I am reading the Preamble which sets out, in effect, the words of the Constitution, and if I am to be called to order, it is not by Deputy Cooney. I think it well that the House should know the meaning of the words: "levying war." The words have been used in the statutes relating to treason from the very beginning and they are words with a technical meaning. They have been defined in case after case. In order that there should be a levying of war it is not necessary that there should be an army in the field. It is not necessary that there should be a vast body of men. One man may levy war against the State. Two men may levy war against the State, or three men or any small number, but it need not be a large force. Now, there is a very considerable number of cases setting out the meaning of those words and I should like, with your permission, Sir, to let the House know the meaning of the words "levying war against the State." I shall read from Archbold's Criminal Law, 1934 edition, Page 1079:
"In order to constitute a levying of war the number of persons assembled is not material; three or four will constitute it as fully as 1,000; nor is it necessary that they should be more guerrino arraiaiti, armed with military weapons, with colours flying, etc., although it is usually so stated in the indictment. Nor is actual fighting necessary to constitute a levying of war; for, as the court held in the King v. Vaughan, enlisting and marching are sufficient without coming to battle. But there must be force accompanying that insurrection, and it must be for an object of a general nature. War levied against the King is of two kinds—direct and constructive.”
Of course, in the passage there they are using the word "King," whereas in connection with this Act the word "State" must be substituted. It proceeds as follows:—
"It is said to be direct, when the war is levied directly against the King or his Forces, with intent to do some injury to his person, to imprison him, or the like; such, for instance, as open rebellion for the purpose of deposing or imprisoning the King, or of getting him into the power of the rebels, or of forcing him to put away his Ministers, or the like; holding or defending any of the King's castles, forts, or ships against the King or his Forces, or delivering them up to rebels, through treachery. To constitute levying war it is not necessary that great numbers should assemble or military arms or array should be displayed or actual force be used. Levying war is said to be indirect or constructive when levied for the purpose of effecting innovations of a public and general nature by an armed force; as, for the purposes of attempting by force to obtain the repeal of a Statute, to alter the religion established by law, or to obtain the redress of any other public grievance, real or intended; or an insurrection for the purpose of throwing down all enclosures, pulling down all bawdy houses, opening all prisons, etc., expelling all strangers, enhancing the price of wages generally, or the like. Therefore, where a mob assembled for the purpose of destroying all the Protestant dissenting meeting-houses, and actually pulled down two, it was held to be treason."
That was the case arising out of the well-known Sacheverell riots in London. Now, therefore, we find that things of the nature which I have mentioned here are acts of war against the State. The joining together of persons, or even the acting of one person, in order to achieve, not a private, but a public end by force, is the levying of war, and those various things which I have read out to the House, and similar things under this statute, are punishable by death. If persons conspire—and let me say that I hope that it will never happen in this country as it is happening in Germany at the present moment —if persons conspire together to pull down Jewish synagogues, all of them, and if they did actually pull some of them down, which, I hope, would never happen, they are guilty of levying war against the State. There can be no question of that from the authority, and, therefore, under this statute, they would be punishable by death. There can be no question about that. It is perfectly clear law. Let me go a little further. With your permission, Sir, I shall just read what was held in the case of the Queen v. Gallagher, which was one of the Fenian cases. The case was before Lord Coleridge, Lord Chief Justice, the Master of the Rolls, and Justice Grove and came under the Treason Felony Act. It was stated that:—
"Secret clubs were formed in America, branches of a society called the Fenian Brotherhood, whose object was said to be to procure `the freedom of Ireland by force alone.' The prisoners, members of these clubs, came to England provided with funds, their intent being to destroy public buildings by nitro-glycerine and other explosives. One of the prisoners appeared to be the director of the movements of the others, another was detected in manufacturing nitro - glycerine in large quantities at Birmingham, and others were employed in the removal thereof, when manufactured, to London under the director's superintendence. There was evidence that the House of Commons and Scotland Yard office of the detective police were pointed out as places to be destroyed, as well as that the nitro-glycerine was to be used for destroying other public buildings."
Now, there was the case of the mere possession of nitro-glycerine in the hands of these people with the intent to blow up Scotland Yard and the Houses of Parliament. The Lord Chief Justice, in summing up the case to the jury, said:—
"The jury had heard an argument addressed yesterday to the court that all that was proved in this case was an intention—nothing, happily, was carried into effect—by two or three persons to blow up public buildings and to inflict injury upon public property, possibly with a view of deposing the Queen and forcing her to change her counsels, and to overawe both or either of the Houses of Parliament. It was further argued that there was nothing for the jury to decide upon, because the levying of war must necessarily be something which answered to the old notions of war—that there must be a mustering of forces or an irregular mass of men equivalent to a number of troops—or something of that kind, which must be not only included in but taken as the only legal sense in which the term `levying war' was used in the statute. He and his learned brothers, however, held that that was not necessary, but it would be sufficient for the jury to find the accused guilty if they thought that one or more of them did compass, devise and intend to force the Queen to change her counsels, and to overawe the Houses of Parliament by violent measures directed against either the property of the Queen, the public property, or the lives of the Queen's subjects, and directed against them for those public purposes, and not with the view of repaying any mere private spite or enmity against any particular subject of the Queen. As years went on and as science increased and knowledge widened, so the means of war varied from age to age, but if a thing was done with the same object and with the same violent means as would be a levying of war in the days of the earlier statutes it was none the less compassing and intending levying war now, because the scientific means by which it was directed had put it into the power of two or three men to do what could not have been done years ago by hundreds and perhaps thousands."
That is the position at the present moment. These men, as a matter of fact, were not tried for treason. They were tried under a statute which, in my view, at any rate, does not apply to this State. They were tried under the Treason Felony Act, under which the death penalty could not be imposed, and, in consequence, sentences of penal servitude were passed upon them—penal servitude for life, as a matter of fact. But in this State, as it stands at present, indicted like that, they would have to be sentenced to death and no sentence short of death under this Bill, if it becomes a statute, could be passed upon them. Therefore, my suggestion to the Taoiseach is that he should either withdraw this Bill and completely remodel it, or else that he should undertake to amend it drastically in Committee. A large number of offences, as I think I have already shown beyond question, can be charged as treason, and there are some that can only be charged as treason and are only punishable by death. I think that the wise course for the Taoiseach to take would be— of course, we are bound by the very wide wording "levying war" in the Constitution—to divide levying war into two and to make it plain that levying war in this statute will not mean the constructive but the actual levying of war; that it will embrace only those cases in which the public conscience will come to the conclusion that death had been deserved; and that we should not have upon the Statute Book a statute under which a man, for an offence, could receive a sentence of death, thus shocking the conscience of the community.
As I said, we are bound by the actual wording of the Constitution. But we are not bound as to our penalties, and the levying of war can be divided up very easily into two. There can be a real actual levying of war. That is when a considerable number of persons go out, or are prepared to go out, or conspire to go out, and carry out their objects by means of shooting down soldiers defending the State or policemen doing their duty. But other classes, those classes which have been called constructive levying of war, should not be subject to the death penalty. There are cases, many cases, especially when the 1925 Act goes, in which people could either not be tried at all or would be sentenced to death. I may here remark that an over-heavy sentence like the sentence of death, not for real cases such as I have mentioned, but for a lesser offence, will prevent jurymen from bringing in verdicts of guilty. No jurymen will bring in a verdict of guilty where death must follow unless they are satisfied in their own minds that death should be the penalty. Here there is nothing now even corresponding to the Treason Felony Act. Here the State has cut itself down to having, for a large class of cases, the death penalty and nothing but the death penalty.
Let me take one of the repealed sections, Section 6 of the Treasonable Offences Act, 1925:
"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 £200, 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".
Suppose you find an army here in possession of arms, just as the possession of nitro-glycerine was held in the case I have read to you of the Queen v. Gallagher, especially if there are any documents found showing that the intention is to endeavour to upset the Government or the established order in this State, or any purpose of that nature, when this section goes, you will have nothing short of a charge of treason to bring.
We are told, of course, that there may be some other Bill, but at the same time we are told that we should not consider any other Bills that are coming—we are to take this Bill on its merits. Here we discover that if a situation of that kind is to be dealt with, it cannot be dealt with under a section so that the jury will know, if a man is found guilty, he will be fined or given a not-over-long term of imprisonment, and, if they are not intimidated, would find him guilty, if the evidence of it was clear. But no jury would find him guilty if there had been no lives lost; no jury would find him guilty of treason and therefore see him sentenced to death for treason.
There are many other instances which I could give if I went through this statute, but I do not want to go through it. Take Section 3 (1) (a): any person who
"attempts or takes part or is concerned in an attempt by force of arms or other violent means to overawe or intimidate in any way either the Governor-General or the Executive Council or any member thereof or any other Minister duly appointed under and in accordance with the Constitution, or the Oireachtas or either House thereof, or any lawful court or any judge of any such court with a view to influencing their or his actions,"
shall be guilty of felony and on conviction thereof shall be liable to penal servitude. When you take away that section that is treason, that is levying of war. Instead of having a person indicted under a section in which the punishment could be made to fit the crime, you are leaving yourself in such a position that you can only indict him for treason and with the death penalty. I think that is an exceedingly wrong way of dealing with this matter.
I would very gladly indeed hear that this levying of war should be divided into two parts. There should be levying of war which should be actual war as distinct from levying of war which is merely constructive war. I sincerely hope that the Government will take some steps towards carrying out that principle, because I think it would be entirely against the interests of this State and against the administration of justice, as it is against modern common sense, that there should be crimes which can only be dealt with as treason. There are many crimes which are treason, the perpetrators of which could be indicted for treason, but common sense and the Attorney-General or the public prosecutors decide that they will not be indicted for treason; that they will be indicted for some other offence. The having of explosives could be dealt with under the Explosives Act; the person who is using the explosives might prove he was using them for a public purpose. He might also be indicted for treason or, in England, for treasonfelony.
There are a great number of other cases in which there is no discretion left to the State prosecutors and in which the crime would be treason or nothing. I would like this section dealing with treason to be a commonsense section of a kind over which one could stand. The Government may say "We will never use this Statute," or "if we like we can indict this person for treason and the death penalty will follow, but we can charge him with something less." I do not like that section. The fact that this section is taken from the Treasonable Offences Act of 1925, is not, to my mind, an answer to placing a law upon the Statute Book which in its ordinary interpretation is against common sense. I sincerely hope that the Government will not act obstinately in this matter. I am putting these views forward in the hope of improving this Bill, as it stands. I do sincerely hope that what I have said will be gravely taken into consideration and that we will get a promise that amendments such as I have suggested will be introduced in Committee. Better still, my suggestion is that the Bill will be taken back and redrafted.
There are other things in the Bill which are of a similar nature. Section 2 of the Bill says "Every person who encourages, harbours, or comforts any person engaged in committing treason ...shall be guilty of felony." I do not think these words "encourages,""harbours" or "comforts" should stand unless the word "willingly" is before them. I think a person who under force harbours, encourages or comforts somebody who has been guilty of treason—one who is on the run—should not be subject to a penalty if he is compelled by force or by threats to do so. As the law stands if he is threatened, if his life is in danger or if he is in grave danger of being hurt, then he would not be guilty of felony. But if a person is told "if you do not give me shelter I will burn down your house," he would be guilty. I certainly think that the words "willingly" as well as "unknowingly" should be inserted there.
Misprision of treason is a very old offence. Though it is in the 1925 Statute, there has been no prosecution for misprision of treason or treason felony for hundreds of years. I do not think it is a good principle to revive a statute that has been obsolete for hundreds of years. It would be well to let it die a natural death now. The old principle in the matter of being guilty of treason was that there should be some overt act, that something should have been done against the State. There does not seem to be any such provision in this Bill here. In this measure there is no necessity for any overt act. In a conspiracy of levying war against this State, an offence which is punishable by death, I think there should be something done in pursuit of that conspiracy. The conspiracy should, in my opinion, be overt. I should like if the Taoiseach would tell me whether the old three years' limitation would still apply so far as this Bill is concerned. I rather think it would not, because it is like being tried on a murder charge. I would like to know what is the considered view of the Attorney-General. For the reasons which I have stated, I wish to make it clear that when there is real treason, when there is a real attack upon the State, when the State is in danger or when the lives of soldiers or the lives of Gárdaí Síochána or when the lives of public men are in danger, from a widespread wholesale conspiracy, that the punishment of death is a proper punishment. But I do not like the punishment of death appearing upon our statute for offences for which such a penalty is altogether too great.