[ DAIL IN COMMITTEE. ] - PUBLIC SAFETY (EMERGENCY POWERS) BILL, 1923—THIRD STAGE RESUMED.

SECTION 5—Continued.

I beg to move amendment 56: "To add at the end of the Section a new Sub-Section, as follows:—

"This Section shall not apply to any offence committed before the passing of this Act."

I desire to say that I think this amendment is much better drafted than the next one, and I quite accept it.

I was hopeful that we would have had from the Minister in charge of the Bill a statement that he was prepared to accept this amendment, because I would respectfully commend it to the Dáil. I hope I am not wrong in reading it as, in effect, an Amnesty Bill.

This amendment was, of course, accepted.

I think it makes of the Bill an Amnesty Bill in so far as Section 5 is concerned, and in so far as any persons at present in the custody of the military authorities, or any person who may be charged with offences which might have brought him into the custody of the military authorities, is concerned. The effect of the amendment, as I understand it, is that any person who may have been guilty in the past of any of these many offences, can be brought before the Court and tried for those offences. The Minister shakes his head, and indicates that is not the effect of the amendment.

Mr. O'HIGGINS

They will be tried of course, under the law as it existed previous to the passing of this Act. It is not an amnesty for crime committed up to the date of this Act, even for the crimes mentioned in the Schedule of this Act. The amendment, of course, is accepted.

I am glad to hear the amendment is accepted. Then are we to understand there will, for six months, be two codes in existence? I would rather gather that for that period of six months this Bill when it becomes an Act will be the operative law.

Mr. O'HIGGINS

This Bill will be the effective law with regard to crimes mentioned in its Schedule and committed after the date on which it becomes law.

Then I understand from the Minister that as from the date of the passing of this Act, we shall have two codes in existence for a period of six months. Any person who may have committed an offence which comes within Part 2 of the Schedule before the date of the passing of the Act will be triable by the Courts which have hitherto operated, or under the code that has hitherto been in operation, and any person who may commit any of these offences subsequent to the passing of the Act will be liable to the new penalties. The amnesty does not go so far as I had thought.

Mr. O'HIGGINS

It is not an amnesty.

Nevertheless, the amendment will, I think, have some of the effect of an amnesty, and I think to the extent that it does relieve the persons who may be found guilty of any of these offences in the future, it is worthy of acceptance, and I am glad the Minister has accepted it. I would like much more to have heard him say it did have the effect of relieving those who have been in internment for some time of the risk that they may, at some future date, be brought before a Court and tried. I think that having had a person for two or three months in imprisonment, without trial, it would be reasonable to say that that internment would satisfy the needs of justice and the needs of such protection, without holding over those untried prisoners the possibility that they may be at some future date tried for an offence which they have committed twelve months ago. I am sorry that interpretation is not found fitting, but for the benefit that the amendment does bring, we have to be thankful.

Amendment put and agreed to.
Amendment:—To add at the end of the section a new sub-section as follows:
"No part of this section shall be interpreted retrospectively, so as to authorise, in the case of an offence committed before the passing of this Act, the infliction of a penalty or sentence which could not lawfully have been inflicted by a District Justice for such offence at the time when the offence was committed."—(Seoirse Ghabháin Uí Dhubhthaigh.) Not moved.
Motion made and question put: "That Section 5, as amended, stand part of the Bill."

On this motion you ruled that it was not competent for us to discuss the merits, if there are any, of flogging, and I do not wish to contravene that ruling. I want to record a word of protest generally against Section 5 as a whole. It introduces new penalities of a very much more severe character than anything that has been known for offences of a large range. The death penalty or penal servitude referred to for the offences mentioned in Part 1 of the Act includes, as we have already tried to show, the death penalty for comparatively minor offences, even though the offences may be in furtherance of an armed revolt. The liberty that is given to a Court to sentence to death is too great, and it is, as a matter of fact, an invitation to one Court to sentence to death for a comparatively trivial offence, while another Court may offer very much milder penalties. Now, to incur the death penalty I have always thought that the intention was to make punishment follow certain crimes as certainly as the law could make it; but here we are asked to legislate in a way which leaves the death penalty covering a very wide range of offences, and leaves a very large element of gamble as to which Court and which Judge a person may have the good or ill fortune to be brought before. The other penalties that are imposed in the later sections, though I gladly acknowledge there have been some modification as compared with the original terroristic threats, are still excessive, and the method of punishment is the kind which ought not to find expression in an Act of this Legislature. There is no need to go into details. The matter has been fairly discussed, I think, and not extravagantly discussed. We would like to have had more assistance from Deputies in the discussion and consideration of these various penalties, but it does not seem fitting to the majority of Deputies that they should be considered and discussed. Nevertheless, we have done our best to find out what the penalties involved, and why they should be imposed for these various offences. Notwithstanding the improvements or the amendments that have been made in the section as originally submitted, the section is not one that the Dáil should accept, and I would ask the Dáil to vote against the acceptance of it.

My great difficulty with regard to this section is that I have not been convinced, and nothing that has been stated on the other side has convinced me, of the necessity for the introduction and the inclusion of a section of this kind in the Bill. This section is the backbone of the Bill. To justify the Government in coming to Parliament and asking for the extraordinary powers that are in this section, makes it appear that the country is at the present moment in a very bad state indeed, so far as these particular crimes which are specified in the Schedule are concerned. To outsiders who do not know the country, and who have not travelled in the country, I am quite sure the impression is conveyed that it is absolutely unsafe to travel in the country, or for any person to go about his ordinary business. Are these the facts? It may be that Ministers have knowledge that the ordinary man in the street has not an opportunity of obtaining; but crimes of arson and robbery under arms do not happen usually without being reported in the Press. To an ordinary observer who took up the daily Press during the last two months it would not appear that the wave of crime which has been referred to, and on account of which the special powers in this section are asked, is such as to warrant the introduction of these special powers. Reference has been made repeatedly to the condition of things in this country for the last eight or ten months. They were bad—as bad as they could be; but the effect is that these crimes were regarded, rightly or wrongly—wrongly, in our opinion, undoubtedly—by those who were engaged in them, only as a method of carrying on a system of warfare. We do not agree with that. None of us in the Dáil agrees with it. But we cannot get behind the fact that they in their blindness—if you like to put it that way—did believe that the campaign of destruction and burning and robbery under arms was a method of carrying on a so-called war. The facts are that two or three months ago these people who are responsible for this campaign felt that the game was not worth the candle any longer——

—and we are getting back to ordinary normal times. I hold that we should wait until we are convinced that what is feared or anticipated in this measure is actually in existence. Anyone who travels through the country knows that the existence of crime of this nature is rather rare in comparison with even such a law-abiding country as England. If you compare the Press reports of crime in Ireland and in England within the last two months, you will find that there is nothing to show that the condition of affairs here is of such an extraordinary character that these special powers are necessary to deal with it. I think that before these powers should be sought and before the impression which their introduction is bound to create outside the Saorstát is created, we should be satisfied that the ordinary law, in addition to the powers which the military have and always will have, should be sufficient to deal with the state of things as they exist.

There is one consolation in connection with this section, and that is that men interned before the passing of this Act shall not receive the punishment specified under it. I would like to know if that also includes that portion indicating that any person found guilty of any offence mentioned in Part 1 of the Schedule shall be liable to suffer the death penalty? Surely there are quite enough death penalties, quite enough executions? I hope it will be no longer required that any officer, any Minister for Defence, or any Minister of the Government, shall sanction any further executions. If the amendment that has been accepted also applies to that portion of Section 5, then I think an improvement has been brought about. I am sure the Minister fully realises that the time has passed when very drastic measures were really necessary. Is it suggested that men interned at the present moment may be tried in six months from now and sentenced to death?

Mr. O'HIGGINS

Not under this Bill.

I am very pleased to hear the Minister explain that that is not so under this Bill. I will now deal with the question of penal servitude.

You have men in prison for ten months who are not tried, and I am sure you will have power under this Bill to manufacture or frame a charge against them. You will have power under this Bill to put them on trial and sentence them to penal servitude.

Not under this Bill.

That, at least, is a comfort, that the men interned at present will not suffer anything under this Bill. They cannot be tried under this Bill, and they will not be tried under it. I am sure it is the opinion of every Deputy in the Dáil that before the expiration of the time allotted for this Bill—six months hence—that the Saorstát will be united and every man who is in prison at the present time will be released. I do not at all approve of the Section, but I was pleased to hear that one or two objections to this particular Clause have been removed by the amendment that has been accepted. But if you find a man with a revolver, a land mine, or a few cartridges in his house, I would like to know if all the evidence brought against that man is to be published in the Press. I have objected strongly from the time this Bill was introduced to its provisions, but I would like the members of the Dáil to register their votes more particularly against this Section number 5.

A Chinn-Comhairle, in supporting the request of other Deputies that this Section be deleted from the Bill, I would like to ask the Ministry to state once and for all—they have not stated it up to the present, at least in a way that is convincing to me—why exactly the measures and the provisions in the Bill are necessary at this particular moment? The President has addressed people of Irish birth and descent in Australia indicating that, to his mind at all events, there has been a very considerable improvement in the position in Ireland. The Publicity Department of the Government has, on various occasions, issued statements to much the same effect. Now those statements both of the President and of the Publicity and some other Departments, and statements not directly coming from the Government, but from publicity sources strongly supporting the Government, coincide with the experiences and with the general view of a good number of the Deputies in the Dáil. Without any shadow of doubt whatever, the internal situation in Ireland is much better, much more satisfactory, and much more rational than it was three or four months ago. To many of us it seems that that improved situation is really a sign and a promise that there is a return to a certain degree to ordinary and normal life in Ireland. But in spite of all that under this particular Section of the Bill the Ministry seek extraordinary powers and asks for extraordinary penalties. It asks the Dáil to sanction measures, penalties and provisions not covered by the existing laws. To me, at all events, it is extraordinary that if those penalties and those measures are necessary now they were not necessary within the last twelve months when certain other extraordinary measures were asked for and granted by a majority of the Dáil. But no reason has been given by the Ministry except the expression of the fear that there may be a renewal of the troubles of the last twelve months. That fear does not seem to me to be sufficient to justify all that is asked for under Section 5. On the contrary, I think that the hopes of the Ministry, and the hopes of the people in general, would be brought nearer realisation if the Ministry showed in letter, as well as in spirit, that it was willing to help in the return to the normal. There was talk this morning of a certain disease in the body politic. It was described as a mental disease. Now I feel that for such a disease and for any mental disease of a similar character that the true and the real remedy is not so much physical punishment as an attempt not only at understanding but an attempt to remove any remaining causes that help to extend such disease, and I suggest that Section 5 of the Bill is not an attempt in that direction, but that its effect is likely to be in the contrary direction, that it is more likely to act as an irritant than as a solvent.

I am glad you agree with the diagnosis, at all events.

I certainly agree that it is a disease, but I deny that a proper way to treat a disease of the mind is to perform an operation on the body. Deputy O'Connell has referred to what is not a remote origin of the disease. The President, if I may say so, suggested this morning that it was not possible either to excuse or to understand certain things in Ireland now. I beg to differ with him in that, not that I would say that it is possible to excuse, but I do hold that it is possible to understand. Deputy O'Connell, rightly I think, suggested one way of understanding it. It would be utterly and completely wrong, in my opinion, to date the origin of certain irregular activities from December 6th, 1921, or from April, May or June of 1922.

One of the biggest errors that I think the Executive Council has made is to think that the preaching and practices of the last five or six years would have no influence after the Treaty. I refer in particular to two of the offences defined for punishment under this Section, and I put it to the Dáil and to the Executive Council in this way. No matter what the popular sanction, you had arson in the campaign against the British occupation in Ireland. What bearing, in spite of the popular sanction behind it— and there was very considerable popular sanction behind it—had the holding up and the seizure for certain national purposes, by force of arms, of certain moneys before the Treaty came? It may be said, as it was said on another occasion, that these things had not the direct sanction of the national legislature of the time, but in spite of that we all know that they had not only the direct sanction but, in many instances, they had the direct command of the particular active arm of the nation, which was as much, if not more, than any other arm of the nation responsible for the setting up of the Saorstát.

I am afraid the Deputy is going on too long and back too far.

I may be going on too long. If I am, I bow to your ruling.

I will let the Deputy continue, because I am interested to find the connection between what he is discussing and the Section. He may continue his speech, if he is going to make it.

The connection, A Chinn-Comhairle, is this, that it is not possible, in my opinion, whatever may be the opinion of the Executive Council, to have certain activities of that kind carried on under considerable popular and national sanction without having effect on a later period. I submit, with all due respect to the opinions of the supporters of the Executive Council, that that has had its effect upon later events, and that there are men who, by the laws of the State, have become criminals, not because they were of criminal intent, and only partly because they were opponents of the Saorstát, but because they had the example and the history of certain acts before them. I should be the last in the world to condemn the acts I mention, but I do say that they go some distance to explain the mentality behind some of the acts of the last twelve months, and that in that sense it is possible to come to some understanding. I say they have been aggravated by deliberate incitement, but even deliberate incitement would not have produced all the things that have happened had there not been a revolutionary background. Many activities which, while legitimate enough from a revolutionary point of view in a revolutionary period, are anything but legitimate and anything but legal when the revolutionary period has passed. For that reason I think that the Section shows a misunderstanding of the whole present situation.

Question put: "That Section 5, as amended, stand part of the Bill."
The Dáil divided: Tá, 29; Níl, 13.

  • Liam T. Mac Cosgair.
  • Donchadh Ó Guaire.
  • Mícheál Ó hAonghusa.
  • Domhnall Ó Mocháin.
  • Pádraig Mag Ualghairg.
  • Deasmhumhain Mac Gerailt.
  • Seán Ó Ruanaidh.
  • Mícheál de Duram.
  • Risteárd Ó Maolchatha.
  • Domhnall Mac Cárthaigh.
  • Sir Séamus Craig.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hÓgáin.
  • Pádraic Ó Máille.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Séamus Ó Cruadhlaoich.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigin.
  • Proinsias Bulfin.
  • Séamus Ó Dóláin.
  • Peadar Ó hAodha.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.

Níl

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Liam de Róiste.
  • Darghal Figes.
  • Tomas Mac Eoin.
  • Seoirse Ghabháin Uí Dhubhthaigh.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Eabhróid.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
Motion declared carried.
SECTION 6.
(1) It shall be lawful for an Executive Minister to order the seizure of any cattle and other animals found trespassing on land belonging to any Board or Department of the Government or to any private person or body, and the removal and detention of such cattle and other animals to and in any place within or outside Saorstát Eireann.
(2) Whenever any cattle or other animals are seized under this section, such notice as the Minister aforesaid shall prescribe shall be given to the owner thereof, and such owner may, within such time as the Minister shall prescribe, redeem such cattle and other animals by payment to the Minister of such sum as the Minister shall estimate to be the fair value of such cattle and animals, or such lesser sum as the Minister shall think proper: Provided always that if such owner shall satisfy the Minister that the trespass by such cattle or other animals was accidental or took place against the will of such owner or was otherwise innocent, the Minister may return such cattle and animals to such owner.
(3) All cattle and other animals seized under this section and not so redeemed or returned shall be sold in such manner and at such place whether within or outside Saorstát Eireann as the Minister shall direct.
(4) The money paid for the redemption or the proceeds of the sale of any cattle or other animals redeemed or sold under this section shall be applied in the first place in or towards the payment of the expenses of the seizure, removal, detention and sale of such cattle and other animals, and in the next place in or towards the payment to the owner of the land on which such cattle and other animals were found trespassing of such compensation as the Minister shall direct for the damage caused by such trespass, and the surplus (if any) of such moneys or proceeds shall be forfeited and paid into such special account in such bank as the Minister for Finance shall from time to time direct.

I beg to move to insert after Sub-section (1) a new sub-section. Section 6 deals with powers to seize and sell animals found trespassing. Sub-section (1) reads— (sub-section quoted). The new sub-section which I am moving reads:—

"Before any cattle or other animals are seized under this section notice of the intended seizure shall be given to the owner thereof, so that he may discontinue the trespass; but such notice need not be given on the occasion of a second or other later wilful trespass."

I should say that the necessity for this new sub-section arises, like many other things, out of the circumstances of the revolutionary period through which we have passed. In that period many and various weapons were used, and in my opinion rightly used, by what, without any disrespect, I may describe as the revolutionary forces.

Certain conceptions of the status, position and standing of what the President sometimes describes as certain orders in Ireland were held by the National Forces, and by the people supporting the National Forces. I think it is true to state that one of the instruments used with popular, if not national or legislative, sanction was the adaptation of certain measures, which at various times have been taken by the body of the people, or an agrarian portion of the body of the people in Ireland.

To my knowledge, and to the knowledge of many Deputies, force was used on the national side for the purpose of seizing, maybe only for a temporary purpose, and maybe only for tactical reasons, certain lands in the possession of people belonging to certain orders, and for the driving off of cattle on certain lands which locally were considered as not being put to the best use in the national interest. Because that practice had more or less become common, and because a common practice like that is not easily departed from, we have found, since a national Government was established, that in some parts of the country, quite wrongly, there have been repetitions, illegitimate and unlawful repetitions, of the kind of measures I have just spoken of. Since the establishment of the national Government, with legitimate national authority, such measures have become quite unlawful and illegitimate. I put it to the Deputies that it is not at all easy—as a matter of fact it is extremely difficult—for any community to make a sudden break with the practices of the recent past. Sub-section 1 gives power to the Ministry to order the seizure, removal and detention of cattle trespassing on certain lands. With that at the moment I am not going to quarrel, but I think that sufficient provision is not made in the Sub-section to make it satisfactory, and it is necessary to do something more.

The amendment or new sub-section I propose asks that where it is found necessary to make a seizure of these cattle due notice—I do not mean the giving of notice at an undue length of time before the seizure—should be given to the owners of the cattle, so that if they are not quite aware that they are committing an offence or about to commit an offence that they might be brought to a realisation of the real position, and to the fact that they are committing an offence in the shape of a trespass. I think it is only fair and reasonable that such notice should be given, because instances have occurred where cattle belonging to a certain citizen have trespassed on lands on which they ought not to have trespassed, but they did not trespass in such a way as really to constitute an offence or a crime within the knowledge of the owner of those cattle. Now, a thing like that, I freely admit, cannot happen twice, and for that reason I do not ask that such notice should be given to the owner of trespassing cattle a second time. I would only give the notice on the first occasion. We had an instance of this in a question put in the Dáil some weeks ago, where the owner of certain cattle had his cattle seized. That owner was not, in fact, of the belief that his cattle were trespassing. He was, indeed, paying rent for the land on which his cattle were trespassing. It so happened that the person or persons to whom he was paying rent had no right to receive the rent, because the land, so far as our knowledge goes, had been seized by them. But the cattle were seized on these lands. It was a bona fide transaction on the part of the owner of the trespassing cattle.

Would the Deputy give particulars of that case?

At the moment I have not the date, but the Minister may remember that it was raised in a question put by Deputy Lyons. I do not remember the exact date of the case.

There are two such cases—one a case in Castletown, Westmeath, and another a case in Ballymore, Westmeath.

That, I think, was a bona fide transaction on the part of the owner of the cattle. It was to cover such cases that I put the amendment. No such case of trespass should, as I say, occur a second time. One warning ought to be quite enough, but I suggest that they should be given some warning.

Mr. O'HIGGINS

Would the Deputy not consider the passage of the Bill a sufficient warning?

The Minister asked me if I would consider that the passage of the Bill would be a sufficient warning. No, I do not consider the passage of the Bill a sufficient warning. A man, even if he purchased the Bill and studied its provisions, might still think that he was outside its provisions. Certainly I think that the persons to whom I refer would consider that they were outside its provisions, because they had no knowledge that the lands on which their cattle trespassed were lands that had been wrongfully and illegally seized by the person to whom they paid rent. Furthermore, no matter how widely distributed a Bill or Act may be, and no matter how many of its provisions may be published publicly in the Press, in many of the rural parts of Ireland we know that the chance of some of the most material provisions of that Act reaching that countryside are not very great for one reason or another. For that reason I cannot agree that the enactment of the Bill would be a sufficient warning. I think that there ought to be some further warning. Mind, I do not mean that where there is a really good case against the trespasser who had wilfully or deliberately, and with full knowledge, trespassed, there should be a great deal of consideration. I am more concerned with those who more or less out of ignorance, or more or less out of sticking to certain practices of the past, have more or less unconsciously been guilty of an offence. I think in reason and in fairness, if not in strict legal justice, that there should be some warning, but that there should be no second warning. I beg to move the addition of this new sub-section after Sub-section (1) of Section 6.

I would like to say, as representing a typical agricultural constituency, that the Deputy who has last spoken has made me very wide awake. I represent the County of Galway. I know that people there have gone in and seized and commandeered lands, utilised them for their own benefit, and we are led now to believe, from what the last Deputy has said, that they have been acting in ignorance. We are told that they do not know that the land is not their own. They have gone into these lands and they had no right to go into them. I think it is about time that there should be an end put to that humbug. When land is seized everybody who is trespassing on it knows that that land is not his own, and if people go into land to which they have no right, they have to put up with the consequences. I represent now a very typical constituency, the County of Galway, and I know that there has been forcible seizure of land all over the County, North, South, East and West— the four old divisions, as it was originally divided into four constituencies.

On a point of Order, this amendment or Sub-section does not deal with the seizure of land. It is with cattle trespassing that it deals, and I submit they are not the same thing.

The trespass of cattle and the seizure of land are quite different.

I wish to support this amendment, because I am well acquainted with several cases where people lost cattle through having them on land, grazing them. One particular case, that Deputy O'Shannon mentioned a moment ago, occurred in Westmeath. There had been an agreement, I am informed, signed by the proposed owner on one side and the original owner on the other side.

Name the case.

Mrs Crosbie of Kilbeggan.

I am merely suggesting that particulars of individual cases should be given to identify the case, and not reference to the cases vaguely, so that nobody would understand to what cases they refer.

If the Minister for Agriculture wants the case fully explained, I think I should detain the Dáil for an hour and a half going fully into it.

I merely want the name of the party.

The names of the parties are: Mrs. Crosbie, the supposed owner, and Mrs. Keegan on the other side. The military arrested the two young Crosbies, and they are still in custody. In this particular case the people who had the cattle grazing on the land were of opinion that the parties to whom they were paying rent were the proper owners. If such an amendment as this was accepted, naturally those people would be notified, and then, if they continued trespassing, well, I certainly would have no sympathy with them at all, even if every bit of horned stock they had was seized. It is a very bad policy not to give them notice. I know one case of a labouring man who, by the fruits of his labour, succeeded in buying one beast, and through pure economy he was going along the road to success. He was a labouring man, living in a cottage, and by his industry he succeeded in buying three cows. That man's name is O'Gorman, of Castletown.

Is he in possession of the cattle?

Those cattle were seized by the military, and I am speaking to this amendment.

Were they seized because they were found trespassing?

I thought they were found on the man's land?

The labouring man was not lucky enough to possess land, but had a "take" on the eleven months system for which he was paying. He thought at the same time that he was paying the right owner. He was not notified that he was committing a crime against the laws of the land, and, of course, his three little cattle were there on the land, and naturally the soldiers came down and made a clean sweep and took everything that was on the land away with them. I have already sent the details of that case briefly to the President, as it was the President answered the question for me when I raised it in the Dáil. I quite forget the date at the moment. Indeed, now I am sure we can certainly ask the support of the Farmers' Party on this amendment, but I see just now that they are only a party of one. As they have not been here all night, naturally they are not so tired that they will not be able to come in and say "Tá" to this amendment. It really is an amendment that will do some of the people that they represent justice. I hold that there is no justice in going to a farm and seizing the cattle on this farm, not knowing whether all the cattle seized belonged to the person who had the farm or who had taken the farm by force or had got it by agreement.

Now that is, of course, the idea that Deputy Cathal O'Shannon had when he put forward this amendment. Throughout the country there are many very poor people, who may possess a cow. In one particular place in Edge worthstown, in Longford, there is a poor man living in a cottage and he possessed a cow. That cow was also found trespassing. I am not disputing the fact that that man did not know—as the land was in the possession of a family for a number of years—that he was paying the right person, but that cow was taken, and that deprived the man's family of milk and butter. We come now to Ballymo, and there the same tactics were adopted by the Minister for Defence and the Minister for Agriculture. Will you be giving power to the Minister for Home Affairs to go further? I am sure it has happened before now that even a goat that was rambling was also taken——

By a peeler.

No, not in this case, it was taken by the soldiers. Whether the Minister for Defence wanted to feed the Army on goat's milk I do not know. It would probably be stronger for them. I do want to see this amendment added to Sub-section (1) of Section 6, so that the poor man will get an opportunity of knowing who is the owner of the land on which he puts his cow to graze. Certainly I have not much sympathy for the farmer who may possess two or three hundred acres of land, and who comes along and says to himself, "My great grand-aunt lived in this place and this place belongs to me," and who then goes along and takes possession with the help of some people whom he may get into his clutches to help him in doing that. I have no sympathy with a man like that——

Mr. O'HIGGINS

Hear, hear.

—but I do want to try to safeguard, to the best of my ability, the poor man who is solely dependent upon a beast or two, probably to pay his debts or to pay his half-year's rent. It is a very old custom throughout the country.

It is a very old custom that from one fair day to another that a particular man or woman, in some cases a widow who may have a small family, are solely dependent upon that beast or whatever little cattle they have. They may have no land of their own, and they have to get grass for them. The military come along, if that land is in dispute, and take these cattle along with the rest. They take all the horned stock that are there. I am sure such animals as do not wear horns at all will be carried off by the military if they can lay their hands on them.

They have even taken pollies.

I want the Farmers' Party to support this amendment. They did an awful lot of talking, when the Land Bill was on, against the seizure of cattle. Now I want them to come here and to prove that they are really against the seizure of cattle by the military or by the Minister for Home Affairs, or whoever may be in that office when this Act comes into force. It is really a very awkward thing for any poor man living in the heart of the country that, even if he himself was in the dispute with the landlord and that his father was originally the owner of the holding, that the cattle of such a man should be seized. I know of cases where the landlord from which such men hold at present are in the possession of land from which that man's grandfather or father was evicted.

On a point of order, is the Deputy now in order? He is dealing with the question of grabbing farms, and not with cattle trespassing.

The Deputy is out of order.

This amendment does exactly what I would have done myself. I would have inserted in the Bill, if I had the power, a clause which would do what this amendment wants done. I will be greatly surprised if a vote is challenged on this amendment. Is it possible that the Minister for Home Affairs is so much against the farming class that he will say to the Dáil that he will not accept this amendment? I would be surprised if the Deputies, the majority of whom are farmers, vote against this amendment. There are no farmers on these benches here, and I would ask the Deputies to do something for the people who sent them here. There are more small farmers in the country——

The Deputy has exceeded his time.

I am really astonished that the Minister has allowed the time of the Dáil to be spent in discussion of this amendment, because I am sure he is going to accept it. It is hardly reasonable to ask the Dáil to have a long discussion without any speech from him explaining that he is going to accept the amendment. I want to put before him an entirely different aspect of the case from that which has already been touched upon. Section 1, which it is sought to amend, reads (Section quoted). There are different roads which belong to public bodies, and under this section, unless it is amended, it would be lawful for an Executive Minister to order a seizure of any horse, donkey, or goat that was grazing on the public roadside. Apart from any question of entering into a field, a horse grazing on the roadside could be seized under that sub-section without notice. I know that is not the intention of the Minister, but he is asking us to give him power to do that without notice. I think it was Mr. John Leonard who gave evidence before the Agricultural Commission some time ago and explained that, owing to the high cost of railway transit, he, for one, had developed a practice of sending his cattle to market along the roads. It would take two or three days to do this, and he said that this was a custom likely to be revived, and that instead of transporting cattle to market by rail, they would be driven along the roads. He said it would pay to travel the roads any distance, says 30 miles——

Mr. O'HIGGINS

Will the Deputy allow me to say that there is no property in the roads in the local authorities. The care of the roads is entrusted to certain local authorities.

"All land belonging to." It may be that the roads are not property, and that there are no patches abutting on the roads that are property, but I think it will be admitted that within the limits of that sub-section it would be possible for the Minister to order without notice the seizure of animals—cattle, horses, goats, or any other stock—that may be looking for fodder. It is surely not an unreasonable suggestion to say that where it is known to any police officer, military officer, or any other person who is given charge of the peace of a district that cattle are trespassing, an intimation to that effect should be given before those cattle are seized. It may be only one hour's notice, if they can reach the person owning the cattle. It may be notice put up on a gate; but due notice, surely, ought to be given to a man before his cattle are seized for an offence of this kind. To swoop down, on an assumption of guilty knowledge, is not reasonable. I submit that the proposition that some notice should be given to a man before you take his cattle and sell them is the least a Minister should be asked to do. The Minister will say, of course, that it is not his intention to do these things; "we are going to be assured of the facts of the case before we order that cattle shall be seized." I have no doubt that that is his intention. But there are always risks when you give power to people in Acts of Parliament to do things that should not be done. There is always a risk that they may do those things, and the proposition in the amendment is surely a very mild one, and not at all unreasonable. Is there any Deputy to say—for instance, my colleague in the representation of County Dublin, Deputy Rooney—that it is an unreasonable thing to ask that the owner of cattle shall be informed beforehand that his cattle are trespassing, and that if he does not remove them within one hour they will be taken? Is that an unreasonable request?

In normal times I think they should get notice.

We are, on the authority of Ministers, entering into normal times. It is hoped that normality will have been reached before the end of six months—we hope before the end of one month—and notice ought to be given it is admitted in normal times. I submit that notice ought to be given at any time before officers of the State, under direction of the Minister, enter upon a proceeding of this kind. I would quite honestly and sincerely ask the Minister either to accept this amendment or to give some reasonable explanation as to why it is impossible to give some notice before cattle are forcibly seized.

Mr. O'HIGGINS

I want to put briefly the considerations which render acceptance of this amendment undesirable and impossible. The amendment practically amounts to this, that deliberate trespassers have a free filing until they receive notice that they are not to repeat the offence. Now, as to the practical difficulty of the amendment—supposing for a moment that I were to accept it— it is that nobody owns the cattle until they are seized. It is like hens trespassing in corn. They are freelance hens until they are caught in a trap or there is an accident with a dog, or something of that kind, and then the owner comes to the surface. I have some knowledge of these cases, stretching back for the last six or seven months, and I know that it would be a task beyond the wit of man to establish the ownership of cattle grazing in this way until the cattle are seized. Sometimes they are sent from a distance. A middleman grew up in this kind of business—a man who says: "I will keep that land clear of all stock except yours for so much a week or so much a month." A regular traffic and vested interests grew up around this kind of thing. Arrangements are frequently made that cattle are sent ten or twelve or fifteen miles to land that has been confiscated in this way. The passage of the Bill must be taken as the notice by all. People will have to learn to keep their stock on their own land. I do not agree for a moment that a person is entitled to enter into a bargain to put his cattle on certain land without taking very thorough steps to find out whether the person making that offer had any right to make it. That is something fundamental to all business transactions. You do not buy from a person without finding whether he has a right to sell, and you do not rent from a person without finding whether he has a right to let. If mistakes are made in this kind of transaction, the person who makes them has to take the consequences.

I direct attention to the provisions of the Section. Deputies will say that in one case in a thousand a mistake could be made, that a man might be innocently deceived into believing that the person who asked him to put his cattle on certain lands at so much per month had the right to let those lands. In Sub-section 2 you have this proviso: "Provided always that if such owner shall satisfy the Minister that the trespass by such cattle, or other animals, was accidental, or took place against the will of such owner, or was otherwise innocent—"the surely that is broad enough—"the Minister may return such cattle and animals to such owner." I propose accepting Amendment 59 and Amendment 60. I think that ought to meet any reasonable case that there is or that has been put forward by those urging the acceptance of the particular amendment under consideration. Men must keep their stock on their own lands, and if a man has the misfortune to be possessed of what is called in the country a "rogue" cow, that no fences will stop, and that insists on trespassing, then he will never get any satisfaction with that animal, and the best thing he can do is to sell it. It will get him into trouble sooner or later. The Minister for Agriculture tells me that there might be some excuse for a yearling, but that a cow is old enough to know better.

The experience of recent months has made it absolutely necessary to meet this problem otherwise than by treating it as mere casual, accidental trespass or by leaving it to the injured party to bring a case before a Court of Summary Jurisdiction. It is more than a challenge to the rights of a particular owner. It is something that strikes at all stability and all security in the country, and if not checked would result in damage to credit and security throughout the country. We have to strike in this legislation the note that was struck long, long ago, "Woe to him who removeth his neighbour's landmark."

To come back to the particular amendment before the Dáil, I wish to point out that the only reasons put up by the Minister for refusing to accept this amendment, which provides for giving notice, is the difficulty of finding the owner. That is the only reason.

Mr. O'HIGGINS

I did also put up the reason that it is not a sound thing or a proper thing that we should say, as in effect this amendment says to people, that they can go ahead for once—that they can go ahead until they get notice that they are not to go ahead.

The difficulty with regard to finding the owner need not worry him. It is possible to give notice without actually serving that notice on the actual owner of the stock. There is nothing to prevent him, for instance, if a complaint has been made that lands are being unlawfully trespassed upon, putting notice on the gates of these lands or putting notice on the nearest Civic Guard barrack, or having a notice put in the newspapers to the effect that cattle found trespassing on these lands will be seized by the military.

Mr. O'HIGGINS

Then we will meet people who did not see the notice.

My suggestion would meet the purpose of the amendment.

Mr. O'HIGGINS

The notice was torn down or disfigured.

In any of these cases I presume it will be necessary that information should come to the Executive before action is ordered, unless, indeed, the proposal is that a general order will be issued to either Military or Civic Guard that where a complaint is made to them and where they are of opinion that trespass is taking place, they should go and seize the cattle themselves. That may be the machinery that will be set up, but I can see no reason for the Minister's objection to taking this amendment. I can see very many reasons indeed why the amendment should be accepted.

Even if there was no practical difficulty in the way of carrying out the terms of that amendment in practice I would be absolutely against it, and I am genuinely surprised that it is put up by the Labour Party. The amendment is intended to cover not only the very rare case of the man who is in possession of the land of another innocently, but the very numerous cases of persons who are in possession of other people's lands maliciously. I think there is no question about that. The amendment is drafted to cover both cases. What does that mean? What is the principle behind that? It is an announcement that a man has the right to break the law once. It is exactly the same as if we were to set up a notice in Grafton Street: "No man shall steal a pound of tea more than once; no man shall take a motor car more than once." This is robbery; robbery of grass and produce, and what you are saying, in effect, in this notice is, "You are not to rob this man's grass more than once." This amendment is meant to cover not only the innocent, but the wilful trespass.

There are other remedies besides the seizure of stock.

I am aware of that, but this amendment is intended to cover not only innocent, but wilful trespass.

Drastic measures are taken.

I am not sure whether the amendment is intended to cover the innocent case at all—whether it is not intended to cover the wilful case exclusively, because it provided that notice be given the owner so that he may discontinue the trespass. In any event it is clearly intended to cover the wilful case. What does it amount to? It amounts to this, that in an Act of Parliament we are adopting the principle of saying to a possible wrongdoer: "You may steal once, but do not do it twice." I am genuinely surprised that Deputy Johnson has approved that amendment. The amendment is immoral. The principle is absolutely immoral and illegal, and I would not have it at any cost, even if the difficulties of administering it were removed.

The Minister's surprise is astonishing. He suggests that the way to deal with an offender is to assume his guilty knowledge, take his property and sell it. I am assumed by the Minister for Agriculture——

On a point of order, I have not said that. I have not argued the question as to whether it is right or wrong to seize cattle. We can come to that later. That is not the issue at the moment. What I have stated is that the principle of that amendment is immoral. The principle of saying to a man, "You can commit an illegality with impunity once," is immoral.

The Minister does not know what the section is dealing with. There is nothing in this amendment to suggest that you ought not to prosecute and imprison if necessary the man who sells another man's land or makes use of another man's land. There is no suggestion here of covering the offence. The suggestion here is that it is not the right way to deal with an offender by assuming his guilt and taking his cattle and selling them, without giving him any warning that he is assumed to be guilty. We are inviting you to prosecute the man. It is not yet the policy of the Government to take the various offences citizens are occasionally tempted to commit, and without warning, go to their houses and take their property and second it to England to be sold. That is not yet suggested as a proposition to be put before the Dáil. The Minister is quite wrong in assuming that there is any suggestion here of condoning the offences that he assumes have been committed. We simply ask in this amendment that the offender shall be warned before you seize his cattle and take them away to sell. It does not prevent you immediately following that warning by prosecution for trespass. You may use all the forces of the law to deal with that offender, even if that amendment is accepted and embodied in the Act. There is nothing to prevent that being done. All we ask is that before seizing a man's cattle and selling them you shall give him an opportunity to take his cattle from the land of another on which you say he is trespassing. Prosecute him afterwards if you wish; bring him up before a Court for the offence of theft. But that is an entirely different proposition. You are then going to try a man for a definite offence against the law. In the other case you are simply taking away his property without having proved any offence.

I am extremely glad to have that interpretation of this clause from the Deputy, but it was a little bit belated. It was needed, at all events. The amendment reads:—"Before any cattle or other animals are seized under this section, notice of the intended seizure shall be given to the owner thereof, so that he may discontinue the trespass; but such notice shall not be given on the occasion of a second or other later wilful trespass." Now, that really needed a little explanation. It was a bit vague as it stood, and it was made particularly more vague by reason of the interpretation that was put on it by Deputy Lyons, who admitted that he had a weak spot in his heart, a kindly corner in his mind, for people who were putting in their cattle trespassing on other people's lands. I ask the Deputy to take the speeches which certain Deputies of his own Party have made on this section, and to read the section again, and to see whether my interpretation is not a more reasonable one.

Certainly not. If this amendment is adopted or accepted, it is neither Deputy Lyons nor I will be interpreting it.

The Dáil will be enacting it.

It will be interpreted by the Judge. The Dáil will be laying down what it desires and the lawyers and magistrates will interpret it. I am very dense and very dull, if that amendment is not very clear. It is just as clear to the Minister as it is to me.

Amendment put.
The Dáil divided: Tá, 13; Níl, 33.

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Liam de Róiste.
  • Tomás Mac Eoin.
  • Seoirse Ghabháin Uí Dhubhthaigh.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Eabhróid.
  • Liam O Daimhin.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.

Níl

  • Liam T. Mac Cosgair.
  • Mícheál Ó hAonghusa.
  • Domhnall Ó Mocháin.
  • Séamus Breathnach.
  • Pádraig Mag Ualghairg.
  • Peadar Mac a' Bháird.
  • Deasmhumhain Mac Gearailt.
  • Seán Ó Ruanaidh.
  • Mícheál de Duram.
  • Risteárd Ó Maolchatha.
  • Pilib Mac Cosgair.
  • Mícheal de Stáineas.
  • Domnhall Mac Cárthaigh.
  • Earnán Altún.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hÓgáin.
  • Pádraic Ó Máille.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Séamus Ó Cruadhlaoich.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Próinsias Bulfin.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Séamus de Burca.
Amendment declared lost.

I move amendment 59:—"In Sub-section (2), line 28, to delete the word `may' and to substitute therefore the word `shall.' "

I move amendment 60 —"In Sub-section (2), line 29, after the word `owner' to insert the words `or pay to such owner the fair value thereof.' "

Mr. O'HIGGINS

I am accepting both these amendments.

Amendments agreed to.

I move amendment 61, standing in my name. It is:—"In Sub-section (4) to delete lines 43 and 44 and to substitute therefor the words `shall be paid to the owner of such cattle or other animals.' " The section says: "The money paid for the redemption or the proceeds of the sale of any cattle or other animals redeemed or sold under this section shall be applied in the first place in or towards the payment of the expenses of the seizure, removal, detention, and sale of such cattle and other animals, and in the next place," and so on, and it directs that the surplus shall be forfeited and paid into such special account in such bank as the Minister for Finance shall from time to time direct. I think this section goes too far when it states that the surplus, if any, of such proceeds will be forfeited and paid into such bank as the Minister for Finance shall from time to time direct. It is quite obvious that the sub-section in the earlier parts provides for compensation to the owner of the invaded land, and then goes on to provide for the confiscation of any surplus proceeds of the sale. This is an arbitrary penalty. It is arbitrary because its extent depends not on the nature or gravity of the offence, but on the mere fact whether the amount that the cattle realise at the sale exceeds the amount of the compensation or not.

The State is entitled to punish evildoers, but it is not entitled to make a profit out of their misdeeds. I suggest that the Minister, in view of the many things he has said in support of this Bill and the many other Bills in the Dáil, would be the last man to come forward and take up a Bill for compensation even of a private individual who might be guilty of offences with which part of this section pretends to deal. I move the amendment standing in my name.

at this stage took the Chair.

Mr. O'HIGGINS

The effect of this section, and the purpose of this section, is simply to convince people beyond all doubt that this particular line is not profitable; that it is not a paying game. If this amendment were accepted it provides certainly for compensation to the injured person. That is a sound principle. It says that before you go out to search the pockets of the ratepayers, you are going to levy compensation from the perpetrators of the wrong. But that is not a new principle. The Conspiracy Code provides for it, that where men combine to commit damage or to do wrong that they can be held jointly and severally liable for the wrong they do before other steps are taken to secure compensation for the injured person. Now, we have the sound but old principle of levying compensation from those who commit injury. You have further in the section a provision for covering the costs of securing compensation. The additional words directing compensation of the balance is the only penalty in the sense of pure penalty. The Deputy's amendment provides to do away with that. He will scarcely question that analysis of the section—compensation, the costs of securing that compensation, and then something that is not costs or compensation, but purely penalties.

Is this to be regarded as a fine?

Mr. O'HIGGINS

Yes, the remainder would be. I cannot accept the idea that this should be reduced merely to a matter of compensation and costs. I might offer some compromise to meet the Deputy's views, which appears to be that it ought only to be compensation and costs, if he could meet me to the extent of saying something to this effect:—"And the surplus, if any, after such additional fine as the circumstances of the case may seem to demand has been paid, shall be returned." That would at least have the effect of securing that the whole of the surplus would not be confiscated to the Exchequer. Remember that in our view, when this kind of flagrant invasion of property rights takes place, there is greater injury done than the injury merely to the individual owner. An act of that kind constitutes a challenge to the State, and to the State's laws, and if I were to accept the Deputy's amendment there would be no penalty from the point of view of the State. There is merely compensation to the injured owner, and provision for the levying of the costs to secure such conmensation for the injured owner, but there is no purely penal section to adjust or counterbalance the wrong to the State, the injury to the State and the challenge to the State. That is implicit in an act of that kind. It is implicit and explicit. I would be prepared then to accept an amendment, the effect of which would be to restore all the surplus after this penalty had been met.

I wonder does the Minister realise what is contained in this section. The Minister speaks quite clearly as though he was not merely the Executive Minister ordering the seizure on the land for proved trespass, but he is also the judge in the case of inflicting the penalty. That is a greater authority than he has asked in any other measure, I think, in respect of property certainly. But will the Minister consider how inequitable it is? If a person owing these cattle happens to be a wealthy man, the punishment is going to fall lightly on him because he has other property, and the forfeiture of the proceeds of, say, six beasts may be quite a small penalty to a wealthy man. If the expenses of that detention were not very high even under the suggestion for the amendment by the Minister, the balance that will be returnable will be greater. But if it happens to be a poor man, who is living by the ownership of two or three cattle, and has been virtually using another man's land for the feeding of these cattle, the seizure of his cattle is not merely depriving him of the value of these cattle, but it is imposing a greater punitive measure upon him, because his offence is confined to a smaller number of cattle. That is quite unjust and inequitable. If the amendment were adopted it would at least modify and regulate the penalty in some degree to fit the offence. But if the section as it stands is retained, it simply means that if the offender is wealthy the punishment is not going to be so heavy, or if the cost of the sale and detention are smaller the punishment is not going to be so heavy. There is no regulation of the penalty according to the guilt of the offender. If the Minister seeks, as he does in his suggested amendment, the imposing of a fine, surely that fine ought to be measured by the offence, not by the value of the cattle, not by the cost of detention, but by something proximate to the guilt of the offender. Now, the amendment would at least move in the direction of regulating the penalty, but the section as it stands is distinctly unjust and unfair. I am not in that argument stressing the fact that the Minister is to be the prosecutor as well as the judge. That, I think, might have to be discussed again. From the point of view of fitting the penalty to the offence some change is required in the sub-section.

Mr. O'HIGGINS

I appreciate, of course, what the Deputy says as to the inadvisability of placing an Executive Minister in a quasi-judicial capacity, to decide the exact amount of the fines and so on. But to meet that view I would go to the length of inviting the Dáil to state the proportion of the balance of the surplus, after compensation and costs, that ought not to be returned. If it would meet the Deputy's views to say that for a first offence 25 per cent. of the surplus to be confiscated to the public Exchequer, for the second offence, say, 50 per cent. of the surplus to be confiscated, and that in any subsequent offence the whole of the balance would be confiscated, I would be agreeable to have something like that at a subsequent stage. But I do stress this, that in this Bill, and having regard to all attendant circumstances of the times, this offence is visualised rather as an offence against the State and against public order and morality than as an injury done to one individual citizen, by an infringement on his property rights. Now, in the case of contrabrand the goods are seized summarily and arbitrarily, and the penalty is imposed, not by a Court or Judge, but by the Revenue Department itself, which makes the seizure. We are advised that if our right arm offend us we should cut it off and cast it from us, not half of it or a quarter of it, but the right arm. If a man's cow or cows offend in this particular way in these times, and after the very solemn warnings that have taken place within recent months by military action, and after the solemn warnings of this Bill, I, myself, do not consider it excessive that the entire proceeds of the sale should be confiscated, going partly to the compensation of the owner who is wronged, partly in costs to secure such compensation, and the balance to the State. But I would go some length to meet the views that have been expressed by endeavouring to set out in the section the proportion that ought be retained. That would, at least, obviate the objection that Deputy Johnson has urged of placing the Minister in quasi-judicial capacity. This Court would then be deciding the amount of the fine in proportion to the total value of the proceeds. This is the highest Court in the land. I do not think there would be anything wrong or anomalous in the Dáil stating that a fixed proportion of the balance should be confiscated to the State, having regard to the fact that we, in this Bill and this Sub-section, are visualising this offence as an offence against the State and an offence against public order, rather than viewing it from the angle of the individual owner whose property rights are encroached upon.

The suggestion of the Minister does not meet, I think, with the approval, and should not meet with the approval of the Dáil. The offence to my mind of allowing a dozen yearling stores to feed on another man's land is just as great as to allow a dozen two-year olds to feed on that man's land. The damage may be greater in the second case, but the compensation to the owner of the land may require to be higher. But the offence is as henious in the one case as in the other, and if you are going to deal with this offender in the same way as you would with the offender who tries to evade the Customs, then you will definitely fine the offender for the offence as well as confiscating the property. To deal with the offender for the offence before you endeavour to try him, let the fine be a punishment for the stated offence. Apart from the question of compensation, from the question of seizure, take the offender and prosecute him and punish him for the offence. As to the punishment which might be applied, and no doubt would be applied, the loss of his property should be considered in inflicting that punishment. No doubt that would be done. But surely it is the proper course to adopt to punish a man for an offence and fine accordingly, instead of letting the fine be an automatic affair according to the value of the property which has been seized. The circumstances, for instance, of, say, a second or third trespass would make the offence very much greater. If it were the second or third offence it would be immeasureably greater in its guilt than for the first offence, and if it happened that the expenses of effecting the sale of the seized cattle on the second occasion were very much higher than the expenses on the first occasion the amount of the fine on a sliding scale arrangement would by no means fit the crime. But I think that the proposal of the Minister is quite apart from the requirements of the case. I submit that the suggestion in the amendment is a wiser one. That is, that if you are demanding that the proceeds of the sale shall, in the first case, go towards the payment of expenses attending the seizure and sale, and in the second place to order the payment of compensation for a person who has suffered by the trespass, then the balance ought to be put to the credit of the offender, and before it is confiscated he should be tried for the offence. The nature of the offence should be proved, and then let him be treated by way of fine or imprisonment. Do not let the fine be a chance affair. Do not let it be automatically dependent as to whether the sale was good or bad, or the expenses high or low. These are matters entirely outside the control of the Minister or judge and the director of the prosecution, and entirely outside the control of the offender. It is, I think, far from reasonable that the Minister should make such a suggestion, as being equitable or just. The suggestion in the amendment certainly is much more related to one's sense of fairness, and it does not deprive the Minister of the right, aye, of the duty, to prosecute for this specific offence. Let the citizen who does wrong realise that he is being charged by the State which he has offended for that offence, and it is not a matter of the relationship between the offender and the owner of the property, but that it is in fact, as the Minister has urged, an offence against the State, and the State should deal with the offender against the law, not letting the penalty be automatic according to chance circumstances over which neither the prisoner nor the State nor the owner has control.

Mr. O'HIGGINS

In legislation of this kind there will of course be of necessity a certain arbitrary element. But the matter is not quite so arbitrary as Deputy Johnson endeavoured to represent when he selected as a matter of example the yearlings and two-year olds. The matter is not quite so arbitrary as that. This, if you wish, is summary and drastic, and to use a familiar phrase, rough and ready legislation. The times demand it. We are making no apology for it. But the principle is this. You have to treat the cause of this disease. You must treat the cause first. There is no use playing about with the symptoms. Deputy Sir James Craig will, I have no doubt, bear me out in that. You have to treat the causes, and the cause in this case is greed, the hope of gain, of illicit gain, gain from crime, and you can only check that, I submit, by setting off against that hope of gain a very definite and a very real prospect of loss. Now, the gain hoped for will be in proportion to the value and ages of the stock that is put into trespass. A man who puts in a calf——

Would it not be rather the period during which the cattle are grazing?

Mr. O'HIGGINS

Well, he probably hopes to trespass indefinitely. The man who puts in a calf hopes to realise a certain definite gain by that process, the same with yearlings, and the same in the case of a man who puts in two-year olds. If Deputy Johnson tells me that it is not right that the man who puts in twelve yearlings should suffer more than the man who puts in a calf, that they both commit the same offence, the answer to that is two-fold. For one thing they do not both do the same damage, and for another thing there should be the principle of setting off your penalties so as to bear a rough proportion to the motive that insured the crime and the hope of gain. Deputy Davin is puzzled but Deputy Davin has sufficient agricultural recollections to know that what I say is true, that a man who puts in, say, two-years' old bullocks—forward stores —and expects to fatten and finish them on his neighbour's land is visualising a certain definite gain by doing that. In all the circumstances of the time and having regard to the extent to which this problem exists and the proportions to which it has grown you can only offset that by putting against it a very real prospect of a very substantial loss. You can go down the scale from the two-years' old forward store to the calf and substantially the loss will be in proportion to the gain hoped for. The man with the calf will lose in proportion to the gain hoped for and the man with the forward store loses likewise. You will not cure this disease in the body politic by any other process than by treating the cause and the cause is greed. Nothing that we did in recent months so struck the imagination of our naturally quick-witted people as that particular line of treating the cause; it sank home immediately. The lesson was learned. A blow struck here had reactions thirty miles away, so quick were people to learn the lesson. Deputies know that I am talking the truth. For six months we ask power to continue that procedure, until this evil will be once and for all eradicated. I cannot go into the mathematics of the thing. You could not in legislation of this kind. But it is sound principle to say that the man who goes out to rob, because it is robbery, in the hope of gain, must be counterbalanced by the hope of loss.

I was rather surprised at the admission of the Minister when defending this Bill, that it was confiscation. It is a case of confiscation to deal with confiscation.

Mr. O'HIGGINS

Yes.

It is quite obvious, I am sure, to the Minister that the amendment is not for the purpose of preventing him and those who are responsible for dealing with such offences from punishing people in a proper and equitable way. The Minister, or whoever is going to act for him, has arbitrary powers for the seizure, removal, detention and sale of such cattle or other animals. Let us see the inequity of the case. Take for instance when the cattle are brought from Kanturk on the one hand and from the West of Ireland or the County Meath on the other. It is quite obvious that there would be a big difference in the charge for removal in these three particular cases. There might be a balance in one case whereas there would be no possibility of a balance in the other. Let us take the case of the two-years' old that the Minister spoke of. They might fetch in ordinary circumstances £20 per head. The cost of the seizure might be a different thing in so far as the troops who would be going to carry out the seizure might have to travel longer distances. The wages of the troops also have to be taken into consideration, and the cost of the railway journey, the carriage of the cattle, the cost of the detention, and so on. If all these things are taken into consideration they would form a very big proportion of the amount which the Minister or his representative would get in the Dublin Cattle Market for the cattle coming from different places and brought under different circumstances. The Minister was apparently in doubt when he was drafting this Section as to whether or not there would be a surplus. He asks the Dáil to say in a case where the actual value of the cattle sold is only sufficient to cover the cost of the seizure, removal, detention, sale and compensation for trespass, what proportion of the surplus 25, 50 or 5 per cent., where there is none, is going to be imposed on the individual. If there is no surplus how are you going to recover what the Minister states is in the nature of a fine?

Mr. O'HIGGINS

Of course 25 per cent. of nothing is nothing.

The section then does not make provision for recovery of the standard fine where no surplus is available. I think if the Minister works the problem out from a mathematical point of view, taking the place of seizure, the distance of removal, the wages of the soldiers, the distance they have to travel and what it costs the Government to send them there, in the long run the unfairness and inequity of the whole proportion will be seen.

Mr. O'HIGGINS

I made an offer on this proposal. If it is not accepted, I simply stand by the Section as it stands, that would be complete confiscation— compensation, costs and the surplus to the State. If the offer is accepted, even grudgingly, even as Deputy FitzGibbon said yesterday "with modified thankfulness," then I would bring up something to that effect on the next stage.

I cannot advise Deputies to accept any such offer or any compromise of that kind which asks that offences shall be punished in that haphazard way, that fines shall be imposed by chance methods, rough and ready as they may be. I was sorry to have heard the Minister use the illustration in support of the Section, that because drastic action had been taken it had been effective even thirty miles away. The result of drastic action has been the one criterion as to the rightness of such action. I am not unfamiliar with the philosophy of those people who have advocated that the way to get things done is to do them without regard to procedure or usual methods of law— the philosophy of the direct-actionist. I am reminded every time the Minister utters his defence, of certain actions on the ground that the end justifies the means, of the philosophy of the direct-actionist. Peace reigns at Warsaw! The destruction of Warsaw brought peace. Peace was the end sought, and that was all about it. It did not matter how the end had been attained.

We have asked that this amendment should be accepted because the method proposed of dealing with cattle seized, because of trespass, was going to act inequitably upon the various offenders, that there was no fitting the punishment to the offence. There was a distinct preference given to the man who had means. The wealthy offender was, without question, treated more leniently than the poor offender, and the suggested method of equalising the penalty was to simply remove some modicum of the gamble. If the expenses were greater then the balance to be divided would be smaller, and the 25 per cent. in that case would be a greater penalty than in another case.

Again, there is no modification of the fine or punishment where the offender is a first offender, a second offender or a regular criminal. There is no equity in the method at all, and the suggested improvement made by the Minister does not go any degree whatever to remove that inequity.

I would not make the distinction at all that Deputy Johnson has made between the wealthy offender and the poor offender. The distinction I would make is between the accidental offender and the wilful offender. If cattle go in accidently and trespass on land and, perhaps, destroy a crop, the owner should be fully compensated for that crop, but for a wilful offence there should be some more punishment. I would draw a distinction between the wilful and the accidental, and I would say that there should be some more punishment for a wilful offence than for an accidental offence.

The Section does not give that.

took the Chair at this stage.

Of course I would not mind about a bona fide cow that would stray along the road.

Amendment put.
The Dáil divided: Tá, 13; Níl, 33.

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Liam de Róiste.
  • Tomás Mac Eoin.
  • Seoirse Ghabháin Uí Dhubhthaigh.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Eabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.

Níl

  • Donchadh Ó Guaire.
  • Mícheál Ó hAonghusa.
  • Domhnall Ó Mocháin.
  • Séamus Breathnach.
  • Pádraig Mag Ualghairg.
  • Peadar Mac a' Bháird.
  • Darghal Figes.
  • Deasmhumhain Mac Gearailt.
  • Seán Ó Ruanaidh.
  • Mícheál de Duram.
  • Risteárd Ó Maolchatha.
  • Pilib Mac Cosgair.
  • Mícheál de Stáineas.
  • Domhnall Mac Cárthaigh.
  • Earnán Altun.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hÓgáin.
  • Pádraic Ó Máille.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Séamus Ó Cruadhlaoich.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Próinsias Bulfin.
  • Próinsias Mag Aonghusa.
  • Peadar Ó hAodha.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Séamus de Burca.
Amendment declared lost.

In Deputy Duggan's absence I move Amendment No. 2:—"In Sub-section (4), lines 43 and 44, to delete the words `such special account in such bank as the Minister for Finance shall from time to time direct,' and to substitute therefor the words the `Exchequer in accordance with such directions as may be given from time to time by the Minister for Finance."'

This amendment is merely a change in the drafting. The original draft was faulty. As drafted there is no indication as to what is to become of the surplus moneys when they are lodged. The amendment ensures that such surplus money will be brought into the Exchequer.

It does not seem to me that this is merely a change in drafting. It seems to me to imply a distinct change in purpose. The original intention was that such surpluses should be paid into such special account in such bank as the Minister for Finance shall, from time to time, direct. One would conclude from that, that there was an intention to keep the sums apart, to have them available and easily recognisable as sums kept apart for a distinct purpose. But the amendment rather suggests swallowing them up in the ordinary Exchequer, subject to such direction as may be given from time to time by the Minister for Finance. It rather seems that there is a change of intention covered by the change in phraseology. If the Minister had desired simply to do what the mover of the amendment alleges he would have added words "to be paid into such special account in such bank, and to be disposed of by the Minister for Finance as he shall from time to time direct." But the stress is laid here upon a special account, and I think there was a distinct intention in the Section as it stands to segregate these moneys with a view to, perhaps, restitution, or for such specific purpose. I think that the handing of those moneys into the ordinary Exchequer is not an improvement, though no doubt the Minister for Finance can find ways and means of getting instructions from the Dáil as to what is to become of the money which has been paid into the Exchequer. Am I not right in saying that once moneys were paid into the Exchequer it would require a specific vote of the Dáil to take them out and utilise them for a distinct purpose?

That, I think, is an ordinary rule with regard to all moneys paid into the Exchequer. They can only be paid out in accordance with directions of the Dáil.

So I think that makes a distinct change in the intention, and I would ask that some explanation be given as to why that change is required. The paying of these surpluses into a special account, as was originally intended, might well cover the purpose of paying those surpluses automatically on certain conditions, but I think that the amendment requires some further explanation before it should be accepted.

Mr. O'HIGGINS

There is nothing sinister about the amendment as the Deputy seems to suggest. It is merely technical. On the one hand in the draft as it stood you had the instruction that this money would be kept in a special account, a separate bank, and the proposal is now that it be paid into the Exchequer in accordance with the directions of the Minister for Finance. It is not true to suggest that the former wording left the door any more open for recoupment than the present wording, or that the present wording any more bangs the doors on the possibility of recoupment in whole or in part than the former wording. In either case there could be no question of recoupment except by formal legislation to that effect. Deputy Johnson's statement rather suggested that in the previous case it would be open to the Dáil by resolution presumably—he did not state by what means exactly—to instruct the Minister for Finance as to the disposal of funds in the special account, and he seems to have an idea that the change removes such a possibility. Now that possibility did not exist. The previous wording was: "and the surplus if any of such money or proceeds shall be forfeited and paid into such special account." If the surplus is forfeit to the State it becomes the property of the State, and can only be disposed of by legislation initiated by the Minister for Finance. That is my information and my advice on this section, and the Deputy is not correct in his suggestion that there is any substantial change any more than what the mover of the amendment stated, and any more than a mere technical drafting change as between the amendment, and the wording as it stood.

Of course there is the possibility that the Section as printed in the original draft might mean that the proceeds having had taken from them the expenses of the compensation, shall be forfeited by the holders of those proceeds, and the surplus shall be forfeited and paid into an account. They no longer are the property of the Minister who directs the sale.

ACTING CHAIRMAN

They never were the property of the Minister who directed the sale. The Minister acted on behalf of the State; they cannot be forfeited by the Minister who holds in his Ministerial capacity.

There is no suggestion no definite contention here, that the proceeds of the sale are then the property of the State. The Section does not provide for that until we come to the word "forfeited." It does not say they shall be forfeited to the State as the Minister interprets. These proceeds of the sale of cattle are to be expended in certain ways and the balance is to be forfeited. To whom and by whom? They are to be forfeited and paid into a special account in a bank. No doubt inasmuch as they are paid into the account directed by the Minister for Finance, they shall be under his control, but there is nothing in this Section which says they have then become the property of the State. While I do not suppose the amendment makes a tremendous change, there is an added implication, a more direct implication, that the forfeiture is into the Exchequer, and it is a forfeiture to the State, and that is a very distinct change in the intention, at least in the language, and the possible interpretation of the clause as originally drafted and the clause as it would be amended if this amendment were passed. I think that the holding of those monies in a suspense account of some kind in a special bank may be more satisfactory than putting them into the Exchequer, and, in a way, losing them in the general sum.

Amendment put.
The Dáil divided: Tá, 35; Níl, 12.

  • Donchadh Ó Guaire.
  • Mícheál Ó hAonghusa.
  • Domhnall Ó Mocháin.
  • Séamus Breathnach.
  • Pádraig Mag Ualghairg.
  • Peadar Mac a' Bháird.
  • Darghal Figes.
  • Seoirse Ghabháin Uí Dhubthaigh.
  • Deasmhumhain Mac Gearailt.
  • Seán Ó Ruanaidh.
  • Mícheál de Duram.
  • Risteárd Ó Maolchatha.
  • Pilib Mac Cosgair.
  • Mícheál de Stáineas.
  • Domhnall Mac Cárthaigh.
  • Earnán Altún.
  • Sir Séamus Craig.
  • Liam Thrift.
  • Liam Mag Aonghusa.
  • Pádraig Ó hÓgáin.
  • Pádraic Ó Máille.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Séamas Ó Cruadhlaoich.
  • Eoin Mac Néill.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Próinsias Bulfin.
  • Próinsias Mag Aonghusa.
  • Peadar Ó hAodha.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Séamus de Burca.

Níl

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Liam de Róiste.
  • Tomás Mac Eoin.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Eabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
Amendment declared carried.

Mr. O'HIGGINS

I move to Report progress, the Committee to resume at 3 o'clock on Monday. I am not now moving the Section.

Motion put and agreed to.