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Seanad Éireann debate -
Wednesday, 6 May 1925

Vol. 5 No. 2

SEANAD IN COMMITTEE. - TREASONABLE OFFENCES BILL, 1925—THIRD STAGE.

SECTION I.
1.—(1) Every person who commits in Saorstát Eireann any of the following acts, that is to say:—
(a) levies war against Saorstát Eireann, or
(b) assists any State or person engaged in levying war against Saorstát Eireann, or
(c) conspires with any person (other than his or her wife or husband) or incites any person to levy war against Saorstát Eireann, or
(d) attempts or takes part or is concerned in an attempt to overthrow by force of arms or other violent means the Government of Saorstát Eireann as established by or under the Constitution, or
(e) conspires with any person (other than his or her wife or husband) or incites any person to make or to take part or be concerned in any such attempt,
shall be guilty of treason and shall be liable on conviction thereof to suffer death.
(2) Every person who, being a citizen of or ordinarily resident in Saorstát Eireann, commits outside Saorstát Eireann any of the acts mentioned in the foregoing sub-section (other than levying war against Saorstát Eireann) shall be guilty of treason and shall be liable on conviction thereof to suffer death.
(3) Every person who encourages, harbours, or comforts any person engaged in levying war against Saorstát Eireann or engaged, taking part, or concerned in any attempt to overthrow by force of arms or other violent means the Government of Saorstát Eireann as established by or under the Constitution shall be guilty of felony and on conviction thereof shall be liable to a fine not exceeding five hundred pounds or, at the discretion of the court, to suffer penal servitude for any term not exceeding twenty years or imprisonment with or without hard labour for any term not exceeding two years, or to both such fine and such penal servitude or imprisonment.
(4) Every person charged under this section with treason shall and may be indicted, arraigned, and tried in the same manner and according to the same course and order of trial in every respect and upon the like evidence as if such person stood charged with murder, and if such person is found guilty of treason he shall be convicted and sentenced in the same manner as if he had been found guilty of murder.
(5) No person shall be convicted under this section of treason or of felony on the uncorroborated evidence of one witness.

I beg to move:—

"In Section 1, sub-section (1), to delete the word ‘death' in line 29 and to substitute therefor the words ‘penal servitude for life or such other penalty as the judge at the trial shall deem adequate to meet the offence proved.'"

I am aware that this Bill is specially intended to meet cases of war or offences against the State. Although Great Britain, bracketted with a minority of other States, maintains this objectionable law of capital punishment I do not think that is any reason why the Free State should follow its example and I think now, on the threshold of a bright career for this country we love so well, we might depart from that objectionable law and do away with capital punishment for State offences of the kind mentioned. I would briefly point out that Holland, in 1870, abolished the death penalty and, notwithstanding that, crime of all sorts has diminished in that little country although its population has increased in the meantime. To Italy the same story applies. In 1889 it abolished capital punishment and crime has decreased in the Italian peninsula in the meantime. Norway, Roumania, Sweden, Belgium for over sixty years, and Denmark for over thirty years Finland, Switzerland, and even the Republic of Uruguay, and so on.

I submit to the Minister, and to the Government, that penal servitude for life, in my humble opinion and in the opinion of a great many other people, is a punishment that is more dreaded in many cases than going to the place of execution. We in Ireland during the last dreadful experience through which we passed know what happened. I have been told by some eminent clergy of the Catholic Church who accompanied some of our young fellow countrymen to the place of death, that they did not dread being shot down and executed. They went rather to receive the extreme penalty of the law more as if they were going to a marriage than to a death. If any prominent leader in this country was arraigned and brought to trial and a jury found him guilty, and he was allowed to go to death if the prerogative of mercy was not exercised, I submit that the prejudice that would be raised in Ireland would be most alarming and dangerous to the welfare of the State, as well as to the individual Ministers and the Executive.

There is an intense prejudice on the part of many to bringing in a hangman from England as would have to be done to carry out the judgment of the court. The wretched condemned man in his prison cell from four to five weeks, the newspaper comments on the fact, the distress caused to the family of the individual and many others, are things that we should weigh well before we lightly pass this section as it is submitted to us. Moreover, I would remind the Minister, although we know him to be a man not only of great ability, but also of great courage, that a Chief Secretary for Ireland who became Home Minister in the British Cabinet, felt the position so objectionable across the Channel, that he was going to suggest, and I fancy did suggest, that the prerogative of mercy should not be left solely in his hands, but that the Chief Justice and the judge who tried the case should also be taken into consultation, and that the matter should be left in the hands of the three to say what should be done. I know that the present Minister, whom I am happy to see filling this position, would not shrink from exercising his own judgment, which, I venture to think, would be the prerogative of mercy, but we do not know who is to succeed him in the days to come, and I do not think that is a matter that should be left in the hands of any individual.

I have seen the evidence of individuals who were privileged to visit prisoners and who have come across great numbers of unfortunate wretched criminals who had committed deeds of murder and assassination. In every single case almost they said that they never thought what the result would be of what they had done. They were in a condition of frenzy or were drunk when they committed the offence or seized with passion when the deed was done; they never thought or had an idea of being taken to the scaffold or anything of that kind. We are an impulsive race, and for the most part all individuals in the last few years that suffered death, young men, very young men, were impulsively led at the moment. As we calmly look back on the past, I venture to say the majority of our people deeply regret so many young lives were thus sacrificed. As a deterrent, I think capital punishment is not a success. The late Lord Justice Denman, in giving evidence before the Royal Commission some years ago, said there is more on the whole done by capital punishment to induce murders than to prevent them. During a trial the other day in connection with a recent terrible murder, the young prisoner, who is being tried, has stated that it was reading in the papers of similar happenings that put it into his head to kill a child.

For thirty years the number of murders across the Channel has been computed to be 3,000, and of that number, a large proportion of the culprits were never brought to justice, as evidence was not forthcoming because people held back information which they might otherwise have given. I submit that verdicts would be much more easily obtained in such cases if the sentence was penal servitude for life, or a lesser number of years, if the judge at the trial thought that that would meet the merits of the case. We all know that juries are not infallible and that mistakes are made. There is a dangerous point also in this section in connection with this question of incitement to murder. In the course of conversation when we hear of a crime happening we sometimes say that so-and-so ought to be shot. That is quite a commonplace and it is almost the first thing that comes to one's mouth to give expression to. We know that stories never lose in their conveyance. One person may make a remark to another and it might go to a Minister, unlike Mr. Kevin O'Higgins, who might get alarmed and might have that person arrested, taken before a jury, convicted and sent to the scaffold. With these few observations I beg to move the amendment.

I do not know whether I could go so far as the Senator who has just sat down. I am not much of a lawyer, but I know that the British Government of former days, which we always regarded with such dislike and which we accused of many harsh things, passed a Treason Bill and sent our own rebels of '48, who had undoubtedly been guilty of treason and rebellion, to penal servitude.

May I say that at this end of the room we cannot hear what the Senator is saying?

AN CATHAOIRLEACH

The only way to remedy that would be for the Senator to raise his voice.

One forgets that Senators do not hear as well in this as in the other House. It is unfortunate and I think that something will have to be done to remedy the matter. I do not think, however, that much has been lost by Senators on the other side of the House.

AN CATHAOIRLEACH

Not yet.

I simply wish to say that word in favour of any sort of modification of this harsh sentence.

Senator Haughton would probably not object to taking, together with his first amendment, amendment No. 3, as I think the purport of both of these amendments is about the same. The Senator in these amendments, Nos. 1 and 3, seeks to give effect to his remarks and criticisms on Second Reading, and seeks, in effect, the abolition of the capital penalty. The capital penalty at the moment exists only in respect of murder, and I personally do not favour its abolition for that crime, but if it were a question of choice, and if I were asked whether I would prefer to see the capital penalty abolished in the case of murder or in the case of treason, I would say that I would prefer to see it abolished for murder than for treason. The moral law, as well as the statute law, allows to the individual the right to take life in self-defence. The Senator's amendment seeks to deprive the State of the right of taking life in self-defence, in its own defence. That would be a very serious step to take. The Senator suggests that the capital penalty is no deterrent, that penal servitude is, in fact, a much more severe penalty.

Capital punishment is, of course, not an absolute deterrent. One knows that, and one sees that, in spite of the capital penalty murders still occur, but it is not possible to say that the prospect of that particular punishment has not deterred many people from the commission of that particular crime. I suggest to the Senator's commonsense that probably many a man contemplating murder and turning it over in his mind has been deterred by the prospect of what would await him in the event of detection and conviction. In spite of what the Senator and others say on this matter, I think that the majority of men agree with the Greek philosopher that to be is better than not to be, and that capital punishment is, in fact, a deterrent, is in fact the strongest deterrent, which the State can place before the mind of a prospective criminal. Unless we rule out the capital penalty, unless we say, as the Senator would wish us to say, that it should not find place in our Statute Book at all, I submit it is justified as a punishment for the offences set out in Section 1 of this Bill.

I put this dilemma to the Senator. Supposing his views were not just what they are, supposing he agreed with the capital penalty as a punishment for murder, could he disagree with it as a punishment for the offences set out in Section 1? One understands his position. He is opposed to it absolutely as a punishment of any offence of any kind. I am not, but I simply put this view, that if it is justified at all, if it is justified for the offence of murder, it is justified for these offences set out here. The Senator, if he succeeded in this amendment, would not have abolished capital punishment, but would merely have deprived the State of the right, which he would concede to the individual, of taking life in its own defence after trial, conviction, and after consideration by a jury.

It would be a gesture, of course, in favour of the abolition of the capital penalty, and the Senator would, no doubt, hope to move on to a further victory by securing its abolition for murder. That, of course, is an understandable position. In the meantime, you would have the anomaly that while a State was free to take life judicially after trial and conviction for the offence of murder, it was not free to so take life in its own defence, for the preservation of its own existence, although the man who precipitates the offence set out in Section 1 of this Bill, in fact as we know precipitates many murders and many serious crimes. This is a matter in which I do not believe that any amount of rhetoric or argument will change people's views. I would not, if I talked the remainder of the day, expect to shake the Senator in his conviction that capital penalty is a wrong thing, something that is not justifiable, and I think if the Senator had talked very much longer than in fact he did, he would not shake my conviction that it is a necessary thing, that it is justifiable, that it is a very considerable deterrent, and that in a case of murder, for the defence of the lives of individuals as well as for the defence of the State and the State's existence, it is a sentence which the State is entitled to impose and which the State, properly understood, is perhaps under a duty to impose because of its responsibility to its citizens.

I do believe that murder would be much more rife than it is but for the existence of that particular penalty. I believe that treason and treasonable offences such as those set out here would be much more prevalent in the absence of this penalty than if this penalty is sanctioned by the Oireachtas. Penal servitude is not a great deterrent. The man who is sentenced to a long term of imprisonment scarcely at any time or at any stage of his imprisonment brings his mind to grasp or accept the idea that he will serve the entire period. Practically every prisoner sentenced to long terms sends up his petition every three months or every six months, as the case may be, and always seems to entertain considerable hope that the current petition will be favourably received. I expect on the files of my Department there are petitions from every single prisoner at present serving a sentence of penal servitude. There is undoubtedly that psychological fact, that the prisoner holds on to the hope that he will not serve his entire sentence; that he will be out in a short time; that if not this Minister, then some other Minister, will take a different view of his case, and decide that he should walk at large. I do not propose to detain Senators any longer on this point. They can form their own judgment as to whether it is a wise thing, in the infancy of this State, to decide that in no circumstances, even the most extreme circumstances of the callous and the premeditated crime, should the State be free to take the life of the individual, though the individual may try ever so hard to take the life of the State.

The offences are: levying war against the State, assisting any State or person engaged in so doing, conspiring with any person or inciting any person to levy war against the State, attempting or taking part or being concerned in an attempt to overthrow by force of arms or any other violent means the Government of Saorstát Eireann, as established by, or under the Constitution, or conspiring with any person or inciting any person to make or take part or be concerned in any such attempt. I pointed out on Second Reading that we had based the State very broadly, that we have founded a democracy, that the State rests on the broadest possible franchise, adult suffrage, that moving on from that we have made a provision in our electoral law for the adequate representation of minorities, so that their voice can be heard in the Oireachtas. I submit, in a State so based, there is no justification for a violent and unconstitutional onslaught such as is sought to be guarded against in this section, and that in all the circumstances we are not merely justified but, perhaps, bound to ensure that the penalty we will insert in our legislation will be the most severe penalty, and the penalty that we believe in, in our own minds and our own hearts, will be the greatest deterrent.

I do not see why Senator Haughton or the Seanad, as a whole, should not be able to disagree with the Minister's proposition that treason is a worse crime and more deserving of capital punishment than murder.

Personally, I believe in capital punishment for brutal murders, but I do not believe in it in this particular case. The class of people who commit these treasonable offences are certainly misguided, although generally quite sincere people. I do not think the offences can be put on the same lines as common murder. I am quite aware that penal servitude is not much of a deterrent, while admitting that capital punishment may be a considerable deterrent in cases of ordinary murder. I am quite satisfied it is no deterrent whatever in the case of persons going to indulge in treason. We see how little effect it has had up to the present. It has this effect also that it hands out to people fairly freely the martyr's crown, for which some people are quite willing to die, and in that way leaves a considerable amount of bitterness which, in the case of treason, is not quite so desirable. Consequently, I think we ought to support Senator Haughton's amendment.

I have on several occasions stated the reasons why I personally do not believe in capital punishment, and I do not now propose to deal with the reasons given by the Minister or to re-state my reasons on the general question. I would like to remind the Seanad that although Senator Haughton may have gone round the whole subject in his speech, the amendment which the Seanad is considering is an amendment to this Bill which deals only and singly with the question of capital punishment for the offence of treason. The Minister has claimed as an analogy that the individual is allowed to take life in self-defence, and that the State must therefore be allowed to take life in self-defence. I think these were his words. I cannot personally accept the analogy. Possibly I failed entirely to understand it.

It seems to me that the individual taking life in trying to defend himself is quite a different thing to the State, having caught and tried a man who has plotted against the life of the State, then, in cold blood, decides that in certain circumstances it is a duty to take the life of that individual. I should like to say frankly that I do not think the question of abstract justice arises in this question. If I am prepared to take the lives of a number of other persons who may desire to change the character of the State, of the country in which I live, certainly I have no reason to grumble if that State takes my life as a result of my action. From the point of view of abstract justice I agree that it is probably reasonable and right. I suggest, and think it applies particularly to Ireland, that we are not considering this from the point of view of abstract justice, but having in view the object which the Minister has, and which I believe everyone here has, of building up the best possible Irish State that we can, it is a question whether that will be achieved by carrying out capital punishment against persons in future convicted of offences of treason.

During the past few years a number of persons have been convicted, and a still much larger number have not been convicted, who are well known to have been guilty of the offence for which we are asked in this Bill to agree to the punishment of death. Wisely, undoubtedly, we agree that the Government did not attempt and did not think it wise to exercise or carry out death sentences against any but a comparatively small number of these persons. I think that disposes of the suggestion which the Minister made that the State had a certain duty towards its own life to carry out the death sentence. I think it is very important to discuss a question of this kind altogether and entirely away from the question of motives. As far as I am concerned I believe in inflicting the strongest possible sentence that I conceive to be wise and as at present advised, that is penal servitude for life on a person who is guilty of treason.

Having regard in the first place to past history and the immediate circumstances in Ireland, and having regard in the second place to the fact that if we want to discourage and not spread treasonable ideas, it is infinitely better we should have someone tried in the courts next week, and found guilty of treason—whether we pass it in this Bill or not—that the death sentence should not be carried out. It is always dangerous to make reference to analogies, but I want to make a frank confession. I have always been a confirmed Nationalist, and in 1916 I was opposed to those who took part in the Rising. I was opposed to them at the end of the Rising. I thought it was unwise and wrong. The day the first executions took place I began to think, and before the executions were finished I changed my attitude towards them as individuals.

That may be because I am, if you like, emotional. I do not think it was. I believe that the kind of treason we are likely to be faced with in Ireland during the next year or two is treason based to a large extent partly on sentiment and partly on false information. A number of persons have been told, and it has been repeated again and again, that this State is not independent, that it is not able to carry out the wishes and desires of the Irish nation. I believe we can defeat that by doing our duty and by carrying out the wishes of the people and acting as an independent nation. I believe we may defeat it if we act too drastically with treasonable offences. In this particular case the reason I will support and vote for Senator Haughton's amendment is, not because I am opposed to capital punishment generally, as you know I am, but because I think it would be unwise, within the next year or two, to carry out the death sentence for such offences of treason as may take place in this country. I take it that should a state of war arise the powers which were previously exercised would be again exercisable by the Executive Council. One final remark I would like to make. I honestly believe that if we could eliminate from our present population the immediate relatives and the widows of the persons on whom either by the Free State or by the British Governments, death sentences have been carried out, we would have a very much simpler problem of carrying on government in Ireland to-day. For these reasons I support the amendment.

I think in considering this question, while I agree with what Senator Douglas has just said, as far as its not being a matter of abstract justice, I think what we have to consider is the practical issue, and I think that every Senator before voting should, in the first place, put to himself the question: Do you consider for the welfare of this country it would be most essential that the Free State, as at present constituted, should continue? If the answer is in the affirmative, as I hope it is in the mind of every one of us, then the next question that we should put to ourselves would be: Do you or do you not consider the punishment for endeavouring to overthrow that State as effective a deterrent as possible. If the answer to that is yes, for my part, I say that the death sentence is eventually a greater deterrent than anything else that can be devised. That is why I shall vote against the amendment.

I think I am safe in saying that if it were possible to avoid imposing the death penalty, most of the House would be agreeable to that. I put forward a view that weighs strongly with me, that if no death is caused by a particular treason the death penalty should not be imposed. The question might arise as to what exactly would be treason. We might have something like what occurred in connection with the tea at Boston, where there was no loss of life. Perhaps fanatics like myself and enthusiasts like the Minister on the temperance question might consider that tea was coming in too freely at some period when prohibition was established, and then if the same thing occurred as did in the United States, would that be held to be treason? Take South Africa. We know that the Jameson raid took place for a purpose. That could be held by the South African Government to be treason, but it was not so held, and was not followed by the death penalty. I think there should be a modification on the lines I suggest, that if no death resulted from the treason no death penalty should be imposed.

I think perhaps a mistake has been made in introducing the general question as to whether it would be better for the nation if capital punishment for any offence were abolished. If we were to take this amendment in itself, and in its bearings on the offences called treason, it must, I think, be agreed, and the Minister has made an unanswerable case for it, that it is a much more heinous offence to murder a nation than an individual. The individual, as he remarked, can possibly defend himself, but the nation cannot, unless the individual is brought to trial before he is punished. Therefore, I think, and Senator Haughton, no doubt, will probably see it, that it would be making light of treason if we were to omit the death penalty in that clause, and to maintain it in the case of other offences which are now punishable by death. Therefore I shall certainly vote against the amendment.

I think we are all agreed that the first duty of the Executive is to preserve the State. We hold them responsible. The Government has been brought into existence by the people, the Government has appointed its Executive, and we hold the Executive are responsible to preserve the Free State, which is approved of and assented to by the majority of the people. I do not hold that any minority, no matter how right they may think themselves, have a right to enforce their convictions against the majority by any violent methods such as assassination, conspiring to overthrow the State by inciting to civil war, or any other violent method which may involve the loss of human life. They have a perfect right by every constitutional and legal method to advance and explain their particular point of view to the people, and by these methods and by propaganda educate the people—the majority of the people who have brought the Free State into existence, and have approved of it, and show that majority how they are wrong. They may point to the deeds or misdeeds of the Government, and their failure to carry out all expected of them, as one reason, and as a very cogent reason I suppose from their point of view, why another order of things should exist, and why they themselves should be put into the highest offices of the State, or why there should be some other form of Government than the Free State. The Executive in their wisdom or unwisdom, time alone can tell, come forward to us, recognising the responsibility which they have not taken upon themselves, but which we have put upon them to preserve the State at all costs, and say, "We fully appreciate the responsibilities thrust upon us, and we want certain machinery to enable us to fulfil that trust, and to preserve the State you have brought into existence. We suggest these things, and we think nothing short of them will enable us to carry out the duties imposed on us." Coming to the question of capital punishment as a deterrent of crime, some deterrent is necessary; there may be imprisonment in some cases and death in others. All nations, I think, in laying down the punishment for high treason have imposed the death penalty. It is either a good thing or a bad thing to put a certain limit to the activities of a minority who are disposed to promote civil war, or to incite any other form of violence that would overthrow the State. If it is admitted that some deterrent is necessary, then we come to the question whether penal servitude for life or capital punishment is the more effective as a deterrent. Some will argue that penal servitude for life is worse than death. There is nothing that will act as a greater deterrent than the death penalty, because in penal servitude there is always the hope in the mind of the individual, as has been stated here already, that at some period he will get free through the clemency of the Minister, through a revolution, or through an amnesty or something like that. There is always that saving clause. He has it in his mind that he is only marking time for a few years, and the man who is capable of perpetrating any of these crimes is not very much concerned when he looks forward to a few years of that particular form of punishment. I wish to conclude my argument in this way. If the Oireachtas or the Seanad think that a deterrent is necessary, why not put it into the hands of the Executive to impose the most potent deterrent, and the most forcible weapon to enable them to carry out this duty which we have imposed on them?

There is no use in monkeying with questions of this sort. We have had a little experience of it recently, of inciting others effectively to assassinate the members of this House and of the Dáil. No matter what extenuating circumstances that he may plead for the convictions that he holds, no individual can justify taking action of that sort or indulging or engaging in a conspiracy against the State. I am sure that no Senator will for a moment get up here and try to argue the contrary, and on the logic of the whole circumstances, I am certainly disposed to leave the clause in the Bill, which only has reference to the crime of inciting to civil war, to levying civil war, and as a consequence, doing to death. I should say as a very logical and inevitable consequence, that if war is promoted, if civil war is proclaimed, many innocent people will be done to death. Viewed in that light, the man who is directly and at first responsible for such an agitation, might be classed as a murderer, because he knows in his heart what the inevitable result may be if his views fructify and if he succeeds in promoting civil war, he knows inevitably, that there must be a very great sacrifice or, at least, a sacrifice of many innocent lives. Because I hold those views on the logic of the situation, I certainly will support the section as it stands.

It seems to me that, from a practical point of view, it matters very little whether this amendment is carried or not. Because when treason manifests itself in a State in such a serious manner as to justify the death penalty, the ordinary laws are suspended as a rule, and we have military law then, we have Occasional Powers Bills and Public Safety Bills, and so on. This Bill, if it becomes law, will not, in my opinion, be used for the purpose of punishing treason except, perhaps, in an infinitesimal way. After all, very few people have been executed for treason. When treason becomes dangerous then other powers, sometimes extraordinary powers, are resorted to. I think, however, that on all occasions the manner in which treason can be dealt with is very largely a matter of statesmanship and expediency. Senator Douglas has told you the effect which the execution of political offenders had on him, and that was certainly the same effect that operated on the minds of thousands of citizens in this country in respect to the same incidents. I think it almost goes without saying that if it had not been for the executions in 1916 that movement which was brought to success, would not have fructified in our life-time. But supposing that the penalty of death was imposed without any exception, we would to-day have been deprived of the services of our very able Minister, because undoubtedly he plotted the downfall of the Government in power at the time. In like manner many members of the Executive Council would have passed to the Great Beyond if the death penalty had been then imposed in all cases. I do not say that because that would happen the State would not go on, because the effect of that was to inspire and thrill other people to take up the cause and to carry it on to victory.

I know there is a difference in fighting against a foreign Government or a foreign law and fighting against the home Government or the home law. But there is no difference from the point of view of the Government. They always say that any attempt to overthrow the Government in power by violence is treason pure and simple, and they overlook whether that Government has the authority of a Government or the authority of the people behind it. One of the greatest examples was the American Civil War. Surely the attitude of the South was equivalent to treason against the State, and the attitude of the American Government was not to execute these prisoners. I think that the great American Republic to-day is all the better because of that, because that policy left behind it no bitter pangs and created no sore mark. We know as civilisation progresses that barbarous punishments have been reduced and eliminated, and that crimes are not more numerous because of that. Such terrible barbarity as breaking on the wheel, being hanged, drawn and quartered, and punishments of that sort have disappeared in all civilised States, and all civilised States are none the worse for that. The Spartans had a law whereby every offence was punishable by death. That law did not make Sparta endure. For that reason I am going to support the amendment, because I believe it is a question of expediency, and if you tried to eliminate from our minds the terrible experience of the recent trouble, you will agree that, from the point of view of expediency alone, it is not advisable to make capital punishment the punishment in cases of treason. There are different kinds of treason, and it has manifested itself in its most obnoxious form in the recent troubles here in Ireland, in wholesale destruction, and so on. I think it is because we have these things so much in mind that we are inclined to devise the greatest punishment within our powers as punishment—capital punishment. I think it is better not to make martyrs of those who are more powerful dead than alive.

After listening to the speeches made in favour of the amendment the thought forces itself upon me that it is a good job that these abstract theorists who argue against the death penalty were not in charge of the Government of the country during the last three years. Because, although it can be claimed that the executions in 1916 had the effect of converting the country to Sinn Fein, it can also be claimed that the effect of strong measures taken by the Government in 1922 saved the country, and only for that we would not be here to-day discussing those abstract theories. A lot of people seem to think that treason is the same to-day as when the British were here. They cannot get away from that. It seems the same to them as it did when the British were here. It is a different treason we have to-day. Treason to-day is an offence against the sovereign authority of the Irish people. It is an act of treachery to the country, and indulging in it may result in the loss not of one life but of hundreds of lives. Therefore I support the clause in the Bill exacting the death penalty, and although it would be a very desirable thing if we could do away with it, still I think that the best answer to that was given by the French statesman to a deputation who waited on him favouring the abolition of capital punishment. After listening to their arguments, he said: "Yes, I, too, am in favour of the abolition of capital punishment, but let Messieurs the assassins commence."

The Senator who has just sat down reminded the House that when the present Government took in hands the work of restoring law and order in this country they proclaimed the death penalty. The Government certainly carried out their intention of re-establishing law and order in this country very successfully. You are all aware that they did not put in force their proposal to carry out the death penalty on many occasions. Therefore I think that this House should consider very carefully before it consents to the imposition of the death penalty in cases which may unquestionably bear a political impression. I am one of those who have always believed in the abolition of capital punishment. I take a strong view of the desirability of abolishing capital punishment in any cases where political considerations intervene. We cannot forget that all the great crimes in history have been committed for reasons of State, nominally to support the interests of the State. We know, for instance, that some of the worst crimes of the French Terror were committed ostensibly for reasons of State, and we know that recent events in Russia, events which are even now continuing, took place and are taking place supposedly in the interests of the State. I think we should be very careful in dealing with this matter. I agree with the Senator from the Labour benches who suggests that if this Act is ever enforced in this country, capital punishment will scarcely ever be used. The Ministers, in the exercise of their discretion, will see a way to mitigate sentences at all events, by changing capital punishment to penal servitude. That being so, and further, bearing in mind the results in our own country recently, of the application of capital punishment for political offences, even though, in the minds of many, the crimes amounted to treason against the State, I think there is very much to be said in favour of Senator Haughton's amendment. I intend to vote for it.

Mention has been made of 1916. In 1916 I had friends on both sides. Valuable lives were lost in 1916 on both sides, and if 1916 had to be re-enacted it is questionable whether many of those who took part then in the proceedings would follow the course they followed in that year. I can remember at least two friends of mine who were liable to the death penalty. In those days I occupied a position of some responsibility, and I was able to get the Executive to listen to me. In those two cases the Executive took a humane and merciful view and the death sentences were not imposed. The fact that the death sentences were not imposed did not, in the least, affect the opinions of my two friends themselves but the clemency the administration showed undoubtedly made for peace, and had an effect exactly contrary to that of the executions which were carried out by the same Executive in that year. I agree that if the executions in 1916 had not been carried out things in this country would have been very different. There would have been very much less of the ill-feeling, of the exasperation, and of the desire for rebellion which, unfortunately, those proceedings entailed. I think we are not proceeding on right lines, and that we should be a little bit ahead of our times.

There is no greater offence, in my opinion, than treason against the State. I think a man's first duty is to support the Government of his country, no matter what that Government may be. At the same time, in the Government's own interest, I think it would be better to exercise their sway by moral rather than physical force, and for that reason, while believing that the first duty of a citizen is to support the Government of his country, I am against capital punishment for what might be considered political offences.

I have listened very carefully to both sides, and the argument which appealed to me most was that put forward by the Minister in supporting the clause in the Bill. We now have a country with its own sovereignty derived from the people, and the attempt to injure that sovereignty, to cut the throat, so to speak, of the nation, deserves the greatest penalty. It is in the people's power to form any Government or combination which they like. If the people of the Free State want to do that, they can. It should not be in the minds of any body of people to create confusion, bloodshed and disorder. For that reason I think the strong course is the best one. To insist that any body of people trying to cut the throat of the nation should receive the highest penalty the State can inflict, is most calculated to prevent such a crime. I have listened with great care to both sides, and I am convinced that the arguments of the Minister should be conceded to and that we should pass the Bill as it stands.

Amendment put.
The Committee divi ded: Tá, 13; Níl, 25.

  • James Green Douglas.
  • Michael Duffy.
  • Sir Thomas Grattan Esmonde.
  • Thomas Farren.
  • Thomas Foran.
  • Sir John Griffith.
  • Benjamin Haughton.
  • Douglas Hyde.
  • C.J. Irwin.
  • Edward MacLysaght.
  • Colonel Moore.
  • J.T. O'Farrell.
  • Mrs. Wyse Power.

Níl

  • John Bagwell.
  • Dr. Barniville.
  • William Barrington.
  • Thomas Westropp Bennett.
  • Samuel L. Brown.
  • Richard A. Butler.
  • Mrs. Eileen Costello.
  • Peter de Loughry.
  • The Countess of Desart.
  • Sir Nugent Everard.
  • Martin Fitzgerald.
  • Captain J.H. Greer.
  • Arthur Jackson.
  • Sir John Keane.
  • P.W. Kenny.
  • J.C. Love.
  • Edward McEvoy.
  • James MacKean.
  • John MacLoughlin.
  • Sir Bryan Mahon.
  • W.J. Molloy.
  • George Nesbitt.
  • John O'Neill.
  • Bernard O'Rourke.
  • W.B. Yeats.
Amendment declared lost.

I beg to move amendment 2. In Section 1, sub-section (2) to delete in lines 32-33 the words, "(other than levying war against Saorstát Eireann)."

I confess I am rather at a loss to know the meaning of the object of the inclusion of these words in brackets. We have laid down, in the first section, death penalties for any member of Saorstát Eireann who does any act of treason against the State. That may be right or it may be wrong, but in sub-section (2) of the same section we make an exception of some member of the Saorstát who goes out of the country and levies war against it. That is a thing that I am entirely at a loss to understand—why a person leaving the Saorstát and going over, we will say, to Germany or to any other country you like, and making an attack on this country, should be better treated than a citizen residing in this State; in fact that he should be free while the man here is to be shot or hanged for the same offence. There may be some explanation of that, but I do not understand it. It staggers me as it stands, but perhaps the Minister may be able to give some explanation about it. I think the person who goes out of this State, and thereby puts himself in a comparatively safe position by attaching himself to a foreign country, and then turns around and attacks his own country is, to my mind at least, in as bad a position as the person who causes a rebellion in the country itself. I do not think I need argue the amendment any further.

I think the Senator put down his amendment under a misconception of what the sub-section means. The words, "other than levying war against Saorstát Eireann," which are inserted in the sub-section in brackets, were inserted in the belief that, for the levying of war against the State, one would need to be within the State: that is to say, that the actual levying of war takes place within the country. One could, of course, from without declare war against the country, but the making of such a declaration effective—the actual levying of war—would, one would imagine, take place within the country, whereupon the person would then come within the provisions of sub-section (1). I might point out to the Senator that the offence of declaring war from without would be an offence within sub-section (2), which reads: "Every person who, being a citizen of or ordinarily resident in Saorstát Eireann, commits outside Saorstát Eireann any of the acts mentioned in the foregoing sub-section (other than levying war against Saorstát Eireann) shall be guilty of treason, and shall be liable on conviction thereof to suffer death." A person who, being a citizen of the State and, from outside the State, takes up a hostile attitude and declares war or assists persons engaged in levying war against the State, would come within the scope and within the penalties of Section 1 of the Bill, but naturally could not be made amenable until such time as he would come within the jurisdiction and be available for trial. At any rate, the effect of the insertion of these words is not to exempt from the scope of the section or from the penalties of the section a person who, being a citizen of the State, takes up from outside a hostile attitude towards the State, and I think that is what the Senator is anxious about. The words in brackets were inserted merely in the belief that for the actual levying of war one would need to be within the State.

I think these words ought to be deleted. If the case is as the Minister has stated it, then it is not necessary to have these words. If you must be inside the State in order to commit an offence under (a), you obviously cannot do it outside. Therefore, why have the words in?

I think the Minister ought to consider very carefully if he would not adopt the Senator's amendment. There may come a time, in the history of the State, when we may have a navy, and I could conceive a case of citizens of the State being members of a naval force attacking this State from outside the State and that is certainly not provided for. I think the Minister would be well advised to accept this amendment.

AN CATHAOIRLEACH

Is there not a possibility that unfriendly people might collect a force outside the boundaries of the Free State for the purpose of attacking the Free State. It seems to me that that would be like levying war against the State. I do not for the life of me see why these words should be kept in the clause.

Would not these words exempt Mr. Aiken operating on the other side of the border?

AN CATHAOIRLEACH

He could come in under that section, but would he not be plainly levying war against the State?

Yes, or a person with a long range gun at Holyhead. I think, on consideration, I ought to accept the amendment.

Amendment agreed to.
Amendment No. 3 not moved.

I beg to move:—

Section 1, sub-section (3) after the word "who" in line 35, to insert the words "with a view to aiding the treason."

The sub-section reads: "Every person who encourages, harbours or comforts any person engaged in levying war against Saorstát Eireann." Now, harbours or comforts might mean something done without any knowledge whatever of what had happened. It might mean comforting a person who fled to another person's house and who might not know that the latter person had committed this treason. There are two entirely different points in this matter. We can imagine a person engaged in war against the State being harboured by some friend, relation or somebody else. That would be a very serious offence; but I think it would be quite a different sort of offence altogether for a person, flying from justice, I suppose after the war was over, or practically over, to be harboured by one of his relatives or friends. He may be a wounded man who has been shot, and takes refuge in the house of a kind-hearted person who does not think he should be handed over in his wounded condition to the enemy or to the State. I think these are entirely different conditions and ought to be put in different categories altogether. One is a very serious offence, I do not question it, harbouring and encouraging a person at a time when war is going on and aiding a person in rebellion against the State. That seems to me to be entirely different from a person who has been wounded and is flying for refuge and throws himself upon the mercy of a person in his house and who would, I think, in almost all cases, be succoured and helped by that person. It is fairly well known that during the Black and Tan war people were succoured by persons of entirely different views from their own. To their honour be it said, there were certain Unionists who were actually opposed to the men engaged in the fight, when they saw a wounded man flying wounded, thought they ought to give him help, and, as a matter of fact, did give such help and succour. Surely these things are not in the same category. Therefore, I do not think that it will affect the matter very much if this slight insertion is made.

I rise to point out that if the amendment is carried it will alter the entire effect of this section, and will alter what has been the law, and what probably ought to be the law, in this country. Treason is distinct from felony in as much as there are no accessories, but in the crime that is defined in sub-section three of this section it is only a felony. There may be accessories, but one cannot be convicted of being an accessory after the fact unless he knows that the crime to which he is an accessory has been committed. He must, either in the case of harbouring or comforting, know that the person who is harboured or comforted has committed a crime, which is felony in this section. Therefore, if you adopt Senator Moore's amendment you would really alter the law altogether. The word "encourages" is all right, because "encourages" does not need the words "with a view to aiding treason." The only possible alternative would be to put in the word "knowingly" after the word "encourages." But it is only stating the law which the judge would have to state to the jury.

AN CATHAOIRLEACH

Would it not be better if it read "encourages, harbours or comforts any person whom he knows or has reason to believe is engaged"?

That would make it even better.

Would that cover the case I suggest?

AN CATHAOIRLEACH

It would prevent any conviction under this section if the man was able to prove that he was not harbouring a traitor.

It would not cover the case of a wounded man when the rebellion was over?

AN CATHAOIRLEACH

Not if the man harbouring him knew that he was making war on the State?

That was what I wanted it to cover.

AN CATHAOIRLEACH

I would not suggest any amendment to cover that.

I dislike any amendment the effect of which is to put on the prosecution the onus of proving the state of mind of the accused, or proving knowledge. One could prove that he had abundant opportunities of knowing something, and it is probable that he did know something, and it is for the accused to produce rebutting evidence as regards that, and for the jury to make up their minds as to the side on which the balance of probability lies, but the effect of accepting the amendment would place on the prosecution the onus of proving knowledge, which is a very difficult matter. The jury, in fact and in practice, will not convict unless they are satisfied that in the accused there was the mens rea, the guilty mentality, and that he knew that he was harbouring and comforting a person engaged in war against the State. To accept an amendment so couched as this would be putting an almost impossible task on the prosecution.

I was going to suggest that between this and the next stage, the Minister should consider the suggestions made by Senator Brown and the Cathaoirleach to see whether some alteration could not be made. I agree that the form suggested by Senator Moore would probably negative the clause. It seems to me from the sub-section that it is clear that if a person harbours or comforts—it is conceivable you might harbour a person in arms against the State without any knowledge, I might do it at home to-night—and that if he did it unknowingly and proved it to a judge the jury would refuse to convict. I think it is undesirable that juries should have to interpret the law. It would be better to put it definitely into the Act than suggest that juries should have discretionary power. It is not a matter to be done hastily, and perhaps the Minister will consider it before the next Stage.

AN CATHAOIRLEACH

The difficulty about confining it to actual knowledge is the real difficulty, and on that account I suggest to put in "harbours or comforts any person whom he knows or has reason to believe is engaged."

I submit that if the sub-section is passed as it stands it would be a sufficient reply on behalf of the accused person to say that in fact he had no knowledge.

AN CATHAOIRLEACH

I do not think it would.

You are a very eminent authority.

AN CATHAOIRLEACH

I do not want to say positively, but I would be very doubtful about that, that a man would be entitled to get off if he satisfied his jury that he was entertaining a traitor unawares. I think the offence contemplated here is entertaining him.

That is true, but there is no doubt that in common law you cannot be convicted of being an accessory after the fact without knowledge. The question, however, is not so important now, as a prisoner can be examined in his own defence, and he will be in a better position to prove that he did not know.

I will have the section examined, and if I can find any middle course, anything that would throw something into the scale, without actually placing the onus of proving the state of mind on the prosecution. I will undertake to bring it up again.

I am quite satisfied.

AN CATHAOIRLEACH

Very well, the matter is to stand over for Report.

I beg to move:—

Section 1, sub-section (3). After sub-section (3) to insert a new sub-section (4) as follows:—

"(4) The provisions of the foregoing sub-section shall not apply to the wife, parent, brother or sister of the person alleged to be engaged in levying war."

I do not think this is an amendment which requires any long speech or explanation. We all know human nature. You cannot expect, say, a mother to give up her son or her daughter to justice if that son or daughter is flying from justice. I do not know that there is any person in this room who would do so. I cannot imagine that they would. I certainly would not do so, and I should hazard anything, whatever the penalty might be, rather than do so. That is human nature. What is the use of imposing a duty on a person that he cannot possibly, in the nature of things, carry out? Would the Minister himself, if his own son or daughter were waging or causing a rebellion, and that they fled to him for safety, drive them out and hand them over to the next policeman to be shot? I do not think he would. I do not believe anybody would. What, therefore, is the use of putting a provision in the Bill which cannot possibly be enforced? Human nature revolts against the thing. We remember, in the time of the Bloody Assize, the case of the lady who succoured a refugee. Her name has come down through history as a heroine for having done so. For hundreds of years her name has been remembered. Has human nature changed since then? Is any person here going to hand over his own son or daughter, or his dearest relative, to the first policeman who comes along? It seems to me absurd and ridiculous to insert such a provision.

I would like to support this amendment very strongly. For very obvious reasons which I need not go into, I would like the Senator to include the word, "husband" in the amendment. After all, a man's wife may engage in levying war and consequently I suggest that he should insert the word "husband" before "wife."

I would like to support the amendment to this extent that I am not at all sure that I would like to include a brother or sister, but as far as the husband or wife is concerned this amendment is consistent with the law as it stands. You are making an exception in the case of harbouring, which is a lesser offence.

The exception in favour of conspiring is, I think, based on the legal fiction of the husband and wife being one person, and that you cannot conspire with yourself. I do think it was that exception which rather encouraged and inspired this amendment which we are now dealing with. Senator Colonel Moore, rather stealing Senator Farren's thunder, has brought up again the case of the mother and the son, which we grew accustomed to here when the Public Safety Acts were under consideration. It seems to me that, in a matter of this kind you come up against a clash of two definite duties and two responsibilities. On the one hand a Senator may enlarge on the folly of putting a duty on a mother or father, brother, or sister to refuse to shelter their relatives. Equally it is open to him to enlarge on the folly of putting the responsibility on a particular set of men to safeguard the State to preserve its peace and dignity and welfare for its citizens, and then to proceed to make exemptions of the kind embodied in the amendment, to proceed to say that it shall be open to Citizens A B C because of their blood connection to shelter Citizen D, who is endeavouring to destroy the State.

The Senator's amendment seeks to exempt from sub-section 3 of Section 1 of the Bill, all those persons who might be considered most likely to commit the offence set out in the sub-section. The wife, parent, brother, or sister of the person alleged to be engaged in levying war are to be free to shelter. These are the persons who would be most likely to shelter and most likely to harbour, and there is to be statutory exemption in their favour. The Senator asked me to put myself in that position. Would I deliver up a relative engaged in levying war against the State? Probably not; certainly to do that I would need to entertain the utmost horror and detestation of the course upon which he embarked, but if I refused to do it I would not cavil at any legal penalties. I would recognise the right of the State to penalise me for such refusal, and I would take these penalties with as good a grace as I could muster. You cannot at one and the same time put the burden and the duty on the Executive to safeguard the State, to defend the State, and then proceed, in the fulness of your heart, to give exemption to relatives of offenders, to relatives of those who attack the State. He attacked the State, but his aunt, uncle, and his brother or sister may harbour him because they love him so much.

That would be an impossible state of affairs, and I submit to the Senator who so eloquently moved the amendment that the relatives who hearken to the call of the blood, to shelter a man who has offended against the State, and is seeking to destroy the State, must just manage to derive some extra glow of virtue by reason of the fact that in so doing they rendered themselves liable to certain penalties. As to the penalties, the penalties look very big in print, but what does it come to? It means that there can be anything from a shilling fine to a day's imprisonment, to the maximum penalties that are mentioned here, and I am greatly afraid that where you have a jury, suffering from the defects of our common humanity, they would take into consideration such circumstances as the Senator has enlarged upon in moving his amendment, and would not consequently impose the maximum penalty set out in the sub-section which theoretically they can impose. Faced with the choice of demanding from the citizens the duty with which I feel the State is entitled to demand and on the other hand, exacting something which may be difficult for relatives. I see no alternative to simply allowing the section stand as it is, and allowing such relatives who offend against it a little extra virtue by reason of the fact that they rendered themselves liable to the penalties of the law.

On a former occasion when we were discussing a similar amendment to this, under the Public Safety Act, the Minister told me I was more or less of an idealist.

I might return the compliment to the Minister by saying that he is too hard and matter-of-fact. There is no use making legislation that will interfere with the human relations that exist between a mother and a son, and a mother and a daughter. No matter what Acts of Parliament the Minister may get through the Seanad, and no matter what statutes are passed in this or any other country, the human element will triumph. It is beyond the grounds of possibility to pass legislation that would prevent a mother from giving shelter to a son or daughter, if they were fugitives from justice for a crime, trivial or great. In that way I must enter a protest against this section, as I do not believe in making legislation that will interfere with human relationships.

Amendment put and declared lost.
Question—"That Section 1, as amended, stand part of the Bill"—put and agreed to.
SECTION 2.
Every person who, knowing that any act the commission of which would by virtue of this Act be treason, is intended or proposed to be, or is being, or has been committed, does not forthwith disclose the same together with all particulars thereof known to him to a Justice of the District Court, or an officer of the Dublin Metropolitan Police or the Gárda Síochána, or other person lawfully engaged in duties relating to the preservation of peace and order shall be guilty of the felony of misprision of treason and shall be liable on conviction thereof to suffer penal servitude for any term not exceeding five years or imprisonment with or without hard labour for any term not exceeding two years.

I move:—

"After the word ‘same,' in line 4, to insert the words ‘either in writing or otherwise."'

The amendment is not necessary. The wording of the Bill, as drafted, would leave it open to a person to make a communication in writing or otherwise.

Amendment, by leave, withdrawn.

I move:—

"To delete in line 5 the words ‘to a Justice of the District Court or.'"

The old statute which defined treason said that the communication could be to a Judge of Assize or a Justice of the Peace, one or other of whom would certainly be engaged on the trial.

I did not hear what the Senator said.

AN CATHAOIRLEACH

He said that under the old English statute there is a corresponding clause providing that information be given to the Judge of Assize or to a Judge of the Supreme Court, although he might have to try the case.

That is so. I do not see much cause for the deletion of a "Justice of the District Court." Taking the grounds advanced by Senator Haughton, a Justice of the District Court would not try this particular offence. This offence, of course, would be tried by a judge and jury.

A District Justice only sends it on for trial.

He only returns the case for trial. I think it is undesirable to delete from the section the only civilian, so to speak, who is left as a medium of communication. I think there are probably many people possessed of such information as is mentioned in the section who would prefer to communicate it to a District Justice rather than to a police officer.

Amendment, by leave, withdrawn.

I move:—

"To add at the end of the section the words: ‘Provided that no person shall be convicted under this section who satisfies the court that he did not know that the information he is charged with withholding related to an act amounting in law to an offence under this Act.'"

AN CATHAOIRLEACH

Is that necessary? The clause begins, "every person who, knowing that any act the commission of which would by virtue of this Act be." It is left to the prosecutor to prove knowledge, so that I think your proviso is unnecessary.

I think "knowing" in the section as it stands would be read as "knowing that any act the commission of which would by virtue of this Act be treason," is intended or "... does not forthwith disclose." The Senator seeks to add an amendment which would put on the prosecution the onus of proving that the person knew that the particular act was a breach——

AN CATHAOIRLEACH

I think the section does that already. The person is not guilty unless he knew it was information in reference to an act proved to be treason. No man can be convicted under that clause unless the prosecution proves that the matter about which he withheld information was a matter relating to treason.

Speaking of my own understanding of the section, it was this: that the section means what it would mean if there was a bracket after the word "act" in the first line and another after the word "treason" in the second line.

AN CATHAOIRLEACH

I see what you mean. Are you prepared to accept the amendment?

No, but if I find that the section does not mean what I now state to be my own conception of its meaning I will probably take steps to change it in that direction. I have the same objection to the Senator's amendment as the one moved now, as it presents an impossible task for the prosecution. It is working away from the maxim that ignorance of the law constitutes no defence. We must simply assume that people know their duty to the State and know that certain acts against the State were illegal, and proceed on that basis. If we were asked to prove in a case of Patrick Murphy, of West Cork, that he knew an act was contrary to the Treason Bill it would be an impossible proposition.

A person might be suspected of knowing. He might not know anything and would be absolutely innocent. The amendment is to cover cases of that kind, where the individual might go to court subsequently and prove his innocence.

It seems to me that the Minister desires to put all the onus of proving his innocence on the person accused, which is entirely the reverse of what we always understood was the basis of the law, that you had to prove a person was guilty rather than make that person prove himself innocent.

No, we undertake to prove that this hypothetical Patrick Murphy knew that there was an undertaking on foot to blow up a particular barracks, or something of that kind, but we ask to be excused from proving that he did know that that was contrary to the Treason Bill of 1925.

AN CATHAOIRLEACH

That, of course, is the difficulty about it. It is not sufficient that he knew about what was going on, but that he required to give affirmative proof that the particular thing was a breach of this Bill. That, of course, is the difficulty in the way of the amendment. If the matter were looked into between this and the Report Stage something might be done to meet the Saorstát's view.

I would be agreeable, if the Minister would consent to that.

Certainly, but I am not hopeful of being able to do anything.

AN CATHAOIRLEACH

You have not committed yourself.

Amendment, by leave, withdrawn.
Question—"That Section 2 stand part of the Bill"—put and agreed to.
SECTION 3.
Every person who commits any of the following acts, that is to say:—
(a) attempts or takes part or is concerned in an attempt by force of arms or other violent means to overawe or intimidate in any way either the Governor-General or the Executive Council or any member thereof or any other minister duly appointed under and in accordance with the Constitution, or the Oireachtas or either House thereof, or any lawful court or any judge of any such court with a view to influencing their or his actions, or
(b) assists, encourages, harbours or protects any person engaged or taking part or concerned in any such attempt as aforesaid, or
(c) conspires with any person (other than his or her wife or husband) or incites any person to make or to take part or be concerned in any such attempt, or
(d) sets up or holds or purports to set up or hold any court of justice or court-martial (not being a court or court-martial duly established and maintained according to law) or assists or takes part in or is present at the proceedings of any such pretended court or court-martial, or
(e) incites any member of a military or police force lawfully maintained by the Government of Saorstát Eireann to mutiny, or to desert from such force, or to refuse to obey orders given to him by a superior officer or to absent himself from or to refuse, neglect, or omit to perform any of his duties, or to commit any other act in dereliction of his duty, or
(f) incites any person in the Civil Service (other than a police force) of the Government of Saorstát Eireann to refuse, neglect, or omit to perform his duty,
shall be guilty of felony and on conviction thereof shall be liable to a fine not exceeding five hundred pounds or, at the discretion of the court, to suffer penal servitude for any term not exceeding twenty years or imprisonment with or without hard labour for any term not exceeding two years or to both such fine and such penal servitude or imprisonment.

I move:—

Before the word "orders" in line 39 to insert the word "lawful."

My purpose is to make it clear that the person accused knows that the object is illegal.

These things are all pretty well of the same kind, and my objection is the same, that I think it is practically impossible to prove a state of mind, that the person knew that something was illegal, and I think we must proceed on the lines of assuming such knowledge.

Amendment, by leave, withdrawn.

I propose:—

Before the word "orders" in line 39 to insert the word "lawful."

I wish to quote a legal point of view:—

"A lawful command means not only a command which is not contrary to the ordinary civil law but one which is justified by military law. A superior officer has no right to take advantage of his rank to give a command which does not relate to military duties or usages for the attainment of a private end. It may not be unlawful, and yet may not in this sense be a lawful command. If it is obviously illegal an inferior would be justified in refusing to obey."

An officer may give an order which he is not legally entitled to give. For instance, he may tell a soldier to fetch him his hat. He may not be entitled to do that at all, as it is not military duty and yet it would be an order. It is very important that the matter should be clearly defined about being a lawful order. There are many other cases which are ill-understood in this country. Soldiers in the new Army seem to think, and I dare say many officers, too, who have not studied military law, that a soldier is bound to obey any order given him by an officer, and that he would not be entitled to refuse. That is not the fact at all. In the military law of any nation, and certainly in the military law of England, and it is common sense, no private soldier or junior officer is bound to obey an order that is not a lawful order. For instance, if an officer tells soldiers to shoot a number of unoffending civilians, the soldiers would not be bound to obey. That is clearly laid down in military law. I do not know what law has been laid down in this country, as I have not studied its rules and regulations, but what I have stated is, I believe, the military law all the world over. Of course these are very technical matters, but the presumption generally is that a soldier should obey the order of a superior officer without going into the question of whether it is right or wrong. Generally speaking, he will do so. It is laid down that if a soldier does so, and that it is obviously legal, he commits a crime. Referring that to what we have got here, I propose to insert the words "who refuses to obey a lawful order," and similarly in the case of a civilian giving a direction to a soldier. For instance, an officer may give an order to a soldier to carry a bucket across a barrack yard, and some civilian may tell him not to do anything of the sort, as he was not bound to do it. If he did that he would come under this rule, but if the word "lawful" is inserted it would make the matter right.

My contention is that the word "lawful" is really there unknown to Senator Colonel Moore, and would be seen there by a judge. I believe the word "lawful" is there by necessary implication. In connection with the remarks of the Senator in moving the amendment, the word "lawful" does appear in a particular section of the Defence Forces Act, 1923, Section 8, which provides penalties for disobedience to the lawful commands or orders of a superior officer. In view of that particular wording in the Act it would be wise to retain the word in the present Bill. I accept the amendment.

Amendment accepted.

I move:—

To delete all after the word "officer" in line 40 to the end of the section.

There is a slight mistake in the amendment as it appears on the Order of the Day. It ought to be: "To delete all after the word ‘officer' in line 40 to the end of sub-section (f)." One must understand that in these matters there is a great variation in the degree of crime. In books on military law it is pointed out that no offences differ more in degree than offences of this class. Disobedience may be of a very trivial character, or it may be an offence of a serious character. I propose, therefore, to take out the parts which refer to the minor matters. For instance, after the word officer, "or to absent himself from or to refuse, neglect or omit to perform any of his duties or to commit any other act in dereliction of his duties." It is nothing like the offence of mutiny, and in military law books the two things are put down under different sections, and there is awarded for them entirely different punishment. I suggest to the Minister to make that division, to put the law on sub-section (f) in a different section and with the minor penalty instead of severer punishment that would deal with mutiny and other more severe offences.

May I suggest that it would be more convenient if the Senator took his amendment, which is down in the Order Paper as 11, and put it with 13, and they could be disposed of together.

Unfortunately, there are no numbers at all in my book.

You propose a new sub-section in substitution for the deletion?

AN CATHAOIRLEACH

What the Minister suggests is that you take amendments No. 11 and 13 together.

I propose to put that now into a separate section. My amendment is:—

Before Section 4 to insert a new Section 4 as follows:—

4.—Every person who commits any of the following acts, that is to say—

(a) incites any member of a military or police force lawfully maintained by the Government of Saorstát Eireann to absent himself from or to refuse, neglect or omit to perform any of his duties or to commit any other act in dereliction of his duty, or

(b) incites any person in the Civil Service (other than a police force of the Government of Saorstát Eireann) to refuse, neglect, or omit to perform his duties.

shall be guilty of felony and on conviction thereof shall be liable to suffer imprisonment for any term not exceeding two years hard labour.

You see that is a very minor offence compared with the offences in front, and my proposal is that the minor penalty of imprisonment for a term not exceeding two years' hard labour, and not penal servitude, which would be a proper punishment for incitement to mutiny which, of course, would be a very serious offence.

The Senator proposes to delete two of the sub-sections and to reinsert them with a smaller maximum penalty. I think that is what it means.

AN CATHAOIRLEACH

A modification.

There is, of course, no objection in principle to that course. It is simply a question of whether or not it is necessary. The section, as drafted, with the offences set out at foot, gives, of course, very wide latitude to a court to take into consideration the degree of guilt as between this offence and some of the others. In the section as it stands there can be, as I said before with regard to another section, extremely low penalties. Under the section as it stands a fine of one shilling or imprisonment for one day or one week could be imposed. There does not seem really, in view of that fact, very much to be gained by the proposed change. If the Senator presses it, and, if there is any general feeling in favour of it, there is clearly no objection in principle. I do not object to the smaller maximum penalty for the offences set out in subheads (e) and (f), but I do not believe that, in fact and in practice, anything more than the maximum penalties suggested by Colonel Moore would be imposed. Consequently I am more or less passive with regard to the amendment. And if there is any sort of general feeling in favour of it, it could be done.

It is in accordance with the rules of military law. I have taken it from the book on military law which is an authority on that matter.

This amendment seems to me to make the position worse, as far as the minimum penalty is concerned, because it makes imprisonment with hard labour the only punishment. One can get two years' hard labour. If that is a minor punishment I do not know what is a severe one, because I understand that two years' hard labour is next to capital punishment. The court, under that amendment, must impose imprisonment where it might obviously be a small fine. For that reason I must vote against the amendment, because it constitutes a disimprovement.

AN CATHAOIRLEACH

I do not think, Senator Moore, that this is worth while pressing, because under the clause as it stands now it is open to the court to award anything from one day's imprisonment or a fine of one shilling. It is open to the court, having regard to its being a minor offence, to deal with it in that way, but under your proposal substituted for the section as it stands, it then comes into a category of its own, and it does not make them liable to fine at all, but liable to the maximum penalty of two years' hard labour, which, as Senator O'Farrell said, is regarded by certain classes as the worst of penalties. I think it would be better if you would leave it as it is.

As regards the fine, that was a misunderstanding; I did not notice that. I am not putting it in that way. As regards the others, I have experience of these matters. I have sat on many courts-martial.

I know that sometimes the court was likely to go too far. In the case of minor offences it is better to limit the maximum. I have quoted an authority on the matter. Perhaps, however, the Minister would leave it over for consideration on Report.

Agreed.

There is an amendment in my name to sub-section (f) of section 3, which reads:—

"Incites any person in the Civil Service (other than a police force) of the Government of Saorstát Eireann to refuse, neglect, or omit to perform his duty."

My amendment is—

After the word "duty" in line 45 to insert the words "in furtherance of any conspiracy to overthrow the Government of Saorstát Eireann as established by or under the Constitution."

The effect of the amendment is to ensure that the section refers only to incitement to strikes or other industrial action for political or treasonable purposes. I think the State is right to safeguard against any attempt on the part of civil servants to utilise their position for political or such-like purposes. The State has also a right to prohibit anybody, whether within or outside the service to incite civil servants to action of this kind, obviously designed to overthrow the Government, or to exercise pressure for political or treasonable purposes. If the amendment is accepted, the position is adequately safeguarded, in this respect, as far as you can safeguard such a position by legislation. That being provided for, what more is there that any Government can require of self-respecting civil servants? Under the Civil Servants Regulation Act of 1924, the Minister for Finance has full power to make any necessary regulations governing the discipline, conditions of the service, and so forth. If the Minister is wise he will have these regulations as few as possible, because generally we find that where there is a multiplicity of regulations there is a least regularity. In the same way we find numerous laws and great lawlessness going hand in hand. Above all, you are not going to make the Civil Service a model of efficiency and loyalty by turning it into a children's nursery and having a whole series of "don'ts" and "you must nots," pasted up all over the place. I would suggest to the Minister that if he expects, as he is entitled to expect, confidence and loyalty from the Civil Service, there must be some reciprocity, that the Government in turn must repose some confidence in the Civil Service, and show that they believe they are, on the whole, efficient, and that they desire to do the right thing by the State no matter what Government is in power. If the Government is unable to place this confidence in the Civil Service then, no law that we can enact will make them efficient and loyal civil servants.

There has been a great objection to bringing the Civil Service at all into this Treason Bill, branding each civil servant as a possible traitor. It is looked upon as an insult and a vote of no confidence in the Civil Service generally. As there is little hope of having the section deleted, I think the Service, as a whole, would look upon it with less resentment if amended by the amendment suggested in the Order Paper. It would, at least, make it clear that it was not intended to apply the sub-section to the legitimate activities of the Civil Service organisation in the relations of conditions of service. I ask Senators who are employers of labour to draw on their own experience and say whether they would expect to get the best out of their employees if they submitted them to humiliating conditions or if they sought to make regulations that would deprive them of privileges which are inherent in all other classes of work, if they sought by the conditions they imposed to suggest that they were likely to be disloyal and inefficient, and to hedge them round with restrictions of that kind. Certainly the experience of industry is quite the reverse. We know that firms like Lever Bros., Rowntrees, Guinness and Sons, and that kind, generally have a most loyal and efficient staff. It is not by the imposition of insulting and ignominious conditions or regulations that they have made them what they are to-day. I ask the Minister of what he wants the Civil Service to be composed. Does he want it to be composed of a number of sickly anaemics crawling around the legislative ruins, or self-respecting workers taking pride in their calling, seeing that the State has confidence in them and desirous of proving themselves worthy of that confidence? Deputy Hewat who, I think on the whole, speaks for employers, speaking on this matter in the Dáil, used those words:—

"I emphatically say that if regulations or laws are necessary to safeguard the community against the inconveniences, losses and dangers that might operate during a strike of civil servants, the Treason Bill is not the place to put them. To put into a clause in the Treason Bill something giving power to the Government, or anybody else, to enforce penalties for combined action, or action which under no circumstances one could consider to be treasonable, that is, having for its intention the overthrow of the State, would be, I think, making a very grave mistake."

I think those were exceedingly fair and statesmanlike words, and if they represented the views of employers generally I think we should have taken one big step towards a better understanding between the organisation of employers and of workmen. I hope the Minister will not brandish the sword between them and prevent an advance to a better understanding. Human nature is the same the world over, and in proportion as you take away from free citizens what they look on as inherent rights you create an impassioned desire for what is taken away from them which previously they never used or appreciated. This amendment merely seeks to have this section confined to activities of a treasonable or seditious character and to take it away from the relationships between the State and its employees. Its effects may be far-reaching, but if accepted the State is only to gain. I hope the House, will accept this amendment. I do not know what the Minister will do, but I venture to suggest that he will prove himself a stronger and wiser statesman if he does not ask the House to accept it.

This is a very innocent-looking amendment proposed by Senator O'Farrell. On the first glance at the Order Paper I thought that it was evidence on the part of the Senator of a desire to help the Government against any onslaught on them. But I find now that it is merely a loophole to provide civil servants with an opportunity of striking.

Well, we have all seen how strikes can be used not in the enforcement of better wages or better conditions, but to gratify the whim of a fanatic who was out to paralyse the commerce and industry and the industrial life of the community, and I am surprised to find that honest representatives of Labour like the Senators on the benches in front of me, would seek to extend opportunities for striking, after the recent experiences, to any class and especially to civil servants, who are a pampered class compared with ordinary workers. They have better wages, better hours of work, and they have pension rights. They know the conditions under which they take service and they know, also the great competition and the great difficulty of getting into the service. The practical effect of this amendment is to give these favoured few the right to strike. We all know that any covert enemy of the State, or any ill-disposed person could get up a strike on a very flimsy pretext. Why put him to the trouble to bring forward political motives at all? A civil servant can pretend that he was insulted by his superior, or he can allege that his colleagues were not nice people to have tea with, and he can precipitate a strike on these very flimsy pretexts which may have far-reaching effects and which may do the State more harm than if he had engaged in armed rebellion.

We know that the right to strike not only involves the right to withdraw their labour, but also the right to prevent anyone else taking their places. This involves the right to intimidate and to assault anyone who takes their places, and that is what is called the liberty of the subject, or, at least, that is the new conception of it. With regard to Senator O'Farrell's talk about the loyalty of civil servants. I quite agree that the great bulk of civil servants are both loyal and efficient and that the country owes them a lot. At the same time, we must not forget the actual experience which this country had in the case of the only strike with which civil servants were connected. We saw then how much we could depend on the loyalty and the patriotism of at least one branch of the Civil Service. The postal officials struck at a time when this young State was struggling in the throes of civil war. They struck against conditions which they would not dare to strike against were the British here, conditions under which their confreres in the Six Counties and in England were giving their services cheerfully. We had the spectacle here in Dublin of ladies in furs and of immaculately dressed gentlemen with gold-headed walking sticks, gold chains across their breasts, and wearing gaiters, walking about on strike. We had these spatted strikers going about parading and protesting against the grinding conditions and the sweated employment they had under our first native Government. Does Senator O'Farrell wish to give them an opportunity of having a similar display again. I do not think that self-respecting civil servants will thank him for doing it. I think, on the other hand, that they will thank the Government for insisting that civil servants will not have the right to strike, and that it will save them from the degradation of having the loyalty and the patriotism of the Civil Service dragged in the gutter as it was on that occasion.

I desire to say a few words in support of the amendment. Notwithstanding all that we have heard from the last speaker regarding the conditions of employment in the Civil Service, I suggest to him that, if he was employed in the Post Office and was receiving the same wages as many of the unfortunate men then employed in it, and if he did not strike to better the conditions that obtained, he would not be worthy of the name of a man. There is no use in introducing talk about the loyalty of civil servants in dealing with this amendment. This amendment seeks to secure for civil servants, if a dispute occurs between themselves and their employers, that they should have the same right as any other section of workers in the community to withdraw their labour. I think it is a great mistake that a section such as this should have been introduced into a Treason Bill. This is a Bill that deals mainly with treasonable offences. It is not a treasonable offence for a man who believes that the conditions under which he is working are not satisfactory, to withdraw his labour. All other sections of workers do that in order that they may secure a betterment in the conditions of their employment. If a man withdraws his labour, surely by so doing he cannot be said to have been guilty of treason. In doing that he is only exercising the right that is exercised by employees engaged in all other kinds of employment.

It is a great mistake, I say, to put a section of this kind into a Bill of this character. As Senator O'Farrell explained, the amendment is intended to protect the rights of civil servants, not in the political sense but in the industrial sense, and I hope that when Senators are discussing it they will deal with it purely from that aspect. There is no sinister motive underlying this amendment, and I protest against such a suggestion being made. It is unworthy and uncalled for to suggest that there is any sinister meaning underlying the amendment. Trades Unions and workers generally have always claimed the right to strike, to better the conditions of their employment, and I repeat again that this amendment is put down from the industrial standpoint, from the standpoint of the relations that exist between employees and their employers, and has no connection whatever with political events. I hope, therefore, that the amendment will be considered from that aspect.

Before the amendment is put I would like to point out that the question as to the right to strike for industrial conditions really does not arise. What I suggest is that that question should be dealt with in a Bill other than a Treasonable Offences Bill. If the question is raised on a Bill other than one of the character that we are now discussing, I am quite prepared to discuss it on the merits, but I say the question does not arise here. Senator McLoughlin's speech was really trifling with the question at issue. In my opinion his speech was most unstatesmanlike and bad for the Civil Service. It is exceedingly unbecoming for Senators to be constantly badgering the Civil Service and referring to it as a pampered service, as people who did not work but drew their pay, and as if they were not an important section of the community. A speech such as that delivered by Senator McLoughlin is calculated to turn any civil servant and to make him disloyal. If I were a civil servant, it would certainly make me a revolutionary, that is, if I took it seriously, but of course I would not. I think, in the circumstances, that the Minister might advise the House to accept this amendment because it protects what he says he wants to protect, and that is all that we are concerned with.

My line of approach to this particular sub-head was that this was a Bill for the defence and preservation of the State fabric, and we sat down to consider by what means and from what quarters that fabric would be most likely to be menaced. One of the modern methods of undermining the State and Government is to paralyse its executive arm by sapping and undermining the Civil Service. In that way the State can be reduced to impotence, and we are endeavouring to guard against that in this Bill which, as I say, was primarily meant for the defence of the State. Paragraph (f) of the sub-section under consideration follows naturally in our minds from what precedes it. In paragraph (e) we are dealing with a person who

"incites any member of the military or police forces lawfully maintained by the Government of Saorstát Eireann to mutiny, or to desert from such force or to refuse to obey orders given to him by a superior officer, or to absent himself from or to refuse, neglect or omit to perform any of his duties, or to commit any other act or dereliction of duty."

There is no amendment down to that paragraph (e). That may be a sin of omission on the part of the Senator who moved this amendment to paragraph (f).

I am dealing with the Civil Service at the moment.

That is a valuable admission from the Senator. They are different, to a degree, but I would have thought that the Senator would be as warm a champion of the rights of the police to strike as the rights of the civil servants.

The Senator says he is not. Well, so far so good. We come then to the civil servants. There are reasons, of course, why the right of policemen to strike has always been denied and refused by executive governments. These reasons do not exist any more forcibly in the case of police than in the case of civil servants. In fact, a Government could be more effectively paralysed and destroyed by a strike of a certain section of civil servants than by the cessation of duty by a part of its police force. Take, for instance, the revenue branch, the collection of taxes. Let it cease for a month or a couple of months and the entire credit of the State is destroyed and undermined. The Senator seeks to put on the prosecution, as it were, the onus of proving that all this was done with a particular motive, that we were to worry about the motive and not the result or the effect. That scarcely is practical politics. It seems, to my mind, a rather academic way of approaching the thing. I think it is our duty to worry far more about the effects than about the motive, and that is certainly the mentality of the Executive Council upon the matter.

The Senator says unless you can prove in court that the person or persons who initiated this state of affairs did so from some deep-seated malevolence to the State, and with a very settled determination to bring about its extinction, then there is nothing wrong. It is all right; you need not worry. But we have to worry about these things, and about the results, far more than about the motives of the well-meaning people who started the game. Now, it is simply by accident that I come up against this question of the sacred and indefeasable rights of the Civil Service to withdraw its labour, casually, at any time, and to return whenever it chooses. It is not primarily my problem, or, as the slang phrase goes, "my funeral." It is rather that of the Minister for Finance. But I did find in drafting a Bill that purports to deal with the possible challenge to the State and with the safety of the State fabric, it was necessary to provide against this modern method of challenging the State and reducing it to impotence, namely, the undermining of its Civil Service, and consequently in doing that I have walked upon Senator O'Farrell's corns and must take the consequences. The Civil Service, the Senator says, is different from the Army. We call a strike there a mutiny and deal with it accordingly. Then it is different from the police? It is: but it occupies an intermediate position between these two State forces in ordinary industrial labour. Senator McLoughlin pointed out that the civil servants had very special conditions, very special hours, pension rights, a particular tenure, and so on, and that they have all these things and accepted these things knowing that the Government does not admit their right to withdraw their labour casually, and return to duty whenever they so please. But they have the right to resign.

I never said that.

But in the Dáil we were told that the non-recognition of the right to strike was a return to slavery. It is not a return to slavery as long as the right to resign is there. The fact is, that what is asked is, that if at any time, and from time to time, and for any reasons, because you really cannot get just down to the question of proving the reason, the Civil Service or any branch of it may walk out, may remain out, and may return when they so please. Now, I ask Senators to visualise calmly the situation that would be created by such a state of affairs.

The Civil Service would become the real masters of this country. You know the danger that practically every State, at some time of its development, has to face, of the army not finding its proper level in the scheme of things, the army purporting to lead the people politically rather than serving the people militarily. We had a certain amount of infantile trouble of that kind in this State; but take the situation here.

The Civil Service would hold the Government in the hollow of its hand if there was recognition of their right to casually withdraw their labour at any time and return when they so choose. That would be the real Prætorian Guard. The absence of land mines and grenades would be no disadvantage to them for practical purposes. They would have a power greater than soldiers ever wielded; a political power greater and more effective than was ever wielded by any Prætorian Guard. I think it is from considerations of that kind that the Minister for Finance, in his wisdom, and the Executive Council in its wisdom, have, from the start, from the days of our infancy, from the time of the Provisional Government, when we were challenged from so many quarters, refused to make any concessions along these lines. I only come across it now by accident, as I say, but meeting it in this way in this particular sub-section and paragraph of this Bill, I can only present the same front to it which we have presented consistently from September, 1922, when we were challenged in the first week of the Provisional Parliament's existence, when we were engaged in drafting the Constitution.

It has been claimed at any rate by one supporter of the amendment that the Senate is only asked to agree to assert the right of civil servants in certain circumstances to strike. I do not think as a matter of fact that that would be the effect of the amendment.

I must protest. I do not think that that is the position of the Senator who moved the amendment at all. Nobody on his part has claimed the right of strike for civil servants. That was introduced by other people.

The Senator, in any case, took my words from my mouth. I thought it was stated. The position is this:—The Bill endeavours to prevent persons inciting civil servants to discontinue their duties, and inciting them to leave the Civil Service in special circumstances.

The amendment says that you may incite, if you say at the same time that it is not in furtherance of a plan to overthrow the Government. It seems to me that we cannot support that amendment, particularly in that form. The whole question of striking, or the possible rights of striking of civil servants over their regulations or the conditions on which they may resign, or agitate for the improvement of their conditions, requires to be thought out by some Government in the near future. If the Senator suggested that that should be dealt with in a separate Bill I would have a good deal of sympathy with him, as I think it is unfortunate that it comes into this Bill at all. I would not, however, be prepared to support the amendment, as I am strongly of opinion that we cannot allow the same conditions of agitation amongst civil servants as those which the State may permit in ordinary occupations. What exactly the Civil Service embraces I do not know. I am told by some persons that it embraces charwomen in the Post Office. If it does, some distinction should be made between people who do not get the same advantages and who are not in the same position as those whom we generally describe as being in the Civil Service. So far as civil servants upon whom the State depends for its civil duties are concerned, I do not think that they should have the right to strike, or that agitation should take place amongst them, but I agree that they should have opportunities for putting forward any improvements they wish to suggest. I do not think, however, that we should agree that any person could go and incite them to leave their duty.

I would like to point out that the Minister is absolutely ignoring the fact that we are not discussing the right to strike, but we are separating one question from another, namely, the political against the industrial strike. Senator Douglas agrees with that, but at the same time discusses the merits of the right to strike. The Minister talks as if we do not know what is happening all round us. If the Civil Service is the pampered service it is said to be, it is very unlikely that civil servants will allow themselves to be dragged out on strike, but the language used in regard to civil servants on the part of the Minister and others is calculated to make them have anything but respect for the Oireachtas. No employer would talk about his employees as the Minister talks about civil servants. I wonder if there are such fat jobs in the Civil Service as he suggests? That, however, is a matter for the appropriate Minister to regulate. Language is used here calculated to create resentment and strife. Perhaps if there is one thing calculated to create disloyalty it is the speeches made here.

I agree with the Senator. I heard several speeches from him abundantly calculated to create discontent and disloyalty amongst civil servants. Having said so much, let me say that I did deal with the Senator's amendment, even as he put it forward himself, on these lines, that it is the result and not the motive that one has to advert to chiefly. But to state that civil servants may be incited, as in effect the amendment says, to refuse, neglect or perform their duties, provided that the person so inciting them has excellent motives, is to state something to which we cannot subscribe. Besides the question of motive would be one that would be almost impossible for a prosecution to deal with. Let citizen A, B, C, or D proceed to incite a particular branch of the civil service to withdraw its labour, and I defy a prosecution to prove in court that he did that with the motive of destroying the State. The result would be pretty much the same, whatever the motive. Consequently it is rather too fine a distinction to attempt to put in watertight compartments incitement of this kind with the excellent motive, perhaps, of fortifying the State and, perhaps, the same kind of incitement with the motive of destroying it. You simply have to deal with the thing in a plain way, as is proposed by the sub-section, and to say that to so incite the Civil Service is an illegality and an offence, and you proceed to prescribe appropriate penalties for that offence; but to attempt at all to enter into the academic region of motive would be equivalent to a deletion of the sub-section. It would be a skilful way of moving its deletion, as it would render the sub-section nugatory.

Amendment put and negatived.

SECTION 5.

Every person who takes part in any proceedings of any assembly or body (other than the Oireachtas or either House thereof) which claims, purports, proposes, or attempts to take upon itself, or does take upon itself, all or any of the powers and functions of the Oireachtas or of either House thereof shall be guilty of a misdemeanour and shall be liable on conviction thereof to a fine not exceeding five hundred pounds or, at the discretion of the Court, to imprisonment with or without hard labour for any term not exceeding two years or to both such fine and such imprisonment.

I beg to move:—

"To delete in lines 4 and 5 the words ‘powers and functions' and to substitute therefor the words ‘legislative and executive powers.'"

I am proposing this amendment, although I am not well acquainted with the law in the matter, and shall be glad of advice with regard to it. The powers and functions of the Oireachtas are practically omnipotent. There is nothing the Oireachtas cannot do. It can manage Shannon schemes, make canals, and do thousands of other things, so that if any person undertakes any of the powers of the Oireachtas he is at once condemned to two years' imprisonment. I do not want to limit the matter. I think I understand what the object is and I am not at all opposed to it, but I suggest that the words should be changed. Executive powers go very far indeed. I am not able to put a limit on what is really meant, but I think a better interpretation would be the words that I have put down.

There may be a point in the Senator's criticism that the words "all or any of the powers and functions of the Oireachtas or of either House" are too broad there, and in that connection I would be prepared to go into the matter closely and to discuss it with the Parliamentary draftsman. I would not wish, certainly not just now, to accept the Senator's amendment, because in the Bill as it stands I think the expression "powers and functions" is better than the words "legislative and executive powers." The Oireachtas, in fact, does not exercise executive powers, and that would be rather a misnomer there. I will see whether, in fact, there is any valid objection to the Bill as it stands and whether the words there are too broad and too general, and I will deal with the matter on Report Stage.

AN CATHAOIRLEACH

I think the Minister's criticism in regard to the word "executive" is right. I think "administrative" would be a better word. However, the Minister has promised to look into it and to deal with it on Report Stage.

I am satisfied.

Amendment, by leave, withdrawn.
SECTION 7.
(1) Save as authorised by an Executive Minister under this section, and subject to the exceptions hereinafter mentioned, it shall not be lawful for any assembly of persons to practise or to train or drill themselves in or be trained or drilled in the use of arms or the performance of military exercises, evolutions, or manoeuvres, nor for any persons to meet together or assemble for the purpose of so practising or training or drilling or being trained or drilled.
(2) An Executive Minister may at his discretion by order, subject to such limitations, qualifications and conditions as he shall think fit to impose and shall express in the order, authorise any organisation, association, or other body of persons corporate or unincorporate to meet together and do such one or more of the following things as shall be specified in this order, that is to say, to practice or train or drill themselves in or be trained or drilled in the use of arms or the performance of military exercises, evolutions, or manoeuvres.
(3) If any person is present at or takes part in or gives instruction to or trains or drills an assembly of persons who without or otherwise than in accordance with an authorisation granted by an Executive Minister under this section practise, or train or drill themselves in, or are trained or drilled in the use of arms or the performance of any military exercise, evolution, or manoeuvre or who without or otherwise than in accordance with such authorisation have assembled or met together for the purpose of so practising, or training or drilling or being trained or drilled, such person shall be guilty of felony and on conviction thereof shall be liable to a fine not exceeding five hundred pounds or, at the discretion of the court, to suffer penal servitude for any term not exceeding seven years or imprisonment with or without hard labour for any term not exceeding two years, or to both such fine and penal servitude or imprisonment.
(4) This section shall not apply to any assembly of members of any military or police force lawfully maintained by the Government of Saorstát Eireann.
(5) In any prosecution under this section the burden of proof that any act was authorised under this section shall lie on the person prosecuted.

I beg to move:—

Section 7, sub-section (2). To delete the words "An Executive Minister" in line 30, and to substitute therefor the words "The Minister for Defence."

This is the first Bill that I have seen in which it is laid down that any Executive Minister can do as he likes. My suggestion is that it is a military affair and that therefore the Minister for Defence is the proper person to do it. It may perhaps be urged that in schools the Minister for Education should do it, but, on the whole, it seems to me it is better to specify one Minister and give him certain powers to do it. It is not very important.

"An Executive Minister" is simply a turn of phrase which the Senator will have met in previous Bills. It is simply a drafting formula to denote that the Act is an Act of collective responsibility. In fact, it will be performed by some one member of the Executive Council, but should occasion arise in his absence through illness or otherwise, it could be performed by some other Minister. The probability is that under the Bill the Minister responsible for general order in the country would issue these certificates. The certificates in question will probably be issued or not issued, as the case may be, by the Minister for Justice, and that is probably administratively the most convenient course. Take it that an application comes in. The necessary inquiries in regard to that application will be made through the police sources, and it would be for the Minister responsible for the police to satisfy himself on the point. He will probably, in practice, issue or not issue these certificates rather than the Minister for Defence. That turn of phrase "an Executive Minister" is rather a favourite drafting formula and it does not mean more than that the Act is an Act of collective responsibility.

I do not press the amendment.

Amendment, by leave, withdrawn.

I beg to move:—

Section 7, sub-section (3). To delete in lines 50-51 the words "Penal servitude for any term not exceeding 7 years, or,"

I think this is a very excessive maximum. It is a very excessive punishment for drilling. The seriousness of the act depends a great deal, of course, on what the object of the drilling is or on the particular circumstances of it. School children may drill. Children on the streets are seen drilling very often. As other Senators remarked, we seem to be obsessed because of things that have happened lately, to make severe penalties for certain things which otherwise we would not think of punishing. These penalties were severe in Ireland years ago, but times have very much changed, and they were dropped. I do not see why they should be revived. I am not objecting to some penalties and punishments, but these are quite excessive under the circumstances. The sub-section would render children and all sorts of people who engage in physical exercises and Swedish drill liable to these punishments. I think a much lesser penalty should be provided.

I hope that the Senator will not press this amendment, because one thing clear is that the penalties are left to the discretion of the judge. If you have any penalties which are minimum, then you must of necessity allow a considerable margin between them and the maximum, and when you have a number of offences created, the maximum must be higher. I understand that for some of the offences as small a penalty as a fine of one penny can be imposed, and if that is the case, it would be much better to allow the section to go through as it is.

That, of course, is the case.

I do not know whether it is very desirable either to allow a judge to cut off a person's head or fine him one penny for such an offence. I think it is rather absurd. I do not think it is adopted in the case of any other crime; it is generally laid down what the maximum penalty is.

Amendment, by leave, withdrawn.

AN CATHAOIRLEACH

That also rules out amendment No. 17.

SECTION 8.

(1) Every person who shall—

(a) form, organise, promote, or maintain any secret society amongst or consisting of or including members of any military or police force lawfully maintained by the Government of Saorstát Eireann, or

(b) attempt to form, organise, promote, or maintain any such secret society, or

(c) take part, assist, or be concerned in any way in the formation, organisation, promotion, management or maintenance of any such society, or

(d) induce, solicit, or assist any member of a military or police force lawfully maintained by the Government of Saorstát Eireann to join any secret society whatsoever,

shall be guilty of a misdemeanour and shall be liable on conviction thereof to suffer penal servitude for any term not exceeding five years or imprisonment with or without hard labour for any term not exceeding two years.

(2) In this section the expression "secret society" means an association, society, or other body the members of which are required by the regulations thereof to take or enter into, or do in fact take or enter into, an oath, affirmation or declaration not to disclose the proceedings or some part of the proceedings of the association, society or body.

I beg to move:

Section 8, sub-section (1). To delete lines 63-65.

This section refers to secret societies and I am in accord with it. I object to secret societies. I think they are a great nuisance in any country. Not only do they cause revolution but they cause a great many other troubles as well. Certain secret societies take up their own friends and relations or members of their society and put them into jobs. That is notorious. I think the practice exists and has existed for a long time. My suggestion is that all secret societies should be banned altogether, either in the Army or out of it. I think that that is most desirable. I know a great many people who would be glad to see that done whether these societies are the Orange Society, the Freemasons, or the Hibernian Societies. They are all more or less secret, and I think you can take them all in the one category.

The proposal of the Senator would be something beyond the scope of the Bill. This Bill does not purport to be mere social legislation for the promotion of better conditions in the country. It purports to be, and I have endeavoured to keep it, a Bill for the defence and preservation of the State fabric. Along that line, and keeping that in mind, I believe that we have gone as far as is necessary when we ruled out the possibility of members of the army or police forces belonging to such societies, and when we direct against the general public the prohibition which might be summed up in the words, "Hands off the army and the police." I have been urged in the Dáil by some Deputies to go further, or as far as Senator Colonel Moore suggests, and introduce either by way of amendment to this Bill or otherwise, legislation which would prohibit secret societies absolutely. Other Deputies favour an amendment which would include within the scope of the Bill a prohibition on the Civil Service, the judiciary, and so on. There may be much to be said for and against what the Senator suggests, that there ought to be absolute prohibition of secret societies.

For the moment I simply take my stand on this, that it is unnecessary and beyond the scope of the Bill. In my view there is no such situation in the country which calls for that kind of legislation. The State's existence is not menaced or challenged by such societies to the best of my knowledge, and, if at any time we believe it is, we would not be slow to draw the attention of the Dáil and Seanad to that fact and ask for appropriate powers and appropriate prohibition. I have, recently been presented with a dictionary of secret societies. Deputy Esmonde, on returning from his travels, brought me home as a present a dictionary of secret societies, and I notice that there are some 10,000 of them in existence, many with very quaint names. I do not know how many of these exist within the jurisdiction of the State, but they are not particularly turbulent or particularly in evidence. For a period of office of two or three years I have had no indication that there is a situation in the country which calls for the absolute flat prohibition which Senator Moore desires. If I thought there was any such situation I would certainly ask the necessary powers to deal with it. I believe the State is adequately preserved by the provision that members of the army and members of the police forces must have no connection with any such societies, and that members of the outside public must not attempt to interfere with the army or police forces in any such direction.

Amendment, by leave, withdrawn.
Question—"That Section 9 stand part of the Bill"—put and agreed to.
Sections 10 and 11 and the Title ordered to stand part of the Bill.
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