I had myself intended before the Seanad proceeded to discuss this matter to draw attention to certain statements made in the Dáil in reference to the action of the Seanad, not with a view of discussing in any way the merits of the amendment itself, or for the purpose of in any way controlling or dictating or suggesting to the Seanad what course they should take with regard to it. But I cannot, being here as the Chairman of this Seanad, and, consequently, entrusted with the maintenance, as far as it is in my power, of their privileges under the Constitution, allow to pass without reference a very exceptional and unusual charge that my good friend the Attorney-General made in the Dáil against members of this Seanad who supported this amendment. I will read now from the Official Report of the Dáil the statement to which I refer, and the Seanad will see that it amounts to this: that the Attorney-General charged this Seanad with having, for the indirect purpose of cutting in, as he described it, upon the constitutional prerogative of mercy of the Executive passed an amendment which they knew, or ought to have known, was foreign to the Bill, and which only could have been passed by them in order to enable them to carry out this indirect purpose that they had in view.
When I read this charge first I came to the conclusion that my friend the Attorney-General had been playing a joke upon the Deputies of the Dáil, but, as I proceeded to read his further statements, it became perfectly plain that he was quite serious, and that he really meant to suggest that Senator Sir John Keane, with the assistance of other wild revolutionaries in this Seanad, like Senators Jameson, Barrington and Brown, was engaged in a conspiracy to destroy the Constitutional prerogative of mercy that is vested in the Executive. Here is what he says, and I think there can be no doubt that I have correctly stated the matter. I am reading now from the Official Report of the Dáil of the 11th January, 1924:—
The fact is that this Bill does not contain any provision in regard to the appeals to the Executive, and that it does not contain any reference to any power, in any person, to remit, or vary, a sentence, and it is a remarkable fact, because this amendment by the Seanad is not an amendment of anything in the Bill at all. It is an attempt by the Seanad to effect a constitutional position outside the Bill as regards the remission of sentences and penalties. It is an attempt by the Seanad to cut in upon what is recognised, I think, in most countries, namely, that there must be some constitutional authority in the Executive to intervene where wrong is done or where a miscarriage of justice has taken place.
He further develops that a little later on. He says this:—
Now, this amendment of the Seanad is not properly an amendment of this Bill; it is an attempt by way of amendment to this Bill to amend the constitutional position as regards the over-riding authority to relief where a miscarriage may have occurred.
Then he winds up with this:—
.. The Dáil should realise that if it were to assent to that it would be assenting to an invasion of the Constitution and to a principle outside the Bill and to something that is not really an amendment of the Bill at all.
That is a grave charge, and was supported by the Attorney-General by an ingenious and logical argument. His argument shortly was this: These remissions under the Fisheries Acts, he says, have not been made by virtue of any Act of Parliament. They have been made solely in the exercise of the constitutional prerogative that, under the British Constitution, enabled the Crown—he calls it the Executive, but it is the same thing—enabled the Executive to interfere whenever they were satisfied there was a miscarriage of justice. Consequently, he says, and says quite logically, that you cannot correct or tamper with this prerogative by an amendment that does not touch anything that is in the Fisheries Acts, because the power of remission, not being conferred by the Fisheries Acts, but being part of the constitutional prerogative of the Crown, is not affected by the Bill, and, therefore, this amendment was not properly an amendment to the Bill at all.
That is a purely logical position, and had the facts upon which he based it, been accurate and correct, I would have had no fault to find with it. I shall show in a moment that he based it on a very amazing misconception of the law. I wish, in the first place, to point out that he is dealing with what he calls remissions in the case of miscarriages of justice and with the constitutional privileges for the Executive to step in and correct these miscarriages of justice.
I hardly think the Attorney-General, in view of the figures that have been published since this matter was before the Seanad, and since this amendment was passed—figures of a very startling character which show that out of 87 convictions the Executive interfered with 64—intended to represent that in these 64 cases there was a miscarriage of justice.
Every individual, including every layman, knows what a miscarriage of justice is. It is not of very frequent occurrence. When such cases do occur they create great public comment—like the Beck case. In the whole administration of the criminal law it is very seldom, indeed, that the prerogative of mercy has to be exercised by the Crown on the ground of a miscarriage of justice. A miscarriage of justice means that the wrong man has been convicted, that there has been a case of mistaken identity, that there has been false evidence given, or that the Court has overlooked some Act of Parliament and has acted in violation of the law. These are the familiar cases of miscarriage of justice. Does anyone in the Seanad imagine that in any single instance in these 64 cases anything of that kind occurred? I am speaking with large experience with regard to this matter, because during the years I was Lord Chancellor it was my duty to deal with these petitions. Hundreds of them passed through my hands, and when, in addition, in the absence of the Lord Lieutenant, I had to act as Lord Justice, I was compelled, as Lord Chancellor, to advise myself as Lord Justice, how I would deal with these petitions. I venture to say this to the House, that never once in these hundreds of cases which have passed through my hands did a petition ever come before me based on the allegation that there had been a miscarriage of justice.
In all these fishery cases the men are caught red-handed. They almost invariably plead guilty, and what happens then is that a petition, based on an appeal ad misericordiam, is sent up containing a number of representations, differing according to the character of the case. In one case the petition asks for mercy on the ground of the extreme youth of the offender. In another case it would be on the ground of his extreme old age. Again, it would be on the ground that the offender is an unmarried man who has to support his sisters and mother. The next case would be because he is married and with 15 or 16 children. These are the sort of things that the Attorney-General describes as miscarriages of justice. Certainly it is a very poor tribute to the District Justices that decided these 87 cases, to say that they so conducted 64 of them that they resulted in miscarriages of justice. The thing is really ridiculous, because, as I have said, in no single case, except perhaps once in a lifetime, is a petition based on the allegation that there has been a miscarriage of justice.
That, however, is a minor point, and I pass from it.
I come to the gravamen of the charge made by the Attorney-General against the Seanad, namely, that they put forward a fictitious amendment which they knew was no amendment at all, in order to have a "cut" at the prerogative of mercy which is supposed to exist in the Executive. What is the fact? The Constitutional prerogative of mercy never at any time applied to penalties under the Fisheries Acts or similar Acts. Never, at any time, and for this obvious reason. These penalties under the Acts of Parliament are appropriated to parties other than the Crown. The Crown does not get one penny out of them. It is the duty of the magistrate when he imposes the penalty, under the Fisheries Acts, to distribute one-third of it to the informant, and the remaining two-thirds to the Conservators. In the same way, under the elaborate licensing code we have, and under the smuggling code, and in codes dealing with illicit distillation, the same thing happens.
Penalties are earmarked for parties and persons other than the Crown. For centuries it has been held that this prerogative of mercy, which the Attorney-General describes as the Constitutional authority for over-riding cases of miscarriage of justice, never extended to penalties of this class. So much so, that in the fifth year of Queen Victoria's reign, when the Fisheries Act was passed, which applies to Ireland, an express provision was put in enabling the Lord Lieutenant for Ireland, and giving him statutory power, not to remit penalties, but to remit punishment that might be awarded in default of payment of the penalty.
I would like to read that Section, because it brings clearly before your minds the point I am at. These are the words of it:—
"It shall be lawful for the Lord Lieutenant to extend the right of mercy to any person imprisoned by virtue of this Act, although he shall be imprisoned for non-payment of money to some person other than the Crown."
You will observe that that Act did not extend to the penalties at all. It gave no power to the Lord Lieutenant to remit penalties, but it did give him power to remit any period of imprisonment that was attached in default of payment of the penalties. The next thing to notice about it is, that it is a power conferred by Parliament. It is not a Constitutional prerogative. It is a Parliamentary power conferred on the Lord Lieutenant of Ireland by Statute, and by Parliament, not by virtue of the prerogative.
That was shortly after Queen Victoria came to the throne—five years afterwards—but a few years later the public mind became impressed by the fact that, notwithstanding that smuggling had become more or less a much rarer offence than it had been in the old days, the heavy penalties imposed by the Smuggling Act were still enforced, and no power was given to anybody to remit them, having regard to the fact that they were disposed of by Act of Parliament in favour of a third party other than the Crown. Parliamentary pressure was brought to bear, and in that year there was passed an Act called the Remission of Penalties Act. I beg your special attention to this, because it is under this Act, and only under this Act, that all these 64 remissions could have been legally made.
That Act consists of only one Section, which I will read:—
"It shall be lawful for His Majesty, or in Ireland for the Lord Lieutenant, to remit in whole or in part any sum of money which, under any Act now in force, or hereafter to be passed, may be imposed as a penalty or forfeiture, although such money may be payable in whole or in part to some party other than the Crown, and to extend the royal mercy to any person who may be imprisoned for non-payment of any such sum, although the sum may be payable to somebody other than the Crown."
Again, you notice how careful Parliament was. When dealing with penalties it makes no reference to the royal prerogative, because it did not exist, but it gave statutory powers for the first time to the Lord Lieutenant, as representing the Crown in Ireland, to remit the penalties, so that the power under which these 64 remissions or reductions were made was not power under the prerogative, as the Attorney-General seemed to think, but was power under express statute conferred by Parliament. The importance of that matter is this: It shows that the only legitimate or constitutional way in which the Seanad, if it wished to restrict that power, could possibly do it, would be by amendment of the law. Of course, it could not do it by seeking to control or restrict the prerogative, as it is preserved by the Constitution, but it being the power conferred by statute, and not by the prerogative, so far from this amendment being out of order and irrelevant, it was the only constitutional and legal way in which the Seanad could exercise its right to amend the law. It is important that that should be made quite clear. I am certain had the Attorney-General realised the true position, and that all these remissions of penalties had their origin in an Act of Parliament giving statutory right, he would not have accused this Seanad of attempting to invade the prerogative of the Crown by passing this amendment.
There is just one other matter to which I wish to refer. I may be entirely wrong, and the matter will be, I am sure, cleared up in the course of the debate, but reading the statements of Ministers, the Minister of Fisheries and the Minister of Home Affairs in the Dáil, it seems to me, if I am correctly interpreting what they said, that these remissions have been made by the Minister for Home Affairs without reference to the Governor-General. I may be entirely wrong in that, and I hope I am, but if I read the statements of the Ministers correctly they undoubtedly conveyed such impressions, and if the impression is wrong, it is not my fault, but theirs. If I am right, and if I have gathered the right impression, and if these remissions had been made by the Minister for Home Affairs without reference to the Governor-General, then I respectfully say they have been improperly and illegally made, because the only person under the Statute who could make them is the Lord Lieutenant, and his constitutional powers have, under the Constitution as regards this particular matter, been transferred in express language to the Governor-General. Of course, had the Attorney-General been right, and had these remissions been made in the exercise of the prerogative of mercy, it is quite plain that nobody but the Governor-General could do it, just as nobody but the Governor-General could reprieve a prisoner from sentence of death.
Had the Attorney-General's argument been right, it is clear that the only person in this country to-day who could exercise this power to remit, assuming it became a constitutional power of prerogative, is the Governor-General, but if I am right, and if it is a statutory power to be exercised wholly apart and independent of the prerogative of mercy, and without regard to it, even in that case, in my humble opinion, the only person in the country who could exercise it, of course, acting on the advice of the responsible Minister, is the Governor-General, because the individual nominated by Parliament to do this work is the Lord Lieutenant, and, as I have said, the Constitution transfers these Executive powers of the Lord Lieutenant to the Governor-General. All this, of course, may be purely a matter of speculation. As I have said, I do not know what the exact facts are. All I say is, that what was said by the Minister on the subject leaves the impression on my mind that the Minister for Home Affairs has been making these remissions without reference to the Governor-General.
Before I sit down, may I say one other word? It is no part of my province, and I have no right or desire to dictate to the Seanad in any way as to how they should deal with this position that has recently arisen by reason of the Dáil turning down their amendment. The Dáil were quite within their powers in turning it down on its merits, and I am not criticising their action in any way. But if I may, perhaps, make a suggestion to the Seanad, I make it in the interests of maintaining the harmony and good relations that up to now have existed between the two Houses, because I should be very sorry, indeed, to see this issue precipitated between the two Houses, as to what is to happen when an amendment passed by the Seanad is turned down in the other House.
I would suggest that perhaps the position might be met in this way. I am glad to see the President is here. While I have said that in one of those cases, except perhaps in a very unusual instance, one in a thousand, there has been no miscarriage of justice and no pretence of miscarriage of justice, at the same time it might not be desirable for the Seanad by any amendment to rule out the possibility of a miscarriage of justice. Therefore, I would suggest to the Seanad, as a reasonable way out, that they should preface the amendment they passed with those words, or words like them—"Save and except in any case in which the Minister for Fisheries certifies that it has been proved to his satisfaction there has been a miscarriage of justice." That is to say, I would preserve the power without limit of the Executive, whether it be, as I suggest it ought to be, the Governor-General or anybody else, of intervening wherever there was clear proof that there had been a miscarriage of justice. That, if added to the amendment, would enable, even though the magistrate made no recommendation when imposing the sentence, the Executive to interfere and remedy any case in which they came to the conclusion upon the facts that there had been a miscarriage of justice. Of course, such a miscarriage would be one that arose at the trial and not dependent on facts, one that arose afterwards and communicated to the Executive behind the back of the prosecutor which are never decided in a Court and which are never the subject matter of cross-examination. I mean facts that are urged in mitigation of the penalty.
