I move:— In sub-section (1) (b), line 17, to delete the words "encourages, harbours, or comforts." In the sub-section as it stands no distinction is drawn between a person levying war against the State and a person who assists, encourages, or harbours such person. On Second Reading it was suggested that there should be some such distinction. Accordingly the amendment is introduced deleting such persons from the operations of Section I., and a subsequent amendment will be introduced, making provision for him later on.
DAIL IN COMMITTEE. - TREASONABLE AND SEDITIOUS OFFENCES BILL, 1925.—COMMITTEE.
(1) Every person who commits in Saorstát Eireann any of the following Acts, that is to say:—
(a) levies war against Saorstát Eireann, or
(b) assists, encourages, harbours or comforts, any state or person engaged in levying war against Saorstát Eireann, or
(c) conspires with any person (other than his or her wife or husband) or incites any person to levy war against Saorstát Eireann, or
(d) attempts or takes part or is concerned in an attempt to overthrow by force of arms or other violent means the Government of Saorstát Eireann as established by or under the Constitution, or
(e) assists, encourages, harbours, or comforts any person engaged or taking part or concerned in any such attempt, or
(f) conspires with any person (other than his or her wife or husband) or incites any person to make or to take part or be concerned in any such attempt,
shall be guilty of treason and shall be liable on conviction thereof to suffer death.
(2) Every person who, being a citizen of or ordinarily resident in Saorstát Eireann, commits outside Saorstát Eireann any of the acts mentioned in the foregoing sub-section (other than levying war against Saorstát Eireann) shall be guilty of treason and shall be liable on conviction thereof to suffer death.
(3) Every person charged under this section with treason shall and may be indicted, arraigned, and tried in the same manner and according to the same course and order of trial in every respect and upon the like evidence as if such person stood charged with murder, and if such person is found guilty of treason he shall be convicted and sentenced in the same manner as if he had been found guilty of murder.
Question put and agreed to.
I move:—"In sub-section (1) to delete paragraph (c), lines— 20-22." At present the section would provide that any person conspiring or inciting to levy war against Saorstát Eireann would, if found guilty, suffer the penalty of death. I submit, that as the clause reads, that would mean that the arrest of one, or two, or more persons attending what might be called a battalion or brigade council meeting of the Irregulars, and discussing amongst themselves the purchase, say, of arms for arming themselves, would mean, according to my reading of the clause, that any of these persons might be sentenced to death. Many people have been on platforms one way or another during the last six weeks, and it might be argued that many statements made there by persons on the Irregular side were incitements to war against the Saorstát. As the section stands, such persons would, if found guilty, have to be sentenced to death. I, therefore, propose the deletion of the clause. The Minister will, no doubt, consider that persons who conspire or incite to levying war against the State should, if found guilty, receive some kind of punishment, but I do not think that it should be the punishment of death.
I considered this amendment very carefully, and I think it can probably be taken with amendment No. 4, which is of much the same complexion. It is a difficult matter to provide by law for an offence in which there can be varying degrees of gravity. The Deputy will appreciate that, and I am not willing to take the line that the offence of conspiring to levy war against the State, or the offence of inciting to war against the State, is not an offence in connection with which the life of the offender might be forfeit. I admit the justice of the Deputy's point that there can be degrees of gravity, and in that connection I am prepared to make a suggestion. I think-myself that simply a collection of individuals discussing military organisation, though that organisation would be unauthorised and unlawful in itself, would be scarcely taken by a judge or jury as sufficient evidence, or sufficient indication of intention to levy war against the State. I think before a conviction could be secured under this particular section there would want to be proof of actual present or imminent intention to levy war against the State, and the incitement would want to be, certainly, much more definite than anything we have been treated to, even from platforms, in the last six weeks. To say that in no circumstances is the offence of conspiring to levy war against the State a proper subject for the capital penalty is to say something to which I could not subscribe.
There may be, in the course of this discussion, a suggestion that to meet that contention of mine, of varying degrees of gravity, there should be, instead of the simple death penalty, provision for death or any lesser penalty. Certainly, so far as we have been able to ascertain, the whole trend of modern legislation is not to provide an alternative penalty to the death penalty, that if a particular offence, taken at its maximum gravity, is an offence for which the life of the individual should properly be forfeit, then, the course invariably taken is to set down the death penalty for that offence, leaving the prerogative of mercy to come in when the circumstances point to a lesser degree of guilt, or a lesser degree of gravity, which would seem to make the death penalty unnecessary.
I have a suggestion to make. I was struck by the Deputy's argument that a simple meeting of men, possibly with war-like documents on the table, might possibly come within the scope of either "c" or "f" of the section. In thinking over that, I was inclined to take the view that there was probably some other section of the Bill under which men so found and so situated could be indicted. Certainly Section 8 does not cover that matter, and it would, perhaps, be a straining of my new Section 4 to say that it covered it. My intention is to insert, at some later stage of this Bill, a new section prescribing the offence. It would be something like the following:—
Every person who takes part or assists in the formation, organisation, or maintenance of any association or other body which purports to be a military or police force and is not established and maintained as such by law, and also every person who is a member of any such association or body shall be guilty of a misdemeanour and on conviction thereof shall be liable to a fine not exceeding two hundred pounds or, at the discretion of the court, to penal servitude for any term not exceeding five years, or imprisonment with or without hard labour for any term not exceeding two years, or to both such fine and such penal servitude or imprisonment.
With that in mind, let us return to this imaginary case of men detected at what may be described as a battalion council meeting of some unlawful military organisation, possibly with documents of a military nature, pointing to the intention—the probable or possible intention—at some time to fight somebody. Men so found and so detected would be put forward—assuming such a section as the one I have read were inserted in the Bill—under that section, unless the view of the Executive was that there was an actual and imminent intent to levy war on the State, which would justify indictment under Section 1 "c" or "f." I would be sorry to strike out of Section 1 "c" and "f," because such striking out would mean that the maximum degree of gravity and the maximum degree of guilt which could possibly be covered by these sub-heads would not then be liable to the death penalty.
That, in fact, would be taking up the position that the principal, or those who might be principals in the revolt, would not be liable to the penalty held over those who are merely their agents, followers and dupes, and who actively participate in the revolt. It is desirable to cover the chamber man, the office man, who, from some place of concealment in the capital, perhaps, brings about the situation of revolt, and only in a very minor degree shares the dangers and hardships of the state of affairs which follows. I would ask the Deputy to agree to the insertion of a section making the forming, organising, maintaining, or promoting, of an unlawful military organisation itself an offence, which leaves you then ample scope to put up to indictment under that section the people who are found in less grave degrees of guilt, and who may personally on his understanding of the section, at any rate, be held to be covered by "c" and "f" of Section 1.
That would leave the Attorney-General, acting for the State, a discretion, and we are entitled to feel that that discretion would be properly exercised, and that only those persons would be indicted under "c" and "f" of Section 1 who were, for good and sufficient reasons, believed to be in actual imminent intent of levying war, or gravely inciting to the levying of war. Only such persons would be indicted under the section, which involves the capital penalty, while the lesser degrees would be covered by the section which prescribes unlawful military associations—military associations not authorised and not established and maintained by law.
I feel that that leaves it still with the section making it explicit that a person found guilty of conspiring or inciting to civil war or to an attempt to overthrow the State, must, by the court, be sentenced to death. I am not clear that in ordinary times the State here would require the infliction of such a penalty in order to deal with cases of conspiracy or incitement such as these. I realise that it puts into the hands of the Executive at the time the responsibility for framing a charge under this particular section if it is serious enough, and for framing it under some other section if it is not serious enough. But it deals with the question of military organisation, and I can fancy, say, a number of people being interrupted at a meeting at which they have documents, saying that a military movement against the State must be developed, say, by the end of this year. It is a very grave question, in my mind, whether even in cases like that the State, which is not hampered by anything like civil war or anything like any serious disturbance in it, does require, in order to deal with circumstances such as that, to inflict the penalty of death. It does not give any loophole on the question of incitement, because, I take it, that incitement may be a private or a public matter, but I do not think the alteration which the Minister suggests leaves a loophole on that incitement question.
The Deputy says that he scarcely thinks that the State in ordinary times would exact, or wish to exact, the death penalty for offences such as these. Of course, the reply to that is, that you do not have offences such as these in ordinary times, and the very fact that you have such offences is rather an argument against the ordinariness of the times, if I may coin a word. The evidence which would convince a court that the accused person was guilty of conspiring to levy war against the State, or was inciting to the levying of war against the State, would need to be very definite and very serious evidence. The Deputy says that I met, to some extent, the view of graded degrees of gravity with regard to the actual conspiring to levy war against the State, but scarcely met it with regard to incitement. The reply to the incitement aspect of the thing is this, that the State would not put in peril of the capital charge anyone except a man whose incitement was a very grave thing and a very serious thing—incitement that was highly likely to bring about a state of affairs which the offender desired to bring about, and was highly likely to bring about actual revolt. How do you meet the lesser degrees of that? The answer is, by the ordinary common law indictment of sedition. These sub-heads visualise a state of affairs of imminent revolt in which the outbreak is imminent and seeks to provide legal powers to deal with that, and legal penalties for those who are actively endeavouring to precipitate such a revolt.
We are laying down in this section drastic penalties, the most drastic penalties known to modern legislation for those who take part in a revolt against the State or those who levy war against the State—the actual participants. I hold that we should cover in this section, and cover with equal penalties, those who are, in fact, the principals, who are, in fact, the most guilty persons in connection with any such war or any such revolt: the people who plot the whole situation, who conspire to bring about such a situation, who incite to such a situation and who bring others into jeopardy of the capital penalty. That is, without wishing to go back in any bitter way on the complaint that was thrown at us here and there through the country, that the principals got comparative immunity in the recent revolt, and that the mere agents of such, people acting under orders, or people misled by frenzied rhetoric, were harshly dealt with, or were harshly dealt with certainly in comparison. I see no way out of the dilemma. If you strike out these sub-heads from this section then you leave no capital penalty for those who may be the most guilty persons in connection with any war or in connection with any revolt that this country might have to face in the future.
As I say, I know of no modern precedent, at any rate, for prescribing the death penalty with an alternative, the idea being that if the offence can be so grave that the life shall be forfeit to the State, so that then in the event of the gravity being lesser or the degree of guilt being lesser, the Executive—those who are politically responsible for the exercise of the prerogative of mercy— must come in with that prerogative to say, in all the circumstances, that forfeit need not be exacted.
The Deputy may say that there are cases that seem at present to be covered by this section, so paltry and trivial that it would not be right or proper to put offenders in peril of the capital sentence for them. I can only meet that by the suggestion that this alternative section should be written into the Bill, which would leave the opening that persons could be indicted simply for taking part in, or assisting in the formation, organisation, or maintenance of any association or other body purporting to be a military or police force and not established and maintained as such by law. That would meet the Deputy's example of a battalion council conferring and wondering how they were going to get arms in, and so on, and wondering whether a company could not be formed in such and such a place, and so on. Now even that example which the Deputy quotes would, of course, have to be taken in its setting. If the times were grave in the country, if revolt seemed imminent, I could imagine that men so found and discovered in such a set of circumstances might well and reasonably be indicted under Section 1. Equally, in another setting, and with another state of affairs prevailing in the country, it would be certainly extravagant and absurd to put a body of men so found in peril of the capital sentence, and it is for that reason that I would like, in the Bill the section which would leave to the Attorney-General, acting on behalf of the State, the exercise of a wise discretion as to whether, in all the circumstances, the offenders should be put in peril of their lives, or whether they should merely be put in peril of the lesser penalties which this proposed new section embodies.
Now, incitement in a particular setting again, may be a very, very grave offence, warranting the gravest penalty. Incitement might take the form of posting proclamations all over the dead walls and on every tree in the country calling upon the people to rise up in revolt, but a lesser degree of incitement, again, can be met, as I say, by an indictment under the common law of sedition, of which I will have occasion to speak later, when I am speaking to the deletion of Section 5 of the Bill as originally drafted.
I regret that I could not reconcile it with my responsibilities to accept Deputy Mulcahy's amendment, which would have the effect of leaving outside the capital penalty entirely the man who might be the gravest offender in connection with any war or any revolt, and who may well be the head and centre of the whole thing and yet who might not come in under any other sub-heads in jeopardy of his life by an act of participation in such war or revolt.
I know we are trying to deal with this Bill in a very detached order of time, and I myself, probably, am not able to get entirely away from the present days. I was influenced in putting down this amendment by the fact that in 1922, when we were actually in a state of civil war, we did not inflict the death penalty even for the offence of levying war without definitely coming to the Dáil and getting a certain resolution passed here that gave us that particular authority. It seems a very far step, then, that in three years we would pass an ordinary measure, with the present days close around, to the effect that persons who conspire and incite to civil war against the State would suffer the penalty of death. I quite realise the Minister's responsibilities in the matter, and I quite realise that there might be circumstances in which it might be very necessary to have this power. If the Committee is satisfied to allow me to withdraw these amendments I will be prepared to do so now in the light of what the Minister has said generally on this clause.
I object; I think the amendment should be pressed to a division.
I would be prepared to press the amendment to a division if there are Deputies in the House who have such opinions upon the general matter that they consider that the amendment should be pressed to a division and would express these opinions. My attitude is what I have stated, at any rate, and I still have a kind of idea in my mind that these sections ought to go out at present, but I am not prepared to press them to a division if there are no other Deputies in the House who have an opinion to express upon them.
I am prepared to support this amendment and any other amendment of this Bill which will relieve us of some of the shadow that will come upon us if the Bill is passed in its present form or without any modification of its form at the present time. The proposal of the Deputy is to delete two paragraphs of Section 1. The Minister wants to bring into the condemnation of death any persons who incite any other persons to levy war against Saorstát Eireann, or who incite any persons to take part or be concerned in any attempt to overthrow by force of arms or other violent means the Government of Saorstát Eireann.
That is to say, we have decided that murder, deliberate and calculated murder, is punishable by death, and we are asked to decide that there is no difference between murder out of personal passion, the premeditated and deliberate desire to kill to satisfy one's own selfish or vicious impulses, and an offence of this kind, to incite any person to levy war. The Minister has told us that there may be within that definition very minor cases of incitement.
Not very.
A man may go out at the street corner and say, "The State is rotten and it ought to be destroyed. Who will help me to destroy it"? That man is guilty of an offence punishable only by death, and he then has to rely upon the prerogative of mercy. That is a phrase that presumably means that the Minister for Justice for the time being will have to decide whether such a person ought to suffer death, the judge having had no alternative but to prescribe that this street-corner orator is guilty of that offence. The decision as to the continued existence of the offender is to be left in the hands of the Minister for Justice for the time being; it is he who will have to exercise the prerogative of mercy. I say that we ought not to allow that to be a possibility. We ought not to put upon the Minister for Justice for the time the responsibility of saying: "Patrick Murphy, who incited his fellows to levy war against the State or to take such efforts by force of arms or other violent means to overthrow the Government, should suffer death." The Minister will be the only person who will have to decide that the sentence should not be carried out. I say that within these paragraphs which Deputy Mulcahy seeks to delete there are possibilities of injustice, of, shall I say, unconsidered vengeance, being meted out to the offender, and we ought not to agree that any such power shall be placed in the hands of the Minister for Justice.
I would not reply to the Deputy's statement at all except that it might have the semblance of discourtesy if I did not, and that is not my intention.
I am not sure whether the Minister is thinking that I was discourteous in referring to the Minister for Justice. That was not my point.
No, I think the Deputy did not hear me. I say I would not reply to the Deputy at all except that it might have the semblance of discourtesy if I did not. The fact is that the Deputy has put up nothing substantial calling for any reply, and nothing with which I have not already dealt. He has, of course, made skilful use of the fact that the degrees of offences will necessarily come within this sub-head and within this section, and that is one of the difficulties of legislation. The Deputy knows as well as I do that it would be impossible to draft a sub-head that would cover the gravest form of the offence of conspiring to levy war against the State and that would not cover lesser degrees of that same offence, and the Deputy knows as well as I do that it would not be possible to draft a sub-head that would cover the gravest form of incitement and that would not cover less grave degrees of the same offence. But with regard to both of these things I have suggested remedies; I have indicated an intention to insert in the Bill a new section that will cover simply the offence of "forming, organising, promoting, maintaining or being a member of a military organisation not authorised by law," which will enable the less grave degrees of conspiracy to be met and dealt with, and I have pointed out that the less grave degrees of incitement can be met and are covered by the common law of sedition. But the Deputy skilfully and successfully used the dilemma which cannot be avoided, that if you cover the gravest degree, if you think the gravest degree of conspiracy to levy war against the State something that warrants the death penalty, how do you get away from the dilemma of the battalion council meeting in the labourer's cottage in what are really almost normal times? Are you going to put these men in peril of their lives? Are you going to put what corresponds to the Hyde Park orator in peril of his life for saying that the State is rotten and ought to be destroyed, and who will come and help him to do so? No. But equally you do need and should have powers to deal with the gravest degree of these offences, and the only fitting penalty for the gravest degree of these offences is the capital penalty. The lesser measures can be used against those who commit these offences in lesser degrees of guilt and gravity. No man will be indicted in such a way as to imperil his life unless those responsible for the safety of the State consider that his life ought to be imperilled. That is why I am looking for and will seek at a later stage of the Bill to insert an alternative section which will cover the simpler offence of organising and maintaining unlawful military associations within the State, and I do submit that an indictment under such a section will enable you to get out of the dilemma of having to put in peril of their lives people who, under all the circumstances, you do not really consider ought to have their lives imperilled. The lesser degrees of incitement can be met, if it is necessary to meet them at all, by an ordinary sedition indictment. But I stand for the insertion of these sub-heads because I can visualise, and it is, after all, my duty in drafting such a Bill as this, to visualise a state of circumstances in which these offences ought to be punishable, and punishable by death.
The Minister seems to forget that the decision as to whether it will be for the minor or the major offence that the prisoner is to be indicted will rest with the authorities, with the Minister or the Attorney-General, and that that decision will have to be taken in a time, possibly, of excitement, when newspapers and certain sections of the public may be crying out for the lives of such persons. The Minister would be living in a period of excitement and under the influence of that kind of agitation, and there are just as many possibilities of refusing to indict the person who has committed, in the mind of the Minister, a minor offence, for the major offence. A man may either be indicted for the minor offence or the major offence, and the Minister may choose to indict him for the major offence. Once that is done the death penalty is invoked and the sentence is carried out; calmer views may later prevail, but you cannot call back the death sentence once it has been inflicted. Of course this argument applies to the punishment set out in the section as a whole, but I want you to think of it in relation to those persons who may be charged with incitement to levy war.
There are times of agitation, perhaps organisation, or perhaps a desire to stimulate organisation, and some people feel that their lives and their properties may be in danger, and there may be deputations to the Minister, they may inspire newspaper articles, and the Minister is perhaps weaker than the present Minister would be—more amenable to that kind of influence. He, or the Attorney-General, might decide that this is a matter of great moment, and that the alleged offender should be indicted for the major offence. Once that has taken place the penalty is death. A little later on it may be found that they had been over-excited and unduly agitated by these deputations and newspaper articles, but the death sentence had been carried out and the harm done. How many executions within the last 5, 10 or 15 years in this country, or in the history of Europe within the last century, would not have been carried out if people had a little calmness, forethought, and more time to consider. Political excitement brings feelings to the front which lead to acts that in calmer moments are recognised to be unjust and unreasonably severe. It is for these reasons I would like to reduce the possibilities of undue vengeance being inflicted upon any persons in the Saorstát for offences such as incitement— incitement which may cover simple agitational speeches. After all, police reports are not always reliable, and the spirit of the times is a consideration. We ought not allow ourselves to be brought into that state where we are going to execute, or run the possibility of the death penalty being inflicted, and then regret it three months afterwards. These are some of the reasons why I urge the Dáil to agree with Deputy Mulcahy's amendment.
As there will probably be a division on this amendment, before taking part in it I want to give my view-point on this question, not necessarily the view-point of the party to which I belong. I hold that the man who conspires or incites is a more guilty person than the man who "encourages,""harbours," and "comforts." If this section is going to stand at all, you should retain this power over the man who conspires or incites. Anyone can visualise a position in which the man who incites is more guilty than the man who actually levies war. We have had individuals of that class who have been very prominent in recent years. Such an individual is cute enough to save his skin. Very seldom he came into the firing line, and very seldom he actually took risks. He helped to incite, but he held a life insurance policy in his pocket, or he took care that he would not expose his hide to danger. I do not see why individuals of this class should be excluded. If I vote for the section at all, I shall also vote for this sub-section.
Deputy Johnson in his most recent statement says that the decisions in connection with this section generally, and in connection with these sub-heads in particular, must, after all, be taken by the Minister, or by the Attorney-General. I do not know by whom else they could or should be taken. I do not know whether the Deputy's view is that they ought to be taken, for instance, by the Leader of the Opposition.
I am not complaining of the decision being taken.
Good. The Deputy goes on to the Attorney-General. After all, he is only a man, neither a god nor a machine, and is not infallible. Ministers are subject to political excitement and popular pressure, and they are not infallible. We are living, after all, in that kind of world, subject to human limitations, and I am afraid that the Deputy is not going to get, this side of the grave at any rate, the state of affairs where considerations such as he urges will not apply. He is not going to find his vacuum. Yet we all have responsibilities, and yet we are supposed to act up to our responsibilities. I regard as the chief responsibility of the Government for the time being of this or any other country the defence and preservation of the State, and in furtherance of that responsibility to enable us to discharge it adequately and properly we are asking the representatives of the people to prescribe certain penalties for certain offences. But these powers, if given, might be used rashly, might be used in heat, might be used in a spirit of political vindictiveness; therefore, they should not be given. The Deputy seems to forget that under this section the accused man must be formally indicted before a jury of his countrymen, and must be found guilty of a grave offence before sentence is passed. Then, after sentence is passed, people who are politically responsible through the Dáil to the electorate must decide whether or not that forfeit is to be exacted. You cannot devise perfect legislation—no man can contrive it—which will rule out human considerations and human weaknesses such as the Deputy has touched on.
You cannot invent a machine which will decide whether or not John so-and-so, found in such and such a state of circumstances, ought or ought not be indicted under Section 1, or under some other section which may be inserted at a later stage. You will only find a man. He is a man carefully selected to fulfil certain functions, to perform certain duties; but he will only be a man and, as the Deputy has pointed out, he will be liable to err like any man. He will be neither a god nor a machine. Yet I think we must decide here at this stage that, if the State is to survive, certain things must be declared to be offences, and adequate sanctions of law must be prescribed for such offences.
I am asking the Dáil to agree with me in the view that under those sub-heads you may have a degree of guilt and gravity warranting the death penalty. I know no way of drafting by which you will avoid bringing in the lesser offences; but I do suggest that the lesser offences can be met by indictment under some other sections of the Bill, or otherwise than under this Bill at all. Lesser degrees of incitement to war can be met by an indictment for sedition.
If we talked for weeks, I think we could devise no way of getting away from human frailties, such as Deputy Johnson has touched upon, and no way of ensuring that the factors such as he indicated will not operate. He says that decisions may be taken in heat to put up men under this section rather than under some other section, and decisions may be taken to put a man in peril of his life for an offence for which his life ought not reasonably to be imperilled. You might apply that generally and say that it is unsafe to have the administration of the country in the hands of a body of men at all, because that body of men is liable to err.
Of course the Minister's argument is a travesty of anything I said. The argument I adduced is quite a simple one. It applies to the whole section, because it all leads to the penalty of death for a political offence. The proposition before us is to limit the number of offences which are liable to lead to this death penalty, and therefore limit the number of occasions where a machine will operate in such a way as that the work accomplished cannot be recalled. Clearly, my point is that this human instrument which we must work with and which we are perforce bound to work with, is, in times of political excitement, more likely to err and to do the unjust thing than in times of calmness. But once the thing is done it cannot be recalled. It points to an alteration in the penalty.
My argument in this matter is really directed against the death penalty and expresses a desire to reduce the number of offences of a political character which will be brought under the death penalty. The Minister speaks of his regret at the absence of machine-like precision and rigidity. I do not regret that at all. I do not want a machine-like system of government or administration, and I do not want to have such an inflamed human instrument as will do things that, in calmer moments, cannot be recalled.
As a vote must be taken on this in a very short time, I desire to explain to the House and to my constituents my attitude on this question and my reason for voting as I am about to vote. I trust I am not deficient in humanity, but when you deal with such a very serious thing as awarding your vote for the infliction of the death penalty, it is at least essential that an adequate explanation should be offered. The proposal in the Bill awards the death penalty to every person who commits in Saorstát Eireann any offence such as the following:—"Conspires with any person (other than his or her wife or husband) or incites any person to levy war against Saorstát Eireann."
Even the wife or husband.
Mr. HOGAN
I take it that the Section, as I read it, means that if any person conspires with his wife, the wife is certainly not to be taken up on that charge.
That is the effect of it.
Pass on from it.
Mr. HOGAN
It is a very serious responsibility that lies on every Deputy, but in our duty to our constituents we have got to face this thing. I propose to vote against Deputy Mulcahy's amendment. A more or less hypothetical case has been put up that a man would be indicted under this Act and perhaps convicted and executed. I wonder whether a man can be executed who did not really deserve the death penalty. These sub-sections are really aimed against people, I take it, who, remaining in comparative seclusion, going into the sewers, as it were, nevertheless are actively conspiring with and inciting others to pull down the whole fabric and the whole structure of the State. I submit this section has a right to remain in the Bill. I hope I am not deficient, I repeat, in humanity. I should be sorry to see the ordinary poor wretch who may have taken men at their words indicted under these sections. I say it is a good thing, speaking relatively, to retain this section. It is a good thing to retain a maximum penalty, the penalty of death. The retention of this section will be a very great deterrent to people who may conspire against the State. It will make them think twice before they embark on such a thing. Men may likely go forward on offences of that kind when they know that the maximum penalty will be imprisonment or penal servitude. They will think twice over this, and, thinking of this, they will be restrained from conspiring against the State if they realise there is a maximum penalty and that they may be indicted under Section 1. I say this section should be retained to repress these conspirators who remain in the background but who still are pulling the strings and actively engaged in hostilities against the State. I repeat that it is necessary to retain this section, and, believing that, I will vote for it.
Amendment put.
The Committee divided: Tá, 16; Níl, 30.
Tá
- John Daly.
- Osmond Grattan Esmonde.
- Séamus Mac Cosgair.
- Tomás Mac Eoin.
- Risteárd Mac Fheorais.
- Pádraig Mac Fhlannchadha.
- Tomás de Nógla.
- Ailfrid O Broin.
- Aodh O Cúlacháin.
- Liam O Daimhín.
- Eamon O Dubhghaill.
- Risteárd O Maolchatha.
- Domhnall O Muirgheasa.
- Tadhg O Murchadha.
- Pádraig O hOgáin (An Clár).
- P.J. Mulvany.
Níl
- Earnán de Blaghd.
- Seoirse de Bhulbh.
- Séamus de Búrca.
- Máighréad Ní Choileáin, Bean
- Uí Dhrisceóil.
- Michael Egan.
- Patrick J. Egan.
- Connor Hogan.
- Donnchadh Mac Con Uladh.
- Pádraig Mac Fadáin.
- Patrick McGilligan.
- Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Martin M. Nally.
- Peadar O hAodha.
- Mícheál O hAonghusa.
- Seán O Bruadair.
- Partholán O Conchubhair.
- Séamus O Dóláin.
- Pádraig O Dubhthaigh.
- Eamon O Dúgáin.
- Donchadh O Guaire.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Séamus O Murchadha.
- Seán O Súilleabháin.
- Caoimhghín O hUigín.
- Liam Thrift.
- Sir J. Craig.
- Maolmhuire Mac Eochadha.
- P.K. Hogan (Limerick).
Tellers:—Tá, Risteárd O Maolchatha, Tomás de Nógla. Nil: Partholán O Conchubhair, Connor Hogan.
Amendment put and agreed to.
Before you declare the result of the division, I desire to know if it is in order for a Deputy to sit in the benches of the House and refuse to go into the lobbies?
Every Deputy in the Chamber should have voted, but my attention was not drawn to this Deputy in time.
It is drawn to it now.
It is late now. Sixteen Deputies voted for the amendment and 30 against. The amendment is lost.
I move:—
Amendment 3.—In sub-section (1), lines 27-29, to delete paragraph (e).
Paragraph (e) refers to persons who assist, encourage, harbour or comfort any person engaged or taking part in any of the offences referred to in Section 5. The amendment is introduced for the same reason as amendment No. 1—that persons who merely encourage or assist should be put in a different category from the principals.
I move:—
Amendment 4.—In sub-section (1) to delete paragraph (f), lines 30-32. This amendment has been discussed in connection with amendment 2.
Amendment put.
The Committee divided: Tá, 16; Níl, 30.
Tá
- John Daly.
- Osmond Grattan Esmonde.
- Séamus Mac Cosgair.
- Tomás Mac Eoin.
- Risteárd Mac Fheorais.
- Pádraig Mac Fhlannchadha.
- Tomás de Nógla.
- Ailfrid O Broin.
- Aodh O Cúlacháin.
- Liam O Daimhín.
- Eamon O Dubhghaill.
- Risteárd O Maolchatha.
- Domhnall O Mocháin.
- Domhnall O Muirgheasa.
- Tadhg O Murchadha.
- Pádraig O hOgáin (An Clár).
Níl
- Earnán de Blaghd.
- Séamus Breathnach.
- Seoirse de Bhulbh.
- Séamus de Búrca.
- Máighréad Ní Choileáin, Bean
- Uí Dhrisceóil.
- Michael Egan.
- Patrick J. Egan.
- Desmond Fitzgerald.
- Connor Hogan.
- Donnchadh Mac Con Uladh.
- Pádraig Mac Fadáin.
- Patrick McGilligan.
- Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Martin M. Nally.
- Peadar O hAodha.
- Mícheál O hAonghusa.
- Seán O Bruadair.
- Partholán O Conchubhair.
- Séamus O Dóláin.
- Mícheál O Dubhghaill.
- Pádraig O Dubhthaigh.
- Eamon O Dúgáin.
- Donchadh O Guaire.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Séamus O Murchadha.
- Seán O Súilleabháin.
- Caoimhghín O hUigín.
- Liam Thrift.
Tellers:—Tá: Domhnall O Muirgheasa agus Tomás de Nógla. Nil: Séamus O Doláin agus Liam Mac Sioghaird.
Amendment declared lost.
I move:—
Amendment 5.—To add at the end of sub-section (1), line 34, the words, "or such lesser punishment as the judge may direct."
Most of the arguments that were used in connection with the last two amendments were really arguments bearing on this amendment as well. This amendment puts forward an alternative which the Minister, judging by his remarks, does not regard with favour. Still, his argument against it seemed to be rather an academic argument, and it did not impress me very much.
Because it was academic?
Probably. The Minister seemed to me to say that the whole trend of modern legislation was to fix the maximum penalty as the actual penalty and not allow the possibility of a lesser penalty. That may be the case. My legal knowledge is not sufficient to enable me to challenge that statement. I have no doubt the Minister is quite correct, but I do not think it follows that because that is the trend of modern legislation it is necessarily the right trend. I rather expected more originality on the part of the Minister than that he should merely follow the trend of legislation. Probably the real point is whether the choice of a lesser penalty should lie with the court or should lie with the Executive Council. I am bound to say that the arguments put forward leave me under the impression that the proper place for decision as to whether the maximum penalty or a lesser one should be imposed is in the court where the whole case has been tried and evidence heard. I do not say that because I think that it is likely that more mercy would be shown by the court than by the Executive Council. The reverse would probably be the case. But I think it is probable that besides the actual judicial weighing of evidence in connection with the particular act, whatever it may have been, there would be other matters which would likely be present to the mind of the Executive Council in deciding as to whether they ought or ought not to insist on the extreme penalty. They would naturally regard the matter in its wider bearings and would not have regard solely to the actual act of the person convicted and sentenced.
Further, it seems to me that, to a certain extent, the naming of the extreme penalty as the only penalty makes it less likely that a verdict will be obtained, even though the evidence be very strong in favour of it. A jury would be influenced by the fact that if they were to bring in a verdict of guilty the man, as a result, would be bound to be sentenced to death. That is more or less inevitable. Again, I am not clear from the reading of the Bill as to what exactly would be the consequence if a person were convicted and sentenced to death—the judge having no choice—and then the Executive Council were in the position of wishing to remit that sentence for a lesser one, I am not clear whether, under the terms of this Bill, they would be able to substitute another penalty for the death penalty, or whether they must insist on the death penalty. Perhaps the Minister would explain that.
It seems to me that even the wording of the section tends to show that the Minister or the draughtsman was disposed, in the first place, to say that the Bill meant that the maximum penalty should be death. It says in the end of the first section, "If such person is found guilty of treason he shall be liable on conviction thereof to suffer death." Only in the very end does it say the penalty shall be the same as if he had been found guilty of murder. The use of the word "liable" suggests to the non-legal mind that that is the extreme penalty, but that another penalty might be inflicted if, in the opinion of the judge, the extreme one were not merited. I think this alternative is sufficiently important for it to be worth serious consideration by the Dáil, and I hope the Minister will give it further consideration, because a great many of us, including myself, voted against the last amendment because we thought it was not the best way of meeting the difficulty, and the Minister himself admitted it was not.
I do not propose to accept this amendment. The effect of the amendment would be that in the case of all the offences which Section I purports to cover, the judge might impose a lesser penalty than that of death. To place the judge in the position of deciding whether, in a given case, the death sentence should or should not be imposed, is, I think, undesirable. I could understand opposition to this section coming from those who at all times and in all circumstances oppose capital punishment. That position has not, so far, been taken up by any Deputy.
Treason, as John O'Leary said, is a grave crime. If there be any offence for which the State is entitled to take the life of an individual, it is that offence. If we take the view that the offence of treason is an offence warranting the death penalty and warranting forfeiture of the life of the individual, then I think we should say so in this Bill and say so simpliciter, leaving it not to the judge, who is not responsible to the people, who is not open to representation from the people, to decide whether or not that forfeit should be exacted, but to those who have political responsibility, and who are available to receive and consider any representations that may be made from the general public, to take a decision in the matter.
The Deputy seemed to question whether, under the section, the death sentence could be commuted to any lesser sentence, whether it was not simply a position that if a particular penalty was imposed, that penalty had to be enforced or no penalty. That, of course, is not the position. The death sentence can always be commuted to any lesser penalty—to penal servitude. It comes down then to the question of who is to consider the mitigating circumstances, who is to consider whether or not the forfeit shall be exacted. If the Dáil enacts that the offence of treason against the State is an offence for which, in the abstract, the life of the offender should be forfeit to the State, who is to consider whether, in the concrete circumstances, the forfeit should, or should not, be exacted? Deputy Thrift says it is the judge, that we are to place the judge in the position of having discretion as to whether he shall or shall not pass the death sentence.
Different judges will, no doubt, have a different outlook on the question of the death penalty, and the life of an accused person may be on the hazard of what judge he happens to be indicted before. I think it is infinitely preferable, if we consider the offence is one which warrants the imposition of the supreme penalty at all, to set down that penalty simpliciter, leaving those who have the responsibility for the conduct of the State, and for acting on behalf of the people, and who are, as I say, available to receive and consider any representations that may be forthcoming from the general public, to take the last decision; to consider the representations made on behalf of the convicted man and to take the decision. I do not want to use the word in any narrow sense, but it is, after all, a political decision, and political circumstances will and must come in from the very nature of the offence. The offence is an attack upon the life of the State, and it is not improper that those who have the responsibility of safeguarding the life of the State should say finally and in the last resort, whether or not the forfeit is required and should be exacted. The judge is not politically responsible. You put him in his high office. He is aloof. He is independent of the people. He is not susceptible to any representations, and he is not available to receive any representations from the people. It is those who act on behalf of the people, who have the responsibility to the people to preserve the State—which is the people's State —who should, I submit, decide in the case of this particular offence whether the exacting of the penalty is required.
In this connection, I do not want to be misunderstood when I say that political considerations will decide whether the penalty is to be exacted. I use the word "political" in the broadest possible sense of the word. I mean that in the abstract the Deputy can take it that possibly the most unpleasant duty which a Cabinet can possibly have to perform is the duty of deciding negatively on such a point as this. It is the Government of the country for the time being, it is the Executive Council of the country for the time being that is best qualified to know whether or not a situation exists which calls for the exaction of the supreme penalty, or whether or not the situation is such that leniency towards that particular offence would not have grave reactions on the State, and would not gravely prejudice the future safety of the State. They are preeminently fitted to know all the factors that would have to be considered in a decision such as the decision that would be involved by that section. They are in a better position, I submit, to know them and judge them than the judge himself.
I would not like to write into this Bill an amendment putting on the judge the duty of deciding whether or not the general position of the State was such as to make the exaction of the supreme penalty a necessity. I say that in the case of any offence for which you prescribe that penalty, it ought to be prescribed simpliciter and the judge ought not be asked to say whether the degree of the offence was such as to require that penalty or a lesser one. He is not so asked in the case of murder. The penalty which the law prescribes for murder is the penalty of death, and the man found guilty of that offence must have the capital sentence passed on him. It is not always exacted. There are those on whom the duty lies of considering all the circumstances, and considering whether there are no mitigating facts or circumstances which would justify leniency. I suggest that we should follow the same course here. I suggest that the life of an accused man ought not to depend upon the accidental circumstances of the particular judge before whom he happens to be indicted and on that judge's outlook upon the capital sentence; and the duty of judging factors which are political factors, and judging a position which is a political position, should not be imposed upon a judicial functionary, but should lie rather with those who have the final political responsibility for the safety and welfare of the State. That is my objection to the Deputy's amendment, and I think that the Deputy will not find many, if any, precedents in modern legislation for prescribing for the same offence the death penalty and any lesser penalty which the judge may think fit to impose.
With most of what the Minister stated I find myself in very close agreement, but I would like to point out that what I was trying to secure in this amendment was, not that the control of the matter from the political point of view should be removed from the Executive Council, because I think they are the only persons who could decide that, but to secure two things: in the first place, that the man's complicity or actual part in anything for which he was tried was sufficiently grave from the criminal point of view that he should deserve the death penalty in the judge's estimation, and, if that had been fulfilled, if the judge thought he was worthy of the death penalty, then the Executive Council should come in with their political considerations and say whether the conditions at the time required the exercise of the penalty or not. If you like, I was giving the unfortunate man a double chance. But I did not seek in any way to challenge the fact that it must be the Executive who are to estimate the needs of the country from the political point of view.
There are two aspects which I ask the Deputy to consider for a moment. You write a penalty, a sanction into a Bill with regard to a particular offence. Why? I suggest you do it with a two-fold object. You do it first in the hope of its proving a deterrent, and secondly— and only secondly, I submit—to provide that, in the event of the deterrent effect proving inadequate, justice will be done, that the balance will be redressed. The acts set out here are serious: levying war against the State; conspiring with any person, or inciting any person to levy war against the State. The State must defend itself, and is entitled to defend itself, and when the duty and the responsibility of that defence and protection is placed on certain people they must be given adequate power. Take the deterrent aspect of the sanction. Will it prove adequate? Is it likely to prove adequate if you write into the Bill death or any lesser penalty, and if, in fact, the idea grows up that the death penalty is rather in terrorem than likely to be actually imposed, and the feeling prevails that a judge, confronted with the alternatives of passing the death sentence or imposing a lesser sentence, will invariably or almost invariably take the latter course? I suggest that the effect of the Deputy's amendment will be, in practice, that the death penalty for treason disappears, or, at any rate, that in the public mind, and in the mind of potential treasonable offenders, that belief will grow and harden. That is undesirable—eminently undesirable.
Men contemplating assault upon the life of the State ought to do it, at any rate, with the contemplation of the more serious penalty—the supreme penalty—in the event of detection and conviction. I think it would be unwise to remove from their minds or lessen in their minds that contemplation. It is a reasonable thing, after all, and perhaps more reasonable in a country with a franchise as broad as ours and with special provision for the representation of minority views, to say that the person who attacks the State, who attempts to destroy the State, shall have his life forfeit to the State, and that the final decision upon the exaction or non-exaction of that forfeit will lie with those who have the final responsibility for the defence and protection of the State and not with any irresponsible lawyer—and I use the word irresponsible entirely in the political sense—who has no responsibility to the people, no political responsibility. I stand for the section and against the amendment. I have endeavoured to put as clearly as I can the reasons for that position, and I ask the Dáil to agree with my view.
There is another aspect of this question that has not been dealt with: That is the position that you put a judge into. I may be wrong, but, to my mind, it is a very unenviable position. The question of the penalty in a murder case or a treason case does not arise until the jury has given a decision. When the jury has given a decision the amendment seeks to put the judge in the position, not alone of judging the degree of guilt of the individual, but also of judging the justice of the jury's verdict. To my mind, that is an impossible position, a position that, properly speaking, no judge should be put in. I may be taking an exaggerated view, but I think it puts him in a position that no judge would be willing to occupy. I do not think it is fair to the judge. It is an impossible position to put a judge in. I should not like to be put in such a position.
There are a number of considerations that arise in view of the Minister's statement in regard to this matter. First, there is the position of the judges as compared with the position of the Executive for the time being as defenders of the health of the State. The Minister makes a distinction between a judge who is to administer the law in respect to civil crimes, crimes that are not treason, and others, and I gather from the Minister's view that it is right that the judges of the civil courts ought to be entrusted with the authority of the law in respect to that class of crime or offence. When we come to what may be called political offences against the established Government, then the only function of the Court is to decide whether that person charged is guilty of the offence, but that it is the Executive that shall mete out the sentence. I think that is practically the position that the Minister stated.
May I correct the Deputy. The Dáil is asked to prescribe a penalty for a particular offence. The jury will decide the question of guilt and the judge will impose the penalty and will pass the sentence as prescribed by law, and in any particular case the Executive will decide whether or not the circumstances require the exaction of the penalty or not.
Whether or not the circumstances, apart from the prisoner's guilt, apart from the offence— that is to say, whether the circumstances extraneous to the offence are such as would justify the political authority in over-riding the court's decision. This is not put forward as an exercise of the prerogative of mercy. It is put forward as the function of a political Executive in respect to offences of a political character. I think that is a rather dangerous doctrine, because the Executive in a State Government, as this State is and will be, is undoubtedly a political body subject to the fluctuations of public opinion. If the offender is of a kind that can get the support of a large body of public opinion, the influence to be brought to bear on the Executive will be greater, and it will be more likely to succumb to that influence. If the offender is not of the character, social status or political strength that he can gather to himself a great body of support, then the responsibility of the Executive in the direction of a commutation of the sentence will not be so great.
An analogy has been brought forward in respect of the law relating to the punishment for murder. That is not a true analogy. In the case of murder the victim has lost his life, and it is clear that the evidence brought forward and leading up to the verdict of guilty is, as to the connection between the prisoner and the death of the victim and the method of bringing about that death, and the motives and so on, whether it was an attack with intent to kill that resulted in death. But here we have a series of offences which, quite obviously, lead to variations and grades of guilt. We have not got a concrete case of a dead man who has met his death by violence caused by an individual. You have a series of offences such as incite to do a certain thing. That incitement may be of a very direct kind, or of a less direct kind. It may be very insistent and very powerful, or it may be less insistent and less powerful; but the penalty is to be the same in every case, the only change being that the political authority is going to be empowered, and this is defended by the Minister, to exercise a discretion as to what the extent of the penalty shall be. So far, in these countries the law does not say that an attempted murder is to be subject to the same penalty as actual murder. Incitement to commit this offence is to be meted with the same punishment as the commitment of the offence of making war. The mind of the inciter may be just as antipathetic to the State and he may be just as great an offender as the actual person who commits the offence. As regards what may be called the end of the incitement, the levying of the war, the guilt of the one may be as great morally as the guilt of the other. So it is with murder. An attempt to murder is morally and logically as great an offence as actual murder, but the law in this country has made a distinction in the penalty, and I think the explanation lies in the fact that there is a realisation that once the execution is undertaken the life cannot be brought back and possibilities of error cannot then be avoided. In other countries we have, I think, a legal system which allows, for the offence of murder, a first and a second degree.
One can see surely that the offence of levying war or an incitement to levy war may be great or small. There may be degrees, shall I say, of guilt. Certainly there may be degrees in the effect of the incitement or the conspiracy, and I think it ought not to be left to be a matter for the discretion of the Executive as to how much of the maximum sentence shall be remitted. Another question has arisen as to the unfortunate position of the judge. Of course, his position is unfortunate in many other cases, but the presumption is that he is detached from the influences which would affect the political Executive of the time. He is somewhat impersonal, and is not affected by the passions of the moment like the political Executive is likely to be, and justice is more likely to be meted out, and reason and equity are, I suggest, more likely to be taken into consideration by the judge than by the political Executive. The jury has also a difficulty placed before it. If it knows that the penalty that is to be imposed upon the person for incitement to conspiracy or for incitement to take up arms against the State is death, do you think that the jury is likely to find a verdict in accordance with the evidence?
I suggest that the chances are that in very many cases jurors, knowing the penalty is death, will not find a verdict according to the evidence notwithstanding their oaths. They realise that the amount of the incitement, the quality of that incitement is of that nature that is not deserving in their minds of the death penalty. They will not risk the possibility that the Executive will not commute the sentence, if the proposition of the Minister is that the political authority shall be placed in the same position in respect of political offences of this character as the Minister for Justice has been placed in and as the Home Secretary in England has been placed in regard to appeals for clemency and remission of the death sentence. In murder cases petitions are sent forward. The Minister calls for the minutes of evidence and the judge's notes and the judge's report as to how the evidence and the demeanour of the prisoner affected him. The Minister has to take into account all these factors upon the evidence which appeared in the court although the Minister was not there. He will have simply to take a printed or written material to come to his judgment. He will say that it is not the facts of the case that he is dealing with, but with those extraneous matters such as whether the execution of the offender in a particular case is going to have reactions, and if there are risks of reactions which might be harmful or inconvenient then the remission will be made. It may be that if the pressure is not strong or if the Ministry for the time being is rather fearful and nervous, then it will say, "Let the execution take place, we are afraid"; and in three months' time, when the country is calmer and the excitement has died down, it will be found that they were afraid of a phantom. I do not think the political authority for the time being should be required by the passing of this section, without this amendment, to exercise its judgment as to whether an offence is of the kind that warrants a death penalty. If there are varying circumstances, if there are degrees in guilt and the factors of the situation do not seem, to the court, to warrant the supreme penalty, then it should be left to the court to decide that the penalty is less extreme than capital punishment. I want to say that this is not a case where we should rely on what is called the prerogative of mercy being decided by the Executive authority in times of political excitement, in matters of treason or what is designated in this section as being treasonable, and if we are going to leave the decision as to how much less than the death penalty, or what lesser penalty than the death penalty, shall be inflicted, it ought not to be left with the political authority but with the judicial authority which tried the case.
I suggest the amendment proposed by Deputy Thrift corresponds with the realities that the Minister or whoever occupies that position in future, under the operation of this Bill when it becomes an Act, will find himself compelled to act in agreement with. By all means, once a person has been found guilty of a particular offence, let there be set opposite that offence a penalty that shall be unvarying. I ask what would actually happen under the operation of this section. Under sub-section (1) (a) it would happen that if any particular person was caught in the act of levying war against the State, almost in any circumstances whatever, it would not be possible for the Minister to find himself in the position of varying the death sentence because the conditions would be those of actual warfare. Warfare would actually be continuing, and the person would have been caught redhanded and would have been convicted. Under paragraph (a) then the consequence is set out, and will almost inevitably follow whatever may happen. But come down to this further subparagraph and to the question of incitement that Deputy Johnson touched upon. Incitement may occur under conditions of perfect calm without any disturbance in the country. That incitement may nevertheless be incitement within the terms of the section, and as the section reads and stands there would be no opportunity for any tribunal to vary the death sentence. But in these conditions and circumstances it is impossible, at least it is highly improbable, that any Minister would allow the death sentence to proceed. He would find himself of necessity compelled by the facts and circumstances to make a variation in the judgment returned under this section. The effect of that argument is that there are found within this section a certain category of offences of unequal severity and unequal value. Against them we have not got a variation of the penalty, only one rigorous penalty, and consequently as the section stands the judge has no option but to pass a sentence of death. Consequently those real variations that do exist and will be found in practice to exist will also be found in practice to require and necessitate the interposition of the Executive, an interposition dependent not in the necessity so much of the case but dependent upon the variations that are within the section itself.
What I mean is that incitement is clearly more often likely to occur under conditions of peace than under conditions of war. Levying war can only exist under a condition of war. The conditions in the two cases are entirely different. In the case of levying war with disturbed conditions and with a state of warfare continuing, there is no likelihood of the Minister interposing himself with any variation. In the case of incitement under conditions of peace, which may be conditions of absolute peace, the incitement may be an incitement which must, in the inherent nature of the circumstances, fail from the first word. Yet the penalty must be the same, but the penalty will be one which could not under the circumstances be suffered to continue, and so it appears that there is really substantial variation on the section in regard to the offences set forth. The only matter is that there is not a corresponding variation, nor a corresponding adaptability of the penalty. If the section were to be put into two parts, and levying war was one, and the more severe of these penalties was to have attached to that an unvarying penalty of death, so be it. If, on the other hand, in a second part of the section minor offences were set out with a minor penalty that would be admirable. But what we have got is the severest penalty for a variation of crime and offences against the State. The meaning of the amendment is that the judge shall determine, and I say that the justification of the amendment will be found in the future, because it will always happen that levying war against the State will not only receive in the courts the full sentence, but that the full sentence will be sought by the Minister, whereas these other minor offences will also receive the full sentence, but not in five per cent. of the cases will the Minister suffer them to be carried out. That would be the practice in the future, and that practice is what it is being endeavoured to give legal sanction by this amendment.
I would like to support this amendment, but I am afraid it is quite impracticable to place on the shoulders of a judge the alternative of varying sentences. As far as I am personally concerned, I am certainly no advocate of capital punishment, but on the other hand, in connection with this Bill it seems to me that there is no alternative. The introduction of the term "murder" into the clause seems to me rather to confuse the issue. Murder is a civil crime which is punishable by death, but the analogy with the case of treason is not very apparent to me. This clause aims at preventing people from taking up arms against the State. In its operation any person that engages in a conspiracy or actually takes up arms must of necessity recognise that he is taking a step which, if successful, has no penalty attached to it at all. But the Executive must for its protection place an importance on an action of this kind which justifies the very maximum penalty. To do otherwise I think would be to minimise the seriousness of the step that such a person took when he proposed to take up arms and by violence wrest the power of the State from the people as a whole, who in their wisdom elect representatives and, incidentally, elect the Executive Council.
Cases have been recited showing where very little harm may be done by the machinations of these people, because they do not get far enough. But surely that is an argument in favour of holding up before them the seriousness of any action they may propose to take in that direction. Unless the Government and the State take the fullest powers to suppress any action of that kind in the initial or in any stage, I think they would be guilty of neglecting to do what must be done in every State. Every State, I take it, has a law of this kind, and as far as I can see the minor cases dealt with politically would and must get the serious consideration of the Executive Council before the capital sentence was put into operation. After all, the Executive Council are the people who are open to public criticism in a way that does not apply to any judge or any other body of people, and as far as I can see, the Executive Council are the people who are open to public criticism in a way that does not apply to any judge or any other body of people, and as far as I can see the Executive Council are not likely to exaggerate the importance of a trivial movement. But they certainly ought to be in a position to take strong action where the necessity arises, and that they should be able to take that action at an early stage is, I think, of obvious importance.
Amendment put.
The Committee divided: Tá, 16; Níl, 30.
Tá
- Séamus Mac Cosgair.
- Tomás Mac Eoin.
- Risteárd Mac Fheorais.
- Pádraig MacFhlannchadha.
- Tomás de Nógla.
- Ailfrid O Broin.
- Aodh O Cúlacháin.
- Liam O Daimhín.
- Eamon O Dubhghaill.
- Domhnall O Muirgheasa.
- Tadhg O Murchadha.
- Pádraig O hOgáin (An Clár).
- Proinsias Bulfin.
- Darrell Figgis.
- Pádraic O Máille.
- Liam Thrift.
Níl
- Earnán de Blaghd.
- Seoirse de Bhulbh.
- Máighréad Ní Choileáin Bean.
- Uí Dhrisceóil.
- Michael Egan.
- Patrick J. Egan.
- Desmond Fitzgerald.
- Connor Hogan.
- Donnchadh Mac Con Uladh.
- Pádraig Mac Fadáin.
- Patrick McGilligan.
- Liam Mac Sioghaird.
- Martin M. Nally.
- Peadar O hAodha.
- Mícheál O hAonghusa.
- Seán O Bruadair.
- Partholán O Conchubhair.
- Séamus O Dóláin.
- Eamon O Dúgáin.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Séamus O Murchadha.
- Seán O Súilleabháin.
- Caoimhghín O hUigín.
- Osmond Gratton Esmonde.
- William Hewat.
- Seosamh Mac 'a Bhrighde.
- MacEochadha Maolmhuire.
- Seoire Mac Niocaill.
- Risteárd O Maolchatha.
- Pádraig O hOgáin (Luimneach).
Tellers.— Tá: Liam Thrift agus Tomás de Nógla; Nil: Séamus O Dóláin agus Patrick J. Egan.
Amendment declared lost.
I move:—
Before sub-section (3) to insert a new sub-section as follows:—
"(3) Every person who encourages, harbours, or comforts any person engaged in levying war against Saorstát Eireann or engaged, taking part, or concerned in any attempt to overthrow by force of arms or other violent means the Government of Saorstát Eireann as established by or under the Constitution shall be guilty of felony, and on conviction thereof shall be liable to a fine not exceeding five hundred pounds or, at the discretion of the court, to suffer penal servitude for any term not exceeding twenty years or imprisonment with or without hard labour for any term not exceeding two years, or to both such fine and such penal servitude or imprisonment."
This amendment is equal to amendments Nos. 1 and 3, and provides punishment less than the death penalty for those who encourage, harbour or comfort persons who are engaged in levying war against the State.
Amendment put.
The Committee divided: Tá, 26; Níl, 16.
Tá
- Earnán de Blaghd.
- Seoirse de Bhulbh.
- Máighréad Ní Choileáin Bean
- Uí Dhrisceóil.
- Michael Egan.
- Patrick J. Egan.
- Desmond Fitzgerald.
- Connor Hogan.
- Donnchadh Mac Con Uladh.
- Pádraig Mac Fadáin.
- Patrick McGilligan.
- Seoirse Mac Niocaill.
- Martin M. Nally.
- Peadar O hAodha.
- Sean O Bruadair.
- Partholán O Conchubhair.
- Séamus O Dóláin.
- Eamon O Dúgáin.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Séamus O Murchadha.
- Seán O Súilleabháin.
- Caoimhghín O hUigín.
- Liam Thrift.
- Seosamh Mac 'a Bhrighde.
- Liam T. MacCosgair.
- Risteárd O Maolchatha.
Níl
- Osmond Grattan Esmonde.
- Séamus Mac Cosgair.
- Tomás Mac Eoin.
- Risteárd Mac Fheorais.
- Pádraig Mac Fhlannchadha.
- Tomás de Nógla.
- Aodh O Cúlacháin.
- Eamon O Dubhghaill.
- Domhnall O Mochain.
- Domhnall O Muirgheasa.
- Tadhg O Murchadha.
- Pádraig O hOgáin (An Clár).
- Proinséas O Bulfin.
- Darrell Figgis.
- Maolmhuire Mac Eochadha.
- Pádraic O Máille.
Tellers.— Tá: Séamus O Dóláin agus P.J. Egan; Níl: Tadhg O Murchadha agus Risteárd Mac Fheorais.
Amendment declared carried.
Amendment 7 not moved.
I move:— To add at the end of the section a new sub-section as follows:—"No person shall be convicted under this section of treason or of felony on the uncorroborated evidence of one witness." That amendment is introduced as a result of the discussion that took place on Second Reading.
Amendment put and agreed to.
Question:—"That Section 1, as amended, stand part of the Bill"— proposed.
I want to speak generally against the section. I think the section is simply an attempt to reenact what is unnecessary, and that we are not yet in a state of mind when we should be able to consider the whole question of the relations of the citizens to the State in matters of treason with calm minds and without reference to the political trouble of the last year or two. There is no necessity at the present moment for enacting a Treasonable and Seditious Offences Bill. Perhaps at later times when we have calmness, and can give due consideration to matters of this kind, we would approach them with some ideas of, shall I say, liberalism without falling back upon old enactments and the spirit of the pre-Victorian age. In a general way I oppose the section because I oppose the attempt to enact a Bill of this kind at this moment.
Question put.
The Committee divided: Tá, 24; Níl, 17.
Tá
- Earnán de Blaghd.
- Seoirse de Bhulbh.
- Máighréad Ní Choileáin Bean
- Uí Dhrisceóil.
- Michael Egan.
- Patrick J. Egan.
- Connor Hogan.
- Donnchadh MacCon Uladh.
- Pádraig Mac Fadáin.
- Patrick McGilligan.
- Seoirse Mac Niocaill.
- Peadar O hAodha.
- Seán O Bruadair.
- Partholán O Conchubhair.
- Séamus O Dóláin.
- Eamon O Dúgáin.
- Donnchadh O Guaire.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Séamus O Murchadha.
- Seán O Súilleabháin.
- Caoimhghín O hUigín.
- Liam Thrift.
- Liam T. Mac Cosgair.
- Risteárd O Maolchatha.
Níl
- Séamus Mac Cosgair.
- Tomás Mac Eoin.
- Risteárd Mac Fheorais.
- Pádraig Mac Fhlannchadha.
- Tomás de Nógla.
- Ailfrid O Broin.
- Aodh O Cúlacháin.
- Liam O Daimhín.
- Eamon O Dubhghaill.
- Domhnall O Mocháin.
- Domhnall O Muirgheasa.
- Tadhg O Murchadha.
- Pádraig O hOgáin (An Clár).
- Proinsias Bulfin.
- Darrell Figgis.
- Pádraig O Dubhthaigh.
- Pádraic O Máille.
Tellers:—Tá: Séamus O Dóláin agus P.J. Egan. Níl: Tadhg O Murchadha agus Risteárd Mac Fheorais.
Question declared carried.