——to bring his aircraft into action. I do not know whether it is possible to stick the nose of the aircraft into the ground or not, but how could the offence of not using his "utmost exertion" in that example be established? The fact that he sticks the nose of the plane in the ground—if he were able to do that—would raise other matters, but it could not possibly come under the heading of not using his "utmost exertion" to bring his aircraft into action. That is where the captain of an aircraft or the pilot— and I take it circumstances could arise in which the captain of an aircraft might not be the pilot—is concerned. If it is not an aircraft, and if it is a ship that he did not use his "utmost exertion" to bring into action, what does "utmost exertion" mean there? How is a ship brought into action? I take it that it is against another ship. If we face realities we have a certain number of small ships and in the event of a naval battle it would appear to me that the wisest thing our ships could do would be to keep well out of range of the enemy, so that I think there is a lot of nonsense about this provision and that it does not relate to the type of navy we have here, or are likely to have in a long period.
I could imagine one of our little naval vessels coming into conflict with a naval force belonging to another country. I do not think it matters very much what the officer commanding the ship would do so far as that is concerned or what exertion he used. Naturally, neither the ship nor men would last very long. We cannot for the purpose of discussing this assume that any other naval force in the world will have ships as small as we have, or in fact smaller, so that it seems to me that not using his "utmost exertion" to bring his ship into action is theoretical, and that it has nothing to do—good, bad or indifferent—with what we have to visualise may happen.
Take the case of the ordinary infantry commander who, when he is ordered to carry out an operation of war, or on coming into contact with an enemy that it is his duty to engage, "does not use his utmost exertion to bring the officers and men under his command into action." I cannot visualise the use of the words "utmost exertion" in this context at all. He either brings them into action or he does not, but to say that he did not use his "utmost exertion" seems to me to be nonsense. "Exertion" always denotes, as far as I am concerned, some physical action. In the ordinary way, if a force has to be brought into action certain specific commands are given. These commands are obeyed and carried out by subordinate units right down the line. What can a brigade commander do? In what way does he not use his "utmost exertion"? Words in Canadian law may mean one thing; in our law they can only be interpreted in the way that we understand such words should be interpreted, and I would like to know from any member of the House what exactly that sub-section means. If we do not know what it means and if we find it difficult to understand what it means why should we prescribe the penalty of death for it? That is the first sub-section of that paragraph. I would be very interested to hear anybody interpreting that and telling me what offence a commander could commit, or what he must do or not do to be guilty of that particular offence?
In the event of a unit, a ship or aircraft being under orders to carry out an operation of war, what exertion is required of the commander? This section says that the offence is not using his "utmost exertion," and if the House would have difficulty in knowing what "exertion" means, what does "utmost" mean? I think the House is entitled to have from the Minister, when he replies, an explanation of "utmost exertion."
The next paragraph says:—
"who, being in action, does not, during the action, in his own person and according to his rank, encourage his officers and men to fight courageously."
What does that mean? Visualise a battalion in action, consisting as is usual of four companies, each of those companies under the command of its own commander, each divided into platoons and subdivided into sections, and spread over a considerable area of territory, on a front of, say, 500 yards or 1,000 yards, with considerable coverage in depth also. Can any member of this House visualise the circumstances in which that battalion commander, in the middle of an action, can encourage his officers and men to fight courageously? This is not the old days of the Zulu War, nor is it the days of Omdurman or the time of the Indian Mutiny, nor is it the time when leaders were in front of their commands on horseback or on foot, when personal courage had an effect on the particular command, but the days of modern warfare. When I say that, I do not mean warfare of the future, but the warfare that we were accustomed to and that we knew something about during the last World War. In what way can a battalion commander encourage, during the battle, his officers and men to fight courageously? What communication between a battalion commander and his company commanders is visualised in this?
I do not think it is an unfair criticism to ask that there should be a very full explanation as to the circumstances in which it could be visualised that a commander in action did not encourage his officers and men to fight courageously. I always understood that soldiers were trained and organised for the purpose of being successful in way; that a unit, whether it was a battalion, a brigade or a division, was organised for the purpose of being as efficient as possible in the event of war, for an action with the enemy, and that the commander is in no position, during the action, to carry out what is said here, "to encourage his officers and men to fight courageously." The men are trained, they are equipped and they are subdivided into the smallest little units. The smallest little unit in which there can be personal control is the small little unit that is commanded by a corporal, and above that there cannot, except in very special circumstances, be what is known as personal control during an action. If there is not personal control, if the control is by means of radio or any of the more modern methods of communication, how can it be said that an officer can encourage his officers and men to fight courageously during an action?
The whole thing appears to me to be nonsense and that it has no reality with facts. I regret very much that I had not the time to devote to a study of the history of this particular section in the Canadian Act. I would like to have been able to ascertain if any person was ever charged under that section in modern times with the offence of not encouraging his officers and men to fight courageously. The paragraph says, and this is important, that a person who, "being in action, does not, during the action, in his own person and according to his rank, encourage his officers and men to fight courageously" is guilty of an offence.
I would like very much to hear the Minister's explanation of that paragraph. I would also like to have an explanation as to the particular type of commander that it applies to. If it is the commander of a ship, with a special post on the ship, has he to leave that particular post and run round encouraging the gunners, the men who are using the different weapons which they have on the ship, to keep firing faster? Everybody knows that, in a ship, control is exercised from one particular post. I know very little about naval matters, but I think it is from the bridge that the commander during an action gives his orders, directions and instructions. What is he to do in his person and according to his rank to encourage his officers and men to fight courageously? That section applies to the commander of a ship. If it is an aircraft and the pilot is engaged in keeping in touch or breaking touch with enemy aircraft, at one height now and another height a few seconds later, is it suggested that he must go around about his crew and encourage his crew to fight courageously? I have dealt with the ship, the aircraft and the unit. If that is the position, why put in that section at all? Why in that position of uncertainty make the punishment death? Who can say in the circumstances of modern warfare whether a person encouraged or failed to encourage by his rank and person his officers and men to fight courageously?
I have examined many things in this Act. I have examined many things in other Acts from time to time, and I have never come across a sub-section that appears to me to be so ridiculous and one which carries with it such a heavy penalty, namely, the penalty of death. One could understand a section making provision to deal with the position of a person who is made a prisoner and voluntarily serves with or aids the enemy. There can be no doubt in that case. On proof of that, and it is capable of proof, a court has no trouble in establishing a finding of guilty. There can be no trouble with the offence of assisting the enemy with arms, ammunition or supplies. These are specific acts. They can be proved. They can be defended.
If an officer is charged with the offence of not using his utmost exertion to bring his ship, his aircraft or his men into action, what defence is open to him? If he is charged with not encouraging his men to fight courageously, what defence is open to him? How can he defend himself? We have the general principle that an accused person cannot be found guilty unless the charge is established to the satisfaction of the court and, unless it is established to the satisfaction of the court, there is no obligation on him to defend himself. That is a general principle of law. In recent times, because of alterations in the rules of procedure, that has been made applicable to military courts-martial. Now a person defending an officer charged with an offence may at the end of the prosecution ask the court to give a direction in favour of the accused person, in which case, if the court feels that the charge has not been established or if it feels there is no case to answer, a direction will be given. If the court feels that a prima facie case has been established and that there is something for the defendant to answer, what answer can he make? Must he bring each and every officer and soldier who served with or under him at the time and ask each and every one did he use his utmost exertion to bring him into action or did he encourage him to fight courageously?
In relation to "courageously" it is important to consider the meaning of "courage". That would be one of the difficulties facing any court dealing with this matter. What is courage? If a person is not guilty of cowardice, has he courage? Is the courageous man the man who is afraid to show his cowardice? I have often thought he was. Is the courageous man the man who is insensitive to what is happening around him? Is he the man with a very sharp conception of what is happening around him but keeps his head and his heels well down and fires when he thinks it is necessary to fire? Is he the person who blazes all around him irrespective of whether or not there is a target in front of him? These points raise important aspects of this particular charge. I am perfectly certain that whatever the Canadians may have done about it, all its aspects have not been seriously considered here, because, if they had, I am perfectly certain that such a section as that would not have been drafted. Remember, this is a serious matter. If in a court of five officers there are four who think that a particular commander did not in his person and according to his rank encourage his officers and men to fight courageously they can sentence him to death and he can be executed. I am concerned first and foremost with the charge and, secondly, the proof of the offence, and, thirdly, the case that will be open to the accused person to put forward in his own defence. As we know it here, there is no trouble about murder. A person is charged with murder. He either killed or he did not. There is not very much difficulty about that. If he is charged with treason felony the facts may be proved and the defence can be considered and the accused person knows what is alleged against him. But on a charge of this kind, that he does not during the action encourage his officers and men to fight courageously, he has no idea, or could have no idea, as to the facts that would be put forward and which it is necessary for him to controvert.
I said earlier, and I just like to repeat briefly in connection with this, that before he can come before a court-martial on that charge some superior officer has to come to the conclusion that he was guilty of the offence of not during the action in his own person and according to his rank encouraging his officers and men to fight courageously; and if such a superior officer comes to that conclusion—and it would be a most extraordinary conclusion for a superior officer to come to —he arrests the person, he is returned for court-martial, and he is tried then by general court-martial for the particular offence. I would ask and impress upon the House not to allow to creep into our law, and particularly into our law involving capital punishment, an offence which is uncertain, which cannot be simply defined, and which is nothing more than a frame of mind on the part of particular individuals who happen to be dealing with the matter at the time.
I come then to the next sub-section:—
"who when capable of making a successful defence surrenders his ship, aircraft, vehicle, defence establishment, matériel or unit to the enemy”.
Again we have the difficulty arising and the whole argument, the inquiry as to whether or not he was capable of making a successful defence, and on that there may be varied views. Some people may take the view that he could not make a successful defence. Other persons may take it that he could, but it will be left to five officers to decide on whatever evidence comes before them whether or not he was capable of making a successful defence. On that, if those five officers, or four of them, come to the conclusion that he could then he is sentenced to death and he may be executed. Anyone who has read the stories of the last Great War, read the history of it in the varied parts of the world in which battles were fought, may wonder why particular officers in other countries were not charged with an offence such as this, and why, if they have had no examples of charges by court-martial on offences such as this, we in the Defence Forces of Ireland should introduce such a provision.
In the old days—one would find it in Montaigne's Essays—where a commander of a citadel or town defended the town when in the view of the enemy he should not have defended it, that resulted in the whole defence establishment of the town being put to the sword. The rules of war and the customs of war have changed considerably since that, but at least there was some little bit of sense in that provision, that where the commander of a garrison who should have surrendered because he was completely surrounded fought on and the town was eventually captured the commander of the besieging troops came to the conclusion that he had unnecessarily defended the town and had caused the deaths of attacking soldiers and for that offence the whole garrison was put to the sword. That was how things were dealt with quite a long time ago. Now we have introduced here a provision that a commander who, at the time, is of opinion that he should surrender for the purpose, say, of saving the lives of his men or for any other reason that seems to him proper at the time can subsequently, on an examination in the cold light, perhaps, of peace, be found when all the facts are examined to have been wrong in his view, wrong in his opinion and wrong in his action, and that he should have fought on instead of surrendering, and for that he may be sentenced to death. It is not a question of what his views and his information at the time were. It says "when capable of making a successful defence"; in other words, when the factors which come to light subsequently on a cold examination of the problem show that if he had fought on instead of surrendering he would have been able to make a successful defence.
In considering all these matters one ought to consider the fact that a person who serves in the Defence Forces and comes into the position of being a commander, whether it is a commander of a ship, of a unit, a defence establishment or an aircraft, in the ordinary way ought to be trusted to do what is right in his view in the circumstances of the action and of the time. I do not think that cowardice of the type that is mentioned here is typical in any way of the Irish as a race. Whether in our own experience in our own times, whether as soldiers fighting for other countries over many centuries and in many generations, this idea of not doing the proper thing is not applicable to the Irish race or to the Irish people generally. I see no reason why this threat of execution should be held out against our commanders, whether they are commanders of ships, of aircraft, of units or of defence establishments. Our history does not warrant such a section being in our Act, nor does it warrant such a section being introduced to it now. If we were the type of race that were inclined to be cowardly, that were inclined to let down our side, whether it is the military side, even the football side, or any other side, it might be different. I know of very few examples in which an Irishman lets down his side, either in the military organisation of his own country or any other country. It does sound very bad when we consider that of the tens of thousands of men born and reared in Ireland who have served in the military forces of other countries, as far as I know, no example of that type of cowardice or traitorous activity can be found.
If that is so and if we have no such examples in our own history, particularly in our own most recent history of the period of the Anglo-Irish War, why is it necessary to provide for conduct that is not typical of the Irish people or of the Irish race? If our Defence Forces were filled by a form of conscription, in which every citizen, whether he was of the Irish race or not, was obliged to serve, one might find some justification for some of the provisions, here and there, in this Act, but I can see no justification for the defamation of our own race that exists in this unnecessary section.
Sub-section (d) says that a commander "who, being in action, improperly withdraws from the action" may be tried by court-martial, sentenced to death and executed. The Minister, in this sub-section, proposes to insert the word "unjustifiably" instead of "improperly." That is, certainly, some improvement in the section because if "improperly" were to be left there, it would again be a matter of opinion. One group of people might think it was proper to do it; another group might think it was improper. But if the people who thought it was improper happened to form the court-martial, then he would be sentenced to death. However, if the provision reads: "who, being in action, unjustifiably withdraws from the action," again, to some extent, that is a matter of opinion; but, at least, it is stronger and requires more proof than the word "improperly" which it substitutes.
The next sub-section, which says that a commander "who improperly fails to pursue and enemy or to consolidate a position gained" introduces another of those problems which I have difficulty in visualising as far as we as a nation are concerned. The Minister proposes to alter that to read "unjustifiably fails to pursue an enemy or to consolidate a position gained." The average commander is a volunteer, as all our soldiers are. If he is under orders to pursue an enemy he will pursue them; if he is under orders not to pursue them he will not pursue them. But it is very seldom in modern warfare that you find the decision left entirely to the man on the spot as to whether he is to pursue or not to pursue.
Generally speaking, if an enemy is defeated, if the enemy flees, whether that enemy will be pursued or not depends on many factors. One commanding officer may take one view and another may take a different view, and from a purely military point of view both of them may be right. Apparently if the commander does not pursue the enemy he may be courtmartialled, whereas if he pursues the enemy when he should not it seems that he is showing courage which may amount to madness, may result in losing the lives of certain of his troops and may, in fact, endanger the whole plan of campaign that a superior authority had in mind. The peculiar thing is that there appears to be no offence in pursuing the enemy when the wise thing would be not to pursue him, but it is an offence not to pursue the enemy if some superior authority thinks that the enemy should have been pursued. If officers in command are to be subjected to that form of investigation, it will be very bad for the Defence Forces as a whole. A commanding officer who reaches the position where he has to make up his mind whether to pursue or not to pursue, may very properly say to himself: "If I do not pursue I may be court-martialled, while if I do pursue I will not." That is no position to leave a commander in. A commander must be a person appointed to that position because he is trusted to do the right thing. He is placed in that position because superior authority has confidence in his ability to do the right thing at the right time. If you subject him to these petty investigations, these post-mortems, with a court-martial when someone comes to the view that he should have pursued when he did not pursue, then one is completely weakening the sense of responsibility and the morale of the Defence Forces.
The second last point is: "and improperly fails to relieve or assist a known friend to the utmost of his power". What on earth does that mean? Even taking the word "unjustifiably"—"he unjustifiably fails to relieve or assist a known friend to the utmost of his power". What is a known friend? Known to whom? Does that mean a military friend or a civilian friend? What sex is included in the phrase? I do not know. I feel that death has very little sting for some of the people who drafted this section. Here it is, set out in black and white, that a commander may be court-martialled and sentenced to death for failing to relieve or assist a known friend to the utmost of his power. I do not think military authorities could be as blood-thirsty as that. It is completely at large. I do not know what it means. I would like the Minister to try to explain what is meant. Who is a known friend? Is a known friend another military unit and, if it is, why is it not said so? Is a known friend the commander or an officer or a soldier? What assistance is to be given to him? There are two offences here—he fails to "relieve" a known friend, or he fails to "assist" a known friend. Perhaps in Canadian law they have some interpretation of the phrase "known friend", but what does it mean to us? Does it bear the ordinary English meaning of the two words—or what does it mean? If its meaning is so doubtful that it cannot be understood or interpreted, why should the sentence of death be made the sentence that is to be imposed?
We come to the last one—a commander who in action "improperly forsakes his station". He may be court-martialled, may be sentenced to death and may be executed. What does "forsake his station" mean? That is what I am anxious to know. First and foremost, what is his "station"? I take it that it is where the commander ought to be, and it is the responsibility of the commander to decide where he ought to be, or is it the responsibility of somebody else to decide where the commander ought to be? That is one of the problems that confront me in regard to it. What does "forsake" mean? We know the lyrical meaning, but what does it mean in law, what does it mean in military law, what does it mean in regard to a commander in action? Does it mean that a commander is to have a particular command post and he is to stay there? And if he stays there, how is he, under another "Ireland Depends on You"? section, to encourage his officers and men to fight courageously? Is he to display at his mast-head signals I think that this section cannot stand up to any critical examination. I am critical of it because I think it is an unnecessary section, one which never should have been introduced into our military law, that should never be part of the statutory law of this country. It provides the sentence of death by military courts-martial for offences or alleged offences that are neither clear nor explicit. It offends against all our conceptions of the criminal law—and it will be part of the criminal law if it is passed.
I have proposed here that the section be deleted. As I have said, in England, the British army finds that it can do without a section such as that. It did not need it in the Boer War, the First World War or the last World War; it has not needed it in any of the campaigns that it has fought since, I think, 1861, almost 100 years. Why should we be playing with the provision of capital offences because the Canadians have it?
I ask the House very seriously to consider the section in all its implications and to impress on the Minister how undesirable it is to have such a section in our statute law; to impress on the Minister that the ordinary citizens of this State would be outraged if officers of their army were to be subjected to the death penalty for alleged offences that cannot be properly defined and that are based, to a large extent, on the opinion of the people who hear the charge. They are perfectly at liberty to hold these opinions. They may be right or wrong but, nevertheless, they are still opinions.
I ask the House to impress on the Minister that it would be entirely wrong to create such a series of capital offences that, if put into operation, could lead to the execution of many innocent men. There is no safeguard which you can create to provide against a slipshod provision such as this—a provision which has no application to our conditions, no application to the traditions of our race and no application to the known courage and military valour of our people.
Therefore, I ask the House to reject this section and delete it entirely from the Bill.