Treason Bill, 1939—Second Stage.

Question proposed: "That the Bill be now read a Second Time."

The Taoiseach

The moment the Constitution was enacted by the people treason had a new meaning. The Constitution was the foundation of a State and, so far as this part of Ireland, and so far as the State here is concerned, was a recognition of things which the Irish people had been struggling for, the right, as indicated in the First Article, to choose their own form of government, to fix their relations with other States, and to mould their national life in accordance with their own genius and traditions. In order that there should not be any misunderstanding, Article 39 of the Constitution defined what treason was. To make it clear that treason must no longer be understood in terms of allegiance to foreign Powers, and so as to cut out the possibility of any Act applying among those which we were taking over to form the body of law which was to be our law, when the Constitution was passed, treason was definitely limited. The Article states:—

Treason shall consist only in levying war against the State, or assisting any State or person or inciting or conspiring with any person to levy war against the State, or attempting by force of arms or other violent means to overthrow the organs of government established by this Constitution, or taking part or being concerned in or inciting or conspiring with any person to make or to take part or be concerned in any such attempt.

Once the Constitution was passed, treason was defined as an act of treachery against this State, and nothing else. Everybody who was here in the Dáil at the time of the discussion realised that and realised that it was appropriate that, when the Irish people had established freely a State in accordance with their wishes, those who tried, by violent means, to overthrow that State should be held here as in other countries, to be guilty of the most terrible crime of a public character which is known in civilised society. It was appreciated that that was right and that it was just and not a single Deputy on either side, from my recollection, questioned it. This Constitution then went to the people. It was passed and made law. What we are doing in this Bill that is before us to-day is making that effective, by prescribing the penalties which will attach to anybody who is guilty of treason against the State. The penalty here, as in most countries, because of the character of the crime, is the greatest penalty that, in modern times, States can impose on an individual— the penalty of death. The penalty of death is prescribed for those who may be convicted and sentenced for treason, treason committed against the State, within the State, or treason committed against the State without.

If death is to be the penalty for crime at all, death ought to be the penalty for the gravest crime which can be committed against the community. No one, therefore, I believe, who thinks that death should be imposed as a penalty at all, will deny that, in the case of this crime, which might lead to many deaths and which could lead to civil war and could lead to the destruction of the community, nobody who thinks that death is a suitable penalty for murder, should doubt that death is a penalty which should attach to the crime of treason, treason committed against a free community.

As it is prescribed that the punishment to which a person who commits treason is liable is death, so it is reasonable that the method of indictment, arraignment, trial and sentence should be that which is accorded to a person who is charged with murder. That statement and the two I have made as to the penalties are in connection with Section 1.

In Section 2 you have the ancillary crimes of encouraging, harbouring, comforting a person guilty of treason. Any person guilty, not of treason but of a crime ancillary to treason, such as encouraging, harbouring, or comforting any person engaged in committing treason shall be guilty of a felony and the penalty to which a person who is found guilty of felony is liable is up to £500 or, at the discretion of the court, penal servitude for a term not exceeding 20 years, or imprisonment for a term not exceeding two years, or to both such fine and such penal servitude or imprisonment.

The third section deals with misprision of treason, or concealment, by a person who knows that treason is being attempted or committed and does not disclose it.

As you see then, the Bill is a simple one. It is making effective the Article of the Constitution which defines the crime but does not provide the penalties and, as we know, merely to indicate that a certain act is a crime is not sufficient. Unfortunately, society is not so constituted and human beings are not so constituted that the mere indication by law of a crime is sufficient to prevent its commission. We have, therefore, in this Bill the necessary sequel to the Article of the Constitution, the provision of the penalty.

Were it not for our past history and the fact that, in the past, treason with which our Irish people were charged was rightly held by Irish people not to be treason, not to be a crime against their own community, there would be no question raised by anybody about a Bill of this sort any more than it would be raised in the United States of America with regard to such a Bill, or raised in France or in any other country. What we have got to make clear is that we have here now a free community, sovereign, able to mould its own institutions in its own way, that any group or section are at liberty to organise to get a majority to support their point of view, and that that majority, if it is obtained, can be effective in changing, not merely the ordinary law but, ultimately, in changing the Constitution itself. We are free here to act in our own interests in regard to any matter either in our internal or external affairs. Search the Constitution from the first Article to the last and every Article makes it clear that the Irish people in this part of Ireland are complete masters of their own fate, to have whatever Government or form of government they want and have whatever relations with other countries that they want and only those that they want, only those that they think are in their own interests. We have freedom, therefore, and it behoves us to try to keep that freedom and we have to maintain that freedom in the same way that other nations maintain it.

That Constitution gives liberty to individuals. That liberty has to be preserved, and it can only be preserved by the organised powers of the State. If we have not got laws to restrain the wrong-doer, the wrong-doer, by violent action, can interfere with the liberties of his fellows. We have here a democratic Constitution and a democratic State, and democratic States need to watch with far more care how any body or group, by violent means, should seek to overthrow them. There can be no democracy and no liberty such as is provided for in that Constitution unless violent methods by groups within the community are prevented, and it is to prevent such violent action by any groups within the community, and to draw the attention of the community as a whole to their liberty and to the obligation which that liberty imposes upon them as citizens, and upon the public authority which they have set up, that we are at this time bringing in this Bill.

As I have said, it follows from Article 39; it is necessary to complete Article 39 and might have been brought in at any time. In fact, instructions had been given, shortly after the Constitution, to examine this matter and other related matters with a view to having the necessary legislation ready for introduction at any suitable time, suitable either from the point of view of public business, or from the point of view of any happenings which might indicate that there was a threat of violence, or possible violence, against the State. That was done when the Constitution was being passed. It was indicated that a measure like this would be necessary in any case as a piece of ordinary legislation and that other measures might also be necessary for which provision in the Constitution was duly made. I do not think that anything would be gained at this stage by my saying more upon the Bill. As the particular Article of the Constitution passed the Dáil without any opposition, I think this Bill also merits a passage without opposition.

Mr. Fitzgerald-Kenney

With a great deal that the Taoiseach said, I am in complete and entire agreement. I do believe that the first duty of the State is to preserve itself, to preserve the lives and properties of its citizens against any persons, be they foreigners or people at home, who endeavour to upset that State or to deprive the citizens of their lives, their liberties or their property. I am entirely in agreement with the Taoiseach when he puts forward that proposition. It is the law in every civilised State in the world that when there is a real threat, a real danger, to the State and to the lives of its inhabitants, that the State should punish the persons who bring that threat, or take away those lives, with the greatest penalty known to the law. I agree, therefore, to that extent, though I do not agree with the definition of treason, which I think is too wide, nor with the method by which we are legislating, being bound by that definition as it occurs in the Constitution. Though I do not agree with a good deal of this Bill, I do agree entirely with the proposition that a State must defend itself and with the proposition that those persons who endanger the State, or endanger the lives of the citizens of the State by armed insurrection should certainly be punished by death.

That is the proposition which is embodied in Section 1 of the Bill, and it is a proposition on which every single person in the House who votes for the Bill will put the seal of his approbation, and I am glad of it. Again and again, we heard ringing from Fianna Fáil platform after platform a condemnation of the Government that followed out the principle which is embodied in Section 1. I heard denunciations, again and again, of the Government that executed 77 persons for endeavouring to upset that Government, and who did embroil this country in an insurrection against that Government.

An Ceann Comhairle

The Chair earnestly suggests that the Deputy's references if continued would lead to very acrimonious discussion. The history of 1922 is at least contentious.

Mr. Fitzgerald-Kenney

I will content myself with what I have said, that this Bill sanctifies, by the vote of every person who votes for it, the action of the Government which defended itself and its people by those executions. There can be no question about it. It is beyond all doubt and all question, and no amount of cavilling, no amount of shouting, "No, no," can change plain obvious facts which anybody with the slightest glimmer of intelligence can recognise as plain and obvious facts.

I come now to deal with this definition of treason. It is embodied in the Constitution and I will read it. It is set out in the Preamble and is:—

WHEREAS it is provided by Article 39 of the Constitution that treason shall consist only in levying war against the State, or assisting any State or person or inciting or conspiring with any person to levy war against the State, or attempting by force of arms or other violent means to overthrow the organs of government established by the Constitution, or taking part or being concerned in or inciting or conspiring with any person to make or to take part or be concerned in any such attempt:

Mr. Cooney

That is not the Constitution under which the executions were carried out.

Mr. Fitzgerald-Kenney

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.

Mr. Norton

Deputy Fitzgerald-Kenney's action in giving his approbation to this Bill is of the same variety as the approbation the Deputy gave to Public Safety Bills in another period. The reasons he gave for the Bills which he then introduced did not disagree at all with the reasons he gave for supporting this Bill this evening. The Deputy can pat himself on the back that, at all events, in respect of Bills dealing with public order, he has been consistent inasmuch as what he believes now he believed ten years ago. But the Government that is asking the House to adopt this Bill to-day and that is going to ask the House to adopt the Offences Against the State Bill in a few days' time, did not, ten years ago believe that it was necessary that this country should have enacted a series of Public Safety Bills one after another. There is to-day no necessity for the introduction in haste of this Bill. The Constitution has been in existence for 15 months and for any offences that might be committed against the State since then there was presumably legislation to deal with them under the Treasonable Offences Act of 1925. There is no necessity, therefore, for the introduction of a Bill of this kind to-day, because if a situation arose which necessitated dealing with the offence of treason the Government could not plead that it had not the power to do so. We get this Treason Bill, and we get this Offences Against the State Bill at a time when the country, so far as its internal administration is concerned, was never more peaceful. We get them at a time just when an effort is being made in another country to work up a flame of indignation against Irishmen who are being arraigned on certain charges there. I think the least that we ought to have done in this connection was to hold our hands in the introduction of legislation of this kind, particularly when nobody can make the case that the country needs legislation of this kind, or that there is any difficulty to be met with in the country. That is a very happy feature, and something on which we can congratulate ourselves— that during the past few years in particular the country has been extremely peaceful and intends to continue peaceful.

Sporadic incidents in widely spread portions of the country do not at all justify the introduction of legislation of the Treason Bill and of Offences Against the State Bill variety. I think it is particularly unfair to the House that, notwithstanding the plea put forth by two Parties in the House, the Government has not seen fit to postpone the consideration of the Treason Bill until such time as we could examine, and see in proper perspective, the relationship between this Bill and the Offences Against the State Bill. Although the two Bills were introduced simultaneously, we are now being told that you can study and regard as a self-contained measure the Treason Bill, and that you will not be allowed during the Second Reading discussion on the Treason Bill to see the Offences Against the State Bill even though many of the provisions of that Bill will, presumably, be lifted from the Treasonable Offences Act of 1925.

I protest against that method of treating the House on two Bills which are of vital importance in the national and domestic life of the country. We ought to have the opportunity of seeing both Bills together. As no case of haste can be made that, I suggest, is an especially strong reason why we should have the opportunity of seeing both these Bills. As Deputy Fitzgerald-Kenney has rightly said, the phrase "levying war" has been deemed from time to time to include a wide variety of offences, but in this Treason Bill before us we are actually going much further than in the Treasonable Offences Act of 1925. In this Bill you can be arraigned for treason, and you will have to be arraigned for treason for certain offences in respect of which, under the 1925 Act, it was possible to prefer a less serious charge not involving the sentence of death. Under this Bill "every person who commits treason within the State shall be liable on conviction thereof to suffer death," and treason is defined in the Constitution as, among other things, "levying war against the State." As Deputy Fitzgerald-Kenney has pointed out, levying war against the State may, in the long run, mean conspiring to burn a synagogue.

Mr. MacEntee

Does the Deputy approve of that?

Mr. Norton

Everybody, except the foolish Minister for Finance, knows that no responsible person would approve of the burning of a synagogue——

That is not the point.

Mr. Norton

One of the reasons, I suspect, why we are not being allowed to see the two Bills is that to do so would enable us to ascertain what types of offences have been taken out of the Treasonable Offences Act of 1925, and put into the Offences Against the State Bill of 1939. I suggest to the Taoiseach that when we see the Offences Against the State Bill we will see in it provision for the punishment of certain offences from the Treasonable Offences Act, and if these offences can be at all described on a charge under the Treason Bill as constituting "levying war," then it is possible only to charge a person with treason, and to sentence a person for treason. The Taoiseach disagrees so that we can pass from that. That is my view of the matter, and nothing that the Taoiseach has said in the course of this discussion dislodges the view which I hold.

If I had known the Minister was here, I would not have come in. The Minister has given several exhibitions since he entered the House. He is a classic performer in that respect.

An Ceann Comhairle

Order!

Mr. Norton

I want to put it to the Taoiseach that nothing he has said this evening, and nothing that has happened in this country for the past 12 months, at all justifies the enactment of a Bill of this kind and the enactment also, in the course of a week or two, of the Offences Against the State Bill. Both Bills are quite unnecessary. The only thing they will do, the only thing they are calculated to do, and the only thing, in fact, that they are doing, is to cause a very effervescent feeling throughout the country and throughout local boards in the country. Even Fianna Fáil Cumainn have been loud in their denunciations of these Bills and Comhairli Ceanntair have been protesting loudly against the introduction of these Bills. Every person in the country will protest against them because the only effect they will have is to create unnecessary yeastiness.

Deputy Cormac Breathnach will tell us, no doubt, as he did in the Press the other night, that no law-abiding citizen need be afraid of these measures. Deputy Fitzgerald-Kenney tells us the same. Deputy Cormac Breathnach had something very different to say, I am sure, on the occasion of the introduction of Deputy Fitzgerald-Kenney's Public Safety Act. In my opinion the only effect of these measures will be to cause considerable commotion and agitation. These efforts at repressive legislation will only beget protests and annoyance which will, in turn, cause offences which everybody desires to see avoided and which are only caused by protests against legislation of this kind.

I think the Taoiseach might well have allowed the existing position to continue without treating the country to the kind of feeling of yeastiness and commotion which is bound to follow on the discussion and enactment of these measures. I protest against the Bills as being totally unnecessary. I protest against the mentality that considers that we must have one Public Safety Act after another in this country. I protest against this addition to the public safety legislation of this country as being an unnecessary addition to a good deal of unnecessary legislation.

Mr. Cogan

I would like to express my views in regard to this measure. I am speaking as a plain citizen, although I happen, for the moment, to be a public representative in this House. I am, at least, so far removed from Party politics that I can take an absolutely impartial view of this measure. In my opinion, having regard to the peaceful conditions which prevail in this country, there is absolutely no necessity for a measure of this kind. This Bill is not only unnecessary, but it is undesirable inasmuch as it may cause uneasiness, annoyance and bitterness.

The most plausible, though perhaps not the strongest, argument in support of this measure is that it does not or will not affect in any way the ordinary law-abiding citizen. I question that statement very much. I question whether any measure which tends to create annoyance or a certain amount of uneasiness or disorder will not affect the ordinary citizen. Will it not affect the ordinary citizen if this measure is interpreted as drastically as it could be interpreted under the Constitution? Treason under the Constitution is defined as levying war against the State. We are told it does not require a great army to levy war against the State; one or two individuals might be regarded as levying war against the State. One indignant farmer whose stock has been seized and sold at one-fifth of their value might be so incensed that he might try to rescue his stock from the forces of the State. Would not that farmer, under the Constitution and under this measure, be liable to be regarded as levying war against the State; yet that farmer, excepting that he lost his temper as a result of injustice, would be an ordinary, law-abiding citizen? Again, would it not be possible that a trade union engaged in an ordinary labour dispute, or a farmers' organisation engaged in a trade union dispute, such as, for example, a milk strike, might become involved in some way in a clash with the forces of the State?

Would it not be possible, under this measure, that peaceful, law-abiding citizens who might, as a result of the excitement of the moment, or, as a result of harsh treatment that might be meted out to them, become involved with the forces of the State, would be affected by this measure? I suggest it would. Would it not be also possible for a peaceful, law-abiding citizen to be affected by the measure in this way? One of his children might be guilty of some offence against the State which, owing to the drastic nature of this measure, might be regarded as treason and might be punishable by death. That peaceful citizen might find himself outside Mountjoy waiting for the execution of his son. Would he not be affected in that way? I suggest he would. I, therefore, say that this measure does affect the ordinary law-abiding citizen of the State. My chief reason for objecting to this measure is that the penalties proposed are altogether out of proportion to the offences outlined.

It has been said that treason is the most terrible crime of which a citizen of the State could be guilty. It has been suggested that it is a more serious crime than murder, but you must remember that treason is a very indefinite sort of offence, a very vague type of offence. In murder you have something solid, something substantial. At least you have the corpse to start with. In the other case you have nothing substantial. A group of excited boys might seize a public building and issue a proclamation. These boys would be guilty of treason under this Bill. They would be liable to the penalty of death. Again, as I say, members of a trades union might be involved in a clash with forces of the State. There would be nothing very definite there. It would be very hard to know how the clash originated in a moment of excitement. It would be hard to know whether the forces of the State or the members of the trades union were responsible. Yet, these people would be liable to the charge of treason. There is one argument which I think I should mention in fairness to the Government which is responsible for the maintenance of the State. It is possibly the strongest argument that could be advanced in support of a measure of this kind, and that is, that a measure of this kind is absolutely necessary for the preservation of society. That, I believe, is the only argument on which the Government could rely for penalties so drastic as are involved in this measure, that the danger which might arise from unlawful acts is so great for the entire community that the Government of the State is reluctantly forced to take such drastic action.

I question very gravely whether drastic penalties are always the most effective means of restoring order in connection with offences of this kind. I question very gravely whether it has been proved, either in this country or any other country, that the execution of people involved in offences against the State, or even engaged in war against the State, has always been the most effective means of restoring order. If execution were the most effective means of restoring order, the Government that was elected in Spain a few years ago would have restored order within a few weeks because they did adopt this method of execution. They had resort to the most drastic penalties, yet it was proved that the adoption of such drastic penalties did not achieve the purpose for which they were intended.

Mr. Hickey

Nor did the executions in 1916.

Mr. Cogan

I was coming to that. We have our own history to look back upon. If the executions were effective in this country, there would have been no organised effort on the part of the Irish people to secure freedom by force of arms after Easter Week, 1916. The penalties at that time were of an exceptionally drastic nature. Again I say that I question very gravely whether executions are the most effective means of restoring order. I suggest there are more effective means and that the strength, the efficiency and effectiveness of the State, Army, and other forces, are in the last resort the greatest and most effective safeguard which the community could possess and not the drastic penalties that the Government might be inclined to inflict. I think members of this House who have had a long and painful experience of matters which should not be mentioned in this House, should reflect upon this question from a really detached, disinterested point of view, and ask themselves whether these drastic penalties in the past afforded the best means of restoring order. I suggest that they have not.

Mr. Dillon

I think it was made clear by our Party, when we were discussing the order of business, that the disposal of this Bill would be greatly simplified if its consideration were postponed until we had an opportunity of considering it in the light of the second Bill. Deputy Fitzgerald-Kenney has clarified for the House the distinction between real treason and constructive treason, and the Taoiseach must realise the confusion that the introduction of this Bill alone creates in the minds of some of us. I have no doubt, from what the Taoiseach has let fall so far, that for certain of the offences described by the terms "constructive treason" provision will be made in the second Bill, and that there is no intention, in this country or in any other country, of using the letter of the law to exact the death penalty for such offences which technically could be described as treason, but that in ordinary circumstances offenders in these categories will be proceeded against under some other legislation. If we had an assurance of that kind, by the submission of other legislation, a variety of considerations, which I believe are irrelevant, would not arise at all. In the absence of the other Bill, this Oireachtas is bound to take precautions to ensure that we shall not pass a Bill, which if it were allowed to stand permanently alone as an Act of the Oireachtas, would in fact bring down on the heads of ordinary offenders penalties that the Oireachtas never meant to bring upon them.

Mr. Aiken

Is this Treason Bill the only law of the land?

Mr. Dillon

I presume not, but what we suggested to the Taoiseach was that he would bring forward as much of the related legislation as was available so that we could consider this Bill in the surroundings of the existing law and the law contemplated at present. In that event, we could view the position and make suggestions. Now, if this Bill must be considered alone, because the Taoiseach thinks it ought to be, we think it must be amended and provision must be made to meet, in some degree, some of the suggestions offered. In my humble judgment, Deputy Cogan, with respect to him, was talking through his hat. If this Bill stood alone and no other legislation supplemented it, what he said would carry some weight. It was to avoid any weight attaching to representations of that kind that we suggested to the Taoiseach that these two Bills should be examined together. Are we to understand that the second Bill will be available before the Committee Stage of this Bill is undertaken and, if it is not available, is the Taoiseach prepared to meet the points raised by Deputy Fitzgerald-Kenney? As I read this Bill—it may be that I do not see all that is in it—I attach little more importance to it than I should to a Coroners Amendment Act. I think it is an ordinary Bill, the purpose of which is to declare what is the established law in every civilised State in the world. But, as is frequently the case with this Government, they have done the job with gross incompetence. They have made a mess of the Bill. The Government always do that, but we are prepared to help them out and assist in clearing up the mess. They have created a lot of apprehension that I do not think need necessarily have arisen in regard to this Bill.

I should like an assurance from the Taoiseach that the legitimate apprehensions of the Opposition will be met and considered and I remind the Taoiseach that, in this kind of legislation especially, the legitimate representations of a Parliamentary Opposition are entitled to very special consideration. This is a law designed to protect the integrity of the State, which is the concern of every section of this Parliament just as much as of the Government. Although the Taoiseach might think that certain Draconian legislation was perfectly safe in the hands of the Government, he has got, if he wants to carry out the work of a democratic Government, not only to satisfy himself, but to satisfy the people of the country as a whole that the legislation is of a character which the Oireachtas should adopt. Restrained and moderate representations have been made to him, as I think of a perfectly legitimate character, taking this Bill standing alone. I put it to him that in the general interest these representations ought to be met. They may be met by giving the House now an outline of the second Bill which is in draft or they may be met by expressing a readiness to consider amendments on Committee Stage to meet these objections, but I do press strongly on the Government that it is desirable to avoid a casual rejection of these representations, because that would give rise to apprehension which I do not think would arise now. I want to repeat that what I say here is said in the belief that this Bill is merely enacting what is the ordinary law in every civilised State—that is, that if men take up arms to overthrow the legitimate Government of the State, they attack not only the authority of the people but the authority of God and that has got to be defended, and is defended, in every civilised State. To that principle we shall all subscribe. Let the Government not create, by ineptitude or pigheadedness, issues that do not exist and let them judge by the objective character of Deputy Fitzgerald-Kenney's remarks the readiness of Parties in this House to deal with this type of legislation in a calm and businesslike way.

Mr. Belton

I do not propose to discuss this Bill but I should like to have clarified an interjection by the Minister for Defence when Deputy Dillon was speaking. Deputy Dillon was dealing with the point of capital punishment for treasonable offences. The Minister for Defence asked if there was no other law in the country but the law laid down in this Bill meaning, I presume, that the Government, in its wisdom, would deal with minor offences by other machinery than the machinery which this Bill, when enacted, will give them. Will the Minister throw back his mind a couple of years when he was robbing the farmers of this country and when a mild protest put those who were present before the Military Tribunal set up by him, while when the foulest murder that ever stained this country was committed at Edgeworthstown, in my native county, and when the culprits were got——

An Ceann Comhairle

That matter is not relevant.

Mr. Belton

May I relate it to the Minister's interjection?

An Ceann Comhairle

Surely the Deputy does not contend that on a Minister's brief interjection a debate may be inaugurated?

Mr. Belton

I do not mean to discuss this Bill. I should like to see the Bill that the Government has up its sleeve. There will be some discussion when that Bill comes before us. I bow to your ruling, but I think the House will understand, and the country will understand, what I was going to say.

Mr. McMenamin

There are other laws, according to the Minister for Defence. There are plenty of laws. We know that, and we have not to be told about them by the Minister. The most lay member of this House knows them, but the moment any citizen commits the offences described here he is guilty of treason, and must be tried in the Central Criminal Court by a judge and jury. If he is found guilty, the sentence is death. Does the House approve of that? I should like to know why the provisions of the English Act of 1847, which were re-enacted in the Treasonable Offences Act of 1925 here, have been deleted so that quasi-minor offences, such as were denounced by Lord Macaulay in describing the case of Alice Lyon, could be dealt with on a similar charge.

Mr. Corish

Alice Lyon will not suffer under this Bill.

Mr. McMenamin

But there are plenty of other Alice Lyons. I am very curious to know what is behind the inclusion of the smallest offence. Is it in order to turn the law into a farce, or is it that anybody who commits the smallest offence is going to be harshly dealt with? Is the jury going to be asked to convict in those trivial cases? Take this penal servitude for minor offences; could there not be a provision with regard to a sentence of imprisonment for them—something that is in keeping, as Deputy Fitzgerald-Kenney said, with common sense, and with the common conception of justice and natural law? Would not the public conscience be outraged if there was a suggestion of doing things like that in 1939? There is no use in the House thinking that there are plenty of other laws. Everybody knows that. That interruption by the Minister for Defence was entirely beside the question; it was not relevant to this. This is a positive piece of law. Let the House not forget that. All those treasonable offences under Section 1 are joined together, and the penalties are all the same. Everybody knows, of course, that there is a wide difference in various acts of treason; a whole series of acts could be brought within the definition, and the person guilty of them would have to be indicted for treason, and, if he was found guilty, sentenced to death. I agree with Deputy Fitzgerald-Kenney that this Bill should be withdrawn and redrafted. It is obviously a badly drafted Bill. What I am curious to know is whether it was deliberately badly drafted.

We are told that this Bill is badly drafted. I cannot understand Deputies coming in here and attempting to talk on a serious matter of this sort without having read the Bill.

On a point of order, are we discussing the Border?

Dr. O'Higgins

We burst our lungs telling you that.

The Taoiseach

We are not going into an argument as to the differences between now and then. You can hold your opinion. You believe you were right. I believe I was right. Nobody can assert, since the Constitution was passed and freely enacted by the people, and a Government freely elected here without a barrier of any kind, that there is now any diminution of any kind on the sovereignty of our people here. We have got to that stage and we are out to protect it. This Bill is to defend the independent, sovereign, democratic State which the people have set up. They cannot defend it if those who wish to destroy it by force are permitted to do so with impunity.

Mr. Dillon

Hear, hear!

The Taoiseach

Every State in the world, unfortunately, needs force to defend itself. If we do not protect the State, having got our freedom, we will soon lose that freedom. Everyone knows that. Why then do we find objections to the passing of this Bill? Is it that the State can exist without these powers of defending it? What is there in this Bill that is not the law in any State? Obviously there are people who want to confuse the public mind at the present time to try to gain a little political kudos out of it. I am not speaking of people on the other benches, but there are people on this side who have proved that they wanted to win freedom, and now having got it for this part of the country, they want to see that freedom protected. This Bill is to protect the freedom that has been won, to see that this community will act as a whole, if possible, and where there are differences of opinion, to see that the methods which are provided in the Constitution will be used to resolve these differences, and that force will not be appealed to.

Deputy Norton spoke of the undue haste in bringing in these Bills. There is no undue haste. As I have said, the Constitution limited treason. It obviously was indicated by the Constitution that there would be a separate Bill implementing the Constitution in that regard. Other powers which the State may require to defend itself will be taken in the other Bill, but this is purely a Treason Bill and there has been no undue haste in bringing it in. As I said to the House when I was starting, shortly after the passage of the Constitution, in fact, when the Constitution was going through, I indicated that there would be certain supplementary Bills which would be necessary once it was through—there was, for instance, a possible modification of the Ministers and Secretaries Act which might be considered—and this was one of them. It has been in draft for a considerable time.

The Deputy says we are in a state of peace. Thank God we are. Since the passage of the Constitution we have had peace here. I was right, I believe, in the policy which we put forward from the time we came into this House. We said:—

"There are certain things which are inducing people here to resort to violent methods. Can we not get rid of them?"

As I have said, this Bill is brought in at a time of peace here, peace which we are very glad exists, but it is brought in because the experience of mankind in other States shows that laws of this kind are necessary, and because there are certain indications that the peace which we have we may be robbed of unless the State is able to protect itself.

I go back again to this point, that because certain minor offences of a treasonable character are not mentioned here, a person might be construed as being guilty of the greater offence, and that the Attorney General of the day would not have the opportunity of being able to indict a person for the lesser crime. As I have said, the place for dealing with that is in the other Bill. The voting power of the Dáil is not going to alter between now and the time when the next Bill comes before us. The long title of that Bill has been published, and these minor offences will clearly come within that title, and, therefore, it would be competent for any Deputy to meet a point such as that which Deputy Fitzgerald-Kenney has raised by bringing in a proper amendment at that stage.

With regard to the death penalty, I know that there is a difference of opinion as to whether there should be a death penalty in the State. It is a question upon which people in different countries differ, but the point is that, in most States, treason, as the gravest of crimes, has been visited, and is visitable, with the greatest punishment known to the law. In our case, I think it should not be said that treason against the State is an offence more lightly treated than murder, and, consequently, the present punishment for murder is the punishment indicated here. I will have the other points that were raised looked into. I do not think that any of them are of such a character that they could not be met in Committee Stage.

With regard to levying war, there is a difficulty at the moment. I do not see how you could change the meaning that would be held by a court to attach to it in the Constitution.

Mr. Belton

Will the Taoiseach define "treason without the State"?

The Taoiseach

Question put.

The Dáil divided:—Tá: 79; Níl: 10.

Tá

Aiken, Frank.
Allen, Denis.
Bartley, Gerald.
Beegan, Patrick.
Bennett, George C.
Boland, Gerald.
Bourke, Dan.
Brady, Brian.
Brady, Seán.
Breathnach, Cormac.
Breen, Daniel.
Breslin, Cormac.
Burke, Patrick.
Byrne, Alfred (Junior).
Carty, Frank.
Childers, Erskine H.
Cooney, Eamonn.
Cosgrave, William T.
Crowley, Tadhg.
Derrig, Thomas.
De Valera, Eamon.
Dillon, James M.
Doyle, Peadar S.
Fitzgerald-Kenney, James.
Flynn, John.
Flynn, Stephen.
Fogarty, Andrew.
Fogarty, Patrick J.
Friel, John.
Fuller, Stephen.
Gorey, Denis J.
Gorry, Patrick J.
Harris, Thomas.
Hogan, Daniel.
Hughes, James.
Humphreys, Francis.
Kelly, James P.
Kelly, Thomas.
Kennedy, Michael J.
Killilea, Mark.
Kissane, Eamon.
Lemass, Seán F.
Little, Patrick J.
Loughman, Francis.
Lynch, James B.
McDevitt, Henry A.
McEllistrim, Thomas.
MacEntee, Seán.
Maguire, Ben.
Moore, Séamus.
Moran, Michael.
Morrissey, Daniel.
Morrissey, Michael.
Mulcahy, Richard.
Mullen, Thomas.
Munnelly, John.
O Briain, Donnchadh.
O Ceallaigh, Seán T.
O'Grady, Seán.
O'Higgins, Thomas F.
O'Loghlen, Peter J.
O'Neill, Eamonn.
O'Reilly, Matthew.
O'Rourke, Daniel.
O'Sullivan, John M.
Reidy, James.
Rice, Brigid M.
Ruttledge, Patrick J.
Ryan, James.
Ryan, Jeremiah.
Ryan, Martin.
Ryan, Robert.
Sheridan, Michael.
Smith, Patrick.
Traynor, Oscar.
Victory, James.
Walsh, Laurence J.
Walsh, Richard.
Ward, Conn.

Níl

Burke, Thomas.
Cogan, Patrick.
Hannigan, Joseph.
Hickey, James.
Hurley, Jeremiah.
Corish, Richard.
Davin, William.
Keyes, Michael.
Norton, William.
Pattison, James P.

Mr. Dillon

We are prepared to facilitate the Government in that matter, provided we see the second Bill before Wednesday, and not otherwise.

Committee Stage to be taken on Wednesday, 1st March.

Dáil Éireann díospóireacht - Thursday, 23 Feb 1939

Treason Bill, 1939—Second Stage.

Tá

Níl

Dáil Éireann díospóireacht -
Thursday, 23 Feb 1939