The first business on the Order Paper is the Report of the Special Committee appointed to consider and report on the Rules of Court. The House will notice that these rules deal with three separate departments, namely, the High Court and Supreme Court, the Circuit Court and the District Court. The first motion in reference to the report is that standing in the name of Senator Brown. I would suggest that the wording of that motion be slightly altered, and that instead of the word "adopted," the word "received" be inserted, because I do not want to prejudice the position of any Senator who wishes to move an amendment. Therefore, I think it wiser to put it in that form.
HIGH COURT AND SUPREME COURT RULES.
CATHAOIRLEACH
I adopt the suggestion which you have made, sir, and I therefore move:—
"That the Report of the Special Committee appointed to consider and report on the Rules of Court, in so far as it relates to the Rules of the High Court and Supreme Court, be received and that the rules as presented be approved."
We are dealing only with the Rules of the Supreme Court and the High Court in this particular resolution. The rules which have been made by the Minister for the Supreme Court and the High Court are entirely satisfactory, with one small exception, which is really necessary because of the altered form of the originating instrument. Formerly everything in the High Court was commenced by a writ of summons, or by an originating summons, and under the rules which come to us for our approval the form of these originating instruments has been slightly altered. The rules, as made by the Minister, practically adopt the entire old and well-tried procedure, and only in one small instance, where they make an improvement, have they been altered. The only alteration is in the service of the summons out of the jurisdiction. Under the old Judicature Rules you could not do that in the case of a tort committed in the jurisdiction, and the person who committed the tort living outside. This rule gives an opportunity of serving the summons outside the jurisdiction in cases like that.
I second the motion.
I move as an amendment:—
To insert before the word "received" the word "not" and to add at the end of the motion the words, "with the exception of Order 29, Rules 2, 3, and 5."
I wish to express my disapproval of the rules in regard to the Supreme Court and High Court because I am not satisfied that the status given to Irish is in accordance with our rights under Article 4 of the Constitution My contention is that this Order seeks to limit our rights and, even in that limited condition, it appears to rest on the hypothetical basis of having the Gaeltacht determined at some time or other by the Oireachtas. That may, or may never, happen and that, I think, is very unsatisfactory. I cannot understand why the rules made for the District Court and Circuit Court should not also apply to the High Court and Supreme Court. I consider that they are very satisfactory. In the District Court, either the national language or the English language may be used in proceedings. In the Circuit Court, proceedings in all criminal cases and in all civil actions shall be carried on in the national language of Saorstát Eireann or in the English language, and either language can be used at any stage of the proceedings. If the restriction sought to be put on Irish in these rules is due, as I suspect, to the very limited knowledge possessed by judges and officials of the national language it could be met in two ways. The Order could be deleted altogether and we could then fall back upon Article 4 of the Constitution, or similar rules to those for the District and Circuit Courts could be inserted and a time limit given for the carrying out of the full programme.
CATHAOIRLEACH
We have no Standing Orders regulating the procedure as to moving amendments in a matter like this, but I think we had better follow the practice in Committee on Bills and allow amendments to be moved without being seconded.
I regret that when we were dealing with these rules in Committee this matter escaped my notice and it was only afterwards that my attention was drawn to it. I feel that the rules as they stand inflict, to a certain extent, some sort of inferiority on the national language of the country. The Gaeltacht has not, so far, been defined, nor, I understand, can it be defined until the Gaeltacht Commission has issued its report. Under these circumstances, I think that these rules might well be withheld until such time as that Commission has reported. We would then know what the Gaeltacht is, what its requirements will be, and see whether these rules conflict with the rights of Irish under the Constitution.
To my mind, there would be no difficulty in the case of the Gaeltacht, for any person instituting proceedings to serve the initial summons in the language of the people of the district who are being compelled to appear before the court, for the consideration of claims. These rules make provision that in the Gaeltacht the originating summons apparently will be in English, which is an alternative language in the country and which, presumably, will not be the language of the people in that district. For that reason, the rules certainly tend to convey that the court considers that the proper language of the district is the English language. I think that particular suggestion underlying the rules, as far as my reading of it goes, tends to place the Irish language in a position of inferiority not dreamt of in the Constitution, because it is the language of the country under the Constitution. Would it not be very easy after the Gaeltacht is defined, that every summons issuing in the first instance in that district should be issued in Irish, that it should be translated by the official interpreter, that an originating summons be in Irish, and that where translations are not made by the plaintiff the translation should be made in the Central Office and served on people who do not understand Irish? These, I imagine, would be very few in the Gaeltacht. For these reasons, I beg to second Senator Mrs. Costello's amendment that these rules be not accepted at the moment. There is no immediate necessity for them. The Gaeltacht has not been defined and I take it that before we meet again the Rule-making Authority will have had time to consider the matter from a broader aspect and, viewing it in that way, they will have come to a conclusion such as is suggested by Senator Mrs. Costello and such as I would like to give my support to, that is to say, that in the Gaeltacht the Irish language should be the language used in an originating summons and that where translation is required, the translation should be made in the Central Office.
I beg to support the amendment. When reference is made in these rules to the Gaeltacht, it follows that the rules should not be applied until the Gaeltacht is defined and until the Commission appointed for that purpose has concluded its findings. It goes without saying that these rules should only be applied when the Gaeltacht is defined. When it is defined, certainly if we are to be consistent with our previous actions when similar matters were brought forward in the Seanad under the court system, such as the appointment of Irish-speaking judges and officials in the Gaeltacht— which action has been given effect to as far as possible since by the Government—I think it is only reasonable to ask that in the Gaeltacht, where the dominating common language is Irish, precedence should be given to the Irish language in the case of all court forms issued in that district. They should certainly be issued in Irish, and the wording of the rules should be altered so that that can be done and that the document may be accompanied by a translation. All objections would be overcome if we followed the practice that is followed in the case of the official record of our proceedings. We find that most of these records are both in English and Irish. They are bound to be by the Articles of the Constitution. I venture to say that very few Senators ever cast their eyes over the Irish portions, and if they did, they would not know what they meant.
More shame for them.
I do not blame them for that. Some people are not of a linguistic turn and they may not, even after years of arduous study, be able to acquire a fluent or even a nodding acquaintance with the language, whereas others with a linguistic faculty may acquire the language much more easily. The Government in all other matters has given due weight to the meaning and the spirit of the clause in the Constitution that refers to our language. Here in a matter that affects the dispensation of justice and may affect human life—human life may be in the hazard—the very people who are so concerned in these grave issues of justice, are to be sent a notice to comply with certain procedure and forms in a language that they will not understand. There is only a casual reference to the fact that such notice may be accompanied by a translation. Unless we are to be retrogressive, we are bound to conform these rules to the actions and the procedure we have already adopted.
Exception is taken in particular to Rules 2 and 3 of Order 29. Rule 2 reads: "All summonses and notices to be served personally in the Gaeltacht, if in the English language may be accompanied by a translation thereof in Irish, and if not so accompanied shall be translated into Irish by one of the interpreters attached to the Central Office, and the parties serving such summons or notice shall be bound to serve the Irish version along with the English original of the document in question." The idea underlying that rule is that in the Gaeltacht or Irish-speaking portion of the country people brought to law should be summoned in the language which they habitually use and understand. On the other hand, there is in the rules recognition of the fact that a plaintiff, either in the Gaeltacht itself or outside it, may have no knowledge of Irish, and that his solicitor may have no knowledge of Irish. To deal with that situation the rule provides that if the plaintiff himself does not voluntarily provide an Irish version, either by way of original or as a translation, for service in the Gaeltacht, then in the interests of a prospective Irish-speaking defendant the document must be translated. There is no option about that. The document must be translated in the Central Office so as to ensure that the defendant will at least have a document in the language which he habitually uses. There does not seem to me to be anything unfair about that rule. The rule does not seem to contain any implication of hostility, contempt or indifference to the national language. I ask Senators, as I asked Deputies in the Dáil, to remember that these rules are not brought forward by way of propaganda, whether linguistic or political. They simply purport to be a code of rules for the administrative convenience of litigants, their professional representatives and the judges of the courts. They are based on an appreciation of the position as it now is, as we know it to be, and I put it to Senators that when you are considering the position with regard to the use of language in the administration of justice, you have got to take as practically a fundamental factor in your survey the practising and trained lawyer. There is not anything to be gained by ignoring the fact that whereas every practising lawyer in this State to-day knows and can understand English, I doubt if there is one who knows and uses the Irish language, and knows that only. Therein lies the explanation of such difference as there is between Rule 2, which deals with the Gealtacht, and Rule 3, which deals with the entire Saorstát—Gaeltacht and Galltacht.
Passing to Rule 3, which deals with the whole Saorstát—that is not the Gaeltacht alone as in Rule 2, but the Galltacht and all the rest of the area of the jurisdiction of the State—the underlying idea of that is precisely the same as the idea underlying Rule 2. It is recognised that a defendant may have no knowledge of Irish whatsoever, but if the plaintiff chooses to initiate his proceedings in Irish he must not be prevented from doing so. In the interests of a prospective defendant he may provide an English translation, and if he does not provide an English translation of his initiating document in Irish, then the translation must be done in the Central Office. Now it may be contended, and in fact has been contended, that Rule 3, in dealing with the whole Saorstát is not the precise opposite of Rule 2, which deals with the Gaeltacht only. I will be told that Rule 3 should be limited to the area of the State outside the Gaeltacht, which would mean that if a document were served in Irish in the Gaeltacht no English translation would be necessary. There is substantial realism, if I may say so, underlying the distinction. The Committee which drafted these rules in the first instance, and I, who have adopted them, recognise that English is, in fact, widely known and generally spoken in the country, and that even in the Gaeltacht there will be found people who know no Irish whatsoever, whereas it is difficult to imagine a person outside the Gaeltacht and in the Galltacht who knows no English.
The point is that no practising lawyer, as I have said, in the whole Saorstát is in this position, that he knows Irish perfectly and knows practically no English at all. No matter how much we may pretend to be independent of trained lawyers, the fact is that when we have the misfortune to indulge in litigation we are dependent on them, and these rules are based and have had to be based on a recognition of the position with regard to language as it affects the practising lawyer, on whom we depend when we enter into litigation. We have not ignored the fact that in the Gaeltacht itself, quite within the Gaeltacht itself, very many solicitors have been practising for a lifetime without any knowledge of Irish. It will be apparent, therefore, that it is simply illusory to pretend that you can carry on all your law work, even within the Gaeltacht, in Irish. That position may come. If it does come, there will be a case for the alteration of the rules, but I am defending these rules on the position as we know it to be, not on the position that Senator Mrs. Costello, Senator Bennett, Senator Kenny, or myself, might wish it to be. On that realistic basis, and on an appreciation of the position with regard to the language that now exists, I stand over Order 29 and Rules 2 and 3, in particular, of Order 29. I am not satisfied that there rests in either or both of these orders anything that would justify the rejection of these rules by the Seanad.
I cannot appreciate the Minister's point of view or agree with the angle at which he looks at this whole question. Rule 2 reads that "All summonses and notices to be served personally in the Gaeltacht, if in the English language, may be accompanied by a translation thereof in Irish." In view of the fact that Irish in the dominating language in the Gaeltacht, should it not also be made a dominating factor, and would it not be fair and reasonable for us to make that rule read somewhat like this: "All summonses and notices to be served personally in the Gaeltacht, if in the Gaelic language, may be accompanied by a translation thereof in English."
Surely the present wording of the rule is better from the Senator's point of view than what he is now suggesting, because the present wording takes the document in the English language as rather an exception. "All summonses and notices to be served personally in the Gaeltacht, if in the English language"—the words, "if in the English language" seem to me to contain the implication that the normal there would be that they would be in the Irish language.
Quite so. We want the originating summonses in these documents to be served in the Gaeltacht in Irish, and let whatever qualifying clauses are necessary be introduced thereafter for the benefit of those in the Gaeltacht such as those solicitors who have been practising absolutely without their clients knowing what they are talking about. If they want translations, by all means let them have them, but the people primarily concerned on whom the summonses are served, and who are purely Irish speakers—and 97 per cent. of the Gaeltacht—are surely entitled to get their summonses in the language they understand. They are the first consideration. If solicitors for their own convenience want summonses interpreted they have the means at their disposal for getting them translated. I want the Minister to lay it down that summonses in the Gaeltacht, when defined, should be served in the Gaelic language and translations supplied to those who require them. In the Galltacht a similar rule could apply, and those who want translations into Irish can have them. The principle should be that the dominating language in any area should be the controlling factor in the matter.
I notice the Minister dealt fully with Rules 2 and 3, but he said nothing about Rule 5—that the expression Gaeltacht shall mean the geographical area comprising such districts of the Saorstát as shall be from time to time declared by the Oireachtas. Well, supposing this "time to time" never comes to pass, Rules 2 and 3 will not operate at all. I do not understand why the Minister did not say something about Rule 5, for it seems to the plain man unless the Oireachtas acts, Rules 2 and 3 will be nugatory for all time.
That will be an inducement to the Oireachtas to act.
I do not know why we should act. This is not a question of policy but of Rules of Court. If this matter is put to a division I shall certainly vote against.
I agree with the Minister that there is no insult or anything like that intended against the Irish language. I do not know whether the Central Office charges anything for translations.
No.
Then my contention falls to the ground. If they do that for nothing at all it is very kind of them. I might mention that there are people in important places who go to the High Court, and who have come from the other side of the water, and as for understanding Irish you might as well ask them to understand Chinese, and that is at the bottom of the whole thing—that these summonses, or whatever they are, in Irish must be translated, and as I understand, free of charge.
I do not see how we could adopt the suggestion of Senator Kenny without doing violence to Article 4 of the Constitution, which says that the English language shall be equally recognised as the official language. A summons or a document served under these rules is an official document, and, therefore, under the Constitution the English language being equally recognised with the Irish language as official, we are entitled to have the originating summons, or any other document you wish to serve, in English, and you would be violating the Constitution if you compelled the person in the originating document to have the Irish language only used.
CATHAOIRLEACH
In view of the change made in the amendment by omitting the word "adopted" and putting in the word "received," all that will be necessary for me to put is, that Rules 2, 3 and 5 of Order 29 be not approved.
Before putting the amendment, might I suggest that Senator Brown's argument would imply, as I infer from it, that even the Rules of Court, as worded, are a violation of Article 4 of the Constitution.
CATHAOIRLEACH
He intended it to be the other way.
The Minister has met the case, I think, very fairly, but he went outside the scope of the amendment. We were simply dealing with notices and summonses, but the Minister went on to describe the whole procedure of the courts, including pleadings and all that. Senator Mrs. Costello merely suggested that the necessity for these rules had not arisen, as the Gaeltacht had not been defined and that it would be advisable to defer the promulgation of these rules until such time as that definition had been made. When the actual area has been defined we will know the position better, and can say as to whether or not the rules as framed meet the case.
Amendment put.
The Seanad divided: Tá, 10; Níl, 17.
Tá.
- Thomas Westropp Bennett.
- Mrs. Eileen Costello.
- James Dillon.
- Sir Thomas Henry Esmonde.
- Thomas Foran.
- Patrick Williams Kenny.
- Francis MacGuinness.
- Bernard O'Rourke.
- William O'Sullivan.
- Thomas Toal.
Níl.
- William Barrington.
- Sir Edward Coey Bigger.
- Henry Givens Burgess.
- Samuel L. Brown.
- John C. Counihan.
- Countess of Desart.
- James Douglas.
- Sir Nugent Talbot Everard.
- Michael Fanning.
- Oliver St. John Gogarty.
- Henry Seymour Guinness.
- Benjamin Haughton.
- Major-General Sir William Hickie.
- Sir John Keane.
- General Sir Bryan Mahon.
- Earl of Mayo.
- Joseph O'Connor.
Amendment declared lost.
I move:—
To insert before the word "received" the word "not" and to add at the end of the motion the words "with the exception of Order 30, Rules 2 and 3."
This amendment is to delete that portion of the rules which prescribes the present robes and wigs of the Judges of the High Court and the Supreme Court. I move this, not because I desire to see the judges sitting in their courts in ordinary costume, but because I believe that the Government have in their possession very much finer designs than any that has come down to us. I am sorry that the Government have not found some means of making these designs known to this House, because the House has to vote on the subject. They might have been laid on the Table of the House. You are asked to vote in favour of designs without knowing what the alternative to these designs is. The only guidance that this House might perhaps possess is that new designs have been adopted for the District Court, and photographs of these designs have appeared in the papers.
CATHAOIRLEACH
That is not quite accurate. We had better be accurate about this. That has to be done by Rules of Court and I notice that the District Court Rules omit any reference to it. They cannot adopt any costume they like, but only in accordance with the Rules of Court. They have not framed any Rules of Court for such a purpose.
They have not adopted any costumes, but we have seen the costumes that have been reproduced. They are certainly very dignified and very simple. They are, I think, more dignified and more simple than any costumes worn in any magistrates' courts in these islands. The robes were designed by a celebrated Irish artist, Sir Charles Shannon, and the cap was designed at the Dun Emer Works, and admirably designed. However, in the circumstances I cannot ask you to vote in favour of other designs, because I cannot put the designs before you. But I suggest if you reject the present robes and wigs, the Government will have to lay before you new designs by somebody, and then we will know whether or not we will have a better type. When you think over the present costume, that great grey wig and that gown, if you try to see it without historical associations, is it not something incredibly fantastic? Is it not something essentially preposterous? Of course, I admit that historical associations and tradition can endear anything; I will admit that the judge's wig is endeared to me by historic associations and tradition. Historical traditions have endeared the small foot of the Chinese woman, have endeared the nose-ring. I admit that I find it very difficult to realise how preposterous the judge's wig is. I am in the position of some man in China who finds it impossible to realise the preposterousness of the small foot, but it is so. Historical associations are great things. I do not think we should lightly put them aside, even when we endear something which is, in itself, without dignity or honour. Historical associations give honour and they give dignity.
But this country has passed through one of those crises which all countries have made the occasion of a new act of energy for the creation of tradition. No country that I know, after a revolution such as we have gone through, has been content to take without examination the traditions of the past, and I cannot imagine any place where innovation is more necessary than in the outward image of the law. One of the greatest arguments with which we have been familiar for generations in favour of the self-government of this country, was that the law as practised here was regarded by great numbers of people as something inherently alien. We all want the people to realise that the law is now their own creation, their own instrument, and any external change which marks that fact will in some degree—I will not say in a great degree—help the people to understand that the judges are their own judges and not judges imposed upon them from without. I speak especially of the judges. I think the case of the barristers is somewhat different. They are not paid out of public money. They are a free corporation. I should be prepared to leave the barristers to time and to public opinion. But the Government cannot put aside responsibility for the judges, because the judges are paid with Government money, and—always provided, remember, that they possess better designs, designs inherently of greater dignity and of greater nobility than those in present use—I can see every reason for the adoption of these designs, and I can see no sufficient case against the adoption. The designs for the Supreme Court and for the High Court which the Government possess are, in my belief, designs of great dignity, great beauty and simplicity. They would do honour to any country, and in adopting them this country would do as well as the Vatican did when it permitted Michael Angelo to set aside one does not know what historical traditions, and to design the costumes of the Papal Guards.
I am afraid I shall not be able to deal with this matter with the same scholarship and in the same eloquent language as that used by Senator Yeats, but as a plain man, I should like to make certain observations upon this proposal. I think we should be very cautious, and should have very good reasons before we break with tradition.
English tradition?
Yes, English tradition. I am not ashamed to say English tradition. It is the tradition which the people have grown accustomed to. I notice that we naturally gravitate towards tradition. Let us look at all the observances and all the procedure of the two Houses of the Oireachtas. Except with the occasional appearance of the Irish language on special occasions and in official records, I venture to say our procedure is being moulded, not unnaturally, but perhaps unconsciously, on the traditions of the British Parliament. That has been our spontaneous line of development, and I think we have been doing very well, and we may claim that a good deal of the dignity of our proceedings and the efficiency of our work is due to it. If our tradition and our nature were different, why have they not manifested themselves, and why has not the change which marks revolution been marked also in the form of our procedure? In the same way, in the more prosaic matters of finance and administration we are following British administration as the line of spontaneous and natural development. I do not see why we should do violence to tradition in respect to the costume of our judges. The Senator referred to the present head-dress of our judges as preposterous, but I can conceive great practical value in that head-dress. I was looking up literary references as to what I believe is the proposed new head-dress known as the biretta. I have not much knowledge of the biretta, but I find a reference to it in the Athenæum in these words: "a person described as with a black shock of hair emerging or appearing under his red biretta." I can conceive nothing more inartistic than that, because hair may not be always black, it may be sometimes grey or brown, it may be long or short, or a person may have no hair. Moreover, we may now have ladies joining the legal profession. I see nothing in the ordinary course of development to prevent ladies rising to seats upon the Bench. Ladies have a great variety of head-dress which would also contrast in a very incongruous manner with such a close-fitting ornament as the biretta.
The wig has the virtue of uniformity and covers up all these imperfections of the flesh and gives very dignified results. You get uniformity. That is for what it is worth. When we go further into the matter I confess I was interested in the quarter from which this proposal came. My memory at once went back to a recent speech delivered by Senator Yeats in this House on the subject of the Lane pictures, when he used these words: "You will forgive me if I forget that I am occasionally a politician and remember that I am always a man of letters, and speak less diplomatically and with less respect for institutions and great names than is, perhaps, usual in public life." Following up that trend of thought I remember certain verses of the Senator's in which his words seem to me rather inconsistent with the remarks that I have just quoted. He writes:
"All things can tempt me from this craft of verse;
One time it was a woman's face, or worse—
The seeming needs of my fool-driven land."
What is the date?
I do not know.
It is all-important.
I admit that I never want to tax anybody with inconsistency, especially a politician, because if we remain consistent politicians we lose all power of reasoning and would pronounce ourselves impervious to argument—a position which none of us want. When we look into this I think we have a responsibility in the matter. This thing cannot be determined, I feel, by the mere wish of a small group of individuals.
We must either try to satisfy ourselves as to what the wishes of the people are, or, if we are unable, we must examine the more narrow wishes of the profession affected. If you cannot satisfy yourself on that, what have you to expect? I refuse to believe that the people are interested one way or another. I do not believe we have in any way a mandate to make a violent change from tradition in this respect. There has been no demand as far as one knows in the Press, through associations or through local bodies that are very vocal when they feel strongly on a matter.
I have not seen these designs. I understand they are designed by an Irish artist. He was an artist and he left Ireland for his own good. He left Ireland because it did not afford the same economic and professional opportunities as other more wealthy countries. He has returned to us in this matter. I do not wish to quarrel with him on that account. If we are satisfied that there is no popular demand for this change, what do we find among the profession itself? I understand the overwhelming majority do not want a change, and I think that should weigh with us very heavily. I think you have no right here, for reasons of national sentiment or whatever you like to call it, to over-ride the wishes of the profession in this matter without getting a definite mandate from the people. That being so, I claim that, in the meantime, custom and tradition, which are most valuable assets, especially when they seem to be of a natural growth amongst us, should be preserved. There is nothing more reactionary than change for change's sake, especially when the change is not asked for, and the actual proposal is not artistic.
There is another consideration. In its origin the costume of the Bar and the Bench bore a close relation to the dress of the clerics. Those two professions have been gradually widening down the ages; we, too, feel that there should be a marked division even among the outward forms of the Church and the Judiciary. I am assuming—I may be wrong. If I am told I am wrong I shall not pursue the argument any further, but I am told— that the new head-dress is to be the biretta. That will bring close together the outward association between the Church and the Judiciary which had been widening steadily down the ages. We find full justification in verses written by the Senator himself:
"How but in custom and in ceremony
Are innocence and beauty born?
Ceremony's a name for the rich horn
And Custom for the spreading laurel tree."
If I understand that rightly, the rich horn is that of plenty which we all desire, and the laurel tree is that of fame to which we aspire.
In spite of Senator Sir John Keane's protest against these proposed rules, the subject is not trivial. It is not one of those things which matter very little one way or another. The important things in the country are often the little things, like the flag, for instance, which are of the utmost importance—more important than words can express, because they are the spiritual and symbolic things. The costume of our lawgivers is one of those little important, significant things. It is important to us because by it we are to judge whether the old régime of law, which meant misery and oppression to this country for many centuries, is at an end or is not at an end. We want to see a change of heart accompanied by a change of costume. Who can tell the thousands of our fellow-countrymen who faced the wig and gown before being condemned to death, transportation, or penal servitude, for political offences in the old evil days? One would expect from a learned and great profession, to say the least of it, a little good taste in this matter and not a wish to perpetuate the association of the wig and gown, inevitable in the Irish mind, with injustice and place-hunting. The ingratiating barrister, the transporting judge —all were clothed in this ridiculous remnant of the 18th century. Senator Sir John Keane says the alternative is a biretta. There is no such thing. I have seen the drawing. The cap at present might be called a biretta if it were flattened out, starched and stiffened. It is a flat velvet cap which, without disguising a judge lends to him dignity and a little amount of beauty, things hitherto not associated in this country with the law. We are told to respect custom. But is custom to date only from the advent of the English into this country? There were customs and traditions in this country which preceded English law by about a thousand years. There were both humanity and equity. The Brehon Laws were more humane than the English laws and more equitable and humane than the Roman. In the treatment of prisoners they were equal to the most modern form of treatment as seen in Italy. There was no such thing as capital punishment under the Brehon Laws. They exceeded Italian laws in their commonsense. They made a malefactor work to compensate those who suffered.
Our tradition and custom should not be dated by the 18th century wig. A little knowledge shows that, with the advent of the 18th century wig and gown, coercion and reaction came. It made every barrister become persona grata with the people in power. That was quickly reflected through the country. We knew what the wig and gown stood for. Here we have a chance of using Irish material, using Irish designs, and embodying our lawgivers and barristers in something comely and, at any rate, something national. I do not wish to attribute motives to those who refuse to adopt this new costume, but I must make a statement about a certain mentality that is very rife in Dublin at present. I was accused by an eminent lawyer of wishing to raise trouble because I lamented that at the forthcoming international horse-jumping competition at the Horse Show the National Flag, not that it is artistic, would not be seen. He said: “Are you trying to raise trouble? You might prevent people coming from Belfast.” Are we, alone among the European nations, to deny our nationality and become nonentities in order to take the chance of a few people coming down from that suburb of Glasgow, Belfast, to the Horse Show?
From England as well.
There is the mentality of Upper Tooting, which may be called a dangerous mentality. And it is to get rid of that that I am making this protest. We have a chance of making the judges look as if the law were native law. The present law is really an adaptation of the very inhuman Roman law. It became far more inhuman when it got into England. It was only at the end of the 18th century that the English took their children out of the mines where they were slaving, working up to their waists in water. We must let our tradition have an outward show. Here is a chance of making it incumbent on judges to use Irish poplin. There is a great house for Irish poplin in Dublin, Atkinson's. It struggled on during the latter decades when people did not wear poplin. The poplin waistcoat is now gone, but let us bring in the poplin robe. In spite of the suggestion that a biretta is a clerical thing I want to disabuse the mind of the House. I have seen the excellent designs. The one for the Supreme Court consists of a black velvet cap. When on it gives the appearance of Cardinal Wolsey.
When we realise that the so-called conservatism of the barristers is associated with a little die-hard group it will be very useful if we extract that last fang through legislation. There are certain points d'appui where die-hards are burrowed. These are all key positions even though they seem small. The flag is one, and this costume of the law is another. Though it may have come on quite innocently it comes out of that subconscious and dangerous attitude to the spirit of this country and we must squash it. We have been tolerant long enough, and we have a good opportunity now to see who is with us. We can dispense with the Upper Tooting and Belfast mind. We did our best for Belfast. We should allow the law to appear in Irish garb made of Irish material with the assurance of added dignity. It will not be a fictitious dignity from the remnant of a forgotten and very frowsy century.
The effect of Senator Yeats's amendment would be to do away with Rules 2 and 3 of Order 30. The Senator began his speech by stating that he could not explain the design of the new costumes before the House, but the two Senators who followed, kindly did so. Senator Sir John Keane said that he believed that the new head-dress of the judges was a sort of biretta. Senator Gogarty went one better and said that it looked like a velvet cap. People who are not die-hards know exactly what our judges wear. The material of the new robe is to be of black Irish poplin. Senator Yeats's amendment would do away with Rules 2 and 3, and as a result the judges should wear a black robe of Irish poplin. Senator Yeats talked about historical associations, about honour and about dignity. He also talked about the small foot of the Chinese woman. I know something about that, as a nephew of mine who is a naval officer spent two years in that country. He told me that the small Chinese foot was invented by the mandarins, who did not wish their ladies to leave the precincts of their houses. These ladies were kept in these houses in many cases against their will. That is the explanation of the small foot of the Chinese woman, so that I do not think it is a very happy historical association.
Senator Gogarty said that a change of heart should be followed by a change of costume. I cannot follow that. I do not see how a person could change his heart by putting on a poplin robe or any other robe. All those who follow the profession of the law respect the judges, as they gain their positions by hard work, integrity and honour. Those who dwell in the British Isles in these civilised days and who did not live when the Brehons ruled have, by long custom, respected the judges with their wigs on their heads. A wig is a most becoming costume for the head, especially for a bald head. If a man has an intelligent and a fairly good-looking face, as can be seen in many pictures, the wig makes him appear a very good-looking man. All artists admit that. It is a becoming and a dignified headgear. This is not a question of policy. Surely those who follow the law might be allowed to wear on their heads the dress they like. Imagine being tried by a judge with a black velvet cap. I should at once associate myself, if I was on trial, with a criminal in the dock who was going to get the longest possible sentence. The feelings and the emotions of a judge who is wearing a wig are not disclosed. I think the first time that an innocent person appeared before a judge wearing a black cap he would say to himself, "This is the end of me. I may as well say my prayers at once." I shall certainly vote against Senator Yeats's amendment.
I rise to give my support to the amendment that has been proposed. This is a matter that has a distinct national bearing. So far as the kernel of the present discussion is concerned, all that we, as a nation and as a people, require to be assured us is the absolute dispensation of justice. It does not really matter whether the judge wears a wig or a gown, or a dressing gown; that does not in any way assure the person brought before the court. It is not a question of being influenced by apparel. The principal matter involved is that justice will be dispensed fairly.
I would like to correct a possible impression made by the remarks of Senator the Earl of Mayo in regard to the small foot of the Chinese woman. In China that is a characteristic of the nobility; a small foot is a symbol of nobility amongst Chinese women just the same as a long finger-nail on the left hand is a symbol of nobility on the part of a Chinese man. I have seen a Chinaman's finger-nails so long as to take the form of a corkscrew. How they preserve their nails in that fashion I do not know. I have seen a Chinese mandarin with finger-nails three and four inches in length. They are very particular about preserving that very unsightly mark of their nobility. The whole thing simply means that the Chinese woman with the small foot is differentiated from and segregated from the labouring classes. Similarly with the mandarin whose finger-nails are allowed to grow. It goes without saying that the woman with the clubbed foot and the man who has devoted the whole of his life to preserving his finger-nails cannot have done much labouring work.
To go back to the Brehon laws, the principles embodied in them are incorporated in the judicial systems of every civilised country. Any particular style of apparel designed at that time and in keeping with the dignity of the law and its administration should be good enough for us to-day. Changes have taken place in the interval through the alteration of the laws under an alien system. These changes were forced upon us and the costumes were adapted accordingly. I do not think any Irishman will stand up here to-day, consistently with his professions as an Irishman, and cast any reflection or ridicule on the costume that dignified the judges under the Brehon laws.
Senator Yeats is no doubt artistic in temperament. We heard him making the statement that the costumes now suggested and the head-gear now suggested are essentially an improvement from an artistic point of view upon our present style of dress. There is nothing contended otherwise. We are here to try to get away from all that the wig and gown, in relation to the dispensation of law in this country, are associated with. We are here to make a break-away, as it were. We are entitled to do that by the freedom which we have won. We are here to remedy what we considered wrong in the past and to do away with every symbol that would bring things of the past fresh to our memories. That is one of the objects of the amendment we are discussing.
Law is one thing; the administration of the law is another thing. We have never found fault with the laws of this country; if we have it was only in a relative sense. We have had very good reason to find fault with the administration of the laws. Even very good laws could be administered harshly amongst the people. There are many bitter memories and reminiscences, and I think it will have a very good effect on the nation as a whole, and particularly on people who seek justice in our courts, if we do what we can to obliterate them. In my opinion it will have a very good effect if people when they enter our courts are not met with the old trappings that they are so familiar with and which in their minds are not associated with the dispensation of justice but with the dispensation of laws sometimes misinterpreted and strained against them. When they enter these courts, as perforce they must, let it be in a different atmosphere, and that altered atmosphere will give them an assurance that the law will be dispensed in a way different from the past.
I am very strongly opposed to this amendment by Senator Yeats, for what are largely prosaic reasons. The Rule-making Committee who framed this rule consisted very largely of members of the Bench. Every member of the Bench—every member of the High Court and Supreme Court Bench—was a member of that Committee, and by an overwhelming majority of the judges of the two courts they framed this rule concerning the costume described in the rule. I am very strongly of opinion that where the great majority of the judges themselves have recommended this rule their decision ought not to be interfered with. They are the people who ought to have the decision as to how they are to be dressed. After all they are the people who have to work in these places, and surely they are the people whose opinion on a matter like this ought to be given due weight.
There is another reason for the wig and gown. The wig and gown are a sign, a mark, a very peculiar characteristic of our judiciary. I do not mean exclusively the Free State judiciary, but the judiciary in every country whose judicial system is founded on the English system. Our judges, unlike the judges in France and Germany and every Continental country I know of, are not officials. The judges in France and Germany are, and always have been, officials and have risen to the Bench as officials. Our judges never cease to be members of the Bar, and the wig and gown are a valuable mark of that characteristic of our Bench. They are still members of the Bar. Even when they reach the Bench they recognise that, and I myself would be very sorry if this mark of the intimate connection between the Bench and Bar of this country were to disappear.
Senator Gogarty has told you that the wig and gown in this country were associated with the oppression and the maladministration of the law in this country when we were not governing ourselves. They have another association than that. The wig and gown were the costume that was worn by O'Connell and Curran and by members of my profession who, in every generation, have stood up to defend personal liberty and liberty of speech in this country.
I have not very much to add to the discussion that has taken place. Rule 30 as it stands is a rule that was submitted to me by the majority of the Rule-making Committee—a very substantial majority, as Senator Brown has said. I did not see any sufficient reason to join issue with the Committee with regard to that rule. One felt here, in listening to the discussion, the truth of the tag, de gustibus non est disputandum. I think Senator Yeats with his high aesthetics, and Senator Keane with his crusted Toryism, and all the other contributions, have left us much where we were. You come back to the root fact that the men who have got to wear these costumes, the men who have got to practice daily in these courts—and I would put it as high as 95 per cent. of the legal profession, even of the barristers themselves —object to a change. The motto of the King's Inns nollumus mutari, seems to have prevailed in the matter, and neither I nor any member of the Government has a sufficiently strong feeling in this point to induce us to run counter to the wishes of the judges whom we ourselves have appointed, and 95 per cent of the practising barristers. As far as I am concerned, that is my position with regard to Rule 30. If there is to be a change, if a strong volume of opinion grows at the Bar in favour of an alteration in the costume, that would create a different situation. If judges who desire a change in the costume come along the costume then can be easily changed. But to set out in matters of this kind that judges or barristers are to conform to a costume which they do not wish and to deprive them of a costume which they apparently do wish to retain, is something that the Government was not prepared to enter on.
That position may be criticised. On the other hand, I suggest that it will be very widely understood and appreciated. There is really no question of national sentiment, as I see it, involved. There is certainly no question of principle involved. It is advisable that judges administering the law daily in the courts should have calm and easy minds, and if they feel they would not have calm and easy minds, in a costume other than that which they at present wear, well we must only accept it like that. The one definite view I have about the matter is that some form of costume is eminently desirable. The judge administering in mufti is an anomaly I do not like to contemplate. This is perhaps one of the last countries that could afford to dispense with ceremonial in the matter of the administration of its law. In the matter of the administration of the law I think it right and proper that there should be ceremonial, and that there should be a costume. That being so, the only question was whether there should be a change. We need not go into the alternatives. The alternatives are wide. It is true, I understand, that certain designs were put forward in a tentative way. I have not seen these designs. The first question was: "Was there to be a departure from the wig and gown as heretofore worn?" The Rule-making Committee, by an overwhelming majority, expressed their reluctance to any such departure. The Government accept that. I accept it. I did not attempt to interfere with Rule 30 in any way. If the Seanad wishes it can, of course, do that, but the Dáil has not done it. If you consider that there is a principle at stake which warrants your imposing on the judges of your High Court and Supreme Court a form of costume which they did not desire—if you consider that there is a principle at stake which demands that you should deprive them of the costume which they apparently desire to maintain, then this rule must be rejected. I do not recommend its rejection. On the contrary, I submit this rule to you with the others as rules that have come along to me from the Committee and which I do not see sufficient reason to alter.
I have been very much interested in the various rules that are put before us, and it occurred to me that the matter of the evolution of the judge's costume was properly intended to affect the public rather than that it should coincide with the æsthetic desire of the judges. That is really the point of view that I and others would take. If really the costume of the judge is designed not so much to impress himself but to impress the people who attend the court, then it is not, to my mind, the opinion of the judges themselves we should be considering in this matter of costume but the opinions of the people. It is not a question of whether the judges like the costume but whether the costume to be worn by the judge is likely to influence the people before whom the judge is acting and administering the law, and whether the design of dress will influence the people in their respect for the law or will give any weight to his decision because a certain costume A is better than a certain costume B. I do think that the argument could be used that as we in this country are a new country, the people will have sympathy with the design which they know is native to the country; they will have sympathy with a costume designed by an Irishman, the materials thereof being woven in the country, and the whole paraphernalia of the office connected intimately with the people. Whether that is likely to influence them more than a costume handed down to them as the supreme embodiment of a law which they did not respect is a matter for the consideration of the Seanad. Is the costume to be worn by the judge, as is suggested here, to embellish his personal appearance, or is it to be worn to give the people for whom the law is administered an impression of respect and, even, of awe? At any rate, I think the costume ought to be one which would influence the minds of the people, rather than conform with the æsthetic wishes of the judge. For that reason I support the amendment.
We have had an interesting, amusing, and, very largely, irrelevant discussion. I will endeavour not to add to the length of the discussion, so far as its irrelevancy is concerned. I think it is unwise and, in fact, a great mistake, if it be finally decided that the wig and gown should be retained, to suggest that in doing so you are suggesting to the people, or that there is any kind of support here for suggesting to them, that the laws administered are not the laws which the Oireachtas makes and are not Irish laws. I think that is a dangerous argument and I am sorry it should have been used. As to myself, I am not one of those who admire the wig and gown. They never appealed to me. I think that some of Senator Yeats's arguments are good, but I do not view the matter from the standpoint as to whether I like the wig and gown, or any other proposal, but from this standpoint, namely: we have here proposed Rules of Court as made by the responsible Committee; they have the sanction of the Government, and they have to be approved by both Houses. Is this the kind of matter in which the Seanad should interfere? I do not think so. My view is that, having been sanctioned by the Committee and having the support of the Government, this matter is not one of personal choice. If I believed, with some Senators, that this is a matter of importance, I should agree to take it on the lines of Senator Yeats, but I feel that it is not a matter in which we should interfere, and, for that reason, I shall not support the amendment.
I agree with Senator Douglas that this is not a question in which the House can usefully interfere, at all events, at present. What governs my opinion is the view taken by the gentlemen who preside over the courts, and by those who plead in the courts, and if I find the great majority of them, as I do, approving of the existing costume, it is quite sufficient reason for me for supporting them in their opinion. The question has been raised that any change in the dress of our judges and barristers would be an interference with a very ancient tradition. That argument has no weight with me. I do not suppose that the dress of our judges and lawyers could chronologically go back very far. It seems to me that the wigs worn in our courts are, more or less, of the type of the Williamite wig. If that kind of wig offends anybody it may be suggested that they might wear Jacobite wigs, which might, perhaps, be higher in front and longer in the tail. That is the amount of importance which I attach to the historic argument. I would like to see our judges differently attired, and our officials differently uniformed from those across the water; not that any change in dress is going to make any difference to our opinions or our natures, but it seems to me that it may be an illustration of the fact that we have, to a certain extent, come into our own at last. It may be that an artistic arrangement could be made of the dress of an Irish Brehon. I have seen gentlemen in such dress and they certainly were picturesque, but I do not know if that costume would suit draughty courts. The question, to my mind, is really not a serious issue in contradistinction to the fact that ninety-five per cent., as the Minister for Justice reminded us, of the gentlemen administering the law are desirous of retaining their present costume. That costume can always be changed.
There is no section of the community which is more closely in touch with the public opinion of the country—they perambulate round the country and they know the opinions and views of the people—than members of the legal profession. If the country desires to see its lawyers and judges habited differently, then these lawyers and judges would be the first to know it and they would be the first to move in the matter. At the present moment I think our laws are administered fairly and equitably by judges, habited as they are, and at the same time we have these judges and lawyers administering the laws we make ourselves.
If we assume for a moment that this is a desirable thing, that it is possible to put the judges into costumes that are appropriate to the country, do you think that a very old man, grown old in the use of quite a different costume, would ever accept the change? Never. Impossible. If the change is desirable— there is no way out of it—the change would have to be imposed on the judges. If I were an old judge, who wore a wig and gown all my life, I should hate to change it. I should be furious if any man proposed it, although it might be most desirable to make a change. It is not an unimportant thing we are discussing. If we were discussing here to-day whether the Supreme Court should meet in a very imposing building, or in a building which seemed to be unworthy of the nation, we would not think it unimportant to debate the question. I suggest to you that the question of the costume in which the judge gives his decision is of greater importance than the building in which he gives it. Are we to allow very old men, for whom we have the greatest respect, to settle the tradition of this country for centuries, because it will be for centuries if now at a time of revolution when we have a chance, we do not create a tradition. Now is our opportunity.
I thank Senator Sir John Keane for his appropriate and friendly quotations from myself. I would like to say that when I talked of this "fool-driven land"—a good many years ago now— I meant that it was fool-driven in certain matters—poetry and the theatre— matters in which I felt I had a greater right to an opinion than I have in politics. Senator Sir John Keane described how a certain judge's cap—a biretta he called it—looked very inappropriate, if worn by a red-haired or a brown-haired man. I would suggest to him that when you see red or brown hair coming from under a grey wig it looks still more inappropriate.
Amendment put. The Seanad divided: Tá, 12; Níl, 13.
Tá.
|
T.W. Bennett.Mrs. Costello.J.C. Counihan.Sir Thomas Esmonde.Michael Fanning.Thomas Foran. |
Dr. Gogarty.P.W. Kenny.B. O'Rourke.Dr. O'Sullivan.T. Toal.Dr. Yeats. |
Níl.
|
W. Barrington.Sir E. Biggar.H.G. Burgess.S.L. Brown.Countess of Desart.J. Douglas.Sir Nugent Everard. |
H.S. Guinness.B. Haughton.A. Jackson.Sir John Keane.Earl of Mayo.Joseph O'Connor. |
Amendment declared lost.
I have a further amendment on the Order Paper, which reads:
To insert before the word "adopted" the word "not" and to add at the end of the motion the words "with the exception of Order 30, Rule 2," and that it be a recommendation that the word "Irish" be inserted before the word "material" where it first occurs in such rule.
CATHAOIRLEACH
I think this has been already disposed of, Senator. We have no power to make recommendations. The rules must be made by the Rule-making Authority and our function is either to approve or disapprove of them. Your amendment, Senator, has been already covered, because the House has refused to delete either Rule 2 or 3.
Amendment not moved.
Question—"That the Report of the Committee be received and that the rules as presented be approved"—put and agreed to.