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Seanad Éireann debate -
Tuesday, 31 Jul 1923

Vol. 1 No. 36

PUBLIC SAFETY (EMERGENCY POWERS) BILL, 1923. - COMMITTEE STAGE RESUMED.

AN CATHAOIRLEACH

We will now resume the Committee Stage of the Public Safety (Emergency Powers) Bill on Section 5, Sub-Section (4).

Motion made, and question again proposed:—"That Section 5 stand part of the Bill."

I move the deletion of Sub-section (4). My reasons for doing so are that flogging of any description is brutal and brutalising—brutal to the victim and brutalising to the person who conducts the flogging. There is no evidence as far as I can find out that flogging has ever succeeded in doing away with any of the crimes for which it was applied. In some case the criminals are so much imbued with the ideals for which they commit these crimes, or are so fanatical that the question of punishment does not enter into the matter at all. They will depend upon evading arrest if possible. I would like to point out that flogging is not a proper course to adopt with the majority of the parties in arms against the Government at the present time.

There is no question here of the people in arms. It is a question of robbery under arms and arson.

There are quite a number of offences. A number of those people whom it is now proposed to flog under this Bill are quite young in years, and their upbringing during the past seven or eight years has more or less brought them into this state, more or less encouraged them to pursue the lines they are taking. Some of these young boys were children of tender years in 1916, and during these seven years a lot of these young men have been encouraged to break every law practically that existed as regards property. To my own knowledge they have been encouraged to raid for arms, and in some cases to go round and collect levies under arms, and I do not think it is a proper course to adopt with those men now, because the same parties who were responsible for educating them into this thing propose to flog them out of it now. It seems to me it is like teaching a young puppy to follow cats, and later buying a cat and flogging the puppy for following that cat. That is not the way to get over the difficulty. I believe that flogging will never solve this question.

I have in mind an old man of over 80 years of age who was once flogged in the British Navy, and that man to this day if you mentioned the British Navy to him would stand back, take off his coat and shirt and show you his back, and curse the people that flogged him sixty years ago. I do not want to see any men here suffering for what, mistakenly, they consider to be high ideals. I do not want these people to go down for the next fifty or sixty years, cursing the people who flogged them.

Mr. O'HIGGINS

I take it that we need not feel called upon to make Second Reading speeches upon this Sub-section, and I take it too that we need not go at any length into the question as to whether this particular penalty had in fact, in the past, succeeded in stamping out the crimes for which it was applied. Whether, for instance, it was the penalty of flogging that stamped out the crime of garrotting in England, or whether it was merely that the garrotters tired of the pastime, does not arise. What does arise is that these two crimes of robbery under arms and arson are prevalent in the country and have been for the last year, that there are arms hidden from end to end of this country, and that, in addition you have a wave of demoralisation unprecedented in this country, and scarcely equalled in any other country, where crime has been made attractive by being wrapped round in a cloak of political preference or a political ideal.

Men have been told to go out and run amok because the country was theirs for the taking. Senator Duffy suggested in some way that these crimes had been inculcated by people who are now endeavouring to deal with them. Robbery under arms was not preached in Ireland by any people assuming to be political leaders, and arson was not preached. The burning of the homes of fellow-citizens was not preached in Ireland before now in the name of any political ideals. Simply looking on ahead, one has to face this, that if the country is to survive, that if it is to regain any kind of prestige amongst the nations, if it is to settle its grave financial problems, we must stop these crimes, and no prospective Minister for Home Affairs would take office if he felt that for the checking of these crimes he had to rely simply upon incarceration. Imprisonment as the penalty is very largely blunted, and the criminal will find a hidden gun and go out to live by it, unless we are prepared to take strong steps to stop him and to deter him. The Senator spoke as if it were proposed to turn on the twelve or thirteen thousand men in jail and to apply these penalties to them. Sub-section (6) of this section says: "This section shall not apply to any offence committed before the passing of this Act." There is fair warning there for the man who goes out to rob his neighbour, and a fair warning for the man who goes out in a spirit of vengeance or in a spirit of sheer blackguardism to burn his neighbour's house.

But the people of this country have a right to be protected in the ordinary decencies of life. They have a right to be protected in their person and property, and I say this, that if we were unable to throw up here an Executive that could protect them and if we had not the moral courage to put into the hands of that Executive the power that can alone protect them, then the people of this country have a right to demand that from elsewhere, if not from here, they get a Government that will protect them.

I wonder how many times I have heard practically the same words from the Minister. He is always harping on the same thing—that the people must be protected. Again and again we hear the same thing, but we do not hear about the things inflicted upon them. The Government claim power to do anything they like on the plea that the people must be protected. These arguments might have been all very good six months ago. If this Bill was proposed six months ago I would vote for the Bill as it stands, although I do not like it, and without proposing a single amendment. But this is a time of peace. I believe the Bill we are considering now is one that will not have anything but a bad effect, and will be provocative of the very worst. That is why I oppose it. I believe it is wrong from beginning to end. We are dealing now with this punishment of flogging. I do not know whether anyone in this room has seen a flogging. I have. I have seen a number of floggings a great many years ago. It was in South Africa, when I was very young, and these floggings are horrible things. If anyone once saw them he would not ask to see them repeated. I have seen men flogged, and I have seen soldiers standing in the ranks looking on at the horrible sight.

I do not want to describe things that would make people's hair stand, but in reality that is the fact. A great many years ago, when I was a young soldier serving in South Africa, a certain number of soldiers were getting drunk from time to time—not an extraordinary number, but a certain number. It was regarded as a very bad crime, and the General Commanding gave an order that everybody in future who was found drunk should be flogged. Well, these things always happen in the way you do not want them to happen. It happened that the very next man who got drunk was a band sergeant in my own regiment—a man of irreproachable character, who was never brought up in his life before for any offence; a man whom everybody liked. It chanced there was some rum left over after distribution, and it was put into his room. He was unwise enough to take some of it, and unfortunately he got drunk. No one in the circumstances would have ordered him to be flogged, but it was imperative, and he was actually brought out and flogged.

The whole regiment shuddered at that What happened? The soldier who had been flogged recovered, I suppose, from the physical punishment, but he died a month or two afterwards, not from the effects of the physical blows he received, but I suppose on account of the horror of a man of his hitherto irreproachable character being flogged. When flogging is made imperative, a case such as I have mentioned is bound to happen. The cases that you do not want to happen will happen.

I object strongly to the mandatory use of the word "shall" more than to anything else in the section. As one who has seen the cat used, I object to its use in this country. I have no sympathy with the people who do the things that the Minister complains of. I do not excuse these things for a moment, because I have suffered from them—from burnings and everything else—just as much as anybody, but from my experience of flogging I could not agree to resort to it as a penalty or a punishment for these crimes. I do not believe it will do any good, but rather that it will do a lot of harm. It is because of my experience of it in other places, and because I think it will do a great deal of harm, that I appeal to the Seanad not to pass this section.

I rise to support this Section of the Bill. We are told that flogging is a desperate thing, and no doubt it is. We have been told that to view its infliction causes almost as much pain to the onlooker as to the person who has to inflict it. But we have got to look at the other side of the picture and to think of the crimes which it is sought to blot out, the type of crimes which, as the Minister told us, were unknown in Ireland until within the last year or two, crimes from which everybody has suffered, including the youngest child, the oldest man, or the weakest woman. We know that some delicate women have been robbed in their own homes of the few miserable pounds, amounting in most cases to five or six pounds, which they had got together to pay the expenses of their burial. The money was taken from them at the point of the gun, and that happened in Ireland, which we all thought was a place fit for honest men to live in.

It is because I feel that honest men cannot live in this country until these crimes are put down that I am in favour of flogging. I have no sympathy for the man who goes out with a gun and holds me up, or who holds up some poor stricken old lady in her home, or an old man on the roadside. Because this man has a gun he holds me up, and is it because of some humanitarian sentiment that he is to go scathless? I think that no punishment is too severe for such a coward, and I think it is the fear of the severe bodily infliction of pain that alone will deter him from the course of crime on which he has embarked. Flogging, we are told, and I am sure the Government has given careful consideration to this, is likely to put a stop to these grave outrages. It is a form of crime from which this country had hitherto been immune, and I think flogging is calculated to put a stop to the violent courses of action about which we have heard so many complaints. None of us, I am sure, would like to see flogging carried out, but I am strongly in favour of this Bill, because I believe that the threat of flogging will deter these violent men and these lawless men from committing the terrible crimes which have brought so much disgrace on this country.

I believe that if flogging is resorted to we will have no more garrotters and that these violent crimes will cease. I appeal to the Seanad and to those in it who are animated by humanitarian sentiments and who talk of the right of the criminal not to allow the right of the honest decent citizen to go for nothing. I think the Seanad should help the Government to stamp out this form of crime so that a man may go on the road as he did of old with nothing to guard or protect him but his two hands. If a man holds him up then let him make use of his hands, but I think we should have no sympathy for the cowardly man who goes out with a gun, or, worse still, with a petrol can to burn out his neighbour and to shame the face of this fair country and to make it a shambles and a place in which no one trying to uplift the country can live. I repeat that no form of punishment is too great to stamp out that form of crime. I believe that the method proposed by the Government is calculated to stamp it out. I appeal strongly to the Seanad to give this Bill their serious consideration and to show that they are determined that the Government will be supported in the attempt they are making to make our country a happy and a prosperous one.

I do not intend to take up the time of the Seanad for any great length on this subject. As I said on the First Reading, I am opposed to the flogging clause in this Bill, and because of that I think I ought to give my reasons, especially as I find them at yariance with a great deal that has been said in the other House, where there was a great deal of wild speaking with regard to flogging, especially as regards the horrors of it. We have had, to some extent at least outside the House, pictures of certain flogging scenes. I think it is rather important that we should realise that this particular clause, whether we are in favour of it or against it, has nothing to do with the political situation. It deals with two forms of crime and with two types of criminals. The man who is guilty of arson is just as much an enemy of the decent Republican as he is an enemy of any particular order in the community. I think that is a thing that ought to be understood and realised, and that nothing should be said, no matter how we may be opposed to this clause, to suggest that it has anything to do with the political situation.

I have been interested for a considerable time in the question of prison reform. Many of my co-religionists have also taken an interest in the question for a great many years. From a study of this question of prison reform I find from the reports of the prison authorities that instead of flogging leading to a reform of the criminal, that the men who are flogged come back again and are flogged, and that they prefer flogging to imprisonment. The report of a prison authority that I consulted was that flogging was not a deterrent, but that it had a more brutalising effect on the criminal. I find the opinion of prison authorities to be that you make a man worse by flogging. The reason why I am opposed to this clause is not from feelings of sentiment, but simply because I do honestly and sincerely feel it is a blunder to introduce such a punishment. I am not so optimistic as to believe but that some sentences will have to be carried out. I believe that after six months you may have brutalised and made worse this particular type of criminal for whom we have no sympathy; that is my main reason against flogging as flogging. But in Ireland there is one other reason and more important than that. I am not concerned with sentiment, and frankly I have not got sentiment, but unless I entirely mistake feeling outside there is sentimental objection to this.

I want, if possible to have punishment for people who commit those crimes, especially the worst crimes, against public safety. I want to try and secure that there should be no sympathy for them anywhere, but I have really a genuine fear that you will create for them sympathy which is false and undeserved. I know there is no majority against this clause, but as I am against flogging I thought it was only right that I should state my reasons for that attitude to the Seanad

I have the greatest respect for Senator Douglas's feelings, and for the feelings of that great religious body to which he belongs which has always carried out its tenets even in the times of the greatest persecution. That is ancient history now, but it is none the less true, that they have always stood up and objected to this form of flogging.

But I now turn to the statement that has been made by Colonel Moore. There is quite a different state of affairs. The person that he was talking of was on active service. He was a soldier put in charge of spirits in his own tent. He drank these spirits. Remember that on active service you have to act in an active manner, or else all discipline vanishes once and for ever. I know that case. Questions were asked on the other side about it, and it is well known to the military authorities over there. It is as well known as Colonel Moore knows it, and, therefore, my belief is that where you have to deal with the crimes that are specialised in the Schedule of the Bill, which are serious crimes, you must have a serious punishment. I shall vote for the retention of the clause.

I do not believe that this punishment is of sufficient value as a deterrent to make the end justify the means, but, apart from that, punishment already exists for crimes of violence, and Senator Bennett's great eloquence was really wasted when he was talking about garrotters, because the existing law already empowers the flogging of such people. Beyond that, this particular question of flogging has an exceedingly bad history in Ireland, and anything that is going to give this Government any complexion of Greenwoodism is a thing I shall vote against every time.

The arguments that lead me to support the Government in this matter are somewhat different from those I have already heard. As it presents itself to me, to carry this amendment is to carry a vote of no confidence in the Government, and I, for one, will not share that resposibility. If it were a question of an enactment for all time I would give some consideration to it, although I might not necessarily agree with the arguments advanced by Senator Douglas. But when it is undoubtedly a national crisis, when it is to all intents and purposes a state of war, and when the Government have a great and serious responsibility cast upon them I consider that this House must think more than once, and think with great deliberation and with a full sense of their responsibility, before they refuse to support that Government.

Would the Minister consider the suggestion to suspend this section of the Bill for some little time?

AN CATHAOIRLEACH

The best way to ascertain that would be to move an amendment to that effect. You see, that is not the question now before us.

Would the Minister consider the suggestion to suspend this Section? Some of us feel very keenly on this Clause, and for reasons that can be imagined better than described in words. If the Minister said that to quell disorder he needed more men, more guns, or more munitions, he would get them; but if he said: "To quell disorder I want the right to use the dum-dum bullet," he would not get it, because it would be against all the principles of the people, and against international usage to do so. I have supported the Second Reading of this Bill, and I would like to support and give the Minister every possible assistance, but I pause at this. I regard it as the dumdum bullet of the Bill.

I think also that the Minister underrates his great achievement in the country. The people have the profoundest respect for his Courts, for his Justices and for his Civic Guards, and his powerful address on the Second Reading of this Bill contained references which were very touching, to the quiet, decent people generally in the country. I am convinced that the Minister was thinking of these quiet, decent people when he brought in this clause, but I assure him that the quiet, decent people are satisfied with what he has done. They have the utmost confidence in him. They can go about their daily work; the roads are open; they can carry on their business, and even when night-time comes they retire to rest with the utmost confidence in the great organisation that he has established. I hope that he will see some way out of this difficulty, and perhaps adopt the suggestion I have made, to suspend this clause for the present.

I should like to associate myself with the excellent tone of the last Senator's speech. I think, on the other hand, we should be indebted to Sir John Keane for the honest admission as to why he is going to support this section. He frankly admits that although he would object to it in other respects, because a vote against it might be taken as a vote of no confidence in the Government he is going to support it. I would respectfully suggest that that is a deplorable state of affairs—that a responsible Assembly should pass legislation which inwardly and outwardly it condemns simply because to alter or amend it might be taken as a vote of no confidence in the Government. I think it would be doing a far better service for the Government if the Assembly would make that Government representative by only authorising it to act in accordance with the wishes of the Assembly itself. I notice that women are not to come under the provisions of this section. Why are women omitted? Is that not in itself an admission that the punishment must be very brutalising and of a terrible character, and has it not been admitted that these women have been the chief organisers of arson, robbery under arms, and so forth?

The Minister has stated particularly, and I agree, that those who aid and abet these crimes are as responsible, and in some cases more responsible, and guilty than the people who actually do the work. They send out an ignorant, uneducated country boy to carry out these fiendish acts, and they escape the lash, while the fool who carries out their instructions comes under it. We all feel the enormity of the crimes, and, far from stating that flogging is too severe, I would say that for some of the crimes it is not severe enough; but you cannot always devise a punishment to fit the crime. It is well known that there are some crimes so fiendish that it is not possible in any civilised land to devise a punishment sufficiently terrible to meet them. Therefore it is impossible to try to go on inventing tortures of one kind or another to fit certain crimes. One of the great causes of the dissolute character of the people during the past few years has been the difficulty of inflicting punishment at all. The very fact that they knew they would not be arrested, that nobody would come forward to give evidence, and so forth, were the chief contributing causes, and the Minister has said that it has been impossible to bring people to trial because witnesses will not come forward. Does he for a moment imagine that he is going to improve that position when, if these witnesses give evidence, the punishment will be the lash? I think it is far less likely that he will get witnesses in these circumstances than if the punishment were of some other character.

The point that this will act as a preventive has been stressed, and I do not want to go into that beyond saying a few words on it. It is really a question of the effect upon the mentality of the prisoner himself. You may break him and crush his body, but you certainly brutalise his spirit. You send him out after that flogging, the enemy of mankind, his hand against every man, and he is far less likely to become a good citizen than if he had only received the treatment of penal servitude. Then, of course, there is the all-important question of the effect upon the population as a whole, but particularly upon these men who are called upon to inflict this punishment. We have very eminent authorities upon this effect, and some of them are worth quoting.

Mr. Llwellyn Williams, the Welsh M.P., says:—"I saw a warder administering twelve lashes with the ‘cat.' At first he shrank from administering it, but after four or five lashes had been laid on the naked back, and blood was squirting from it, that warder, instead of shrinking from his task, seemed to be taken with a blood-lust, and could hardly stop himself from inflicting the punishment. A more brutalising thing never happened in my experience."

The author of "Crime" said:—"It is far from an agreeable task to watch the face and figure of the flogger as he executes the sentence; and few would deny that the moral effect upon him must be as great as upon the criminal whom it is his duty to whip. The State, when it sanctions the use of the lash, causes a human being to do just such an act of violence as it desires to check."

We have the most convincing statement from De Quincy, where he says:—"Corporal punishment is usually argued with a single reference to the case of him who suffers it, and so argued, God knows that it is worthy of all abhorrence; but the weightiest argument against it is the foul indignity which is offered to our common nature lodged in the person of him on whom it is inflicted. His nature is our nature; and supposing it possible that he were so far degraded as to be unsusceptible of any influences but those which address him through the brutal part of his nature, yet for the sake of ourselves—no, not merely for ourselves, or for the human race now existing, but for the sake of human nature, which transcends all existing participators of that nature—we should remember that the evil of corporal punishment is not to be measured by the poor transitory criminal, whose memory and offence are soon to perish; these, in the sum of things, are as nothing, the injury which can be done him, and the injury which he can do, have so momentary an existence that they may be safely neglected; but the abiding injury is to the most august interest which for the mind of man can have any existence—viz., to his own nature; to raise and dignify which, I am persuaded, is the first, last, and holiest command which the conscience imposes on the philosophic moralist."

We have, therefore, to consider not only its effect upon the unfortunate wretched dupe, the criminal himself, but its effect upon those who have to inflict the punishment and inflict its effect finally upon the community as a whole. Senator Irwin has referred to the splendid improvement that has taken place, and the success that has attended the efforts of the Minister. I would appeal to him not to destroy the effect of these efforts, and the success that has attended the restoration of order throughout the country by trying to do too much in introducing this retrograde and brutalising section into this measure at this stage.

I would like to say a few words in support of this clause. I think this Seanad ought to remember that this country was, a very short time ago, very nearly brought to the verge of ruin through robbery under arms and arson. What stopped that? That the country was not ruined was simply due to the resolute action taken by the Government. Theirs was the responsibility, and they did stop the thing very largely. They are in a much better position to judge than we are of the chances of the campaign of robbery under arms and arson breaking out again, and it is their duty, and the duty of the next Government that comes in, to keep on trying to prevent the ruin of the country. I am quite prepared to take the Government's judgment on the point of this particular form of punishment being calculated to deter this particular form of crime. The Bill is only a temporary measure. It is to deal with a most desperate evil, and I think that we owe the Government a deep debt of gratitude for having so far cured this thing, as they have cured it, and I think our duty is to support them until we have really arrived at the stage when robbery under arms and arson are not things that may at any moment break out in this country.

I would like to say one word in reply to what the Earl of Mayo stated. I want to point out that the result of those things that I described and that Lord Mayo mentioned was that all the Army officers, Generals and all, were so horrified about the whole affair that shortly afterwards flogging was abolished in the Army. I think that wipes out anything he said on that point. Everybody was shocked and horrified, and the result was that very soon afterwards a Bill was passed abolishing flogging, which is now, I am sorry to say, being revived in this country.

I would like to say a few words about the Senators who have objected to the brutality of the punishment of flogging on the person who is punished and the man who inflicts the punishment. Do they ever-think of the brutality of the miscreants, boys many of them, who in the dead of night break into the houses of the unfortunate farmers, who are not able to defend themselves, and steal their money, watches, and trinkets? They are simply pure burglars. My county, Queen's County, until last year was one of the most peaceful in the whole of Ireland, yet, from what cause I do not know, we had as bad a campaign of robberies and midnight attacks on the unfortunate people as in any part of Ireland. People were not in a position to resist. They gave up their goods, because if they did not they would have been shot. I do not believe that the men who did this were Queen's County men; they may have come from other parts of Ireland. I do not know; but there they were carrying on this campaign. I have seen women shaking for almost twenty-four hours with the terror caused by these men. One woman, through the shriek she uttered, got rid of the robbers, but it was at the expense of her health. If these people do not commit these crimes there will be no punishment. I quite admit the country is in a different state from what it was a year ago, and that it is entirely due to the determination shown by the Ministry. They are in a position to know more than we do, and it is not to be supposed that they would bring in a Bill like this unless it was absolutely necessary. It is absolutely essential that they should have these powers. We know they will not exercise them unless it is necessary. The knowledge that this punishment is hanging over these people will stop these crimes, and there will be no necessity to administer the lash. I hope that is so, but for the time being I do not see how we can refuse to give the Government support.

We once had a leader in this country, and greatly respected by the country, who opposed the Flogging Bill of 1878. I refer to Charles Stewart Parnell of revered memory, although perhaps of mistaken politics. He said, "This flogging is an evil thing, and has been used at all times by tyrants for purposes of their own, and so long as it remains it will continue to be used in an unlawful and evil manner."

What Bill is the Senator speaking about?

The Army Bill.

That is passed every year.

Yes, but I understand great amendments have been made in that Bill, and that the conditions that governed flogging were different from what they are in these times.

There is no flogging in the British Army now.

Seventy-five per cent. of the European countries have abandoned flogging, and with their experience of flogging they did not abandon it without just cause. I think the Bill, if necessary, could be passed without dissent from any part of the House if this great blot was removed. Every man who has come into the Seanad, and every man in the Dáil, has come in with the intention of helping the Government to the best of their ability. Their actions might be disguised, but their motives cannot be impeached. It is said that there are two chief reasons for inflicting this punishment. One is that it acts as a deterrent. We know that it has absolutely failed as a deterrent. It is on record, and could be proved, that men who have been flogged for certain crimes have come back in three months, and have been flogged again for the same crime. The effect on the man I need not refer to, but the effect on common humanity is of a most demoralising character. We speak here for a great number of people.

We have heard their opinions; they may be ignorant opinions, ill-advised or wrong opinions; and it is the common opinion of the great mass of the people that the Government is doing a wrong and a bad thing in retaining this clause in the Bill. It has created an amount of opposition, and if we sat here without protesting against that Bill, we need not go back and say we represent the feelings of the great mass of people. At the moment of flogging all the concentrated and evil passions of a lifetime are embodied. It is said that the whip does not cut. I have heard people talking here of and comparing it to the thrashing of a boy at school. Thrashing has an ill flavour about it. Not alone is physical torture endured during the punishment, but the mental terror is something that cannot be described. All the evil passions connected with the sin and crime of evil days is associated in men's minds with this flogging Bill. We may be called sentimentalists; but what if we are called sentimentalists? I maintain that it is sentimentalism of a kind that does credit to the best that is in human nature. As a rule, flogging may be of two kinds. It may be merely vindictive, on that outworn principle of an eye for an eye and a tooth for a tooth, or it may be deterrent.

In regard to the deterrent aspect, dozens of Senators have already spoken, but the vindictiveness is what will tell against this Government. There are two classes of people to whom this punishment may apply. Some of those who are taken up for robbery under arms may, perhaps, be guilty of that robbery on account of political fanaticism. It it quite possible that may happen. Their guides may tell them to do certain things, to rob a man at the point of the gun, and these foolish people may do it. They are innocent of any crime in their souls, and yet they suffer for the sins of others. It is quite possible that instances of that kind may occur if this clause is put into force. It is said, give the lash a trial. It has been tried, and proved a failure.

One of our present troubles is that criminals escape detection. I maintain that that trouble will be aggravated if power to flog is retained in the Bill. The very fact that this hideous form of punishment will be inflicted upon a criminal will create a certain amount of sympathy in the popular mind with that criminal. Our people are, perhaps, peculiarly constituted in that way. They have always been fighting against the Government of the day. Let the Government of to-day take care that the same spirit does not again take possession of the people, and that the same fight and the same ideas that prompted the fight may not work very much to the detriment of the Government. Most of the Senators who have spoken here have drawn a very lurid picture of the frightful happenings in this country. The Minister and his Government, with the co-operation of the great mass of people, have restored a state of security from extreme turmoil. Is there any reason to believe that at this time, when they have secured that strong position, notwithstanding all the threats we hear from certain quarters—threats, I think, that are disregarded by everyone—is it possible at this moment they find it necessary to introduce a punishment that is abandoned by 75 per cent. of the countries of Europe? I strongly appeal to the Minister, and I strongly support the suggestion, which I think is a very useful and fair one, made by Senator Irwin that the Minister should hold that clause, say, in abeyance for a few months, and if he finds that crime is continuing he may possibly find a different atmosphere in the country and in this House towards this Bill. This Seanad is supposed to be a check to hasty legislation in the Lower House. I appeal strongly to Senators to see to it that they will honestly discharge that duty, and that they will not merely back and support Bills because to do otherwise may be taken as a vote of censure on the Government. If it were a vote of censure on the Government, and if it would be a damage to their chances of keeping order in the country, I venture to say that few in this House would vote against the strongest measure; but the suspension of that clause for a period would not be considered as showing any lack of confidence in the Government, who have done wonders in the face of great difficulties in bringing this country to its present position.

When listening to the Senator who has just sat down, and to Senator Irwin describing the condition to which the Government has brought the country, it occurred to me that I read in the paper the other day that the spirit of arson is still active. I thought I read that down in Waterford there were five or six burnings within the last few days. Senator O'Farrell, when speaking, seemed to think that the women were more deserving of the whip than men. I want to say if Senator O'Farrell will introduce an amendment into this Bill to whip women I will support him.

I beg to say that I said no such thing. I commented on the omission of women from the Bill, and pointed out that the Minister himself had stated that some women were more guilty than men.

I did not wilfully intend to misrepresent the Senator, but whether it is women or men I do not understand this indignation against whipping those who are guilty of robbery under arms or of arson, nor do I understand Senators who claim to denounce crime reserving all their consideration and all their pity for the backs of the robber and the users of the petrol can, and forgetting all about the sufferings of their victims. They expatiate very eloquently on the brutality of flogging, but they are strangely silent about the brutality of the offences for which flogging is administered. We have heard parallels brought into this affair. We have heard what Charles Stewart Parnell said about flogging. On the Second Reading we heard Senator McPartlin eloquently denouncing flogging, and recalling the parallel of '98. I say it is an outrage on history to recall '98, and endeavour to make it a parallel with the present case. One would think to hear him denonunce flogging that the present Government were the lineal descendants of Castlereagh and Pitt in the flogging of patriotic Irishmen. Whom is it proposed to flog? Who are the patriotic Irishmen? The men who rob weak women and who set fire to humble dwellings, who set trains in motion with women and children on board. I say it is an outrage to suggest that it has any parallel with '98. It is ludicrous to suggest that if our great grandfathers were flogged by tyrants in '98, that we should refuse to flog criminals now. Senator O'Farrell told us the other day that it was both ludicrous and extraordinary for Senators to support the Government in this Bill. I say it is neither ludicrous nor extraordinary to support what is right. The results have proved that the Government and the methods that the Government adopted have been right, and that the prophets of evil who told the Government that they were leading to disaster and that the country would not stand them were wrong. We are now coolly invited to throw over a policy which has been proven to be right, and adopt a policy of experiment in what Senator Douglas would call "spiritual reclamation." But I would ask the Senators to consider where their action in so vigorously opposing this Bill leads them. They may repudiate crime or any sympathy with crime. I have no doubt that they do so quite sincerely. But have they considered what effect their action here will have on the criminal mind? Do they not think that the criminal will think that he has men in the Seanad and the Dáil who will make a big fight to lessen his punishment and to save his back? When these people see that there are such men here they will think that their crime has a sort of popular approval, and that, at all events, it does not deserve the cruel punishment which this tyrannical Government proposes to inflict on them. The Minister for Home Affairs the other day said that the Labour Party were the last in this House who should oppose this Bill. I thought so, too, especially when I remembered what happened to one of their own class within the last seven or eight weeks. It is a very mild case compared with others that have occurred in this country within the past twelve months, but it is sufficient to convince me, as I hope it will convince our friends on the Labour benches, of their misspent energies in opposing flogging. It was the case of a young married man who had lost his employment through the premises in which he was employed here in Dublin being burned last July. He had been idle for seven or eight months. He got employment as an insurance inspector, and in order to supplement his small salary by saving his railway fare, as he had to go to the country once or twice a week he borrowed the price of a bicycle. When riding seven or eight miles outside the town of Tullamore he was held up by three armed ruffians who took the bicycle from him, as well as the few shillings he was bringing home to a sick wife, and left him on a lonely countryside without the price of a night's lodging or the price of a telegram to send to his wife who was waiting and expecting his return. That poor man as a result of the shocking sufferings he had undergone was in bed three or four weeks and his wife, who was a confirmed invalid, got a great set-back. I would ask the Senators to put themselves in the position of that poor man and ask themselves whether his suffering and his mental torture on the loss he sustained were less excruciating than the physical sufferings that his assailants would have to undergo if they had been caught and flogged. I would ask the Labour Party that. I know that if they went to that man and asked him what he thought about flogging he would tell them that he would suffer twenty lashes to get back his bicycle and his money. He would also tell them that he believed the Labour Party could direct their eneriges more usefully for the people they represent than framing amendments here and trying to save the backs of the robbers.

I think, sir, in listening to the debate that has gone on so far that in spite of a good many irrelevancies and outside matters brought in to try and influence the mind of the Senators that the whole tone of the debate has undoubtedly shown that the Senators are trying themselves to see what way their votes ought to go and that they are judging this clause entirely on its merits. Undoubtedly Senator Colonel Moore has brought in the Army and a particularly bad case. If we were dealing with flogging as applied to the Army his speech would have been relevant, but I hardly think that that part of his speech applies at all. We are not dealing with disciplined men or looking at their class of mentality. Senator Douglas has introduced what I may call the habitual criminal. I daresay that he may be right; if a man is a hardened habitual criminal flogging does not affect him. Still I cannot forget as far as they are concerned that when I was young there was an epidemic of garrotting. That epidemic of garotting was most undoubtedly put down by the application of the lash. I believe that that is a fact. I do not think that either of these cases applies to the problem before the Seanad at the present time. What we are dealing with is a state of practical anarchy. Of course if the country is at peace, if as so many of my friends opposite seem to think we are going to have peace from arson and peace from robbery under arms then we need not bother our heads how we vote in this matter. The problem that is before this Seanad is that we are not going to have peace and that we will have to deal with robbery under arms and with arson. If that is the case we will have to think for ourselves where we will be if it breaks out and if we have refused to pass this clause. What strikes me in looking back over the last few months is this, there was, I believe, a very difficult state of crime in the country. Banks, private persons and others were being robbed and the situation had got out of the control of the political parties. No one in my position could know how much of it was due to political advice from leaders.

I think all the Senators will agree that there was an element of private gain being brought in, and that the robbers who were robbing under arms were not robbing under political leaders and for political purposes, but for their own private gain. That arose from the bad conditions we have had in the country for the past couple of years or more. That is what this clause is meant to put down. There is no question about it, the class of robber we are attacking now is a product of the times. This is a class of crime that was practically unknown in Ireland up to this. I have been always astonished that in the extraordinary conditions we have had in Ireland there has not been ten times more of this class of crime than we have had. We have seen the authorities who have to deal with these offences using death as a penalty. I think that death is a horrible way of dealing with crime at all. I agree largely with Senator Douglas that in cases of robbery under arms and of arson the old law that the man who takes life shall lose his life does not apply. If this clause will deal with the situation and prevent that final penalty being inflicted in the future, as it has been inflicted in the past, I think we are compelled to come to the conclusion that it is wise to pass it. That is one of the things that has the greatest effect upon me. It is a penalty which apparently frightens the coward. Undoubtedly the people who apply the petrol can and use arms against unarmed people are cowards. As far as I can see, when you are dealing with cowards physical pain has a great effect. I am not going into the question as to the pictures which have been drawn in the course of the debate. I think a man who puts a pistol at the head of a woman and who robs her deserves all he can get. If the penalty of flogging will frighten the class of individual that we are all afraid will become a pest in the country, and save the Government of the day from having to use the death penalty as the only resource, then I say we should undoubtedly pass this clause. Those are some of the reasons which have influenced me. When the danger is in front of us it will be too late to provide the penalty. If it is a real deterrent, as I believe it will be, and if the country is going to be, as we all hope, a peaceful country, the crime will not occur, the penalty will not be needed, and those who would be likely to commit the crime will be deterred by knowing what they would get. In passing this clause the Seanad will undoubtedly add to the future peace of the country.

It was suggested by Senator Colonel Moore that a decent man or an honest man—as decent or as honest a man as himself—might in a fit of absent-minded ness go out and burn his neighbour's house or go out and rob his neighbour——

I did not say any thing of the sort.

Mr. O'HIGGINS

You suggested that this accident of arson or robbery under arms might happen to anybody. Other Senators spoke in much the same strain. I simply from the first had to visualise those two offences as offences that were undermining society here, undermining the hope of future prosperity, and I had to choose between consideration for the criminal, consideration for the decent people of the country, and consideration for this thing that is trying so hard to be an Irish nation. Senators need not assume that those who favour this clause, and those who stand very fully for all the provisions of the Bill, are devoid of finer feeling or humanitarian feeling. There is this aspect, too. This Bill is for criminals. It is for all criminals. It is as much for the criminals who happen to think that Michael Collins and Arthur Griffith did right when they signed the Treaty as for the criminals who happen to think that they did wrong. We are faced now with the aftermath of our own revolt against the British and this last mad revolt against the majority will of this country, and to a certain extent we are faced with the aftermath of the world war. It is no use to point to countries elsewhere and say that they decided that they could get along without this penalty of corporal punishment. They did so because they had evolved a condition of civilisation, stability, and of decency of life that enabled them to do without it. I hope we will evolve that, too. But we have to face the fact that society and civilisation here have taken a definite backward step, and we have to take a definite backward step with our penalties that will enable us to meet that situation. There was a time when these crimes were not prevalent in the country. They are prevalent now. If Senators can so stretch their imagination as to imagine the primitive man and the savage gaining predominance within themselves, and they were conscious of a temptation to rob or burn their neighbour's house in a spirit of wantonness, I would ask them to put themselves the question whether they would be more deterred by the prospect of a couple of months' imprisonment or by the prospect of the lash. That is a fair question. It is perfectly relevant. I want Senators to say whether they would be deterred more by the couple of months' imprisonment——

A couple of months!

Mr. O'HIGGINS

A year if you like, or two years if you like. I ask whether they would be more deterred by two years' imprisonment with the lash or two years' imprisonment without the lash? When I speak of a deterrent I do not mean so much a deterrent to the man who has committed crime from doing it again, but a deterrent to the prospective criminal—the man who is turning over in his mind whether he ought to go out and burn his neighbour's house. Take the man who has committed this crime and who has suffered the penalty. I ask Senators to ask themselves whether the man who has undergone merely a term of imprisonment is less likely to repeat this crime than the man who has suffered the lash plus a term of imprisonment. This is a question that must be faced in a spirit of realism, that must be faced with a recognition of the fact that the savage and primitive instinct has got the upper hand here, and that it must be grappled with, with the methods that have always been used to grapple with savage and elemental passions. These methods were only laid aside when these savage passions disappeared. No man facing a primary responsibility in the Executive Council for security here, for order, and for decency of life would remain in that position if he were told that he could rely only on incarceration as a penalty and a deterrent. I want Senators to understand clearly that if the Dáil were to take the line that incarceration, and incarceration alone, were sufficient to deal with those crimes in the country, then I would ask the Dáil to find some other man to take the primary responsibility for order here.

I do not think the last threat is quite fair.

Mr. O'HIGGINS

I did not intend it as a threat. It is a clear statement of fact. I cannot promise the people of this country order or decency of life if I am told that in regard to these two heinous crimes imprisonment is a sufficient penalty.

AN CATHAOIRLEACH

I do not think the Minister was out of order. It is quite an ordinary incident for a Minister in a critical matter like this to say that he must decline responsibility in the event of the other House refusing him certain powers.

It is no argument

Mr. O'HIGGINS

I submit that every Minister has responsibility to the people. There is the collective responsibility of the Executive Council, but individual Ministers are primarily responsible for certain phases of the national life. I am primarily responsible for peace, order, and security here, and decency between man and man, and I will not remain in that position of responsibility to the people if I am told that incarceration is to be the only penalty for these crimes.

Amendment put.
The Seanad divided: Tá, 10; Níl, 17.

  • James Green Douglas.
  • William Cummins.
  • Michael Duffy.
  • Thomas Farren.
  • Cornelius Joseph Irwin.
  • Edward MacEvoy.
  • Edward MacLysaght.
  • Thomas MacPartlin.
  • Col. Maurice Moore.
  • John Thomas O'Farrell.

Níl

  • John Bagwell.
  • Thomas Westropp Bennett.
  • Dowager Countess of Desart.
  • Sir Nugent T. Everard.
  • Rt. Hon. the Earl of Granard.
  • Henry Seymour.
  • Rt. Hon. Andrew Jameson.
  • Sir John Keane.
  • The Earl of Kerry.
  • Thomas Linehan.
  • James MacKean.
  • John MacLoughlin.
  • Earl of Mayo.
  • James Moran
  • Bernard O'Rourke.
  • Col. Sir William Hutcheson Poe.
  • Mrs. Jane Wyse Power.
Amendment, by leave, withdrawn
The amendment was declared lost.

I move: In line 29 to delete the word "shall" and to substitute therefor "may." This amendment deals with the whole point of the Section, because the ordinary law provides for flogging and the Court has jurisdiction in this respect. But the Bill deprives the Court of this. This brings us back to the position we were in when we were discussing the provisions of this measure last evening. The Court shall inflict certain punishment. Apart from the whole question of the desirability of flogging, we must consider in this amendment whether or not the Courts are practically open to inflict a penalty. The Minister in his concluding remarks suggested that unless those powers were given he would not accept responsibility or that he would not hold office as a Minister. I suggest there was no necessity for the Minister to make such a statement, because the existing law provides that such a punishment may be given. There was no necessity for using that argument, because it is already provided.

I have never been in sympathy with a man who robbed, and I think it is pretty well known that I never had any sympathy with any person who robbed. At the same time there is more to be considered than the person guilty of the crime. The Minister said that the present state of unrest is due to various causes, and the first was the European war. Then men were brutalised; they were engendered with a blood lust. There was no respect for human life. They were taught those things and the flower of the manhood of the country was drenched in blood in the fields of Gallipoli and Flanders. All the finer feelings were crowded down by this terrible system. We have now all the aftermath of that. The revolt against the British in this country begot it. We know that the young boys and men in this country were got into a military spirit and had to obey orders. I do not suggest for a moment that any of the young men who were in the Army fighting for the independence of this country would be guilty of holding up a citizen of this country for the purpose of robbery.

I do not suggest that any man who fought for the independence of his country would burn down the home of his neighbour for the mere fact of burning it down. At the same time I say it is wrong and unjust to pass this measure. I say that the powers are already there to deal with the criminals of this country and that there is no necessity to put this provision in. Notwithstanding the lecture we got from Senator McLoughlin as to the duties of the Labour Party we know our duty. Will the supporters of this measure witness the first application of this section? Will their feelings not revolt at the flogging of people, and are we not to think of the mothers and the fathers of those who may be guilty of those crimes? Many a good father and a good mother reared a bad son. What will be the feelings of the father or the mother, particularly the mother, when she knows that her boy is going to suffer the lash? There is no necessity for inserting this clause in the Bill as it stands. I hear some of the members of the Seanad talking about meting out punishment.

I sometimes think that we all, at some period of our lives, have done some things we ought not to have done, and I hope when we go, after our span of life has passed, and appear before the all merciful and all powerful Judge that He will be more merciful and take a more merciful view of our crimes than some of the members who have spoken. I do not suggest that I have any sympathy with those crimes, but my whole nature revolts against the thought of flogging. The people in this country are not bad at heart. I have faith in them. I believe this robbery is the result of the terrible times we lived in for the last seven or eight years and will pass away. I think it would be much better for the fair name of our country if this clause were not passed. The Minister may have more knowledge than I have. The only knowledge I have is from meeting a great many people in different parts of the country. I am satisfied we ought to take a brighter view of the future.

Mr. O'HIGGINS

It is as well that Senators considering this amendment should read carefully the Section as it stands. There is a latitude left in that section to the court, if it is of opinion that there are mitigating circumstances, not to impose that penalty. I do not myself see at the moment what the mitigating circumstances of arson or robbery under arms might be, but if in the opinion of the court there are mitigating circumstances, then the subsection as it stands leaves the discretion of the court to act accordingly. The Senator who spoke to the amendment waxed eloquent on the shock it would be to the finer feelings of Senators to witness an infliction of this punishment. There are many things that are necessary and that people do not rush to see taking place. An operation for cancer, I take it, is not a particularly pleasant thing to look at, and people, except those who are compelled by the nature of their calling to witness those things, prefer not to witness them. There is a cancer in the body politic, the cancer of those two crimes, and I have never felt apologetic about the method which I recommend that those crimes be dealt with.

I believe it will be a deterrent. I believe the fact that those penalties are embodied in this Bill will decide many people who would otherwise rob and burn, not to rob and burn. It is urgently necessary and vital that people be stayed from those two crimes. I do not want to play the financier, but this country at the moment is on the market looking for money, and people who are asked to lend money are not as a rule sentimentalists. They ask practical questions: "Does your writ run in every square mile of your jurisdiction, or does it run with a limp? Is there security for life and property within your territory? Is there an atmosphere in which a man can invest with reasonable prospect of return, in which men can sow with hopes of reaping?" These are practical questions, and the position of this country is that it is on the market, that it must borrow, and borrow largely, to meet the deficit created by the idealists of the last twelve months. I hope some day to be in opposition. It is a splendid position as you can have it every way. You can say, "When are you going ahead with your drainage and reconstruction schemes? What about unemployment? What about housing? When are you going to bring in a Town Tenants' Bill on the lines of the Land Bill?" It all means money.

There are only two means of raising money, from the pockets of the people, or by temporary borrowing with certain prospect of redemption. I do not know why the Senator suggests that we ought to raise twenty or thirty millions from the pockets of the people. I take it the general view would be in favour of temporary borrowing. We must have conditions which attract capital and not conditions which frighten away prospective lenders. If you have, up and down the country, business places, private homes, post offices, banks and so on, being robbed at the point of the gun, and if you have the material resources of the country being sent up in smoke by the midnight torch, then you cannot go decently before the world looking for money. This thing is the merest mechanism of Government. Your writ must run and there must be reasonable protection for citizens, for their person, for their property, before you can go out on the money markets of the world for a loan for reconstruction or anything else, or even for payment of compensation to those who have suffered during the last twelve months.

There are views that this penalty is a deterrent one, and there are people who want to have it both ways. On the one hand, we are told that it is a savage torture, and we are told in the next breath that criminals look forward to it so much that they come back for it again. One of those things is true and one is false. Either it is a very drastic, stringent penalty of which men stand in dread, or it is something they like and come looking for again. All the time I am not thinking of the men who are actually committing one or other of those crimes, but of the man who is turning either way, whether he ought or ought not to commit them. I think by making it a pretty certain penalty following the offence, as the shadow follows the substance, that you will deter the young people through the country who are wondering whether they ought to burn A.B.'s house or rob a post office in the village. There is scope left in the Bill for the exercise of certain discretion. If, in the opinion of the court, there are mitigating circumstances the court can act accordingly. If there are not mitigating circumstances, we here in our position of responsibility have the courage to say that, normally, in a routine way and in the absence of mitigating circumstances that penalty shall attach to those offences, at least for six months, and the next six months are going to mean life or death for the Irish nation.

I listened with great interest to Senator Farren in introducing the amendment. One could not fail to be struck by the earnestness of his appeal and the sincerity of his desire to exclude this clause from the Bill. I, too, tried to picture a man being flogged, with the blood streaming from his back and all the other horrors. I had another picture on the other side of an old man or woman being flogged, his property being taken, and his life being threatened. Which of the two, if I had been there, would I go to save? Would I go to stop the man from being flogged, or relieve the man from being robbed? I would have no hesitation in saving, in the first instance, the man whose life was in danger from the criminal. If that be so I think the argument for flogging is sustained. Senator Farren obviously desires and believes that flogging should not take place, but in this particular section by the substitution of the word "may" for "shall," if such change be made, the probability that flogging will take place is increased. That would not be so if we had followed out the lines suggested by the Minister, that the certainty that flogging was to take place, was likely to be a deterrent to the crime. I feel, if you substitute "may" for "shall," you will have your fiend who goes to rob with violence or to burn saying, "God is good and there are kindhearted people in this world." He will take what to him is a sporting chance. For that reason I shall oppose the amendment, because I believe if it is carried, the chances are that flogging will be greatly increased.

Most of the discussion seems to be altogether outside the amendment, because it has been a repetition of the discussion on previous amendments. It is quite evident that the Minister and some of the Senators are somewhat uneasy in their own consciences and are rather afraid of their actions, which they have no time to justify by their arguments. The arguments advanced by Senator Bennett would apply equally to all the law of the land. There are various crimes and punitive provisions of various crimes, and in every case the Judge has discretionary powers. No one will allege that these powers are being abused by any judges or the fact that the word "may" instead of "shall" would not act as a deterrent. There seems to be a glory taken in reversing the ordinary procedure of law as far as this Bill is concerned. There has been a great deal of boasting of the progress made in the restoration of order. The Minister talks about the necessity of restoring national and international confidence, but I put it to him when outsiders are told that the conditions of the country are so disturbed that Parliament found it necessary to impose a measure of this kind which makes it compulsory on the judge to inflict the lash it is a question of opinion as to whether or not if we pass this Bill it will act as an alarm signal to the nation rather than an indication that we are approaching better times.

Amendment put and negatived.

On the Second Reading of this Bill I tried to point out that on account of this flogging section we would oppose the whole Bill. We believed that it would not have the effect the Government desired, but quite the reverse, and that it would revive bitter memories in the minds of the Irish people and make the Government unpopular with the great masses of the people. I also complained of the manner in which this Bill was rushed and that we had no opportunity for considering it. I am against flogging; I do not believe in it. Since I saw this amendment in print I considered that it might be thought that I would favour flogging if it were done on a lesser scale. I would not. Therefore I wish to withdraw the amendment.

I beg to move: In Sub-section 4 to insert after the word "used," in line 5, the words "shall be a birch rod."

I spoke on this amendment before, and told of what I saw of the "cat." That was over forty years ago, but I see that picture before me now as clearly as I did at the time. I said to myself then that never again would I agree to any such thing. The birch rod is not as bad as the other. Whether the amendment is accepted or not I do not know. The threats of Ministers to resign will not make me change my opinion; they leave me untouched. I do not think many of the Senators were affected by it. I quite honour and recognise the opinion of any Senator, however hostile he may be to my opinion, or however he may back up this Bill as it stands. I do not care a lot about Senators who flinch every moment at the threat of the Minister.

Mr. O'HIGGINS

We are not accepting this amendment. The birch-rod has been recognised officially, and in all legislation as pretty much the instrument of infantile correction. A man who robs must be assumed to have reached the use of reason, and if it is right that criminals should receive corporal punishment, then the degree should be something different from that dealt out to boys and the wording of the section as it stands is simply the wording of all sections in previous legislation dealing with corporal punishment. I will not accept the amendment.

Amendment put and negatived.

Question: "That Section 5 stand part of the Bill," put.
The Seanad divided: Tá, 20; Níl, 8.

  • John Bagwell.
  • Thomas Westropp Bennett.
  • Richard A. Butler.
  • John C. Counihan.
  • Dowager Countess of Desart.
  • Martin Fitzgerald.
  • Right Hon. Earl of Granard.
  • Henry S. Guinness.
  • Right Hon. Andrew Jameson.
  • Sir John Keane.
  • Earl of Kerry.
  • Thomas Linehan.
  • James MacKean.
  • John MacLoughlin.
  • Earl of Mayo.
  • James Moran.
  • Bernard O'Rourke.
  • Col. Sir William Hutcheson Poe.
  • Mrs. Wyse Power.
  • Earl of Wicklow.

Níl

  • William Cummins.
  • Michael Duffy.
  • Thomas Farren.
  • Cornelius J. Irwin.
  • Edward MacEvoy.
  • Thomas MacPartlin.
  • Col. Maurice Moore.
  • John T. O'Farrell.
Motion declared carried.
Question proposed: "That Clause 6 stand part of the Bill."

I understood we decided last night that we would consider this Bill until 12 o'clock, and then take the Committee Stage of the Land Bill.

AN CATHAOIRLEACH

I do not know that at that time it was contemplated that we would have practically got through these amendments at 12 o'clock. Those that remain do not seem to me to be of very great importance, or likely to cause much debate, but I am in the hands of the Seanad. The only reason I have gone on without interruption is that the remaining amendments seem to be more or less unimportant. If it is the desire to adjourn the Committee Stage now and take up the Land Bill I am in the hands of the Seanad.

Have we any option, in view of the decision and the definite understanding arrived at last night?

AN CATHAOIRLEACH

Certainly we have an option, because conditions of that kind can change every hour of the day. If the Seanad thinks, having regard to the progress we have made, that it is more desirable to go on and finish this Committee Stage it is quite open to them to do it. On the other hand the Seanad may agree to take up the Committee Stage of the Land Bill.

I quite agree that the Seanad has a right to determine that, but unless there is a definite motion that we proceed to consider this Bill further we should proceed with the Land Bill.

Last night one of the reasons that influenced us in saying 12 o'clock for the Land Bill was that those whose interests were most affected were not present at the time. We have now a fairly full House, and all those who intend to discuss the Land Bill are probably here. Therefore, if we come to a decision as to whether we will go on with this Bill or take up the Land Bill we could decide the matter.

It would be a mistake to leave over the tail-end of this Bill for another day. I understand that those who are most anxious to have the Land Bill discussed are quite willing to finish this Bill first.

I beg to propose that we take up the Committee Stage of the Land Bill.

I beg to second.

I move, as an amendment, that we continue with the Public Safety Bill.

I beg to second.

Amendment put, and declared carried.

AN CATHAOIRLEACH

The motion is that Section 6 stand part of the Bill

Question put, and agreed to.
Sections 7 and 8 put, and agreed to.
SECTION 9.
Every person who shall be charged before a District Justice with having in his possession or on his premises with his knowledge or conveying in any manner anything which may reasonably be suspected of being stolen or unlawfully obtained, and shall not give an account to the satisfaction of such District Justice of the manner in which he came by the same shall be guilty of an offence under this Act, and shall be liable to a punishment not exceeding twelve months' imprisonment with or without hard labour.

I beg to move: To delete in lines 61-2 the words "may reasonably be suspected of being" and to substitute therefor the words "shall have been." The object is to limit the offence of being in possession of any stolen property to a charge that is proved. As it stands at present mere suspicion that it was stolen is sufficient. The suggested alteration is one to bring the whole matter into relation with the law as it stands at present, that is that the offence must be proved before the accused is called upon to prove his innocence.

Mr. O'HIGGINS

If the amendment were to be accepted there would be no need for this section at all. The section is simply an extension to the whole country of a provision which already exists in the D.M.P. Act, and I submit that the conditions existing in the country make it necessary and advisable to extend the provision. Property has been stolen on a grand scale through the country for the last year and loot of all descriptions has been taken from the houses that were burned, or that were about to be burned. This section provides that a person can be put on proof who is reasonably suspected of having property in his possession which is not rightfully or lawfully his, and he can be asked to account for it. I think Senators from the country with any knowledge of the conditions which have prevailed there, and which to some extent still prevail, will scarcely question the wisdom or substantial justice of Section 9. If we were to accept the amendment which simply involves proof, then no person could be asked to account for property no matter how reasonable the suspicion that it was not his. There would have to be definite proof of the fact that he had stolen that property.

One hears of big houses being looted, and people bringing away furniture of all descriptions to their homes. I heard one story from Leitrim of a man who went to a neighbouring mansion and coveted a large gilt-framed mirror and brought it home. He found that it would not go in through his door or window, and there did not seem any practical way of getting it into his house short of taking the roof off. He left it lying against the back of the house overnight, and his cow settled the problem next morning by driving her head and horns through the mirror. The reports from the Civic Guards in the various areas of the country have convinced us of the necessity of inserting a section of this kind, that where people are in possession of property which is reasonably suspected of being stolen it ought to be possible to put them on their proof; to call them before a District Justice, and ask them to account for a particular piece of property, and how it came into their possession. I regret that I think to accept the amendment would seriously hamper the Executive in restoring order, and to, as great an extent as possible, making restitution of the property that has gone astray.

Amendment, by leave, withdrawn.

I beg to move:—To add to the Section a new Sub-section (2) as follows: "(2) A statement or admission made by any person charged with an offence under this section shall not be admissible in evidence against that person in any other criminal proceedings." This is simply to accentuate the view that there ought not to be any changes in the fundamental principles of the law unless absolutely necessary, and then they should be advertised as being necessary. The first principle of the law is that a man is held innocent until he is proved to be guilty, and the Judge's duty is to see that he gets a fair trial. This subverts the whole of that system, and puts upon a man the onus of proving his innocence before a prima facie charge has been brought against him. The trouble is that he is put into the witness box, and any statement that he makes before he is charged can be used as evidence against him. That is a profound change in the whole system of law. What I contemplate with grave seriousness is that if it becomes known through the country that there is a special system of trial for certain malefactors which deprives them of the ordinary rights of common law, that this will provoke a certain indignation and resentment which ought, if possible, to be avoided. The Minister has been so conciliatory in considering amendments that are being brought forward that I earnestly recommend this to his consideration.

Mr. O'HIGGINS

I do not want to take any very emphatic line against the amendment, but I simply want to put it —if I might use the expression—to the horse-sense of Senators as to whether the amendment ought to be accepted. If a man, say, is asked to account for a piano, and there is reasonable ground for suspecting that the piano was taken from a Senator's house, and if the man says, as against that, that "on the night Senator X.'s house was burned and looted I was murdering A B down the road," should that statement or that admission be ignored to the extent of making it absolutely impossible to refer to it even in subsequent criminal proceedings for the murder of A B? If an amendment on the lines of this amendment were accepted, I think something would be necessary to make an exception of perjury. Otherwise a person who came before a District Justice, on being asked to account for how he came by a particular piece of property, could swear what he liked without any prospect of subsequent prosecution.

I think in an emergency measure of this kind, dealing with an entirely peculiar situation, with a lifetime only of six months, that there is an excuse for departing from the ordinary fundamental principles of law which are very good and very sound in ordinary times. One could speak for an hour or two at least on the theory that every man is innocent until proved guilty. Under this Bill dealing with this special period we are asking for a departure from that in certain cases, so that people may be called upon to rebut what is merely a reasonable suspicion. In the Metropolitan Police Act there is no such provision that a person who is called upon to account for a particular piece of property, and how he came by it, may not be charged in connection with a statement or admission made by him during enquiry. I would not be very emphatic about this amendment if it were accepted by the Seanad, and I would certainly recommend the Dáil to accept it to avoid delay and trouble. I put it as a problem to the Senators whether there is any great reason for providing facilities for criminals to evade the law and the just sanctions of the law. If a man, in the course of an enquiry of this kind, reveals that, although he may have come honestly by a particular piece of property, in fact he was concerned with other criminal proceedings, is there any just reason why he should not be proceeded against for that crime?

The old-fashioned police we all knew said to a person arrested: "Have you any statement to make, and I warn you anything you say will be used in evidence against you?" Is there any departure from the ordinary law in this section? I do not see that there is.

May I ask would the Minister make an exception of perjury that he spoke of and allow a man to be re-tried and charged for perjury on evidence that he gave, but not for another crime?

Mr. O'HIGGINS

My own feeling is against the amendment. I merely submit that, if the amendment is accepted, some provision enabling a person to be prosecuted for perjury would be necessary. I think myself there is not, owing to the attendant circumstances, a case for the amendment, or for saying that a person called on to account for property shall not be tried for any other crime of which he may have revealed his guilt in the course of this enquiry.

Unfortunately, we suffer in this Seanad from an absence of lawyers. This is a matter of law with which I am not competent to deal. Lawyers have reasons of their own, often very good reasons, which we do not understand, and I would rather ask for the advice of the Cathaoirleach before I give a vote. He understands these questions.

The Minister, when speaking, put an extreme case. I will try to put an opposite case. It is quite possible that a police officer may not properly report a statement made by the person charged. I remember witnessing a play in the Abbey Theatre called "Duty." A police officer represented in the play told a person, when he was arresting him, to remember "Whatever you say, or may not say, will be taken down and used, if necessary, in evidence against you." That is a burlesque, but it is quite possible that a police officer, in taking down a statement, like every human being at some period, may make a mistake.

AN CATHAOIRLEACH

The statement referred to here is not a statement made to a police officer, but a statement made in Court to a District Justice.

District Justices are not, I think, infallible.

AN CATHAOIRLEACH

That is another matter. I want to keep you on the right track.

I agree with Senator Mrs. Green that these questions of law have been settled, and that all the things appertaining to evidence have been settled in Constitutions after centuries of experience, and probably by the greatest lawyers of the day. I think at this stage we ought not depart from them. If a person is guilty of a crime, that person will be arrested if there is sufficient evidence, but he ought not be held responsible for a statement he made in one case and be charged in another case later on because of that statement.

If Senators read the beginning of the section they will see that it reads: "Every person who shall be charged," and I understand the person who makes the charge has to caution the other person in the usual way. That has been mentioned by one Senator. Usually when a policeman or Civic Guard charges a man he cautions him that what he says may be used against him. I am very glad that the Minister stated that this is an emergency measure. The Party I have the honour of sitting in front of always seem to leave out the fact that it is an emergency measure, and that it comes to an end in six months. There are things going on even to-day that require to be dealt with by an emergency measure. I hope members of the Labour Party will remember that.

As we are referred to as a Party, we do remember that measures were passed during the war, when it was the married man first, the single man next, and the widow's son next. We do not want to have the same things occur under this measure.

Amendment put and lost.
Amendment No. 10 not moved.
Question: "That Section 9 stand part of the Bill," put and agreed to.
SECTION 10.
(1) If and whenever an Executive Minister shall apply to a District Justice and allege that any land, investments or other property (including money) in the possession or under the control of any person was bought by such person with or otherwise represents or is directly or indirectly derived from—
(a) any stoien property or funds; or
(b) any public funds, or funds which ought to be in the custody of a Minister or a Government Department.
the District Justice shall, unless the person having possession or control of such land, investments or property satisfies him that such allegation is untrue, order the transfer of such property, in so far as it consists of land, to the Irish Land Commission, and in so far as it consists of investments or other property, to the Minister for Finance.
(2) An order of a District Justice under this section ordering the transfer of any land to the Irish Land Commission shall operate to vest such land in the Irish Land Commission as from the date of the order for all the estate and interest therein which is so alleged to have been bought with or to represent or be derived from such stolen property or any such fund as aforesaid.
(3) An order of a District Justice under this section ordering the transfer of any investments or other property to the Minister for Finance shall operate to vest such investments or property in the Minister for Finance, and in the case of investments or other property required by law to be transferred by deed or writing shall operate as a deed or writing duly executed by all necessary parties and capable of registration (where registration is necessary) transferring such investments or property to the Minister for Finance, and in the case of investments or other property transferable only by entries in a register, folio, or book, shall operate to authorise and require the proper entries for transferring such investments or property to the Minister for Finance to be made by the proper officer in such register, folio or book.
(4) All land, investments and other property which becomes vested in the Irish Land Commission or the Minister for Finance under this section shall be sold by such Commission or Minister (as the case may be), and the proceeds of every such sale shall be paid to the Minister for Finance who shall, after paying thereout all costs and expenses incurred in the recovery and sale of such land, investments and property, and not otherwise provided for, apply such proceeds in recouping the person whose property, or the fund which, such land, investments or property represents or is derived from.
(5) Any person (including an Executive Minister) aggrieved by an order of a District Justice under this section may appeal from such order to the County Court Judge, and an order of a County Court Judge on the hearing of any such appeal shall have the same operation as a like order by a District Justice would have under this section.
(6) A District Justice or a County Court Judge may on the hearing of an application or appeal under this section make such order as to the payment of the costs of such application or appeal as such District Justice or County Court Judge shall think proper.
(7) In this section the expression "County Court Judge" shall include a Recorder.

AN CATHAOIRLEACH

Are you withdrawing all your amendments to Section 10?

I move: Section 10, Sub-section (1): To delete all after the word "shall," in line 13, down to and including the word "untrue" in line 15, and to substitute therefor the words "if he is satisfied that such allegation is well founded."

To my mind this Section provides the Minister with power to allege that certain money is not in reality the property of the person in possession of it, and does not compel the Minister to prove that allegation. As was mentioned during the discussions on Section 9 by Senator Mrs. Green, the onus of proof ought to rest on the accuser. The Minister does not seem to consider that he should be required to prove guilt in any of these cases.

It is simply to allege that such and such a sum of money which you have in the bank is not your money and you have not got to prove where you got it, no matter how impossible it may be for you to do so. The Minister seems to glory in this reversal of the ordinary principle of law, that the accused person is entitled to be assumed innocent until he is proved guilty, and I submit that in a great many cases, and in a great many honest cases, it is imposing a more difficult task upon the person to prove a negative rather than for the Minister to prove a positive.

Mr. O'HIGGINS

Senators have to ask themselves in connection with this Section, and some similar sections, whether the thing we should aim at is to do justice, substantial justice and equity, between citizens or to observe constitutional nicities strictly and to the letter. I will be quite frank about the kind of cases that this section is intended to cover. It is well known that throughout the country banks have been robbed on a large scale, post offices have been robbed, property has been stolen and sold, and so on, and that as a result of that people who, a year ago, were men of straw have blossomed out into very considerable affluence. Men who were labouring men a year ago must have worked very hard, and they certainly must have worked more than an eight-hours' day, and they must, in addition, have got very high wages if they were in a position to buy farms for £3,000 or £4,000, and yet that is the position. Senators are, I am sure, aware of cases of that kind. I know that members of the Dáil have been speaking to me of many such cases in their own localities. But to prove that theft or robbery against these people would be impossible. For one thing, you would not have the evidence. It is quite probable that there were no witnesses to the robbery except the men who took part in it, and even if there were witnesses, it is putting a considerable burden, even on the most public-spirited of them to expect them, in the face of the intimidation and the resources for intimidation that are still at the disposal of these people, to come forward publicly and give evidence. And yet we must deal with the case of the man of straw who has blossomed out into a situation of suspicious affluence, and who has bought a farm worth £3,000 or £4,000 as the result of his plunder. We must deal with it. Justice and fair dealing absolutely clamour for the treatment of that kind of case. You could not, with any degree of prestige, with any degree of good name, simply turn the blind eye to facts like that which are a public scandal.

I can imagine nothing doing more harm in a locality than the spectacle, day after day, of a man doing wrong and thriving by it in absolute immunity. The State that would allow that would be stultifying itself and would be sowing the seeds of future lawlessness. We must deal with those cases, and this section is inserted with a view to dealing with them. To ask that absolute legal proof be tabled before any action could be taken is asking the impossible, and does, in fact, amount to a statement that we should not deal with these cases. I could give the names of eight or ten people in different areas who have bought farms and settled down into prosperity as a result of their criminal activities during the last year or two, and to say that we must produce legal proof against these people is to say that they are to be left in absolute immunity to enjoy the fruits of their plunder. That would be a scandal. Human nature is human nature, and when people going the road see men like that thriving on the fruits of their lawlessness it does not help.

There is a natural irresponsibility in this country and a kind of traditional negative outlook to the law, and all that pertains to law. There are historical causes for it, but it is not going to help to develop a sense of law and a sense of responsibility to see people thriving on the fruits of their crimes, and to see the Government taking no steps whatever to deal with that situation. Under this Section 10 I will give this definite undertaking. It could not be worked into the Bill, but I do state, as I stated in the Dáil, that this section will only be used to deal with these kind of flagrant cases that are common knowledge in a locality, and a certain kind of common knowledge that obtains in the country falls little short of proof. Everybody knows the circumstances in which, say, a particular individual was twelve months ago when he had nothing, and everyone who sees him to-day tilling a farm which he bought for £3,000 or maybe £4,000, knows that he did not come by it honestly, and knows that, apart from constitutional nicities, it is the real duty of the Government to put that man on proof and make him accountable for his new affluence.

Amendment put and declared lost.
Motion made and question put: "That Section 10 stand part of the Bill."
Agreed.
Section 11 put and agreed to.
SECTION 12.
(1) Where an indictment for a crime committed at any place in Saorstát Eireann has been found against any person, or any person has been committed for trial for such crime, the High Court on an application by or on behalf of the Attorney-General of Saorstát Eireann and upon his certificate that he believes that a more fair and impartial trial can be had at a court and in a county to be named in such certificate, shall make an order as of course that the trial shall be held at the court and in the county named in the certificate.
(2) Whenever an order for the removal of the trial of a crime is made under this section before the indictment has been found, such crime may be inquired into by a Grand Jury of, and the trial thereof may be had in, the county named in the order of removal in like manner as if the crime had been committed in such county.
(3) Whenever an order for the removal of the trial of a crime is made under this section after the indictment has been found, such trial may be had as if the indictment had been found in the court to which the trial is removed.

I move: To delete the word "shall" in line 7, and to substitute therefor the word "may." My object in moving this is that it seems that the Attorney-General can change the venue of a trial of any individual indicted for any crime, not alone the crimes mentioned in the Schedule. It is a recognised constitutional practice and principle that a prisoner may not be removed from the court in which he would be normally tried, and that he should be tried by the Judge who would normally try the case. No discretion whatever is left to the Court in this matter. The Attorney-General has simply to say that the venue of this trial must be changed, and the thing is done. The change of venue has many objections, and I think, in the present condition of the country, where local evidence is so important, the objections carry great weight. We can imagine the charges that may be brought against men, and the Minister has referred to the suspicions that are little short of evidence that exist in localities in regard to those charges. If the venue is changed from Cork to Dublin, or from Dublin to Galway, these witnesses are not so easily available and the local colour is distinctly absent. It is a source of great expense to those who are defending that prisoner. As I say, I think the section is entirely opposed to recognised constitutional principles, and should, in my opinion, be altered in that respect. It is not a very big change, but it leaves some discretion to the Court, and I think the Minister should have sufficient confidence in his Courts to allow them to deal with such cases.

The effect of this sub-section as it stands is really to treat the High Court with contempt. It simply means that the Attorney-General of the day shall order them to do a certain thing. There is no option whatever. Is it unreasonable that the Court be given some opportunity of considering the reasons stated by the Attorney-General for a change of venue? There seems to be a terrible suspicion as to what the Courts are prepared to do in everything connected with this Bill. If the Attorney-General is able to state reasonable grounds, there is no justification for supposing that the Courts will refuse to take them into consideration and make the order. I suppose we must not assume that the Attorney-General will make flippant applications of this kind, and surely the Courts could be trusted to do this. I hope the Minister will grant that much, in any case.

Mr. O'HIGGINS

Senators should ask themselves, in connection with this amendment, what is it that is really involved? The Attorney-General, being of opinion that conditions in a particular area render a fair, impartial trial of a particular case impossible, gives a certicate to that effect. To insert "may" instead of "shall" in line 47 practically imposes upon the Judge the duty of trying that question and of deciding that question as to whether the conditions in an area are so bad that the case cannot be fairly heard and fairly tried there. But the Judge has very little knowledge at his disposal in regard to the conditions in a particular area. The Executive Council has, and the Attorney-General is, of course, in touch with the Government and knows what the conditions are. The Judge does not, and it is not too much to say that the certificate of the Attorney-General, given in that way, can be simply acted on as of course. As to the necessity for this section at all, the question is not really raised by the amendment. I am not speaking without the book in this matter. Solicitors have reported again and again that, owing to conditions of terrorism—local terrorism—juries have found verdicts in flat conflict with the evidence tendered, not in many counties, I am glad to say, but certainly in a sufficient number of counties cases have been decided in that way by juries to justify the inclusion of this Section.

What is involved in the amendment is, are you going to put the duty of deciding whether the conditions in an area are such as to render a fair and impartial trial impossible. The Senator's amendment puts that upon the Judge. I submit that the Judge is not in a position to have that detailed accurate knowledge with regard to the conditions of an area, and that the Attorney-General has by his contact with the Government, and by his contact with the police reports and so on. It is a reasonable thing that when the highest law officer of the Government sets his hand to a statement that the conditions in a particular area are so bad as to render an impartial hearing of a particular case impossible, that that ought to be accepted by the Courts as a matter of course.

There are certain kinds of cases around which local passions and local prejudices arise, and Senators do know when that kind of thing happens that a fair trial in that case is impossible in the area where it originated. In the interests of abstract justice the proper course to take is to remove that case entirely out of the inflamed area, and bring it up to a place where none of those local passions and prejudices have play, and have a trial in a calm area by men whose minds are not influenced by prejudices on one side or the other, not influenced by passions, and not influenced by any local intimidation, or tendency to intimidation, that may have grown up around the case. I stand for the Section and against this particular amendment, because I think the certificate of the Attorney-General, a responsible lawyer, and the highest law officer of the Government, ought to be accepted by the Courts as a matter of course, and that the question as to whether what he says is true or not ought not to be thrashed out in the Courts. Judges sitting in Dublin do not know what the conditions are in West Cork or Ballinasloe, but if the responsible law officer of the Government tells them that the conditions are of such a kind that that particular case could not be tried there, that should be accepted.

This raises a very important point. We must remember that we are setting up precedents here that might be used hereafter. I grant what the Minister has said, that sometimes it might not be desirable to have a trial in a certain locality. The amendment does not suggest that you should abolish the right to a change of venue. It says that instead of the Attorney-General going into a Court and saying "you cannot have a fair trial here and it must be transferred," the amendment leaves discretion with the Judge. If he is satisfied that the Attorney-General has good and sufficient reasons for a change of venue, I suppose in every case where good and sufficient reasons are given the application would be granted, but he should give these reasons and the Judge could exercise his discretion then. It is a most important point, as we are setting up a precedent here that might be taken up afterwards. We have heard a good deal about this being a temporary measure for six months, but we know when these things are passed and become law, they are made permanent, and that they may be used, not for dealing with an abnormal state of affairs, but may be incorporated later on, and the precedents are set up ipso facto.

If the Attorney-General says that the state of affairs existing in a particular part of the country does not permit a fair trial being granted the Judge has no option but to transfer the case. I am looking at this matter, not from what is the position at the moment, but what is likely to be the position in future. We all know that Attorney-Generals are appointed in the general order of things because of the political coat they have on, and I have no doubt that Attorney-Generals in this country will be appointed by the party in power, or members of that party. I can foresee at some time in this country when, if the Government want to get at their political opponents, as has been done before, the servant of the Government, the Attorney-General, if this precedent is set up, can go into the Court and order a change of venue, and the Judge of the Court, the responsible custodian to the people, will have no option but to accept the dictation of the political party or the Attorney-General. The Government, surely, will see that there is grave danger in setting up a precedent of that kind. Under the existing conditions the Irish Attorney-General has not been appointed because of political services to a political party. I am satisfied also that if the Attorney-General went before the Judges of the High Court, and put the case before them that there were good and sufficient reasons why the trial should not take place in a particular county, the Judges would accede to his request to change the venue.

I think we should allow a discretionary power to rest with the Judges as to whether or not they should grant the application. If we pass this it means that we are denying to the Judges the right to perform one of the principle functions for which they have been appointed. We should make it analogous to the practice established in most other countries, that the Judges of the High Courts should have a deciding voice in these matters. It is a very dangerous precedent to set, and it makes no difference to this Bill, because in the present circumstances, I am satisfied, no judge of the High Court would refuse the application of the Attorney-General.

I wish to point out that this section does not apply only to the crimes mentioned in the Schedule, but it applies to other crimes. The net effect of the section is it makes the Attorney-General the judge, jury and prosecutor, because of its wide application. I hope the Minister will not divide the House on this amendment, and even if he accepts it, it will leave the Bill as strong as it is.

Mr. O'HIGGINS

The Senator says that not to insert the amendment would be making the Attorney-General the judge, jury, and prosecutor. The effect of the section as it stands is to make the Government the judge of whether the conditions in a particular area are such as to enable them to decide whether a particular trial could be held. It does not involve the trial itself. It is simply a recognition of the fact that the most authoritative opinion or judgment as to the conditions which prevail in a particular area is the opinion of the Government and the amendment would make that a contentious matter. If you had "may" there instead of "shall" someone else may come along and say the conditions in that area are ideal, and that the citizens in that area are supermen, absolutely above any local influences, or any local terrorism or intimidation, and that they would try the particular case fairly and impartially.

The Government's opinion ought to be the best opinion as to the conditions which prevail in a certain area, and the certificate of the Attorney-General on behalf of the Government ought to be accepted as a matter of course by the courts. It does not involve the trial itself. It has nothing whatever to do with the merits or demerits of the case. The case will be tried elsewhere, and the Attorney-General will simply submit his side of the case, and the defendant the other.

Amendment put.
The Seanad divided: Tá, 10; Níl, 21.

  • William Cummins.
  • Michael Duffy.
  • Thomas Farren.
  • Mrs. Alice Stopford Green.
  • Joseph Clayton Love.
  • Edward MacEvoy.
  • Edward MacLysaght.
  • Thomas MacPartlin.
  • Colonel Maurice Moore.
  • John Thomas O'Farrell.

Níl

  • John Bagwell.
  • William Barrington.
  • Thomas Westropp Bennett.
  • Dowager Countess of Desart.
  • Sir Nugent Everard.
  • Martin Fitzgerald.
  • Earl of Granard.
  • Henry S. Guinness.
  • Hon. Andrew Jameson.
  • Sir John Keane.
  • Earl of Kerry.
  • Thomas Linehan.
  • James MacKean.
  • John MacLoughlin.
  • Earl of Mayo.
  • James Moran.
  • Bernard O'Rourke.
  • Col. Sir William Hutcheson Poö.
  • Mrs. Wyse Power.
  • Earl of Wicklow.
  • William Butler Yeats.
Amendment declared lost.

AN CATHAOIRLEACH

With regard to some arrangement being arrived at by those interested in having set up an Inspection Committee for the internment camps, would we be in a position to settle that now? I understood the parties interested had met and agreed upon some combined clause which could be inserted in the Bill.

Mr. O'HIGGINS

The position seems to be that Senator Colonel Sir Hutcheson Poë does not object to an amendment by Senator MacPartlin which would make the section read: "by responsible persons to be appointed by the Minister, who shall discharge the functions aforesaid without remuneration." I think that embodies all that is really required that the persons shall be of standing in their locality, that they shall be reputable persons, that they shall have no official position, or be paid by the Government, and that they will merely perform their duties in a public-spirited way. If they find anything wrong in the internment camps that calls for attention, they can report the matter to the responsible Minister.

I would ask those who favour the Committee to accept the amendment by Senator MacPartlin as a reasonable compromise. Why I had some objection to the committee was that I thought there were five or six internment camps in the country, and that there would be travelling and other expenses in connection with visiting the internment camps, and in times like these every pound that can be avoided is important. My idea is to get responsible local people to perform this duty in a purely honorary capacity. If persons are detained at the Curragh, I would undertake to get six or eight local people, reputable men, to undertake this duty. That could be done similarly in Dublin, and in other places where detention camps are situated.

That satisfies my requirements.

AN CATHAOIRLEACH

It is now suggested to add in Section 13 the following: "to insert after the word ‘detained,' in line 4, the words ‘provide for the inspection of such prisons, camps, and other places, and the visiting of persons detained therein by responsible persons to be appointed by the Minister, who shall discharge the functions aforesaid without remuneration.'"

Amendment, as altered, agreed to.
Question: "That Sections 13 and 14 stand part of the Bill," put and agreed to
SECTION 15.
Nothing in this Act shall be deemed to revoke, annul, derogate from or prejudice the exercise by the Military Forces of Saorstát Eireann of any of the powers or authorities exercisable by them by virtue of military necessity arising in the course of the performance of their duty to suppress rebellion or vested in them by virtue of their having been entrusted by the Executive Government with the duty of securing the public safety and restoring order throughout the country.

I beg to move the following amendment:—

To add at the end of the Section the words, "save that where any matter or thing may be done in virtue of the powers or authorities aforesaid, and may also be done under this Act, then such matter or thing shall be done under this Act."

This Bill would appear to provide for the transition from military to civil authorities. If it really did this, the powers of the military authorities would decrease in exact measure with the increase of the powers given to the civil authorities. This is not quite the case, because the military have still power to seize and dispose of cattle, and in another Section of the Bill the Executive Authority has that power also. The proposal is that that right should be reserved by the Executive authority alone, and anything they have power to do under this Bill should be done by them and not by the military. I believe there will be no withdrawal of the present powers vested in the military, and I think it will ensure that the Act is carried out with greater justice, and that the confidence of the people will be strengthened by the Executive Council doing the act rather than the military authorities.

Mr. O'HIGGINS

I see the Senator's object. The amendment raises a highly technical matter, and I am not very confident of my own powers in explaining the basis for an objection to the amendment. It is important, in dealing with a Bill of this kind, to set down nothing which would seem to limit or derogate the ordinary common law powers of the military in a time of war or armed revolt. I will go all the way with those who have expressed hopes that no such situation will confront us in future; but yet my own commonsense and judgment tells me such a situation is at least possible. We ought not, in a Bill of this kind, to even appear to limit the powers of the military in dealing with such a situation. If the state of war lasts, it is reasonable that the ordinary military powers should remain. If, on the other hand, the state of war ends, there will be no authority except this Act, and the amendment therefore is unnecessary. The Senator took a very useful illustration when he touched upon the seizures of stock. Seizures of stock have been carried out by the military in the past because that was a particular form of disorder which, if allowed to remain unchecked, would have swamped the country. That could only have been dealt with by the methods adopted to deal with it. The idea that a menace of that kind could have been grappled with by ordinary trivial prosecutions for trespass in a summary court, is simply ludicrous.

I would give this undertaking: that in practice we will not base any seizures of that kind on military necessity. When, and if, this Bill becomes law seizures of stock will be based on the Bill and not on any inherent common law powers of the military. I cannot say when the courts will finally decide that a state of war or armed revolt is at an end. The moment they so decide, there is no authority except such authority as this Act gives and it would not be possible to plead military necessity if the courts decide a state of war or armed revolt is at an end. There may be a recrudescence, and that may be local or general. It might be confined to a small area in the country. If it is then the plea of military necessity would only prevail for that particular area and one would have to rest on the Act for other parts of the country.

The only objection to the amendment is the objection which the Law Advisers of the Government have put to me that if we set down a provision of this kind in the Bill, we jeopardise the powers of the military in dealing with the situation. The present Attorney-General did score a very considerable victory over the British administration by bringing out that point by the very fact that they brought in certain regulations to deal with the conditions here, and they could be taken as excluding the more general powers that the military have inherent in common law for dealing with the military position, and he succeeded in establishing the point that when they set out certain provisions and regulations, that in fact they were agreeing to limit this to these provisions.

Our object in this Bill has been to ensure that nothing that we set out in the Bill will fetter the military in their powers for dealing with the situation. I believe that such matters as the seizures of stock should be based strictly in future on the law, and that no plea of military necessity should be advanced when there is statutory provision. But at the same time owing to the possibilities of the future we have to be very careful not to derogate common law powers.

In view of the undertaking given by the Minister I suggest the withdrawal of the amendment.

Amendment, by leave, withdrawn.
Question put: "That Sections 16 and 17 stand part of the Bill."
Agreed.
Question put: "That Part 1 of the Schedule stand part of the Bill."
Agreed.
SCHEDULE—PART 2.

I beg to move Senator Douglas's amendment: To insert the word "knowingly" at the commencement of paragraph 12 of Part 2 of the Schedule.

Mr. O'HIGGINS

I think I am right in saying that there could be no offence in the absence of guilty knowledge. To prove knowledge is an almost impossible task. It is exactly the same position as when a person is found in possession of stolen property. He is charged with the offence, and it is for him to establish complete ignorance on his part of the fact that it was stolen. If under this Bill a revolver is found in a man's trunk, he is charged with possession of the revolver without proper authority. If he can convince the Court that he had no guilty knowledge of its presence there, that it was planted there by someone else, then there is no offence in law without guilty knowledge.

The word "knowingly" is inherent in that paragraph of the Schedule as it stands. The effect of putting in the word "knowingly" would be to place on the prosecution the onus of proving the state of a man's mind. You cannot prove the state of a man's mind. You can charge him with an offence, and if he can convince the Court that there is no guilty knowledge, then he will be acquitted. I am afraid the putting in of the adverb that the Senator suggests would be to set an impossible difficulty in the task of the prosecutor.

The paragraph as it stands does not leave the Court any discretion. It simply says "aids and abets." I would say that if you put in "knowingly" the man could be charged with aiding and abetting "knowingly." It is for him to prove he did it unknowingly.

Mr. O'HIGGINS

The person charged with aiding will be acquitted if he convinces the Court that he had no guilty knowledge. That is implicit in the law that a person cannot be punished for an offence that he had no guilty knowledge of, or the knowledge that he was committing an offence. There must be according to the text books, mens rea about it. There must be guilty condition of mind. If there was not a guilty condition of mind then the Court will acquit. But it would be an impossible thing to put on the prosecution the onus of showing the condition of the man's mind. He is charged with an offence, and if he can show that he was innocent in the matter then the Court will acquit him, even though, in fact, he had done an act which materially assists the criminal. I think An Cathaoirleach will bear me out in that exposition of the matter.

AN CATHAOIRLEACH

I would not like to give a positive opinion on a matter of the kind which, of course, may be the subject of discussion and argument hereafter in the court. But it seems to me that as the clause stands that aiding and abetting must be for the purpose of committing an offence. It is difficult to show how any conviction could be sustained unless it can be proved that he knew an offence was about to be committed. Again, it will be difficult to understand why he should be proved to be guilty of helping to escape unless he did it for that purpose. My own impression is that "knowingly" would not help the Section very much. I do not think either that it would embarras the Government very much if they put it in. Perhaps if the Minister would say he would reconsider it on the Report Stage it might meet the matter.

Mr. O'HIGGINS

I have no objection to the word "knowingly," unless it might put the prisoner in the position of saying "well, you have proved that I did all this, and I admit that I did all this, you have now the job of showing that I did it ‘knowingly.'"

Amendment, by leave, withdrawn.
Question put: "That part 2 of the Schedule stand part of the Bill."
Agreed.
Question: "That the Title stand part of the Bill," put, and agreed to.
Question: "That the Preamble stand part of the Bill," put, and agreed to.
The Seanad adjourned at 1.30 until 2.30 o'clock.
On resuming after the adjournment.
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