person other than his or her wife or husband...."
Then, you pass on to Section 8, where there is a similar exemption. In this Bill, it appears that a wife can be charged with treason and, probably, with the offence of comforting her husband and sentenced up to a term of imprisonment for 20 years although, under the 1925 Act, there was an exemption in her favour. There has been a fairly well accepted position that the wife under such circumstances acts under duress. It seems to me that she cannot plead duress under this Bill. I should like to know what induced the Taoiseach to omit that provision of the 1925 Act, seeing that he copied it so faithfully in other respects.
This is not dealing exactly with sedition and the view is that the exemption to which the Deputy referred was unnecessary in the 1925 Act. As a matter of fact, anything of that sort would be taken into account.
Is the position under Section 2 of this Bill that a woman who comforts a husband—what "comfort" consists of is not set out in the Bill—who has committed the offence of levying war—and levying war may consist not merely of an overt act but may consist of any one of a long litany of things set out here or of attempting to do these things— is to be liable to a term of 20 years' imprisonment? If that can happen, I think it is a piece of savagery.
In practice, I think there would be no difficulty in a matter of that sort. I am informed that husband and wife cannot conspire together in the ordinary, legal sense. Having heard the views expressed and having discussed the matter with our legal advisers, I have come to the conclusion that there is no need to make a change, that the provision in the Bill as it stands is reasonable and that the courts will deal with it in a reasonable way. If we take up the attitude that the courts are going to be unreasonable and that we have to constrain them to act reasonably, the task will be impossible. In a case of this kind, you have to define the crime and the punishment and, in the individual set of circumstances, the courts will have to determine whether a person is guilty or not guilty. If you commence to make exceptions, you will have a very long list.
The previous Government was probably advised by law officers of the same standing as the law officers of the present Government that an exception of that kind was necessary, because it was embodied in the 1925 Act. Now, we copy the 1925 Act so far as punishment is concerned and we do the same thing in the Offences Against the State Bill, but we are leaving out this provision which acts as a safeguard for the wife. A wife would not be human if, in such circumstances as those, she did not extend some measure of comfort to her husband. Is it proposed to institute a prosecution against a wife in such circumstances and have her sentenced to 20 years' imprisonment?
It is only in the Deputy's imagination that could happen. Husband and wife are regarded as a unit, apparently, even from the legal point of view. Having examined the matter, we came to the conclusion that it was completely unnecessary to provide this exemption in the 1925 Act, that it would be quite as good if it had been omitted.
I am afraid I cannot agree with the Prime Minister in that statement of the law. It is only for a very limited number of topics that a husband and wife are, under the existing law, regarded as a unit, to use the Prime Minister's expression. It must be remembered that this Bill is going to create a new offence. We are not dealing with what I might describe as the common law offence of treason or harbouring persons who committed treason. In such cases, definite principles apply and we know precisely where we are. Here, we are creating a new statutory offence of harbouring—a new kind of treason. I think the Prime Minister should fully appreciate what is being done in this Bill. In the Constitution, treason is defined specifically as consisting only of certain acts. In this country, treason no longer consists of anything in any statute or in the common law as adopted by the previous Constitution or this Constitution and none of the former principles applies to it. Therefore, in case there ever is a prosecution for treason, it will be confined strictly to the four corners of this Bill when it becomes an Act. You cannot go outside it. Therefore, taking this newly created statutory offence, under Section 2, I think it is unarguable that that would cover the case put by Deputy Norton. A wife can be prosecuted for harbouring her husband. I think there cannot be any doubt whatever that the wife or husband respectively can be convicted of "harbouring" under that section, because this entirely new offence is created. It is no defence to say a husband cannot conspire with his wife, or that a wife cannot conspire with her husband. This is not conspiracy. If there was a charge put in of conspiring to commit the offence created by Section 2, then there could not be a charge against a wife for harbouring her husband, but I think on the newly created offence under the section there could be a charge against the wife for harbouring her husband.
The Prime Minister spoke about taking into account the fact that the courts will act reasonably. I think the Prime Minister should appreciate that, when a court of law has to consider a statute, the question of the reasonableness or unreasonableness of the interpretation does not enter into the matter. The ordinary plain grammatical meaning of the section is what is taken first of all. If that is clear, then that is the construction, and it is no part of any judge's duty in defining what a section of an Act of Parliament means to say whether it is reasonable or unreasonable, because then he would be trenching upon a domain which is not his domain—the domain of policy. The courts have laid down this principle, that they will take a statute to mean what it says if it is plain in its ordinary grammatical meaning, irrespective of the consequences that may accrue from giving it that plain meaning, and even though it may be in the teeth of what the legislature intended. The Prime Minister should not, therefore, approach this topic by considering whether or not the courts are going to be reasonable or unreasonable. They are going to act in accordance with well-settled and well-known canons of construction.
If the Deputy, a lawyer, stands up and makes a case here, as a lay-man I am not able to go into the details and say that what he is putting forward is definitely wrong. All I can say to the House in a case like that is that I will have the contention examined. If, on examination by our legal advisers of the point which has been made, there is even a doubt in the matter—unless I am met with certainty of the opposite—I will see whether the point can be met. It is possible that in this case a distinction may be made. I do not agree with the Deputy on the question as to whether we are creating a completely new statutory offence. These are offences which are not unknown—as far as I know, anyhow—to the ordinary law.
The Prime Minister has forgotten his own Constitution.
No. The two Deputies now sitting side by side can have a nice little chat. I leave it to Deputy Costello to convince Deputy O'Sullivan, because I have been arguing all the morning exactly as Deputy Costello has been arguing about the position we are in, but I am arguing that those offences are not quite unknown; that we are not creating, as it were, a completely new thing. We are based on the Constitution; that is the root of what we are doing, but I do not think that the offences which are contemplated and spoken of here are quite unknown. Although you cannot deal with them as if there were tested cases, and accepted decisions, there is no doubt that consideration of such cases will be of value. However, what I have to say at this stage is that I am not accepting this amendment in its present form. With regard to the point raised by Deputy Norton, I will have that matter examined. It has been supported by Deputy Costello. I will have the matter examined, and, on the next stage, we will see what the position will be.
Will the Taoiseach bear in mind that, even when the exception was made in the 1925 Act, it was made notwithstanding the fact that the language used in the section was "conspires with any other person." In both cases where the exemption is provided for the wife or the husband, the word "conspiracy" is used in describing the offence. In this particular case there is no question of conspiracy involved at all; it is "encourages, harbours or comforts." Even if it were not necessary in the case of conspiracy to provide for exemption, it must be remembered that there is no conspiracy here.
I do not want it to appear on the records of the House that there is even a semblance of difference between Deputy Professor O'Sullivan's opinion and my own because, in point of fact, there is not. I have just asked him about it, and I wish to correct the Prime Minister on that point. Apparently the Prime Minister is again at his old failing, if I may respectfully put it that way, that whatever he thinks this Constitution means the courts will also think. I approach this with a completely unbiased mind. I am looking at it strictly as a lawyer, and I have no doubt that something new has been created by this Constitution, and something new is going to be created by this Bill under Section 2. The fact that similar offences are not unknown to us is of no relevance whatever in considering the content of the new offence which has been created.
Question put: "That these words be inserted."
The Committee divided: Tá, 31; Níl, 63.
Tá
- Bennett, George C.
- Benson, Ernest E.
- Brennan, Michael.
- Burke, Thomas.
- Byrne, Alfred (Junior).
- Coburn, James.
- Cogan, Patrick.
- Corish, Richard.
- Cosgrave, William T.
- Costello, John A.
- Davin, William.
- Everett, James.
- Fagan, Charles.
- Gorey, Denis J.
- Hannigan, Joseph.
- Hickey, James.
- Hughes, James.
- Hurley, Jeremiah.
- Keating, John.
- Keyes, Michael.
- MacEoin, Seán.
- McMenamin, Daniel.
- Morrissey, Daniel.
- Mulcahy, Richard.
- Nally, Martin.
- Norton, William.
- O'Higgins, Thomas F.
- O'Sullivan, John M.
- Pattison, James P.
- Redmond, Bridget M.
- Ryan, Jeremiah.
Níl
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Boland, Gerald.
- Bourke, Dan.
- Brady, Brian.
- Brady, Seán.
- Breathnach, Cormac.
- Breen, Daniel.
- Breslin, Cormac.
- Carty, Frank.
- Cooney, Eamonn.
- Corry, Martin J.
- Crowley, Fred Hugh.
- Crowley, Tadhg.
- Derrig, Thomas.
- De Valera, Eamon.
- Flinn, Hugo V.
- Flynn, John.
- Fogarty, Andrew.
- Friel, John.
- Fuller, Stephen.
- Gorry, Patrick J.
- Harris, Thomas.
- Hogan, Daniel.
- Humphreys, Francis.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Tubridy, Seán.
- Kelly, James P.
- Kelly, Thomas.
- Kennedy, Michael J.
- Lemass, Seán F.
- Little, Patrick J.
- Loughman, Francis.
- Lynch, James B.
- McDevitt, Henry A.
- MacEntee, Seán.
- Maguire, Ben.
- Meaney, Cornelius.
- Moore, Séamus.
- Moran, Michael.
- Morrissey, Michael.
- Moylan, Seán.
- Mullen, Thomas.
- Munnelly, John.
- O Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Gradv, Seán.
- O'Loghlen, Peter J.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- O'Sullivan, Ted.
- Rice, Brigid M.
- Ruttledge, Patrick J.
- Ryan, James.
- Victory, James.
- Walsh, Laurence J.
- Walsh, Richard.
- Ward, Conn.
Tellers:—Tá: Deputies Nally and Bennett; Níl: Deputies Little and Smith.
Question declared lost.
On behalf of Deputy Fitzgerald-Kenney, I move amendment No. 4:—
Before sub-section (2), to insert a new sub-section as follows:—
No medical practitioner or hospital nurse or any person connected with any hospital for the cure of the sick shall be convicted under the provisions of sub-section (1) of this section solely because of comfort or relief given to a sick person engaged in committing any offence to which section 1 of this Act applies.
It is extremely difficult to think that this amendment would not be accepted. It is in connection with Section 2, and seeks to make provision to safeguard certain people who, on humanitarian grounds, will be brought into touch, with those who may be guilty of treasonable practices of various kinds, destructive or otherwise. It would be exceedingly wrong if we did not make the exception it is proposed to make by the amendment. We know perfectly well that at a very critical period in our history the attitude actually taken up by the medical profession, whatever their political opinions were, was a refusal to give away those that came to them for medical help. I put forward the amendment on the grounds of general public policy, and no—I was going to call it "frivolous"—Bill of this kind should interfere with what is a much more valuable principle of public policy, namely, the trust that ought to prevail between the medical profession and their patients. I find it almost an insult to argue the acceptance of this amendment and I do not want to be told that it is too wide. If it is, it is the business of the Government to make the necessary changes. They have draftsmen at their disposal that we have not. To suggest that amendments can be rejected because they are too wide is no argument whatsoever against the acceptance of the principle of the amendment and the proper drafting of the amendment if the principle is accepted.
I am afraid I will have to disappoint the Deputy. It is true, of course, that the mere statement that something is too wide is not an excuse, if there is something that can be met, for not attempting to meet it, but when you approach matters of this kind, as the legal department have approached it, from the point of view that it is desired to get something which would be satisfactory, we are up against the position that it is not feasible to do it. The Deputy has again illustrated how difficult it is to do anything of this sort by confining it. There are other obvious things that you should include too. Take the case of a elergyman who might be attending to a person who is engaged in these activities. The practical difficulty is to get the Bill drafted so as to include all the cases that ought to be included because, again, if you do not, if you proceed to enumerate some, the supposition will be that you have enumerated all that you wish to make exceptions of, Faced with the practical difficulty of doing that effectively, our advisers have come to the conclusion that it is again better to leave the Bill in its present form and that in a particular case, where the circumstances will be properly appreciated and known, we will have to allow considerations to operate which in the past have operated in cases of that kind. They may not be regarded as absolutely good, legal defences, but they will, in fact, be regarded as mitigating or exonerating, as the case may be, a person charged, if the circumstances are of the type which the Deputy intends to cover. There is the practical difficulty of envisaging ahead all the possible sets of circumstances that you should safeguard against. If you make a list, and the list is not complete, it will have the effect, possibly, of ruling out a case which the legislators would have wished to be considered if they had foreseen its possibility. That is the principle upon which we have been dealing with practically all these amendments.
I do not want to pretend that, if it could be done, there is not a good deal to be said for the point of view taken by the Opposition, that is, that we ought not leave any of these things to chance. But, in fact, all legislation is of that kind. There are certain extenuating circumstances which are taken into account, and will be taken into account, and I think that in this case we are safer in leaving the Bill as it stands, from the point of view of having due consideration paid to circumstances of the kind envisaged here or suggested here, not so much these that are mentioned here as other ones that would require to be mentioned. There is the obvious one, which I have suggested, but which did not occur to the person who drafted this amendment. It is nearly impossible to envisage all the possible cases that could arise. There would be undue hardship created if it were suggested that because you have not enumerated a particular set of circumstances which ought to be taken into account, you meant to rule them out. You would be loading the dice against the proper consideration of that case.
May I point out, after the attitude taken up by the Taoiseach on the amendment we have just disposed of, it does require a certain amount of aplomb—I am afraid the word "neck" would not do—to come in and argue that because you mention certain exceptions, it rules out others. On one amendment the Taoiseach mentioned a certain exception that did not rule out the others, now he comes down and argues the very opposite. I am not surprised. I do not pretend to be. But I am surprised that there is any difficulty about accepting this amendment. If he has a difficulty, if he thinks the case of the priest is lawful, certainly put it in. We would only be delighted, but I must object to the suggestion that this House is bound to accept the views of the legal advisers. The Taoiseach says, "I have been advised that it is better to leave the Bill as it is." I think we have heard enough of that. I have not heard that the legal advisers are the legislators here and I have protested against it already. If the Taoiseach has any reason to defend the Bill let him defend it on the merits and not go behind the legal advisers. If he wants to legislate so that judges can interpret it, put something before them that they can interpret to show that our meaning is clear. I think it is our business to do that.
I am rather surprised, after all we have heard about the humanitarian views of our Constitution, that it is beyond the power of the draftsmen to make a humanitarian provision of that kind that does not involve all sorts of consequences that they cannot even guard against. I find it extremely difficult to believe that the draftsmen have not that competence if it is put up to them seriously to provide for this humanitarian provision. If you think it will carry you beyond it, provide against that contingency and provide against the inclusion of one thing ruling out others. Why cannot that be done? I think it is our business to consider legislation on its merits and not to be told continuously that our legal advisers think so and so; that it is better—that is the phrase used—to leave the Bill as it is. It is our business to consider whether it is better to leave the Bill as it is or not. I must object to the idea that all we can hope for is that if a case of this kind is brought before a court the court will kick us out. That is not the way to legislate—to hope that the judges will behave that way if a case is brought before them. It is quite conceivable that a case might be brought before them, and it is a most unreasonable attitude to take up that the confidence that ought to prevail between certain people and those with whom they come into contact should not be respected and legislated for.
This is the ordinary law, applied from day to day, when there are no disturbances in the country. I presume that is the idea. It is not a portion of the exceptional legislation. I notice that my reference to the possibility of its being pulled into the machinery of the exceptional legislation was never dealt with. I am not dealing with it now, as I have already dealt with it, but I am pointing out that it was not answered. Here is a piece of the ordinary legislation in peace times, and yet the Government cannot find any means of making a humanitarian provision of this kind. Once more, I let the amendment stand as it is.
No medical practitioner or hospital nurse or any person connected with any hospital for the cure of the sick shall be convicted under the provisions of sub-section (1) of this section solely because of comfort or relief given to a sick person engaged in committing any offence to which Section 1 of this Act applies.
You can put in "priest" if you like. The Taoiseach cannot do it. It would trouble the draftsmen too much. It is beyond their capacity. Why should we trouble the Department of Justice to meet the demands of the Legislature in that respect—much better it is that the Legislature should take the view that it is better to leave it as it is. That is legislation under the new Constitution! Surely if ever there was a case to be met it is this. It is extremely difficult to understand the attitude taken up now. What is your hope? That if you apply this law as it stands, and bring an action against a medical practitioner, the law being against the medical practitioner, the judge will say: "Clear out. You should be ashamed of yourselves."
In sub-section (3) of Section 1 it is provided:—
Whenever a person charged with treason is indicted therefor before the Central Criminal Court, he shall be so indicted in the same manner in all respects as a person charged with murder is required by law to be indicted.
A person who has been indicted on a charge of treason must be indicted as if he were being indicted on a charge of murder, but when we come to deal with Section 2, we do not extend to the person liable to be charged with treason the same consideration as we would extend to-day or to-morrow to a person, not merely charged with murder, but found guilty of murder. Suppose, for instance, the court this morning sentenced a man to be hanged and the execution were to take place a month hence. If that man in the meantime became ill, he would get medical attention in prison and every effort would be made to save his life in order that he should be duly and properly hanged a month hence. Under the section, however, what do we do? We say that if anybody dares to comfort a person, knowing that that person has been engaged in committing treason, he may be found guilty of felony and may be sentenced to a term of penal servitude not exceeding 20 years; so that if a person engaged in the commission of treason sends for a doctor or priest it will be an offence for the doctor or the priest to attend him, and if they want to avoid being arraigned and having to give an excuse of the kind suggested by the legal advisers of the Taoiseach, what they ought to do is to leave the person to die as quickly as possible. If he dies, it will ensure that they will not have to go before the court and take a chance on the kind of advice the legal advisers of the Taoiseach give him.
I do not think you can make a case for that type of legislation at all. The doctor who is not concerned at all with the offence of treason, who probably bitterly deplores the fact that an attempt was made to commit treason, and the priest, who is probably utterly opposed, morally, politically and ethically, to the commission of the offence, are liable to be charged with extending comfort to what may be a dying man, or a man who is very ill and in danger of losing his life. There is no justification in the world for charging people in those circumstances, and no matter what the legal advisers say, no matter what apparent anomalies appear to exist in the section, it is surely not beyond the wit of the legal advisers, in whom the Taoiseach has such confidence, to make sure that, in these circumstances at least, these people will not be charged with an offence. Let us try to cover all the normal exceptions, but if they cannot be covered because of drafting difficulties, let us keep out as many as we can from the possibility of prosecution.
I think I should make clear at this stage that when I refer to the advice given by the legal advisers I do so when somebody puts up a particular interpretation of law or tells me what legal practice is. We had an example here this evening. If Deputy O'Sullivan reads what he has said and what Deputy Costello said after him he will see that the views I gave expression to in regard to several matters were the views which Deputy Costello, as a lawyer, holds. Deputy O'Sullivan's position, as it would be mine and the position of any other lay member here, is that commonsense and reason ought to prevail in regard to anything put before us; but if there is a question of legal practice and of what experience we are going to depend on, am I to depend on the experience of Deputy O'Sullivan from the legal point of view, unless his view is able to stand on a basis of reason, independent of experience, or am I to depend on the experience of people who have no reason whatever to give me any advice which they do not think is absolutely right and correct?
When matters are referred to the draftsmen or to the legal department it is on questions of law and not questions of policy. When suggestions for amendment are put up here I have to be satisfied, having heard the reasons put forward here by my legal advisers, before I accept their opinion, that the basis of the argument in favour of amendment is not sound. The Deputy is altogether wrong in thinking that I want simply to put the views of the advisers before the views he or anybody here may express. We are ultimately to be the masters of what becomes the law and we are bound to take that into account; but when there is a question of legal practice or the interpretation of law I think he will admit that I have the right and the duty to accept the advice of my advisers rather than opinions that may be expressed, sometimes after a very inadequate examination of the point. Take all that matter read from Archbold the last day. The people who advise me have read that, too, and they do not think that the arguments put forward by Deputy Fitzgerald-Kenney are sound. I have to weigh the two and to ask myself which is it to be. When we have heard the arguments on both sides, if there is a difference of opinion, I am ordinarily, anyhow, going to take the view expressed by absolutely disinterested legal advisers. I have found arguments put forward from the Opposition Benches on legal matters quite wrong.
And some of them quite right.
With regard to this amendment, I want to have any points that have been put forward examined with the fullest possible care. There will be offences which people will commit, knowingly, technical offences, which they will commit knowingly— probably technical legal offences—because of some other higher motive. For instance, an example was given to me in talking this matter over. Supposing I have not a licence for my motor car, and suppose a man was injured on the road just outside my garage and that I had to choose as to whether or not I should take out my car and bring that man to hospital and thus break the law technically, I would certainly make that technical breach in the law and take out the car even though it was not licensed, and hope that I was not going to have any accidents on the road; but whether I had accidents on the road or not, and even though I was guilty of a technical offence, I would take that person to hospital in my car.
We will have cases in the future, as we have had in the past, where people will put higher considerations above a technical breach of the law, and will put these considerations in the forefront and act in accordance with them. That is the commonsense on which we are depending in this particular case rather than on a particular attempt, which may be really a very ineffective attempt, to meet cases of this particular kind. The point is that there are certain higher considerations which will operate in matters of this kind in which any technical offences that may be committed will be set aside in consideration, so to speak, of the higher dictates of humanity.
I would have that matter examined again from that point of view if that would satisfy the Deputy—not with a view to turning down the Deputy's amendment but with a view to seeing if amendments of that sort can really be effectively put into a Bill, and that is what we have always done.
I do not think there should be any difficulty in accepting the amendment. As this Bill stands, it will be an offence to harbour or succour or give treatment to any person guilty of these offences. Now, the Taoiseach has pointed out that if a person were injured at his garage door and it was a question of whether or not he was going to take out his car and do the good work of bringing that man to hospital and be guilty of the technical offence of driving without a licence, he would have no hesitation in driving his car in the circumstances. I admit that is so, but is everybody of that mind? I had the experience of driving a wounded Volunteer to Dublin in 1920 and, because there was an order that in the case of every wounded person brought in to hospital here the hospital people had to notify the military authorities, the first hospital I came to said: "We are law-abiding people and we cannot break the law; if you bring the man in here we must notify the authorities." The second hospital said: "We are taking him in and we will take the risk." Still, because the law was there, and because it was a technical offence, certain people were not prepared to take the risk of committing that technical offence—perhaps, through a sense of loyalty.
I presume that one of the reasons that Deputy Fitzgerald-Kenney did not include clergymen in the amendment is that this is a Catholic country and that there is a hope that the Government of this country will be always more or less in that direction anyhow, and that no Government or no Attorney-General or no law officer of this State would dream of prosecuting the priest or the other clergyman who might attend a wounded or sick person. Every day in the courts, however, we have judges and justices giving decisions in which they say: "I am here to interpret the law as I find it; that is what your Legislature passed and that is what I have to give effect to." Therefore, you are going to put a person to the whole trouble of a defence and of getting up and saying: "Well, I did it because I thought this was a higher ground or a higher consideration than that." I think there should not be any question at all of doubt in the Taoiseach's mind in accepting the amendment and including clergymen if there is a danger of the creed of this Government ever changing so that they would not have Christianity—and, mind you, we are travelling so far that there is even a doubt of that at times. Therefore, I feel that in a case like this, where we are passing a Bill that is to be the ordinary law and the perpetual law of the State, we should take every care that no person who has done a good work through a charitably-disposed mind should be made to suffer any hardship or inconvenience because of it. I submit that the amendment should be accepted in principle and that the draftsmen should extend it to cover clergymen of any denomination.
Well, what I shall do is to have this matter re-examined. I told the House what the advice and consideration have led to up to the present. Nobody is against the principle, but it is a question of whether what would be regarded as a technical offence would be set aside on grounds of humanity in certain cases. I understand clearly what the Opposition are trying to get at and I shall see whether in fact it can be done, but if, on examination, it is found that any attempts that are being made to get it would be quite unsatisfactory, I take it that it must be up to the Opposition themselves to provide what would be satisfactory. What I say is that, if we have done our best and if we are satisfied that the best we can do in the matter is quite unsatisfactory and that it would be better to leave the thing as it is, then, when we have admitted that and have done our best, if the Opposition is not satisfied, they must use their own brains and try to do it, because we will have exhausted, as far as I take it, our possibilities of doing it. That has also been the way with regard to some of these amendments that have come along here. We have examined them, and examined them, notwithstanding the Deputy's doubt on the matter, with an open mind and a desire, if anything, to safeguard any of these principles which have been referred to, but when we come down in practice to do it we find that we are running graver risks, that the exceptions we want to have considered would not get the same consideration as they would get in the case of a trial, if there were no amendment such as has been suggested. If that is satisfactory, I will try again in the light of the general principle.
Let us be quite clear about this, Sir. I gather that the Taoiseach accepts the principle of the amendment, but refrains from promising to do anything.
I cannot undertake to produce an amendment that would be satisfactory.
Very good, then; I am not satisfied, I have had too much experience of the Taoiseach's considerations with an open mind— absolutely too much experience. I have not the slightest doubt that what will happen will be that it will be found impossible, as the Taoiseach has already argued. Now, let me be quite clear. I gave no interpretation of the law in proposing this amendment, and the first thing that was flung at me was the Department of Justice, or rather, not the Department of Justice —I must apologise to the Minister for Justice—but the legal advisers. The legal advisers were flung at me like a sledge-hammer. I did not give any interpretation of the law, either as a layman, a lawyer, or anything else, but the first thing that is flung at me is that the legal advisers will not allow me. Now, I am not prepared to accept that. If the Taoiseach says that he will accept the principle and introduce an amendment to give effect to that principle, if he is not satisfied with the present drafting of the amendment, I am prepared to let the matter go and let the officials go on with the drafting until the next stages of the Bill. Otherwise, I would feel compelled to divide on that because I am not prepared to ask a man to commit an offence on the plea that he may get off before the court. That is not proper. If we do not think it is an offence, we should try to prevent that happening. We have no right to put that conflict of conscience up to any man, whether he is to obey the law or push aside the law in obedience to what the Taoiseach calls the higher morality—a very dangerous thing. Within the last two or three years I have seen the higher morality appealed to to trample on every fundamental law of civilisation. I do not want to put any person in the difficulty of being told, "You will have to commit an offence and break the law; let us hope that the judge will let you off." That is not proper legislation and I object to wait on that particular ground. It is not enough for a person to be told that the judge may take a lenient view. The fact is that the man has committed an offence, according to our law, in that case or in the case of a priest. That ought not to be legislated, and I am sorry that I must press it to a division, unless the Taoiseach meets us so far as to accept the principle and to promise an amendment giving effect to the principle.
I am sorry that the Deputy is pressing it. I cannot do what he wishes. I have told the Deputy—the Deputy does not believe it, or he will not understand—why I could not give a promise. I told the House definitely why we have to approach the Bill from that point of view and why an amendment is open to the danger of introducing greater difficulties. The Deputy said, "Do not create an offence." Suppose you were to put into the law for motor cars that a person must not drive a motor car without a licence unless there is somebody ill on the road and he has to take that person to hospital. If anybody proposes a law like that, is it not obvious that you will jump to the conclusion that there may be a number of cases in which persons might feel justified in using a motor car without a licence? That exactly illustrates the difficulty in which we are in this case.
We admit straight off that there are cases of the kind in which a technical offence might be condoned, and would be condoned by a court. But if we start condoning them in advance there are all sorts of difficulties. First of all, there will be suggestions to people to commit offences in particular ways so as to escape punishment. It would be very handy in the case of a motor car. There will be some suggestion perhaps to make up a case that the person in the car was ill, because carrying a sick man to hospital was something which would be an excuse. I do not want to enter into all the possibilities in a case like this, because they are infinite and there would be no use in attempting it. This is a practical difficulty which we are up against, which anybody trying to legislate in a matter of this kind is up against. There is no use saying, "Accept the principle and promise to bring in an amendment." If we could do that we would do it. All I can say is that, if the Deputy wishes, we will have a further examination to see if the difficulty can be solved. If it can, an amendment will be brought in. If not, we will have to leave it as it is. If the Deputy is not prepared to take that, we will only have to leave it as it is.
There was one word used which expresses accurately the difference between the Taoiseach and myself—"condone". I object to the word "condone" in the present case.
I was not particularly choosing my words.
We have to interpret them very carefully at times.
The Taoiseach told us, in justification of his endeavour to resist the amendment, that when discussing the Bill with some other parties he had been told of the difficulty of a man with an unlicensed motor car who has been asked to take an injured person to hospital. When that case is exploited to its fullest extent and the worst possible complexion is put on it, in the public mind it is a case of using a motor car for the purpose of taking an injured person to hospital. We all live in this country and know what is happening here. We all have our roots in the country and can understand what is happening every day. We know that, in fact, quite a considerable number of motor cars are to-day used on exceptional occasions for taking folk who are not injured at all from place to place. I am not too sure that it is not one of the things we nationally pride ourselves upon. In any case, we do it for a good national, athletic purpose. That is all the offence is. Here in this case, if a person responds to that appeal to the higher humanitarian instincts, he will not be charged with using a motor car without a licence, the punishment for which is trifling; he is going to be charged with treason felony, and he is going to be told that, on conviction, he is liable to penal servitude for a term not exceeding 20 years or to imprisonment for a term not exceeding two years or to a fine of £500 or both such fine and such penal servitude or imprisonment. On the top of that, he has the odium of harbouring, encouraging, or comforting a person charged with treason. A man in the position of a doctor or a priest will not lightly put himself into a position where he may be charged with treason felony and be liable to a fine or imprisonment of the dimensions indicated in the section.
I do not think there is any comparison at all between the cases that the Taoiseach quoted. I think the reason given by him is not a valid reason for resisting an amendment of this kind. My complaint is that the amendment is not sufficiently comprehensive. Other people could, in fact, be legitimately included in the amendment in such a manner as to protect them from the possibility of being charged with comforting a person engaged in the act of committing treason or having recently committed treason. There is no reason why the Taoiseach should not indicate that he accepts the principle of the amendment, which is perfectly clear, and it should not be impossible to provide for this definite exception, and also to provide for an exception of the kind indicated in Section 2.
If the Deputy is not satisfied with this he can produce a list of exceptions, and somebody else will produce another list for which an equally good case could be made.
It is the Taoiseach's Bill.
It is precisely because it is that we have to take the responsibility. When we have tried to meet the points and found that to go in the direction suggested by the Opposition would do more harm than good, we have to resist.
Amendment put.
The Committee divided: Tá, 31; Níl, 63.
Tá
- Bennett, George C.
- Benson, Ernest E.
- Brennan, Michael.
- Burke, Thomas.
- Coburn, James.
- Cole, John J.
- Cogan, Patrick.
- Corish, Richard.
- Cosgrave, William.
- Costello, John A.
- Davin, William.
- Doyle, Peadar S.
- Everett, James.
- Fagan, Charles.
- Gorey, Denis J.
- Hannigan, Joseph.
- Hickey, James.
- Hughes, James.
- Hurley, Jeremiah.
- Keating, John.
- Keyes, Michael.
- MacEoin, Seán.
- Morrissey, Daniel.
- Mulcahy, Richard.
- Nally, Martin.
- Norton, William.
- O'Higgins, Thomas F.
- O'Sullivan, John M.
- Pattison, James P.
- Redmond, Bridget M.
- Ryan, Jeremiah.
Níl
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Boland, Gerald.
- Bourke, Dan.
- Brady, Brian.
- Brady, Seán.
- Breathnach, Cormac.
- Breen, Daniel.
- Breslin, Cormac.
- Carty, Frank.
- Cooney, Eamonn.
- Corry, Martin J.
- Crowley, Fred Hugh.
- Crowley, Tadhg.
- Derrig, Thomas.
- De Valera, Eamon.
- Flinn, Hugo V.
- Flynn, John.
- Fogarty, Andrew.
- Fogarty, Patrick J.
- Friel, John.
- Fuller, Stephen.
- Gorry, Patrick J.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- O'Sullivan, Ted.
- Rice, Brigid M.
- Ruttledge, Patrick J.
- Ryan, James.
- Ryan, Robert.
- Harris, Thomas.
- Hogan, Daniel.
- Humphreys, Francis.
- Kelly, James P.
- Kelly, Thomas.
- Kennedy, Michael J.
- Killilea, Mark.
- Lemass, Seán F.
- Little, Patrick J.
- Loughman, Francis.
- Lynch, James B.
- McDevitt, Henry A.
- MacEntee, Seán.
- Maguire, Ben.
- Meaney, Cornelius.
- Moore, Séamus.
- Moran, Michael.
- Morrissey, Michael.
- Moylan, Seán.
- Mullen, Thomas.
- Munnelly, John.
- O Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Grady, Seán.
- O'Loghlen, Peter J.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Tubridy, Seán.
- Victory, James.
- Ward, Conn.
Tellers:—Tá: Deputies Doyle and Bennett; Níl: Deputies Little and Smith.
Amendment declared lost.
On the section, in connection with sub-section (1), the Taoiseach mentioned what he considered to be an interesting and illuminating parallel in the case of a motor car, as one reason for not changing this section. I want to say that if Deputies will look at newspapers to-day—and I hope that will not be said to be 300 years old—they will find a case before the courts in which a young man was charged and convicted because, having been debarred from driving a car, that young man, in order to comfort his brother who was very ill, used a motor car to bring that brother holy water. The Taoiseach said that judges would be reasonable in these cases. It is rather a coincidence that the report of that case should be on the very same day that the Taoiseach spoke about judges being reasonable about these things. I know that the Taoiseach cannot be here, but I have no doubt that if he could, he would still say that it was antiquated and 300 years old.
I make a present of it to the Deputy.
But the Minister will not make a present of the amendments.
Sections 2 and 3 agreed to.
Section 4 not moved.
What is the position with regard to the amendment to this section?
Section 4 falls as consequential if the amendment to the Title is carried. If the Deputy desires to debate the point, he will have an opportunity on the Title.
Section 4 not moved.
Section 5 agreed to.