I beg to move Amendment 46, to substitute in Sub-section (4), line 50, the word "may" for the word "shall." The object of the amendment is to leave to the Court to determine whether corporal punishment shall be inflicted or not. It does not make it obligatory on the Court to decide what corporal punishment, if any, shall be inflicted. I would ask the Minister to accept the amendment.
[ DAIL IN COMMITTEE. ] - [ DEBATE RESUMED. ]
Mr. O'HIGGINS
I have given a good deal of consideration to this amendment. The farthest I could go in trying to meet the views of the Deputy as embodied in the amendment is to agree to insert in the sub-section some words such as these. After the word "Schedule" on line 50, to insert the words "shall, unless the Court is satisfied that there are special circumstances in the case which constitute a mitigation of the offence or," and then the section would read on. That is the limit of the concession that I could make to meet this amendment, and I trust it will be accepted by the Deputy.
I am willing to withdraw the amendment on the understanding that the words mentioned by the Minister will be inserted in the sub-section.
Amendment, by leave, withdrawn.
I propose to move the following amendment:—"In Sub-section (4), line 53, after the words "in addition to" to insert "or in substitution for."
Mr. O'HIGGINS
I could not accept that amendment nor make any concession that would at all meet the point of view embodied. The substantial sentence is a sentence of imprisonment, and I could not agree to make the whipping sentence a substitute for that or even to leave that to the discretion of the Court.
The Minister says that the substantial sentence is a sentence of imprisonment. The sentence which he relies upon, as they put it in the Courts, is the sentence of flogging. One would like to hear some justification for them both. If there is to be a sentence, if imprisonment is to be the substantial one, in the case of a person found guilty on indictment and sentenced to, say, three years' penal servitude plus flogging, the flogging may deter him from committing robbery by violence certainly for three years, but so will the penal servitude. The argument runs that it will deter other people if he is sentenced to be flogged. Does the Minister consider that the mere pronouncement of a sentence is a thing that will deter other people or is it not contended that it is that on coming back into society the impression that flogging has made on that prisoner will be related to those around him, the pain that he suffered, the indignity he suffered—is it not those things being told to his friends and associates in crime that are to be the deterrent? Is not that the argument? One cannot understand how the detention for three years plus punishment with the lash is going to be a deterrent to other people unless the prisoner is able to show the scars of his wound stripes or, at least, to tell the stories of the pain that was inflicted. The reliance upon flogging as a remedy for this social disease, this disease of crime, surely makes it unnecessary that there should be a three years' detention as well. Is it necessary that there should be three years' penal servitude, or any other period of punishment, plus flogging if flogging is the cure? The Minister for Education must be mistaken. Does the President rely on flogging as a cure for this disease? If so, why also ask for imprisonment? If it is to be applied as a cure for a disease even, if it is to be applied for the purpose of deterring the prisoner from doing the same thing again, if flogging is to be the deterrent there is no need to pile on the agony and give any imprisonment in addition. Or is it to glut the ire of the flagellants that they must have imprisonment for fear flogging is not a corrective remedy or must they have flogging for fear imprisonment is no use? The case made on behalf of flogging as a method of punishment surely justifies the Dáil in thinking that that will be enough. If all that is claimed for it is justly claimed then there is no need for further punishment unless it is intended merely to punish out of vengeance. Now I ask the Minister to tell us his mind on this matter, whether he is relying upon the flogging to prevent the development of this crime or the recurrence of this crime or whether he is relying upon imprisonment to prevent an individual committing the crime anew in case flogging was not satisfactory as a deterrent? I ask the Minister to let us know upon which method of punishment he relies.
Mr. O'HIGGINS
I am surprised that Deputy Johnson, if he really believes all he has said with regard to the effect of flogging upon an individual, should be so anxious to have the individual suffering from its effects turned loose on the community immediately after the operation. As to which of these I rely on, I rely on the cumulative effect of both. I think, as I have said, that imprisonment alone would not be a deterrent sufficient to check the particular tendency there is in the country, and there is likely to be in the country, towards these two crimes which strike at the very root of society. I think that the flogging plus the incarceration, which gives a person time to think things over, will have a good effect. I rely not on one alone, but on the effect of both.
You are backing for a win and a place?
Mr. O'HIGGINS
Yes.
I think the word used by the Minister—the word "operation"—is the proper interpretation of this Bill. He used that word when he asked whether Deputy Johnson wanted to have a person who was flogged turned out amongst the public the day after the operation. Like Deputy Johnson, I am surprised that the Minister wants to detain prisoners for three years after being flogged. If flogging is the remedy you say it is why do you try to detain people for three years afterwards? I fail to see why the Minister objects to this amendment. It is a very slight one and it is not going greatly to facilitate the unfortunate wretch who falls into your clutches, but it saves him a little pain and anxiety. I ask the Minister to make some little concession at least and accept a trivial amendment such as this.
I find another English Judge, the one originally quoted, Mr. Justice Matthew, actually dealing with this specific case in Birmingham in 1898. There, of course, the flogging remedy was peculiarly adapted, in the minds of the advocates, for crimes upon women and children. Mr. Justice Matthew pointed out "it would be inhuman to add the lash to a sentence of penal servitude, for such a savage sentence would defeat its own ends. I believe that if a man had any good in him and is punished with the cat he is for the rest of his days either a broken-hearted man or becomes a reckless criminal." Mr. Justice Hawkins said, "You make a perfect devil of the man you flog," and when questioned as to the supposed efficacy of flogging in the case of gar-rotters he said, "I do not believe it ever did any good. In my opinion the cat and the birch do not substantially operate as powerful and permanent deterrents from the crimes for which they are applied either as respects the criminals themselves, upon whom they are inflicted or as effective warnings to others minded to commit similar offences. Those who commit serious crime for the sake of plunder are often-times in a state of excitement which deprives them of the power of reflection and renders them reckless of the consequences." The man who had actually flogged two hundred offenders wrote that he had made a very careful and unbiassed study of the effect of the whipping posts and had come to the conclusion that it was all bad. "It brings out of any man the spirit of revenge; it is hurtful and he ranks himself against law, order, and society." A recent Prime Minister of England, Mr. Asquith, when Home Secretary, said——
On a point of order I think the Deputy is really repeating the arguments that he used on amendment 44.
I admit I am repeating arguments, but I am repeating them in reference to this amendment. They had not the effect I desired on the other amendment but they may have on this.
The Deputy is not, I think, entitled to debate the question whether flogging should be inflicted, The only point on this amendment is whether it should be in addition to or in substitution for another punishment.
That is what I am directing my thoughts to—that in view of the effect of flogging it should be at least an alternative and not an additional punishment. The case that is being made by all who have spoken is that flogging was essentially a form of punishment for an exceptional form of crime in exceptional circumstances. The people had lost their balance, they had become moral wrecks and were apt to follow out this special course of crime, robbery under arms, and arson, and it was required in these special circumstances that there should be a form of punishment specially adopted in this Bill. Now, the argument was clearly made in defence of the section that the lashing, scourging, whipping, or flogging or whatever name may be given to it, was peculiarly adaptable to remedying this disease. No case was made that it should be merely an accompaniment of the ordinary method of punishment and, on the contrary, the case was made that it was to act as a deterrent. I think we are entitled to know how it is going to deter.
The Deputy is going beyond the ruling. It has been decided that flogging may be inflicted and the only question is whether it should be inflicted in addition to or in substitution for the other remedy.
I think I am in order in arguing that the deterrent effect did not depend upon there being imprisonment accompanying it. It cannot deter other people, except the prisoners, unless those other people are made aware in some way of the effect of the flogging upon the person who is punished, and they cannot be made aware of that if the person is detained for three years in a prison. The case for double punishment ought to be made before we are asked to agree that there will be this double punishment. The amendment is that either one or the other may be inflicted, but not both, and I think the Dáil is entitled to have some reason given to it as to why, when flogging has been imposed as a penalty, a prisoner should have three years to get over it.
Amendment put.
The Dáil divided: Tá, 12; Níl, 35.
Tá
- Tomás de Nógla.
- Riobárd Ó Deaghaidh.
- Tomás MacEoin.
- Liam Ó Briain.
- Tomás Ó Conaill.
- Aodh Ó Cúlacháin.
- Séamus Eabhróid.
- Liam Ó Daimhin.
- Seán Ó Laidhin.
- Cathal Ó Seanáin.
- Domhnall Ó Muirgheasa.
- Domhnall Ó Ceallacháin.
Níl
- Liam T. Mac Cosgair.
- Gearóid Ó Súileabháin.
- Seán Ó Maolruaidh.
- Micheál Ó hAonghusa.
- Séamus Breathnach.
- Deasmhumhain Mac Gearailt.
- Micheál de Duram.
- Seán Mac Garaidh.
- Pilib Mac Cosgair.
- Micheál de Staineas.
- Domhnall Mac Cárthaigh.
- Earnán Altún.
- Liam Thrift.
- Eoin Mac Néill.
- Liam Mag Aonghusa.
- Pádraic Ó Máille.
- Seósamh Ó Faoileacháin.
- Seoirse Mac Niocaill.
- Piaras Béaslaí.
- Fionán Ó Loingsigh.i
- Séamus Ó Cruadhlaoch.
- Caoimhghin Ó hUigín.
- Proinsias Bulfin.
- Séamus Ó Dóláin.
- Seán Mac Eoin.
- Proinsias Mag Aonghusa.
- Eamon Ó Dúgáin.
- Peadar Ó hAodha.
- Séamus Ó Murchadha.
- Tomás Ó Domhnaill.
- Earnán de Blaghd.
- Uinseann de Faoite.
- Séamus de Burca.
- Croistoir Ó Broin.
- Aindriú Ó Laimhin.
Amendment declared lost.
I beg to move Amendment 48:—In Sub-section (4) to delete the word "privately" and to substitute therefore the word "publicly." I am moving this amendment with the object of getting from the Minister some explanation as to the reason why this operation of flogging should be performed in private. I am really anxious to know——
I wish to ask is this amendment in order?
Yes.
Order, order. When Deputy O'Callaghan is selected to fill this place in the Chair he can give his decision. At present the matter is in my hands. The amendment is in order. Whipping was inflicted publicly up to a comparatively recent time, and it is in order to propose that it should be done in public again.
I would like to have heard any reasons or suggestion why it was not in order or whether it was indecent to think that flogging should be conducted publicly. If the amendment suggested indecency or obscenity I could understand its being out of order. I am sure the Minister is not going to defend this operation being done in private on the ground that it is quite clean and decent if done privately, but obscene and indecent when done publicly. I am quite anxious to hear from the Minister his justification for the provision that this whipping shall be private. I think there is a good deal of risk entailed upon the public in providing that it should be a public punishment. I realise that the whole system is rather calculated to excite morbid feelings, and generally to inflame those feelings that ought to be suppressed, and I think it is likely that the public operation of flogging would be damaging in that regard, but notwithstanding that risk I am inclined to think that on balance it is rather better that if the operation is to be performed at all it should be done publicly rather than privately for several reasons. First, it would be known to the public indirectly, if not directly, what kind of an instrument had been ordered to be used by the Magistrate or the Judge who imposed the sentence; it would be possible to make public what the effects on the culprit, on the prisoner who is flogged, entailed in the first instance. But there is also the very grave consideration that there might then be a doctor available to ensure that the flogging did not entail capital punishment. It is necessary that a doctor should be at hand. One eminent medical man, Dr. Marshall Hall, says: "If the surgeon wishes to appreciate the effects of flogging on the culprit let him not stand far off and look on, but let him draw near and keep his finger on the patient's pulse. At each lash he will find that pulse falter. The man may brave it out, many suppress all expression of pain under this modern torture; but his heart, both physically and psychically, quails under it, and the pulse tells the tale; the heart sometimes so quails as to refuse to perform its pump-like office, and the silent patient turns pale and faints away. I assert from positive knowledge that each lash goes literally to the very heart, paralysing or enfeebling its action."
Now, the public infliction of this pain would at least make it possible for a surgeon or a doctor to be at hand to deal with the patient if the effect was greater than the Minister had contemplated. The gain, I suggest, is rather more than the loss, and I think that that is because the people who have not given way to morbid feelings would be made aware of the effects and then there would be some change made in the system. The privacy of flogging entails risks that I think we should not run. No doubt in the regulations that the Minister will make he will lay down that a certain number of doctors will be at hand, and that these doctors shall have certain wound dressings, and that all the requisites of the laboratory or of the dissecting table should be available. But they are not laid down in the Bill, and we have to trust to the good feeling of the Minister in that respect. I think, while I am somewhat doubtful, and have admitted my hesitation as to the relative merits of private as against public flogging, or the relative demerits of private as against public flogging, I am open to be convinced by the Minister that the privacy in this matter is of more value in preventing the development of the crime than public flogging, and that private flogging does not entail greater risk of inhumanity than public flogging. Perhaps he will also be able to convince me that publicity would, as a matter of fact, lead to the kind of morbid excitement that used to follow public hangings and that, on the whole, the kind of excitement that is created by gloating over pain inflicted upon a fellow mortal is not healthy. If that was the Minister's reason for ensuring that this flogging shall be privately done, or if he has any other reasons equally strong, I am quite prepared to be convinced, and I think it would be quite easy to convince me that publicity is not desirable in this matter.
Mr. O'HIGGINS
I am not accepting this amendment.
After hearing that answer of the Minister to Deputy Johnson it makes one imagine that all the time taken up by the promoters of the Bill, and all the time the Deputies have given to criticism of the Bill have been absolutely wasted. If this amendment cannot be accepted by the Minister, and if he is quite genuine in his belief that this torture cannot be administered publicly, then I fail to see the necessity for having such a clause at all. Take, for example, the case of an offender flogged inside the prison. You give him from 25 to 50 lashes with whatever instrument may be recommended by the judge. Now, that will certainly have the effect in some slight way upon that offender, and if the Minister thinks that this clause in his Bill is going to do the wonderful miracles he has in mind, it would be much more proper as far as that is concerned, to have this offender taken through the streets, stripped and flogged as he passes along. The example to the remainder of the citizens of the Saorstát, the people who are to be saved by this clause in the Bill, would be very great indeed. To my mind the Minister wants to go back to the days of Jeanne d' Arc; he wants to go back to the time when the Christians were burned at the stake, and I think if the Minister did really bring forward such a Bill it certainly would be opposed from these benches, but it would be supported by Deputies on the benches on the other side of the House.
If a punishment is to be inflicted, or if you are to torture a citizen of the Saorstát, who may fall into your clutches, and if, through his torture, you want to show a good example to the citizens of the Saorstát, then let the victim be tortured in public. Why is it that he will not be tortured in public? Simply because the Minister and his supporters are ashamed of having their acts made public. That is why the Minister will not accept this amendment. I am sure it would look very degrading to the Government to have a man taken through the streets and brought probably to some public building, and to see two or three men scourging him with a lash until he had received from 25 to 50 strokes in front of all his fellow-citizens. Think what an effect that would have on those people who lived to see the day that their Government inflicted punishment of a kind that foreign Governments had abolished. It may have an effect, but why fight shy of it? The members of the Government are fighting shy of it, the Minister in charge of the Bill fights shy of it. He does not want to come out publicly; he does not want cries to be heard from a person whose flesh is being cut off his bones. He is prepared to do it behind prison walls in order, as he tells us, to safeguard the interest of the citizens of the Saorstát. If flogging will be instrumental in preventing crime, and in the opinion of the author of the Bill it will, then why not do it in public? There is no use in cloaking your tactics if they are to be instrumental in preventing crime such as robbery and arson. You will not take these prisoners out and flog them publicly, because you know that you yourselves would have to pay the penalty.
I would like to have heard from the Minister why exactly he does not accept this amendment. A certain Irishman has said that if flogging does all that is claimed for it and is really in a sense a messenger of light, why hide your birch under a bushel? The Minister does not say, and no supporter of the Minister says. I suggest that one of the reasons is that for once the sense of decency and humanity of Ministers has come out. They felt that the spectacle and the effect on public feeling and on the public mind would be such that there would be no public opinion behind such an institution except such public opinion as individual Deputies might give expression in the Dáil. I have here a description of one or two floggings of comparatively recent date, indicating the method by which the thing is done, and I suggest that if the Minister really wants to show all the citizens how much in earnest they are in carrying out the duties that are imposed on them— duties which they claim cannot be fulfilled in respect of certain offences except by flogging—it would be not exactly edifying, but at all events educative to a certain degree for the citizens to know exactly how the thing is done. If that is so it might well be done in public and not in private. One description I have says:—
"The prisoner is fastened to a triangle with something somewhat resembling stocks so that he could not move hand or foot. The back is bared; the man who wields the cat shakes out its nine thongs, raises it aloft with both hands, and deals the criminal the first blow across the shoulders. A red streak appears on the white skin. Again the thongs are shaken out, again the hands rise, again the whips are brought down with full force, and the streak on the skin grows redder and broader. A turnkey gives out the number as each stroke falls, and the silence is only broken by his voice, by the descent of each successive blow, and by the cries or groans of the sufferer. But though there are instances in which the ruffian proves himself a coward, and yells with the very anticipation of pain before he has even been struck, there seems, for the most part, to be the same spirit in the flogging room which the highwaymen formerly displayed on the gallows. The man who has been guilty of the most atrocious cruelty will do his best to conceal the smart which he is made to feel himself, and if any sound is heard from him at all it proceeds from an involuntary action of his vocal organs, which he strives his utmost to check. After twenty lashes, he will retain a look of defiance, though almost fainting and barely able to walk to his cell."
I quote the following remarks made by an English legislator, Mr. J.M. Henderson, in the British House of Commons, in November, 1912. He says:—
"On the invitation of the Home Secretary I went to see the lash. It consists of nine thonged whip-cords thirty-three inches long. The Home Secretary tells me that it does not draw blood. I am not a strong man, but I will undertake, if the Home Secretary will allow me to practise on him, to draw blood in several places at the first blow. Of course, if you brought the swish down lightly, you would not hurt anybody; you would not twist the cord; but if you use the wrist, as you must do, you are bound to cut the flesh. I care not what any constable says, I will undertake that every stroke of the thong will cut the flesh. If that is not torture, then I do not know what is torture."
Another instance:—
"The prisoner is strapped down in a half-kneeling, half-lying position, with the head over the end of a wooden frame following the curves of the body, called in humorous prison parlance the `pony,' whipped as a schoolboy is whipped, but with a strong rod pickled in brine, and with so much severity experts inform us that the flesh is more or less raw, like raw beef. The face is very much contorted, and the mouth open and inclined to gasp, with an inclination to tears. A man would flinch back with his whole body, and then, unless very tightly strapped, if the birch catches him in the act of flinching too soon his heels fly up as if by galvanism."
So that there is not very much difference between the infliction of the punishment by the birch or the cat. I put it to the Dáil that if the purpose of the provisions of this Bill is to be deterrent and an example, then if it is to achieve its purpose at all except upon the particular individual, it should be done in the presence of a collection of individuals, so that nobody can mistake its purpose.
In view of the eloquent defence made for private flogging, and from the defence made by Deputies in favour of the Bill as it stands, I am prepared to withdraw the amendment.
Amendment, by leave, withdrawn.
I move Amendment No. 49, as follows: "In Sub-section (4), line 56, to delete the word `sixteen' and to substitute therefore the words `twenty-one.' " This amendment merely tends to increase the age from sixteen to twenty-one, the age under which a person would be liable to twenty-five strokes.
Mr. O'HIGGINS
I will meet Deputies later on the matter of strokes for persons over and under the age of sixteen, but I am not inclined to agree to an alteration in the age set out here. It is the age marking distinctions in any previous legislation where a penalty of flogging was imposed, and I think it is a sensible section, and see no cause for changing it. The man of seventeen or eighteen years of age who goes out to rob, can take a man's penalty for it. The age of sixteen is, as I say, the age mentioned in previous legislation. I have no doubt it was arrived at for good and sufficient reasons, and I am not prepared to agree to the alterations.
Paragraph A says that the instrument used shall be a birch rod. I would like the Dáil to understand that it is not the innocent instrument it seems to be in the paragraph. The birch rod, when used by a practised flogger, can do almost as much execution upon the back as a cat-o'-nine-tails. The birching of young sailors in the Royal Navy, rated as boys, but in reality almost men, was practised up to 1906, and the published descriptions of the punishment as then inflicted hold good in all essential points of the present use of the birch upon prisoners. I quote from one of these accounts. "The most degrading and truly demoralising chastisement is the birch. The offender is strapped hand and foot. With each stroke the flesh is seen to turn red, blue, and black."
Mr. O'HIGGINS
Is this relevant? Is not this a question of flogging in the British Navy
The question raised by the amendment is whether the age at which whipping should be inflicted is to be sixteen or twenty-one. The question of the instrument does not arise.
I am showing why the age should be increased, that if flogging with the birch is so severe the age should be increased to twenty-one.
The effect of your remarks seems to be that a severer penalty ought to be imposed on people between the age of sixteen and twenty-one.
I think that is not the implication at all. It is acknowledged by the Minister, notwithstanding what Deputy Colohan may say or suggest—I do not think he has suggested it—that the cat or the lash is a more severe instrument than the birch, and if the birch is to be the instrument to be used on young persons I submit that it is in order to say what would be the effect of the punishment of the birch upon these young persons.
Not I think on the question of between sixteen and twenty-one. If it were to provide that those under sixteen were not to be flogged I could understand it. This deals with the raising of the age, and Deputy Colohan is reading passages to show that the birch is very severe.
I am trying to prove that the punishment is so severe that the age should be raised in order that the person flogged should be able to bear it.
The amendment would not have the effect of exempting anybody from the infliction of punishment by the birch.
Is it not a good reason for raising the age from childhood to manhood to show the effect of punishment on children by a particular instrument? It is common ground, I think, that a child is not able to bear the same pain as a man. If it can be shown that the birch causes severe pain it follows that it is not fit punishment for a person under twenty-one.
The argument Deputy Colohan was putting forward was that the birch was to severe to be used at all.
I think that the Deputy's argument was, that the birch being so severe and limited to boys of sixteen years of age, the other instrument used on boys would be even more severe than the birch and that the birch should be confined to persons over twenty-one.
That would have been a legitimate argument, but that was not the argument Deputy Colohan was putting forward.
I think the age should be raised to twenty-one. The birch can be used by a practised flogger to do considerable damage to a man's back and leave the bones bare.
Surely a child of sixteen is really too young to receive the birch. A boy is not fully developed until he is twenty-one. To vary an old axiom "blessed is he who expects little for he shall receive less." That is what we have received in this amendment. If it is a thing that the Minister is under the opinion that a boy of sixteen years of age could possibly be guilty of committing such a crime, which would entitle the judge to pronounce such a sentence as inflicting so many strokes of the birch, I am sure that the Minister for Home Affairs, or any of his supporters on the Government benches have not yet succeeded in procuring that treasure of a son at the age of sixteen. I ask any father of a son of sixteen would he like to see his child taken out, because it was imagined that somebody told somebody else that his son committed a certain act, and given so many strokes of the birch. I certainly would not, and I would use every means in my power to compel the prosecuting solicitor to prove that my boy was guilty, and I am sure that every Deputy would want to do the same thing. A child's back must be naturally tender and soft.
The only question is whether the age should be sixteen or twenty-one.
I am trying to do my best to prove that the age limit should be extended from sixteen to twenty-one. Certainly a child of sixteen must have a soft and tender back.
Deputy Lyons is out of order. Boys under sixteen may be whipped under this Bill. Sixteen is not the age below which any whipping can be inflicted.
I ask the Minister to accept at least some portion of this amendment in order to bring the age up. Do not make enemies, try and make friends. For goodness' sake chuck out the Flogging Bill holus bolus.
Amendment put.
The Dáil divided: Tá, 12; Níl, 32.
Tá
- Tomás de Nógla.
- Riobárd Ó Deaghaidh.
- Tomás MacEoin.
- Liam Ó Briain.
- Tomás Ó Conaill.
- Aodh Ó Cúlacháin.
- Séamus Eabhróid.
- Liam Ó Daimhín.
- Seán Ó Laidhin.
- Cathal Ó Seanáin.
- Domhnall Ó Muirgheasa.
- Domhnall Ó Ceallacháin.
Níl
- Liam T. Mac Cosgair.
- Gearóid Ó Súileabháin.
- Micheál Ó hAonghusa.
- Deasmhumhain Mac Gearailt.
- Micheál de Duram.
- Seán Mac Garaidh.
- Pilib Mac Cosgair.
- Micheál de Staineas.
- Domhnall Mac Cárthaigh.
- Earnán Altún.
- Liam Thrift.
- Eoin Mac Néill.
- Liam Mag Aonghusa.
- Pádraic Ó Máille.
- Seosamh Ó Faoileacháin.
- Seoirse Mac Niocaill.
- Piaras Béaslaí.
- Fionán Ó Loingsigh.
- Séamus Ó Cruadhlaoich.
- Caoimhghin Ó hUigín.
- Proinsias Bulfin.
- Séamus Ó Dóláin.
- Seán Mac Eoin.
- Proinsias Mag Aonghusa.
- Eamon Ó Dúgáin.
- Peadar Ó hAodha.
- Tomás Ó Domhnaill.
- Earnán de Blaghd.
- Uinseann de Faoite.
- Séamus de Burca.
- Criostoir Ó Broin.
- Andriu Ó Laimhín.
Amendment declared lost.
At this stage An Ceann Comhairle resumed the Chair.
I beg to move Amendment No. 50, to delete in Sub-section (4), line 56, the word "sixteen," and to substitute therefore the word "eighteen." It is with considerable reluctance that I move this amendment. I had hoped that the Minister would have accepted the last amendment.
Mr. O'HIGGINS
I was so much impressed by Deputy Lyons' argument in favour of the last amendment that while I could not accept it, I decided to accept this one.
Amendment put and agreed to.
As regards Amendment No. 51, standing in my name, I ask leave of the Dáil to withdraw it.
Amendment, by leave, withdrawn.
As regards the next two amendments, 52 and 53, I understood that the Minister was going to make some concessions regarding the number of lashes to be given.
Mr. O'HIGGINS
I am accepting Amendments 52 and 53.
That means that in Amendment 52 it is agreed to delete the words in Sub-section (4), line 58, "twenty-five," and to substitute therefore the word "twenty," and in Amendment 53, Sub-section 4, line 61, to delete the word "fifty," and to substitute therefore the words "twenty-five."
Amendments 52 and 53 put and agreed to.
I am not moving Amendment 54, which proposed to delete in Sub-section (4), line 61, the word "fifty," and to substitute therefore the words "thirty-five."
Amendment, by leave, withdrawn.
I beg to move Amendment 55, to delete Sub-section (5).
In moving this amendment I desire to say that I understand, that under the procedure of a Court of Summary Jurisdiction, if certain cases come before that Court and a question of title is involved, it is not competent for the Court to deal with these cases until the question of title has been settled. As I understand the matter, this Sub-section in effect gives power to a Court of Summary Jurisdiction to deal with such cases, and if a question of title is pleaded it will not, I understand, hold good. Under this Bill a Court of Summary Jurisdiction would have power to deal with certain offences set out in Part II of the Schedule. It is proposed, for instance, to give power to the Court to deal with such offences as wrongful entry on, and the retention of the possession of land, and the "interfering with, or preventing without lawful authority, the lawful occupation, use or enjoyment of any land or premises." Cases may occur in which a person enters on the possession of land, and then there is the question whether or not he has the right to enter on the land. A case might also occur where a person would dispute the right to a certain passage, and in furtherance of that right force a gate or door. If this Section is inserted in the Bill it will, to my mind, prevent a question of title being settled by a Court competent to settle such a question, and while a man may possibly have a right, still he is not entitled to plead that right to possession, or a title to the land by the insertion of this Sub-section. It seems to me to deprive a man of such a right, and I, therefore, move the deletion of the Sub-section.
Mr. O'HIGGINS
The Deputy is right in stating that in the old Petty Sessions Courts questions of title to land, and questions of title generally, were not decided. The Deputy will remember that the magistrates at the time were not lawyers, and there was a sound reason for excluding questions of title. He must know, also because of that exclusion, that it was a common thing to drag in a question of title in order to bar a case being heard before these Courts. The District Justices at present functioning throughout the country are lawyers, either Solicitors or Barristers, and in fact the Judiciary Committee has recommended that title jurisdiction be extended to them. There seems, then, no reason for continuing the bar that prevailed when local lay magistrates sat in the old Petty Sessions Courts. I am not prepared to accept the Deputy's amendment.
Do I understand that the position taken up by the insertion of this Sub-section is really an advance portion of the Judiciary Bill? That seems to be the effect of the Minister's statement, that you are going to give certain powers under this Bill which, apparently, are recommended under another Bill that we have not yet seen, and that you are going to change and increase the powers of the District Justices. They have not that power at the present time, and it seems you are going to give it to them now. It seems to me that is a matter which should be reserved until the Bill, dealing with the whole judicial system, is introduced. I do not see what object is to be gained by inserting in this Bill a part of the legislation that, apparently, is to be provided under the Bill dealing with the Judicial system. I think it is wrong that this Sub-section, enlarging the powers of the District Justices, should be introduced in this Bill. The matter, I submit, is one that should form portion of the Bill which will come up when the whole judicial system is being settled.
Mr. O'HIGGINS
The effect of the Sub-section is simply to ensure that, if any of the offences mentioned in the Schedules are committed then the District Justices shall have power to try and to deal with these offences, and that a person cannot debar the Summary Court from hearing and trying his case simply by raising a point about title. This Sub-section is not an encroachment on the Judiciary Bill. It is simply a common sense recognition of the fact that there is not now the same reason that there was in the past for excluding cases from a Summary Court, simply because some question of title was dragged in. As I have pointed out already, these questions generally were dragged in with a view to barring jurisdiction.
I confess I am not very familiar with the meaning of this Sub-section. Offence Number 5 in the Schedule, dealing with property, states "Wrongful entry on and retention of possession of land without colour or pretence of title or authority." A man may contend that he has a title to the property, and his case may be mixed up with several other cases. It is not uncommon that a person who has a grievance is apt to think of the alleged offender as being liable, not to civil proceedings, but to criminal proceedings, and would take action if only for the purpose of frightening him off, take action which would bring the alleged offender to the criminal courts. From the reading of the Sub-section, and from the discussion that has taken place and the statements of Deputy O'Connell and the Minister, it seems to me that a dispute as to a right of possession, a dispute as to title which ought to be dealt with by the Superior Courts, would now be dealt with by Courts of Summary jurisdiction simply on the ground that the alleged offence had been committed, whereas the civil case between two parties which may be in process of preparation may be brought to the court as a civil claim. One party to the dispute may say, "I will have a better chance against my opponent if I can charge him before a Court of Summary Jurisdiction, as such a charge will enable me to stave off the civil cases," and under this Sub-Section that shall be done. It rather occurs to me that some such development might arise from the passing of this Sub-Section, and I wonder if that is so.
Mr. O'HIGGINS
I do not think that can arise, and in fact I am sure it could not arise. The District Justice, if he were satisfied that any real substantial question of title was involved in the case, would send it on for trial, but Deputies must know that a case of that kind was barred in the old Petty Sessions Court, and that all kinds of questions about title were raised simply to bar jurisdiction. The moment, practically, that the word title was mentioned in the old Petty Sessions Courts, the case was dropped, and it had to be dropped instantly. It is ridiculous that such a bar to jurisdiction over matters of that kind should be continued at a time when lawyers constitute these Courts. If a serious intricate question of title were found to be involved, no District Justice would proceed to deal with that case summarily. I think the Deputy ought not to feel any uneasiness on that score.
I wish to point out that under this Bill, and under this sub-section, the offences to which I have called attention are to be dealt with very severely, and special punishments are being attached which I think I may reasonably say would not be attached in ordinary cases, or under the operation of the ordinary civil law, to such offences. That is all the more reason, I think, why a departure should not be made from the ordinary procedure. The Minister said that immediately the word "title" was mentioned in the old Petty Sessions Courts, that without practically any examination of whether a question of title was involved or not, the magistrates had no more to do with the case. I can quite conceive that solicitors would drag in the word simply to frighten magistrates off from having anything to do with the case. I do not know what are the exact regulations of the law on this matter, but I take it, it would be only reasonable to expect that the District Justice should be satisfied that there was, in fact, a question of title involved. If that is the present regulation, litigants must reasonably satisfy the District Justice that a question of title is involved. I am quite certain that the District Justices will be in a far better position to weigh up the frightening arguments of solicitors, and to know exactly what the word "title" means. They will be in a far better position to do that than the old J.P.'s, and if they find that the matter is frivolous and that no question of title was involved they will be competent to deal with that. If the District Justice is satisfied that a question of title is involved and finds that he will not be in a position to deal with it, it seems to me, from reading the Sub-Section, that, even though he is satisfied that a question of title is involved, he will still feel that the insertion of this Sub-Section empowers him to deal with it. That is my difficulty. I am quite willing to agree with what the Minister says that this question of title should not be dragged in by the way. What I wish to ensure is that when a question of title is really involved, it will debar the District Justices from deciding on the matter.
Mr. O'HIGGINS
I can go no further than the assurance that I have given the Deputy. The District Justice would not attempt to deal with any case in which a substantial question of title is found to be involved. I cannot meet the Deputy on the amendment.
On what does the Minister base his statement that the District Justice would not deal with a case where a substantial question of title was involved? My point is that the District Justice might reasonably think that this sub-section empowered him to deal with such a case.
Mr. O'HIGGINS
In the very wording of the section the jurisdiction of a Court of Summary Jurisdiction in respect to any of the offences mentioned in Part 2 of the Schedule to this Act shall not be ousted by reason of title being drawn into the question. The mere frightening mention of "title" would not debar the District Justice from dealing summarily with the offences mentioned in the Schedule. The Courts of Summary Jurisdiction are for a particular purpose. The Justice would not proceed, but would send on to a higher Court, cases in which a serious substantial question of title was involved. I want to refer to one argument that was raised. It was almost suggested that the proper course for a person to assert his legal right was to do some wrongful act, some act of violence. Of course, that is not the position.
Amendment put.
The Dáil divided: Tá, 12; Níl, 34.
Tá
- Tomás de Nógla.
- Riobárd Ó Deaghaidh.
- Tomás MacEoin.
- Liam Ó Briain.
- Tomás Ó Conaill.
- Aodh Ó Cúlacháin.
- Séamus Éabhróid.
- Liam Ó Daimhín.
- Seán Ó Laidhin.
- Cathal Ó Seanáin.
- Domhnall Ó Muirgheasa.
- Domhnall Ó Ceallacháin.
Níl
- Liam T. Mac Cosgair.
- Gearóid Ó Súileabháin.
- Seán Ó Maolruaidh.
- Micheál Ó hAonghusa.
- Séamus Breathnach.
- Deasmhumhain Mac Gearailt.
- Micheál de Duram.
- Seán Mac Garaidh.
- Pilib Mac Cosgair.
- Micheál de Staineas.
- Domhnall Mac Cárthaigh.
- Earnán Altún.
- Liam Thrift.
- Gearóid Mac Giobúin.
- Eoin Mac Néill.
- Liam Mag Aonghusa.
- Pádraic Ó Máille.
- Seosamh Ó Faoileacháin.
- Seoirse Mac Niocaill.
- Piaras Béaslaí.
- Fionán Ó Loingsigh.
- Séamus Ó Cruadhlaoich.
- Criostoir Ó Broin.
- Caoimhghin Ó hUigín.
- Proinsias Bulfin.
- Séamus Ó Dóláin.
- Seán Mac Eoin.
- Proinsias Mag Aonghusa.
- Eamon Ó Dúgáin.
- Peadar Ó hAodha.
- Tomás Ó Domhnaill.
- Earnán de Blaghd.
- Uinseann de Faoite.
- Séamus de Burca.
Amendment declared lost.