DAIL IN COMMITTEE. - INDEMNITY BILL, 1924. (THIRD STAGE.)
(1) No action or other legal proceeding whatsoever, whether civil or criminal, shall be instituted in any court of law or equity in Saorstát Eireann for or on account of or in respect of any act, matter, or thing done, whether within or outside Sáorstát Eireann, after the 21st day of January, 1919, and before the 28th day of June, 1922, provided such act, matter, or thing—
(a) was done by a person then holding officer under the First Dáil Eireann or the Second Dáil Eireann or employed in any capacity whatsoever in any service, military or civil, established or maintained by or under the authority of the First Dáil Eireann or the Second Dáil Eireann, or was done by any other person acting under the authority of a person so holding officer or so employed; and
(b) was done or purported to be done for the purpose or in the course of the struggle to bring about the termination of the rule of the British Government in Ireland and the establishment and maintenance of the First Dáil Eireann and the Second Dáil Eireann respectively as the lawful Government of Saorstát Eireann, or (if done on or after the 11th day of July, 1921) was done or purported to be done in connection with the struggle aforesaid or in continuance of a course of conduct begun before the date aforesaid for the purpose or in the course of the said struggle; and
(c) was done in good faith; and
(d) was done or in good faith purported to be done in the execution of the duty of the person doing the same, or in exercise or execution of any authority conferred on such person, or the person under whose authority he was acting, by the First Dáil Eireann or the Second Dáil Eireann, or for the public safety, or for the enforcement of discipline, or otherwise in the public interest.
(2) No action or other legal proceedings whatsoever, whether civil or criminal, shall be instituted in any court of law or equity in Saorstát Eireann for or on account of or in respect of the retention during any period previous to the passing of this Act, of any weapon, ammunition, bicycle, motor car, or other article which was taken from the owner or his servant or agent in such circumstances that the institution of an action or other proceeding after the passing of this Act in respect of such taking would be prohibited by the foregoing sub-section of this section.
(3) If any such action or other proceeding as is mentioned in this section was instituted before the passing of this Act and is now pending the same shall be discharged and made void, subject to such order as to costs as the court in which such action or proceeding is pending or a judge thereof or any court to which the jurisdiction of that court has been transferred or a judge thereof shall think fit to make.
(4) Where any such action or other proceeding as is mentioned in this section was instituted before the passing of this Act, and final judgment was given in such action or proceeding after the 11th day of June, 1924, and before the passing of this Act, such judgment and any appeal therefrom, and any order or judgment made on such appeal before the passing of this Act shall be and is hereby made void, and such action or proceeding shall be discharged and made void, subject to such order as to costs as the court by which such judgment was given or a judge thereof or any court to which jurisdiction of that court has been transferred or a judge thereof shall think fit to make.
(5) This section shall not prevent the institution or prosecution of—
(a) any proceedings by or on behalf of the Government of Saorstát Eireann or any Minister or Department of that Government; or
(b) any proceedings in respect of any alleged rights under, or breaches of, any contract; or
(c) any civil proceedings founded on negligence in respect of damage to person or property; or
(d) any proceedings respecting the validity or infringement of a patent; or
(e) any proceedings for enforcing or otherwise giving effect to any final judgment by any court in Saorstát Eireann on or before the 11th day of June, 1924, and from which no appeal lies by law or is pending at the passing of this Act.
I move:—
In Section 1, in sub-section (1), lines 27 and 28, to delete from the word "action" to the word "criminal," inclusive, and substitute therefor the words "criminal proceedings."
The amendment as proposed would make the section read: "No criminal proceedings shall be instituted in any court of law or equity in Saorstát Eireann for or on account of or in respect of any act, matter or thing done, whether within or outside Saorstát Eireann, after the 21st day of January, 1919, and before the 28th day of June, 1922." In dealing with such a complex measure as an Indemnity Bill it is necessary at the outset to bear in mind and examine in the light of reason and in view of the constitutional principles involved, rather than political partisanship or expediency, the great issues raised. I submit that this section as it stands gives undue latitude, and sets, as it were, the seal of approval on acts that could not be justified. So I say the Bill must be somewhat restricted in its application, and I submit that "no criminal proceedings" will meet the case perfectly well. I maintain if we say "no other legal proceedings" that men shall be denied their right to go before courts with legitimate claims just because they are prevented, in fact, from obtaining justice in the courts.
If men have outstepped the law, or grossly and very gravely abused the law, is it not right that they should be answerable to the law? This Bill, as the Minister has recognised in connection with certain sections, is no such thing as a complete amnesty. It is not an act of oblivion; the responsibility of certain persons to the law is still maintained. Is it right that the passive element, men and women imposed upon by persons abusing the name of Dáil Eireann, or the forces under it, should be deprived of their just and constitutional right to go before the courts? I maintain it is not, and I further maintain that this and subsequent amendments I have tabled will be sufficient safeguard for persons who acted well within the authority of the First or Second Dáil, but will not be a covering protection to people who abused the positions that were bestowed upon them.
I am not a accepting the amendment. The section is put down for the purpose of covering from civil proceedings persons who acted under instructions. I mentioned already a case in which a man might commandeer a bicycle or a motor car or something else of that kind and who is now being prosecuted, although he acted under the orders of somebody else. When we speak of justice in that connection, we must realise there is more than one party looking for justice. The man who acted under the orders of some person is looking for justice. He acted under the orders of some person who cannot be made amenable, and the person who gave the order cannot be brought to account for the loss involved. In the circumstances, I could not accept the amendment.
I have actually in some instances drawn the President's attention to cases where a grave and manifest injustice has been inflicted upon the plain people. I drew particular attention to one case in County Clare, where a man was fined a certain sum by a court, or under the pretended authority of a court. The fine was paid, and the man appealed to a legitimate and properly-constituted court. The court made an order for a refund of the money, but the man has not yet received it. I fear and believe that this section will prevent the man from obtaining justice or taking the requisite legal steps to bring the person who holds his money, without proper authority or without a show of legality, to the existing courts to obtain redress.
Amendment put and negatived.
I beg to move the following amendment:—
In sub-section (1) to delete the words and figures "28th day of June, 1922," in lines 31 and 32, and substitute therefor the words and figures "11th day of July, 1921."
The effect of this amendment would be once more to restrict the application of this indemnity. I suggest the substitution of the 11th July, 1921, for the 28th June, 1922. That was the day of the Truce. Remember what the conditions of the Truce were. Quoting from memory, there was one passage which said there could be no interference with persons or property. That was one of the conditions that was adopted and was the policy of the Government. If men outstepped that, is it right that they should not bear the consequences? Did they not violate the Truce and expose the country to further war and hardship? I think it is wrong that men should at this stage get an amnesty for doing things absolutely contrary to the spirit of the Truce, and in those circumstances I move the amendment.
I desire to support the amendment. When I read the Bill first I could not understand the reason why the Government extended the period up to the 28th June, 1922. I am merely looking at this from the point of view of people who might have lost their lives following the signing of the Truce. I take the view, which perhaps is open to question, and no doubt will be disputed, that any individual who was killed following the Truce between England and Ireland was killed by a person who, in my opinion, is guilty of murder. I am not going to vote for an extension of the period that will cover an act of that kind. I would like to hear the Ministerial arguments as to why the period is extended.
I mentioned here the last day that there was at least one instance in which a servant of the State, preventing the escape of a prisoner, fired, and the prisoner was killed. There was no statutory authority for armed force at that time, and it might be possible that in that case a prosecution would be brought against this servant of the State who acted in accordance with duty while bringing a prisoner from one place to another. In that case one cannot specify in a schedule the particular individuals whom it is proposed to cover. It is not proposed to cover ordinary breaches of the Truce as such. I believe I have seen at least one instance of a case of such a breach where the person was brought to trial. It is not intended to give an indemnity to persons such as that. It is intended, over the period in which there did not exist any statutory authority for persons being armed. other than the authority of the First or Second Dáil, to give them that privilege. One cannot have an indemnity for a broken period. It was proposed last year to start the Indemnity Act from the 27th June until whatever date the Act passed. In this case we are filling up the interval between the establishment of the First Dáil and the 27th June.
I am inclined to support this amendment on somewhat different grounds. The Minister has explained that the insertion of the 28th June, 1922, is intended to cover the period and to fill up the time to the date when the last Indemnity Act began. That Indemnity Act deals with members of the National Army. The important consideration is that on or up to that date several thousands of men were members of the National Army, and the distinction is drawn between the two sections who divided at or about that time. I am not able to see that very fine dividing line as the Minister seems to be able to see it.
I am inclined to think that the case for this Bill would be much stronger if it were confined to the period up to the Truce, and that, as between that date and the 28th June, matters would be left as they are, until, perhaps, at some happier date, in the near future, there may be a general Indemnity Bill and a general Amnesty Bill to cover not only those who remained within the National Army, but those who diverged on the 28th June. The Indemnity Bill, of course, is, in fact, an Amnesty Bill, and the question of the legal powers of the forces that were actively carrying out the will of the Provisional Government and of the Dáil before the Treaty can, I suggest, remain in abeyance a little longer as it has remained in abeyance up to this date. We are, however, asked to give practically a clean sheet for every act done which could be said to be done in good faith, the judges of that good faith being in effect the present Ministry. I said on the First Stage that this Bill called for a great deal of faith in the Ministry, a great deal of faith in their judgment, in their absence of personal feeling, and in their absolute sense of justice. I think that, as a matter of fact, it calls for too much faith in that respect, and, while I would be prepared to extend that faith to the Ministry in respect of these acts up to the date of the Truce, I am very doubtful, indeed, as to the remainder of the period as between the date of the Truce and the 28th June, 1922. I, therefore, will support the amendment.
The Minister, might reasonably claim that many of the things that happened between 11th July, 1921, and the date of the signing of the Treaty need not cause very much alarm, but I am sure he is aware that many responsible things were done between the date of the ratification of the Treaty and the 28th of June, for which he cannot, in fairness to members of the House, ask them to accept responsibility. The Army that was united between 11th July, 1921, and the date of the ratification of the Treaty, divided as a result of that incident. I have in my mind a case where an individual was, in my opinion, murdered, and I cannot see my way clear to relieve the man involved in that crime from the operations of the existing law whenever, and if ever, it can be proved that he is guilty of a crime of that kind. That is the position which the Minister should take, and I think he is going too far in this matter by asking the House to accept the clause as it stands. If Deputy Connor Hogan is going to put the matter to a division I will vote for the amendment.
I think the President ought to take serious cognisance of what is meant by the amendment. Surely the man to whom he has referred as shooting a prisoner is indemnified sufficiently by the fact that he was acting under authority, and it was the authority that put him in that position that is responsible. As regards men acting without authority and doing the things which happened between these two dates, surely the Government does not stand over them and surely it does not want to indemnify every blackguard concerned with the things that happened. I think an explanation is due of the attitude of the President. Where men acted with authority they are indemnified, because they acted with the authority of some Government. In many cases, however, they acted without authority. Does the President propose to indemnify every blackguard in the country? It might occur again, and it is a bad precedent to establish.
It is not intended to indemnify every blackguard in the country, and there is no such indemnity in this Bill. Sub-section (1) says: "was done by a person then holding office under the First Dáil Eireann or the Second Dáil Eireann." The persons to whom Deputy Johnson refers are not concerned in this. There were breaches of the Truce and those breaches are not indemnified by this Bill, but there are certain things which should be regarded in a sense as breaches of the Truce. I knew of one case where certain premises were to be taken over by the British troops during the Truce period. Forces under Dáil Eireann took possession of the premises, and the British marched on them, and there was great danger of a conflict. It was solved, however, by the fact that the premises were burned. If it transpired who burned them—I am sure he did not do it on his own initiative—he would be open to an action and could be prosecuted if we do not give him this particular indemnity.
Will the President make clear the position of two men, perhaps participants in the same unauthorised act—one remains with the Government forces and the other joins the Irregular forces. Under this Bill the probabilities are that No. 1 will receive a certificate of indemnification, but No. 2 will not receive such certificate. I am not speaking of acts committed after the 28th June, but I am thinking of acts committed probably in unison by men who divided their allegiance and to acts committed during the period when they were part of the same organisation acting under the same authority. I say that we ought not at this stage make a division in respect to indemnification in regard to acts done under those circumstances.
I do not want to draw anything across the matter to which Deputy Johnson has made reference just now, but there is another kind of case which I wish to touch upon, and it arises under this amendment, although there are cases even earlier than the date limited by Deputy Connor Hogan. I think the answer to a good many of the cases that have been raised here arises under sub-section (5), paragraph (a), which still leaves the Saorstát Government open to instituting any criminal proceedings. That might deal with the case raised by Deputy Davin. But following upon that and carrying it one stage further a difficulty arises. I gave the President a case on Second Reading. Supposing it happens that, for one reason or another, no criminal proceedings are instituted, or can be instituted—the particular case to which I made reference was an act, prima facie, of murder—no criminal proceedings are instituted, and an indemnity therefore is assumed under the purposes of this Bill. But collateral damage has been done; goods have been destroyed; incidental deprivations have occurred. Because the Free State Government does not, by the powers given to it under this Bill, institute criminal proceedings, therefore an indemnity may be assumed, and the consequence is that the person so injured by acts for which no warranty existed at the time has been indemnified against equity costs or other costs of that kind that could be sought but for the operation of this Bill.
The section sets out the various persons affected by this indemnity: No. 1, holding office under the First or Second Dáil, or a person acting under the authority of the person so holding office or so employed. The second is that it was done or proposed to be done for the purpose or in the course of the struggle to bring about the termination of the rule of the British Government in Ireland. How can it be argued that a breach of the Truce would bring about, or help to bring about the end of the rule of the British Government in this country? How can it be argued under (c) that it was done in good faith, or under (d) that it was done or in good faith purported to be done in the execution of the duty of the person doing the same? I fail to see how you can possibly bring in the cases that have been mentioned by Deputy Davin.
AN LEAS-CHEANN COMHAIRLE took the Chair.
Amendment put.
The Committee divided: Tá, 15; Níl, 37.
Tá
- Pádraig F. Baxter.
- Seán Buitléir.
- John Conlan.
- Bryan R. Cooper.
- Connor Hogan.
- Séamus Mac Cosgair.
- Tomás Mac Eoin.
- Tomás de Nógla.
- Tomás O Conaill.
- Liam O Daimhín.
- Seán O Duinnín.
- Donchadh O Guaire.
- Domhnall O Muirgheasa.
- Tadhg O Murchadha.
- Patrick K. Hogan (Luimneach).
Níl
- Richard H. Beamish.
- Earnán de Blaghd.
- Seoirse de Bhulbh.
- Máighréad Ní Choileáin Bean Uí Dhrisceóil.
- Patrick J. Egan.
- Desmond Fitzgerald.
- John Good.
- David Hall.
- John Hennigan.
- Liam T. Mac Cosgair.
- Maolmhuire Mac Eochadha.
- Risteárd Mac Fheorais.
- Pádraig Mac Fhlannchadha.
- Eoin Mac Néill.
- Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Martin M. Nally.
- John T. Nolan.
- Criostóir O Broin.
- Seán O Bruadair.
- Richard O'Connell.
- Conchubhair O Conghaile. Aodh O Cúlacháin.
- Eoghan O Dochartaigh.
- Séamus O Dóláin.
- Eamon O Dubhghaill.
- Peadar O Dubhghaill.
- Eamon O Dúgáin.
- Aindriú O Láimhín.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Risteárd O Maolchatha.
- Séamus O Murchadha.
- Pádraig O hOgáin (An Clár).
- Seán O Súilleabháin.
- Caoimhghín O hUigín.
- Henry J. Finlay.
Amendment declared lost.
I beg to move the amendment standing in my name:—
In sub-section (1) (b), line 41, to delete the words "or purported to be done for the purpose or," and in lines 48 and 49 to delete the words "or purported to be done in connection with the struggle aforesaid or."
In endeavouring to delete those words, I feel that the section as it stands concedes too much. It is rather a very far-fetched thing to say "or purported to be done." I maintain that every form of illegality will be condoned by the retention of these words in the section—not alone things which you might say outstepped the authority of the men concerned, but in addition things done, exercised and perpetrated by a gross abuse of authority and in the absence of any authority, direct or indirect.
I will readily admit that those at headquarters never contemplated or desired that some of the things that were done through the country should ever be perpetrated, but unfortunately a lot of their subordinates down the country committed acts which could not in common justice or common honesty be condoned. They pretended to act in the name of the Irish Republic or the name of Dáil Eireann. Yet, if you retain these words, I am afraid their acts, no matter how illegal, will stand and will be upheld in the courts. If the central authority never permitted those things, it will be asked: why did not the people affected resist? The agrarian mind moves very slowly; it has no fine sense of political institutions. As I say, the central authority was remote, and when men in proximity to those places came in and professed to act in the name of Dáil Eireann, what were the people to do? I am referring, for instance, to the mania for cattle driving and the seizure of land some years ago. A lot of these things were done under the direct authority of Sinn Fein Clubs. It will be contended, of course, that they had not a mandate from Dáil Eireann. I quite agree, but, as I pointed out, men will have some difficulty in dissociating Sinn Fein Clubs from the authority of Dáil Eireann. At that time they were inter-related. I feel that the retention of those words "or purported to be done" will be condoning every unlawful act that had any connection with the national struggle and will be giving it a sanction in law to which it is not entitled.
I cannot accept the amendment. The onus of proof would lie on a person who purported to do a thing for the purposes set down. This is the usual phraseology of an Indemnity Bill. There is nothing in it that is not usually found in an Indemnity Bill. The question is, if you are doing a thing will you do it generously or niggardly? We believe these words are necessary, and we refuse to accept the amendment.
Mr. HOGAN
I think the Dáil is entitled to an explanation of the words "purported to be done."
They mean all they say there.
Deputy Hogan appears to overlook the fact that before a certificate can be given it has to be covered by paragraph (1) A, B, C and D.
Amendment put and declared lost.
I beg to move amendment 4:—"In sub-section (1), page 3, to delete paragraph (c)." I am somewhat interested in psychic theories, and I am moving this amendment for the purpose of getting the Minister's definition of what "good faith" means.
I am afraid that is beyond my capabilities.
Amendment put and declared lost.
I beg to move amendment 5, to delete sub-section (4).
This section, as it stands, would have the effect of annulling decisions reached in the courts since the 11th June, 1924. I am afraid that is an altogether inadmissible principle. The courts are independent of the Executive Council and of the Dáil, and it would be the worst possible policy to render nugatory any decisions arrived at in them. I admit that a very great principle is involved, but after all we must look upon it from another side, and there we find a great constitutional principle involved. It is a very extreme step to take to nullify the decisions of the courts, and it is scarcely warranted in the circumstances. There cannot be very many cases at present pending before the courts. Perhaps there are one or two, and is it right, I ask, that such a dangerous innovation should be introduced into our legislation just in order to render inoperative one or two decisions?
I think the Deputy has scored a point there with regard to the inclusion of such a section as this. It certainly should not find a place in any other Act than in an Indemnity Act, and this Act ought to have been passed long since. As far as any liability or criticism of the Government action in that connection is concerned, I accept responsibility for it. It ought not to have been necessary to put in such a clause as this. Had the Bill been introduced long since, as it should have been, such a section would not have appeared in it, but it now appears in order to give the same protection to persons who have the misfortune to have been brought into court or to have writs served on them in respect of certain acts, while other persons having committed the said acts are in the much happier position of not having such writs or such proceedings started against them at all. This particular section had to be put in by reason of the fact that an immense number of cases were listed. To use, I think, a legal term, the library was full of those cases, and it was to stop them that we put in this section. I do not think there is any likelihood of this being looked upon as a precedent. Indemnity Bills are, I think, instruments that are only brought up for consideration once in every two or three generations. I think this is the last Indemnity Bill of this character that will have to be introduced, and, in the circumstances, I submit there is a case for Sub-section 4, which mitigates hardship and will tend towards relieving those people who were just as innocent before the decree was up against them as they will be after the passing of this Act, or as they were at any time during the period.
I think this is a matter that requires more consideration. The Minister may be aware whether, as a matter of fact, any final judgments have been given between the date of the introduction of the Bill and this day's date. If there have been, then they may have to be considered on their merits. If there have not been, I question the wisdom, and I am sure it is unwise, to introduce this section in this way in this Bill. I could understand the action of the Minister if, in expectation of such a Bill, a large number of cases had been introduced, and if the section only dealt with cases which were pending; but, where judgment has been given, what is to be the result, supposing this Bill is not passed within a month or two? Is the writ of the court not to run, and if so, and if it can be held up in this way, what is to be the position of the Minister for Justice, and all that he has been arguing hitherto when dealing with the legal system? I would much prefer, if some extraordinarily peculiar case had to be dealt with, that it should be dealt with on its merits, specifically defined, rather than in a general section of this kind, saying that the judgment of the courts, which had been given after the 11th June, but before the passing of this Act, was not to have effect. I think the legal advisers of the Government will find some other way of dealing with specific cases and of preventing what might be deemed by the Oireachtas to be an injustice. I would urge the Minister to find some other way of dealing with cases where judgment has been already given. I would assent to the proposition in regard to proceedings instituted, but I would not assent to the proposition in regard to judgments having been given by the courts and then re-tried, to pass legislation rendering the decisions of these courts null and void, unless we are dealing with specific questions and know exactly what we are doing.
That would be easy if I were in a position to say this Bill will be introduced, let us say, at 1 o'clock this morning and be passed before midnight to-night. Having regard to the fact that it was introduced some time ago and given a Second Reading, that the Committee Stage is on to-day, and after that that we shall have the Fourth and Fifth Stages, and then that it will have to go to the Seanad, it would be utterly impossible to get a schedule of cases sufficiently up to date before the passing of the Act. Now I was informed, at the time that this clause was drawn, that it was the most important clause in the Bill, because of the number of cases that would inevitably come before the courts that this particular clause would have the effect of stopping. Once it were known this was going to be done, it would be equivalent to an estoppel in those particular cases. I have not heard of such decisions. I am not in possession of any information whatever that any such decisions have been given. But if there have, we are putting all those cases on the same level. No man, by reason of his precision and industry in bringing his case forward, is going to be one whit in a better position than those other persons who looked at the situation in the light of all the circumstances and accepted whatever loss they were at without demur.
I am not convinced by the arguments of the President. As a matter of fact, he has made me more obstinate and more obdurate in my reasoning. He cannot very well defend the sub-section, because it is really indefensible. I submit the proper course would be rather to expedite the passing of this Bill through the Dáil and Seanad and delete the section. I would like to point out that paragraph (c) of sub-section 5 of this section says:—
Any proceedings for enforcing or otherwise giving effect to any final judgment by any court in Saorstát Eireann on or before the 11th day of June, 1924, and from which no appeal lies by law or is pending at the passing of this Act are by this particular section validated. Why cannot the half-dozen cases, or whatever number they amount to, governed by sub-section (4) be put into the same category as paragraph (c)? I am afraid it is a very dangerous thing to interfere with the judgments of the courts. I admit the difficulties of the situation, but in view of everything it is a very dangerous principle to admit the right of the Legislature to pass special Acts rendering nugatory the decisions or decrees of a court. If that were to prevail—as it happens, it will not—or if the idea were to go forth that those things could be done, I am afraid the confidence of the people in the courts would be shaken. As I have pointed out this evening, the rural mind has no fine political instincts or intuition, and I do urge the President, in view of those things, to accept liability for those matters which the clause, as it stands, seeks to evade. It is preferable that the Government should accept liability for those things than that they should accept responsibility for this very dangerous innovation.
Can the President say if it is the intention of the Bill that in the case of a person against whom proceedings have been instituted and judgment given, or not, he will be recouped by the State the amount of the costs that he has incurred as a result of being proceeded against; or if he has actually paid any amount awarded against him as a judgment whether he will have to proceed for recovery of that amount, in case the person who got the amount from him does not quite agree with the Act?
The question of costs comes in at the end of the section and in the case of a person having paid any money in respect of a decree so granted, that particular amount would have to be repaid.
It does not seem to me to be clear from the sub-section whether the person who has been proceeded against will have to suffer the loss of the amount of the costs, or whether the State will pay that amount.
That is a matter for the judge.
Members of the legal fraternity will have received some work to do in connection with the defence of some of those cases. They will require payment, no doubt, for their services. If the judge awards costs in any particular case, is it the State that will pay those costs?
Not as the section is drawn at present.
Will the President take into consideration the advisability of covering persons who may suffer loss in that particular way by putting a suitable clause in the Bill?
As the section is drawn it would appear to me that in the majority of cases, if not in all, the judge will allow costs, but he would have to take into account in doing so whether or not the proceedings were vexatious.
As the section stands at present, either the solicitor or barrister who has the case in hands, or the man who has been proceeded against, will be at some loss. I take it that if the intention is that the Bill should be a wide Indemnity Bill, and that if the Bill had been passed earlier it would have saved the expense to either one or other of those people, some clause ought to be introduced that would put the cost of any such proceedings on the State.
As I understand the section, it is that if a judgment has been given and costs have been awarded against either one or other of the parties, then the costs would have to be paid according to that judgment, but the judgment of the court will not be enforceable—that is, the judgment of the court in respect to damages. In such a case, Deputy Mulcahy's plea that the State should bear the costs is certainly worthy of consideration. But I think there is no question as to what the section means.
Apparently the solicitor is to lose, as the clause stands at present.
Question put.
The Committee divided: Tá, 13; Níl, 28.
Tá
- Seán Buitléir.
- John Conlan.
- Connor Hogan.
- Tomás Mac Eoin.
- Tomás de Nógla.
- Tomás O Conaill.
- Liam O Daimhín.
- Seán O Duinnín.
- Donchadh O Guaire.
- Domhnall O Muirgheasa.
- Tadhg O Murchadha.
- Patrick K. Hogan.
- Séamus Eabhróid.
Níl
- Richard H. Beamish.
- Earnán de Blaghd.
- Seoirse de Bhulbh.
- Máighréad Ní Choileáin Bean Uí Dhrisceóil.
- Patrick J. Egan.
- David Hall.
- John Hennigan.
- Liam T. Mac Cosgair.
- Maolmhuire Mac Eochadha.
- Risteárd Mac Fheorais.
- Pádraig Mac Fhlannchadha.
- Liam Mac Sioghaird.
- Martin M. Nally.
- Peadar O hAodha.
- John T. Nolan.
- Conchubhair O Conghaile.
- Aodh O Cúlacháin.
- Séamus O Dóláin. Eamon O Dubhghaill.
- Peadar O Dubhghaill.
- Eamon O Dúgáin.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Risteárd O Maolchatha.
- Séamus O Murchadha.
- Seán O Súilleabháin.
- Caoimhghín O hUigín.
- Partholán O Conchubhair.
Amendment declared lost.
I move:—
In sub-section (5) (c), line 44. To delete the words "founded on negligence."
Here we revert to the original question of liability for damages done. I do not propose to say very much on that. The question has been well discussed before. I still retain the opinion that many persons could be made liable for damages to property, but if you include those words "founded on negligence" you necessarily restrict the application of the Act.
I am still of opinion that those acts which bore no relation to, or had no effect on, the national struggle, should not be indemnified. I maintain that with the deletion of these words many legitimately-aggrieved persons will be given an opportunity of trying the courts and endeavouring to secure justice. In that spirit I move the amendment.
I am afraid the Deputy is wrong in moving the deletion of these words. If this amendment were to pass, I believe that particular sub-section would be of no avail whatever. I understand the Deputy's point of view was that we were taking away certain rights and giving a larger indemnity than has been given before.
Sub-section 5 reads: "This section shall not prevent the institution or prosecution of ... any civil proceedings founded on negligence in respect of damage to person or property." I suggest the deletion of the words "founded on negligence." I cannot discern what the President means.
In essence, the deletion of those words would mean that there would be no civil proceedings whatsoever, and I understood that was what the Deputy was against in most of his amendments up to this.
The opening lines of the sub-section read: "This section shall not prevent"?
In other words, it allows civil proceedings.
That is the basis of a case in respect of a prosecution in the event of damage to property. Otherwise, one simply leaves it open to criminal and malicious damage, and that is already covered by other Acts.
In the circumstances I beg to withdraw the amendment.
Amendment, by leave, withdrawn.
Question: "That Section 1 stand part of the Bill"—put and agreed to.
SECTION 2.
(1) A statement in writing signed by an Executive Minister certifying any of the matters mentioned in this section shall be conclusive evidence of the matters so certified, that is to say:—
(a) that any act, or thing complained of in any such action or other legal proceeding as is mentioned in Section 1 of this Act was done in the execution of the duty of the person by whom it was done;
(b) that at the time when such act, matter, or thing as aforesaid was done, the person by whom or under whose authority the same was done held office under the First Dáil Eireann or the Second Dáil Eireann or was employed in a service established or maintained by or under the authority of the First Dáil Eireann or the Second Dáil Eireann.
(2) Any such act, matter, or thing as aforesaid if done by or under the authority of a person holding office under the First Dáil Eireann or the Second Dáil Eireann or employed in a service established or maintained by or under the authority of the First Dáil Eireann or the Second Dáil Eireann shall be deemed to have been done in good faith unless the contrary is proved.
I beg to move the following amendment:—
To insert before Section 2 a new section as follows:—
"No civil proceedings at law shall be instituted in any court of equity in Saorstát Eireann, for or on account of any act, matter or thing done after the 21st day of January, 1919, and before the 28th day of June, 1922, in respect of any alleged personal injury, or damage to property unless (and until after) the certificate of the President of the Executive Council has been previously obtained certifying that such damage or injury complained of was not justified or necessitated by the existence of a state of war to bring about the termination of the rule of the British Government in Ireland in the period aforesaid."
You will observe that in Section 2 the Minister has the power to issue a certificate certifying that the several matters were justified. I am rather strongly of opinion that leave and the necessary sanction of the Minister should be got before any proceedings could be instituted in respect of any acts complained of during this troubled period. As the Bill stands, it is quite possible for a man to initiate an action in the courts, but the defendant can come along with this certifying document from the Executive Minister and nullify the proceedings. The proper and legitimate course would be that the complainant should previously make application to the President giving a necessarily full statement of his case. The President would then be in a position to judge the circumstances at the outset rather than at a later stage, and he could then give leave to institute a prosecution, or whatever legal proceedings were requisite.
Under the circumstances, I do not think it is fair that the litigant should be under the shadow, as it were, of the guillotine, and that an Executive Minister can certify that the personal aggression complained of was done in the course of the struggle to bring about the termination of British rule. It would be much better that the person would previously obtain leave to institute legal proceedings.
I could not accept the amendment. It places too much responsibility on one individual. Under the Constitution by which we are acting, there is a collective responsibility on the part of a number of Ministers. In this case the manner in which we are proposing to deal with the matter under review would be cut across by this amendment. The Deputy does not move to leave out Section 2, but he suggests that this amendment be placed as a new section in front of Section 2. You would have then, if the suggestion is agreed to, two clauses dealing, to all intents and purposes, with one particular case. I do not think that the addition of this clause is necessary, and I cannot accept the amendment.
I do not propose to press the amendment, and I will withdraw it.
Amendment, by leave, withdrawn.
Question—"That Section 2 stand part of the Bill"—put and agreed to.
SECTION 3.
Every military court, committee, or tribunal (in this section referred to as a military tribunal) established or maintained by or under the authority of the First Dáil Eireann or the Second Dáil Eireann for the trial of persons taken prisoner as military captives shall be deemed to be and always to have been a lawfully established tribunal, and every sentence passed or order made by such military tribunal after the 21st day of January, 1919, and before the 28th day of June, 1922, and everything done in execution of any such sentence or order, shall be deemed to be and always to have been valid and lawful, and such sentence or order shall be deemed to be and always to have been within the lawful jurisdiction of the tribunal by which the same was passed or made.
I beg to move the following:—In line 14 to delete the words "established or." It is considered that those words are superfluous and, to a certain extent, contradictory, and they might cause a certain amount of confusion afterwards in the interpretation of the meaning of this section.
I would like to have a little more information in regard to this matter. The words in the section, as it is proposed, are "established or maintained by." That is a little minimisation, shall I say, and it goes a little way towards securing that the court is not one which might be a coming together of two or three persons who happen to be army officers, and who might say "we are a committee." If those two or three persons come together and decide upon the deeds or merits of certain other persons, and say that a person is liable to certain punishment, and if they proceed to execute that punishment, that small committee might be construed as being maintained by the First Dáil. If we leave the section in that form, any three persons who came together and who happened to be maintained by the Dáil would be legitimised. The section is bad enough, I think, and when we come to deal with it as a whole I shall have something to say on it, but when we are asked to delete the words "established by Dáil Eireann" you are surely doing something that is unwise. Assuming that the section as proposed is to be accepted in its general intention, it should not be reduced to being a committee of army officers which was not established by Dáil Eireann but by themselves. If you leave out those two words, you would have then a case of two or three men, who happened to be in the army, maintained by the Dáil, constituting themselves a committee to try cases and give orders for the execution of judgments. That is all to be validated even though they were not established by the Dáil or by the authority of the Dáil. If you leave those two words out you are opening the way, possibly, to grave mistakes. I suggest that it is going beyond what the Minister desires. Surely he wants to make sure that the committee is one established by, and under the authority of, the Dáil. If you delete these two words you are leaving open a very wide door.
It seems to me that the words "maintained by" cannot be a very accurate description of many military courts or committees that did deal with the trial of prisoners in those days. I feel that "established" is a more correct word to describe many of the cases, and I feel that Deputy Johnson's point would be met by a provision that in case of necessity it would be necessary for the Minister to give a certificate that the court was one that could properly come within this particular section.
There is absolutely nothing in the point raised by Deputy Johnson, because after the words "established or maintained" you have the words "shall be deemed to be and always to have been a lawfully established tribunal."
Yes, but if the Minister wants to establish such a court as a lawfully established one, he now wants to come forward and say that it was lawfully established, though it was only a committee of army officers acting on their own account without being established by the Dáil. You want now to call them an established body.
Amendment put.
The Committee divided: Tá, 32; Níl, 20.
Tá
- Richard H. Beamish.
- Earnán de Blaghd.
- Séamus Breathnach.
- Seoirse de Bhulbh.
- Máighréad Ní Choileáin Bean Uí Dhrisceóil.
- Patrick J. Egan.
- Desmond Fitzgerald.
- John Hennigan.
- Liam T. Mac Cosgair.
- Maolmhuire Mac Eochadha.
- Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Liam Mag Aonghusa.
- Pádraig Mag Ualghairg.
- Martin M. Nally.
- Peadar O hAodha.
- Criostóir O Broin.
- Seán O Bruadair.
- Próinsias O Cathail.
- Richard O'Connell.
- Partholán O Conchubhair. Conchubhair O Conghaile.
- Séamus O Dóláin.
- Peadar O Dubhghaill.
- Pádraig O Dubhthaigh.
- Eamon O Dúgáin.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Séamus O Murchadha.
- Seán O Súilleabháin.
- Caoimhghín O hUigín.
- Seán Príomhdhail.
Níl
- Pádraig F. Baxter.
- Seán Buitléir.
- Bryan R. Cooper.
- Séamus Eabhróid.
- David Hall.
- Connor Hogan.
- Tomás Mac Eoin.
- Risteárd Mac Fheorais.
- Pádraig Mac Fhlannchadha.
- Tomás de Nógla.
- Tomás O Conaill.
- Aodh O Cúlacháin.
- Liam O Daimhín.
- Eamon O Dubhghaill.
- Seán O Duinnín.
- Donchadh O Guaire.
- Risteárd O Maolchatha.
- Domhnall O Muirgheasa.
- Tadhg O Murchadha.
- Pádraig O hOgáin (An Clár).
Amendment declared carried.
I move:—In lines 16 and 17 to delete the words "taken prisoner as military captives." The object of the amendment is to cover cases in which persons may have been dealt with by the courts referred to in the section who had not been taken prisoner because of the abnormal circumstances of the time, the difficulty at that period of arresting, detaining and trying prisoners in a normal way.
I would like the Minister to give us a little more information as to what this deletion means. The proposal of the Ministry now is that every Military Committee maintained by the Dáil for the trial of persons shall be deemed to be and always to have been lawfully established, and every sentence passed shall be deemed to have been lawful, and every execution of such sentence shall be deemed to be valid and lawful. The words in the original section confine the operations of it—the first part of it, at any rate— to persons taken prisoners as military captives. It is now sought to delete that, and the Minister, arguing for the deletion, says that there may have been sentences carried out by Military Committees, now called courts, which executed judgments in respect of persons who were not prisoners.
I think that the new amendment, as the last amendment, is simply extending the indemnification to cover cases which it was not at first considered justified indemnification. Unfortunately, I am very much in the dark, and I think most members of the Dáil are in the dark, as to what is intended to be covered by this section. We had a clue to the intentions when these words "taken prisoners as military captives" were inserted, and we had a right to assume that it was the intention to indemnify military officers against acts which they committed as courts, now to be called tribunals, in respect of prisoners of war. That certainly circumscribed the matter to some extent. But now we are asked to delete those words. In effect, it means that such military courts, or committee of soldiers, who called themselves a court decided that certain acts in respect of persons might be enforced, and we are now validating them and saying they were always valid. I do not think any case has been made for the deletion of these words, "taken prisoner as military captives." It is in effect asking us to say that anything that is done by any group of military officers during the period from the 21st day of January, 1919 to the 28th day of June, 1922 —I ask the Dáil to bear in mind the period that covers—any committee of military officers maintained by the First or Second Dáil, not even the Provisional Government, could decide to take the life, if they so wished, of any person, even if that person had not been taken prisoner as a military captive, and we are now asked to say that that was lawful and that they were always competent to execute a judgment in those circumstances. With every desire to be as generous in this matter as is possible, I cannot bring myself to vote for this amendment, or even for this section. But I will leave out the question of the section for the time being, and I ask the Minister if he will give us some more information as to why he wants to delete these words which obviously were intended when drafting the Bill, to cover cases of men taken prisoners. The deletion of them simply means that such cases as were originally intended to be only effective in respect of persons taken prisoner are now to be validated in respect to any person whether taken prisoner or not.
I wish to support the amendment. Deputy Johnson thinks that the clause should be restricted to cases of prisoners who were taken by soldiers of the Irish Republic, but due consideration must be given to all the circumstances of that troubled time. It was not always possible in a fight carried on by a handful of soldiers— you might call them only a handful— against an army of 70,000 British troops and 10,000 policemen, having full possession of the highways and byways, the towns and the streets, by night and by day, to take prisoners. When due consideration is given to all those facts I think it must be admitted that this amendment is necessary, and that it should be as wide as possible in order to cover all the points. I wish at this moment to bring before the Dáil a very significant article that has appeared in the "Morning Post" dealing with this whole question. Perhaps I should deal with it when the section is being put.
It does not arise on the amendment.
Amendment put. The Committee divided: Tá, 41; Níl, 15.
Tá
|
Richard H. Beamish.Earnán de Blaghd.Séamus Breathnach.Seoirse de Bhulbh.Máighréad Ní Choileáin Bean Uí Dhrisceóil.Patrick J. Egan.Osmond Grattan Esmonde.Desmond Fitzgerald.John Hennigan.Liam T. Mac Cosgair.Maolmhuire Mac Eochadha.Patrick McGilligan.Eoin Mac Néill.Seoirse Mac Niocaill.Liam Mac Sioghaird.Liam Mag Aonghusa.Pádraig S. Mag Ualghairg.Martin M. Nally.John T. Nolan.Peadar O hAodha.
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Mícheál O hAonghusa.Criostóir O Broin.Seán O Bruadair.Próinsias O Cathail.Richard O'Connell. Partholán O Conchubhair.Conchubhair O Conghaile.Eoghan O Dochartaigh.Séamus O Dóláin.Peadar O Dubhghaill.Pádraig O Dubhthaigh.Eamon O Dúgáin.Aindriú O Láimhín.Séamus O Leadáin.Fionán O Loingsigh.Risteárd O Maolchatha.Séamus O Murchadha.Pádraig O hOgáin (Gaillimh).Seán O Súilleabháin.Caoimhghín O hUigín.Seán Príomhdhail.
|
Níl
|
Pádraig F. Baxter.Séamus Buitléir.Séamus Eabhróid.David Hall.Connor Hogan.Tomás Mac Eoin.Risteárd Mac Fheorais.Pádraig Mac Fhlannchadha.
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Tomás de Nógla.Tomás O Conaill.Aodh O Cúlacháin.Liam O Daimhín.Eamon O Dubhghaill.Domhnall O Muirgheasa.Tadhg O Murchadha.
|
Amendment declared carried.
I move amendment 10:—In line 18 to insert the words "judgment given" after the word "passed," and in line 21 insert the word "judgment" after the word "sentence."
In the section as it stands, the decisions of the courts are referred to as "sentences" or "orders." In the more important cases they might be more accurately described as "judgments." This is merely a drafting amendment.
Amendment put and agreed to.
Question proposed—"That Section 3, as amended, stand part of the Bill."
I desire to oppose this section. I ask the Dáil to note that in the case of persons affected by Section 1 there are certain provisions to the effect that the thing done must have been done by authority, in good faith and in the execution of the duty of the person doing the same; further, a certificate is required from an Executive Minister to assure the court that the act was done in furtherance of the movement for the dethronement of the British Government in Ireland, and that certificate would be sufficient to secure indemnification. In the case of the military court or committee or tribunal, it is to have all its deeds validated by this section. There is nothing to indicate that the tribunal was duly authorised; no certificate is required to prove that such a court had authority and "military tribunal" is not defined in any way. As amended, the section simply means that every tribunal or committee or court, every group of persons who claimed to be a court, however large or small, every group who may have decided upon certain acts to be done in respect of persons, who may have decided, in any way, to try certain persons and give judgment, and who may have carried out that judgment are, by the passing of this section, to have those acts validated. No matter what those acts may have been, no matter whether the persons were acting in good faith or in furtherance of the purposes of the army or of the Government, any act committed by the Army. or any section of the Army, which claims to call itself a tribunal, is to be validated by this Bill and deemed always to have been lawful. I think that is asking too much. I think that is putting too great a strain, as I said earlier, upon the faith of the members of the Dáil and upon the faith of the country. We do not know what was done by the Army. We do not know whether acts alleged were committed or not. Some of us think that there is truth in allegations that have been made against the Army and against courts or bodies of people purporting and claiming to be courts. If those things are true, then I say we would be very wrong in validating them. This section is sweeping and practically asks us to say that anything done by any group of persons in the Army during the years 1919, 1920, 1921, and half of the year 1922, was lawful and valid, and nothing shall be said henceforth in respect of it.
A Chinn Comhairle, is the Deputy in order in purporting to quote from the section what is not in the section?
I have been quoting nothing except dates.
The Deputy has suggested that the section provides that any group of persons coming together and calling themselves a court come within the terms of this section. Clearly, they do not.
If that is a point of order, then I do not know what a point of order is. I said the effect of this section, if it be passed, will be to do what Deputy Duggan disclaims. It is for him to say that that will not be the effect of the passing of this section (section quoted). There is nothing to show in this section what was a military tribunal, a military committee, or a military court, except that it was military, and that a military organisation was established under the First or Second Dáil. The authority of the First or Second Dáil was indefinite. It was an authority to the Minister for Defence or the General Headquarters Staff or the Army en bloc. I say that unless there is a very much finer definition of this section, it will have the effect I am warning the Dáil against. It will mean that anything done by the Army was valid. If that meaning is not to be taken out of it, then I say it is for the Ministry to suggest definitions and make provisos in this case, as has been done under Section 1.
I would ask the Minister to take an illustration that might be pertinent and yet not ruffle the members' feelings. There was a continuance of the military defence forces established by Dáil Eireann to June 28th, 1922. How are you going to say whether those who acted as the Executive were not members of a tribunal appointed by Dáil Eireann, maintained by Dáil Eireann, and under the authority of the First or Second Dáil? Remember—
"for the purposes of this Act, no authority conferred by or derived from the First Dáil Eireann or the Second Dáil Eireann shall be considered to have been terminated by the setting up of the Provisional Government of Ireland, or by the confirmation, continuance, or recognition of such authority by that Government, or by the election of the Third Dáil Eireann—"
so that those people who became followers of the Executive and took possession of the Four Courts might claim under that clause to be acting under the authority of Dáil Eireann, and consequently by this section you are making valid any sentences imposed by a tribunal under that same authority. That is not what the Minister's desire is, and if I am wrong, perhaps he will correct me. Apart from that particular set of cases we can go back and take any act of any Committee established to try persons or any Committee maintained by or under the authority of the Dáil for the trial of such persons. Any act of such a Committee is to be validated no matter what it was, whether in good faith or not, whether in furtherance of the cause for which the Dáil was established or not—any act is deemed to have been lawful and always to have been lawful. I say the Dáil should not be asked to pass this section in this form. It will do very much more than I think the members of the Dáil desire to be done, and I should be sorry to think that we are willing to stand over everything that may have been done. We do not know what was done, but everything that may have been done by such Committee as is referred to in this section, calling itself a tribunal, is validated. I suggest to the Ministry that they have gone very much further than they would desire to do, or at least than they first desired to do, when we have those two amendments from Deputy Duggan which suggests that they are frankly anxious to cover up everything and anything that may have been done by such courts, by such Committees, or such tribunals, however they may be called.
I do not agree with Deputy Sears that the clause should be wide enough to cover all points. It is like saying that anything that a man may have done at any time in his life, whether he knows it to have been wrong or not, whether he repents of it or not, was always right. I do not think we should be asked to consent to that doctrine, and that, in fact, is what Section 3 means. I, therefore, shall oppose it. and I hope Deputies will oppose it. I hope it will be opposed at every point, and finally be deleted from the Bill.
I submit that every argument put forward by Deputy Johnson against this section could be put forward against every Indemnity Act passed by any nation after a war or rebellion. These arguments would be more to the point if he could read for us to-day a quotation from some Act of Indemnity in some other country where they excluded all those points that he wishes excluded. This section making valid and lawful every court, committee and tribunal is a section that appears in every Act of Indemnity, and if there was any nation that required a section such as that is, it was our country, because of the peculiarities of the struggle carried on here against great military forces by a handful of people who were not able to come out always and hold a position in the broad daylight. That made their position all the more difficult, and we contend that every court, committee and tribunal set up by the First Dáil Eireann, that is, every military court, committee or tribunal set up by the First or Second Dáil Eireann in that struggle is entitled to a section such as this declaring them valid and lawful. Otherwise you would have charges brought against men who took part in those courts or tribunals such as we find in the "Morning Post" of yesterday or the day before, in which this Bill is indicated as an attempt to put a cloak over crimes of various kinds. Every line in this article breathes the old spirit that we thought was dead, but which evidently still lives on. The spirit that was evident in the "Weekly Stunmary" is recalled by this article and by the arguments in it. It was the paper that urged that Ireland should be made at that time an appropriate hell.
The "Morning Post" goes on to suggest that this Bill is intended to give a legal colouring to crimes, while our contention is that they were not crimes. They were acts carried out by the Irish National Army against the enemy. In this article they sneer at our Government and at our General. Deputy Mulcahy's title of General is given in inverted commas. They had the same old sneer at General Washington, General Smuts and every other General who opposed them in the fight for liberty. Every act that we did then is put down as a crime in the usual British way. We thought that this chapter was passing away. We passed an Act indemnifying them for what they did. As they give in this article a few of the items of which they complain, perhaps we should be reminded of a few of the things committed by their officers, and for which we are indemnifying them. It may be well to remind them of Mrs. Quinn of Gort, the murder of Father Griffin in Galway, the Irish Amritzar, or the horrible massacre in Croke Park when the British Army fired on our people. The British Army fired on our people who were there assembled, and twelve were killed and fifty were wounded.
Is the Deputy not wandering from Section 3, which is to indemnify acts done by our own forces?
That is so, but I am pointing out that unless such a section as this is passed, charges like the one I am referring to might be made against our officers who took part in those courts or tribunals, and I am urging the necessity of having those courts and tribunals declared valid and lawful. We should have something like that to indemnify them. It is necessary that something should be done ro indemnify our men and for that reason this section is necessary. Might I continue this list?
I am not convinced of the relevancy of what the British are alleged to have done here.
I will not continue that list of horrors, many of which are still fresh in the memory of our people. I will not say that the spirit that is evidenced in that newspaper article represents the spirit of the majority of the British people, but it represents the spirit of that diehard section, in spite of which, and despite their greatest opposition, the Treaty was carried. Therefore they are not deserving of much consideration.
Because of the special circumstances of the time, I think that a section of this kind should not be made too restrictive. I submit it should be made even wider than in the case of two long-established countries that were at war with each other. Our country had not been fully established at the time in regard to its army, its courts or other institutions, and therefore whatever was done under order of the courts as they were constituted at the time should be now declared valid and lawful.
May I ask the Deputy one question? He used the words "every court set up by Dáil Eireann." I think that he voted for the deletion of the words which would ensure that these courts would be courts which had been set up by Dáil Eireann. He voted for the removal of the words "established by," which is equivalent to being set up, so that now we have courts which were established by themselves left in the section, which is the section that Deputy Sears wishes to support.
It will be necessary to have a section of this particular type in the Bill. I do not know if it would meet Deputy Johnson's view if the section ran like this: "Every military court, committee or tribunal, maintained by or under the authority of the First Dáil Eireann or the Second Dáil Eireann for the trial of persons, and certified by the Executive Minister to have been so maintained, shall be deemed to be." That means the requiring of a certificate from an Executive Minister of the present day that it was a military court within the intention of this Indemnity Act.
Has the Minister nothing to say in defence of this section?
I have. I defend the section—every line of it—and I object to the case made by Deputy Johnson. I did not expect he would have made that case. I do not think this is the time for going into the history of those particular incidents that occurred during that time. Deputy Johnson is just as innocent of knowledge of those matters as I am. I know as much about them as he does.
Just as much and as little—yes. I have put forward this section in defence of men who have nobody here to espouse their cause. I am not in a position to do it, but I am in a position to see that whatever security they require, they are going to get it from the Dáil.
It is very good for the Minister to be chivalrous and generous on behalf of people who are not here, but more than that is required, and more than that is sought in this section. I have tried to show, apparently with no effect, that the section in its present form goes very much further than anything that has been suggested as being the desire of the Government. It covers any act of any group of officers who choose to call themselves a tribunal, or committee, qualified to try persons and to execute judgment, no matter what that may have been, whether it may have been personal grudge, personal hate, personal spite, or whether it was in good faith or in carrying out the purposes of the Government or not. Anything that may have been done by any tribunal in those circumstances is to be validated by this clause. Is that the intention of the Government?
Then I want the Minister to show that the case I made is fallacious.
Where is there in the clause as it stands a statement that any group of officers can come together and call themselves a court? Where is that?
There was authority of a general kind given to soldiers by the Dáil to carry out the purposes of the Dáil to rid this country of the British Government. We have nothing to define what was a court or a tribunal capable of trying persons, but the clause says "every military court, committee or tribunal maintained by or under the authority of the First Dáil Eireann." It does not say "maintained by and with the authority of the First Dáil Eireann." It says "maintained by or under the authority of," which is the authority that I have specified as the general authority given to the Army for the trial of persons, and that is deemed to have been a lawfully established tribunal. If any group of military officers, having that general authority which they had from the first Dáil Eireann, set themselves up as a tribunal or as a committee to try persons for an offence, they would be deemed to be a legally formed tribunal, and any trial or sentence they would carry out would be deemed to have been valid and lawful. The Minister has not met that point, and this validation carries from the 21st January, 1919, to the 28th June, 1922. I will not complain of the Minister if he says that it is intended that within that period many persons who afterwards became enemies of the Free State were officers acting with the authority of the First Dáil. Is it intended that their acts should be validated provided they were called, or called themselves, a tribunal for the purpose of trying cases? I say that the Minister has to meet that before he should ask the Dáil to assent to this.
It is for every person who claims protection under this Bill to prove that the tribunal, upon which he sat, and upon which he acted and ordered certain things to be done, was maintained by the Dáil. If he succeeds in proving that then he has all the rights and privileges guaranteed by this Bill.
Question: "That Section 3, as amended, stand part of the Bill," put.
The Committee divided: Tá, 38; Níl, 13.
Tá
- Richard H. Beamish.
- Earnán de Blaghd.
- Seoirse de Bhulbh.
- Máighréad Ní Choileáin Bean Uí Dhrisceóil.
- Patrick J. Egan.
- Osmond Grattan Esmonde.
- Desmond Fitzgerald.
- John Hennigan.
- Liam T. Mac Cosgair.
- Maolmhuire Mac Eochadha.
- Patrick McGilligan.
- Eoin Mac Néill.
- Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Liam Mag Aonghusa.
- Pádraig S. Mag Ualghairg.
- Martin M. Nally.
- John T. Nolan.
- Peadar O hAodha.
- Mícheál O hAonghusa.
- Criostóir O Broin.
- Seán O Bruadair.
- Richard O'Connell. Partholán O Conchubhair.
- Conchubhair O Conghaile.
- Séamus O Dóláin.
- Peadar O Dubhghaill.
- Pádraig O Dubhthaigh.
- Eamon O Dúgáin.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Risteárd O Maolchatha.
- Séamus O Murchadha.
- Pádraig O hOgáin (Gaillimh).
- Seán O Súilleabháin.
- Seán Príomhdhail.
- Louis J. D'Alton.
- Pádraic O Máille.
Níl
- Séamus Buitléir.
- Séamus Eabhróid.
- David Hall.
- Tomás Mac Eoin.
- Risteárd Mac Fheorais.
- Pádraig Mac Fhlannchadha.
- Tomás de Nógla.
- Tomás O Conaill.
- Aodh O Cúlacháin.
- Liam O Daimhín.
- Eamon O Dubhghaill.
- Domhnall O Muirgheasa.
- Tadhg O Murchadha.
Question declared carried.
I move, sir, that we sit beyond 8.30 and that we take the motion for the adjournment at 10.30 o'clock.
We have to fix whether we will now report progress.
Would I be in order in asking whether the President would move to report progress now? It will take him some further time to get through what is left of the Bill, and I would ask that the rest of the Order Paper be postponed to allow my motion to come up after an adjournment for tea, and that we sit late.
Progress ordered to be reported.
