JURIES BILL, 1927—COMMITTEE STAGE.
Question —"That the consideration of the Title be postponed"— put and agreed to.
Question —"That Sections 1 and 2 stand part of the Bill"— put and agreed to.
SECTION 3 (1).
Subject to the provisions of this section, every male citizen of the age of twenty-one or upwards, and under the age of sixty-five years who, either in his own name or in a trade name and whether alone or jointly with any other person or persons or as a member of a firm or co-partnership, is rated for the relief of the poor in respect of land in a jury district shall, if the total rateable value of all the land in respect of which he is so rated in such jury district equals or exceeds the minimum rating qualification for such jury district, be qualified and liable to serve as a juror for the trial of all or any issues which are for the time being triable with a jury drawn wholly or partly from such jury district, unless he is for the time being disqualified for or exempt from serving as a juror.
In Section 3, sub-section (1) to delete in line 50 the word "male."
In proposing this amendment, I am not proposing to the House the adoption of any new principle. The principle of allowing females to act as jurors is in the Bill. I am merely asking that males and females should be allowed on the jurors' register on the same footing, or in other words, to continue the law as it at present stands. When this Bill was before the House on the Second Reading Stage, Senator Brown pointed out that it was unconstitutional and illogical. I think some of the other Senators referred to it as unfair from some point of view, either from the female or the male point of view. In either case it serves my purpose, because it shows that there is a fundamental change in the Constitution proposed by this Bill. It is usual when large changes are proposed in the Constitution to deal with the matter by a special Bill. In this case it is proposed to deal with it as a side issue in a Bill which does not affect the situation. What are the rights that are conferred upon males and females on the same footing? First of all, females can become members of the Oireachtas of both Houses. They can vote for the members of both Houses of the Oireachtas. These are rights. The Minister is proposing not to interfere with these rights but to relieve the women of their obligations in the matter of jury service. It would be much easier to get the Constitution changed by removing the obligation rather than interfering with the rights. The Constitution is quite clear on this matter. According to Section 3 of the Constitution, "every person, without distinction of sex," and so on, "is a citizen of Saorstát Eireann," and so on.
I can very well remember when the Local Government Act of 1898 came into force. That Act made women eligible for membership of district councils and boards of guardians. There was a great deal of opposition at the time, and a great many adverse comments were made. However, since then, women acted on their conscience, and became members. At first they made very little impression, but in a few years they made their influence felt not only in the boardrooms by having every matter considered from a humane standpoint, but they introduced many reforms in the institutions — many reforms that have been since adopted— such as the boarding out of children, looking after the sick, and so on. A great many of these things were effected through women's influence on the boards. I hold that something similar would result from allowing women to act as jurors. There is a further point I would like to mention, and that is, that it is in the best interest of the State, that every person, male and female, should be encouraged to take an interest in the government of the State and in the administration of the law. How are you to do this if you are going to reduce the status of women to a plane lower than that of men? I think it is wrong in principle, and it would be wrong in practice to do it. Another point is, that there may be prisoners who may object to being tried by women jurors. They have a right to object to women. In civil cases both the defendant and the plaintiff have a right to object without showing cause. That principle would never be enough to exhaust the number of objections or the number of people that would be asked to stand aside. Again, the number of women on the jurors' register would not be larger, than, say, one in four, because they would have to be ratepayers in the first place, and, in the second place, if their husbands are ratepayers, they go on the jury list. These are only some of the reasons in favour of my amendment. I might amplify them. I hope the House will see fit to continue the present Jury Act, which was only passed in 1924.
There are peculiarities associated with this section that I really cannot understand. I think there is no reason in the world why any bar should be drawn against women acting as jurors. They have been admitted to the practice of the law. As barristers and solicitors they are entitled to practise in the courts. They have been admitted to the practice of medicine, dentistry and dispensing chemists. Every position of trust and responsibility has been thrown open to them, and I do not understand why the line should be drawn in the matter of jury work. I have repeatedly acted on juries where the juries were mixed, and I can say that I have never met any jurors, and never had experience of any jurors who took more pains to get at the facts of the case, or who followed the case with more attention and more scrupulous care than women jurors. I do hope that this amendment will pass, and that women will be restored to their status as jurors.
I should like to say a few words on this important subject, more especially as coming up here and seeing the subject that was coming before us, I was going to vote against the proposal. But owing to the circumstances that have arisen in the meantime and to what has fallen from Senator Sir Edward Bigger on the amendment that appears in his name on the agenda, I am now prepared to vote for the section as suggested by him. In doing so, I should like to trot out a number of points. I know that in this country women have been given every opportunity of entering into the different professions, as has been alluded to by Senator Sir Edward Bigger. They have been given these opportunities in common with the people of other countries, but I think it has been more especially so in this country. I am aware also that the Government has largely lent a hand in assisting women in this respect. For instance, I understand there is a lady, whose acquaintance I have the pleasure of having, and who is a civil engineer in the service of the Government. I am not aware that there is a lady holding that appointment across the Channel. While supporting this amendment, I still firmly believe that even the majority of women themselves do not wish that this obligation of serving on juries should be placed on them.
The vast majority of the women, at any rate in the South of Ireland, do not wish to have this obligation imposed on them. In Dublin there is, I think, a little larger proportion who want it. I might remind the House of that, as I believe it was the Dublin University, Trinity College, Dublin, that first opened its doors and allowed ladies to obtain their degrees. The example of Dublin was followed subsequently by Cambridge and other Universities. That should not be lost sight of now. Ladies, I believe, throughout the country do not sufficiently realise that in addition to the great privilege, as they imagine, of serving on juries a great disadvantage also accrues, especially in the case of women residing in country districts who have to come up a considerable distance to the county borough and have to hang about the courts for a whole day and then find that time after time they are told to stand by. They have to do this at considerable inconvenience to themselves and at a great deal of cost. Under these circumstances, I could not help smiling at the remark made by the Minister for Justice on the last occasion here when he told us that he believed he was the champion of women throughout the country. I believe he is. It was largely in the interests of women he introduced this section into the Bill, and I venture to predict that when the ballot-boxes are opened in the near future it will be found that the Minister is most popular amongst the women of the country.
The argument that moved me most was that of Senator Brown when he spoke of the right of a prisoner who wished to be tried by a jury of women. I am not labouring the equality of men and women always and everywhere except on a sinking ship where women get the preference over men, and that preference is given because they are the preservers of the racial type. In other words, it is an acknowledgment of their inherent conservatism. From the discussion one would think that women had no opportunity to serve on juries. The question has resolved itself into this, that a certain number of women are asking permission to compel the generality of women to serve on juries subject to their appeal to be excused from them. Anything that would further the interests of women in the common weal is a thing we should all support, but at the same time this movement seems, perhaps of necessity, to come from the whipping up by certain women of advanced or perhaps intellectual views, of a body of women in the country who have had very little to say in the matter, and do not seem to be very anxious to be compelled to serve on juries. That may be because the women's movement came into being only about three years ago. A point made in favour of this compulsion of all women to serve on juries is that it is a matter that involves a certain modesty which prevents women from appealing to be allowed to serve on juries. In the same way women may be deterred from asking to be exempted. My mind is perfectly open on this question. I thought at one time it was very much in favour of a prisoner to have women on juries, but considering the conservative nature of women they might be harsher towards male prisoners than a jury of men, and perhaps even more so to women prisoners, because I do not think that chivalrous spirit would be exercised which exists in a sinking ship and which allows women go first when it is a matter of life preservation. The only element that makes me object to the amendment is that there is a certain compulsion towards women. If that were removed I have an open mind as to which way to vote.
This in my opinion is a subject that does not require much discussion. I would like to refer to the argument of the Minister when he said that women were by nature obstinate.
I said nothing of the kind.
Perhaps, he did not use that word, but he said they had preconceived opinions which were impossible to change.
I think the Senator had better get the Official Report and refer to it.
If the Minister denies he said that, I withdraw, but if I had time to look up the Official Report I think I could show him that he did make that statement. However, I withdraw what I did say. Supposing that such an argument were put forward I do not think it should come from the Minister, who is notorious for changing his opinion about it. My experience of women is, that they are very liable to change their opinions. There is an old French song which says that women vary. The argument was put forward that women do not want to be on juries, but neither do men. No one ever heard of a man who wanted to be on a jury, and if that argument were acted on all round, there would be no juries. Stock arguments against women have been used on various occasions, but they do not carry any weight these modern days.
In my opinion, the franchise age limit is too low. I think it is generally admitted that the girl of 21 years of age to-day is not as seriously-minded as the girl of 20 years ago. There are too many distractions to-day to take her mind away from serious matters. The same applies to the young man of 21. If you ask him a question on any serious political subject, you will find that he knows absolutely nothing about it, and he has no disposition to concern himself in these matters. When the relative capacity of men and women to serve on juries comes to be considered, it may be found that women are probably equally fit, and, in some cases, more so, to arrive at a proper decision. The women have a distinctive intelligence, and usually a keener intuition than men, and that has given rise to the saying that a woman's first view is always the best. That is due to her intuition. She arrives more rapidly at a conclusion than men. Her mental processes are quicker, and probably better than those of men and better regulated. If the age limit for eligibility to serve on juries both as regards men and women were raised, I think it would be a distinct improvement. I would prefer to see the limit raised from 21 to 25 years for men, and to a higher limit still for women.
I hope the Minister will accept this amendment, because its acceptance would still leave him open to deal with the point of view he has expressed in regard to the exemption of women from service on juries. What I suggest is, that if he is not prepared to accept the whole of the subsequent amendment, that at all events he would agree to accept this, and then give women a general exemption in the first schedule of the Bill, leaving in, of course, at the same time, the section that deals with the question of putting women on juries at their own request. I fancy that we could carry these amendments, but one does not want to see a conflict with the Dáil by having them rejected and no progress made. because in that case the Bill would become law without any amendment at all and unless the Minister is prepared to recommend the acceptance of these amendments to the Dáil, I am afraid they will not be accepted. If he does as I suggest, there will be no question of casting a slur on the capability of women to act on juries. There will be an opportunity for those who desire to go on the jury, and there will be this general exemption for women as for men in various cases, like membership of the Oireachtas. It is quite true that the overwhelming majority of women do not want, any more than men do, to go on juries. This is not a question, having compelled men to act on juries, that we should have similar compulsion in regard to women, notwithstanding the disabilities under which they labour. I am in favour of making women, as far as is practicable, accept not only the privileges, but the responsibilities of the Constitution; but, of course, we must have some regard to circumstances, and we must not enforce compulsion where it would be unreasonable and quite impracticable.
There is, unfortunately, an objection to women sitting on juries on the part of litigants. One reason given for this is that the fact of women being on juries distracts the minds of the other jurors from the hearing of the evidence, and that is particularly the case since the advent of the short skirts. I do not know to what extent that is true, but it is possible that if women of twenty-one upwards could be put on juries, with all the attractions that women command, in a serious case they would be likely to distract the minds of the other jurors from a mature and careful consideration of the evidence. Of course there may be nothing in that, but it is one of the considerations which, I am informed, has induced challenges of women where otherwise they would be considered eminently acceptable. I suggest that the Minister should accept this amendment as it stands, and that would not in the least prevent him from advancing his views in regard to subsequent amendments, which need not affect this to any great extent, because a general exemption may be given to women in the schedule, and there will be no slur, as has been suggested, cast upon them in regard to their capacity as jurors.
Senator Gogarty spoke of the compulsion upon women to become jurors. I should like to point out that there is no such compulsion. The only compulsion, it seems to me, that is involved in this proposal is the compulsion upon the officials to place women on the lists of jurors, and also the compulsion upon women, if they do not wish to serve as jurors, to apply for exemption. Beyond that there is no compulsion whatever. There seems to be a general idea — not in this House, I think, but to a considerable extent outside—that this applies to all women. Of course it does nothing of the kind. It only applies to women who are themselves rated occupiers, and in that way to a very small proportion of women. Again, it is said that this is an anti-democratic proposal. This is a system that has applied to men for hundreds of years, and it has never been said to be anti-democratic before. It is rather strange that this charge should be made only when women are proposed to be put on the same plane as men. It seems to me that the only real point of substance against this proposal is that the present arrangement involves inconvenience and expense in the preparation of the lists and the subsequent revision of them. To what extent that applies I really do not know, and I doubt if anybody here knows, because we have had no material at all upon which to base a judgment; as far as I know, the Minister gave us no facts or figures to guide us in the matter. If the inconvenience is only represented by the irksomeness of the present arrangement upon certain officials, I do not think it is a matter that should weigh with us. It seems to me that the question as to whether officials should work a little harder or a little longer is not a very big consideration in this matter. Again, there is the question that the expense of printing affects this. What that expense is we do not know; the Minister has not told us, and I think we ought to know before allowing it to weigh with us in favour of what I regard as a very retrograde step.
I take it that this amendment must really be considered with some advertence to Senator Bigger's amendment which follows, and that, therefore, we can agree that what is aimed at by the Senator, and those for whom he speaks, is a return to the position of the 1924 Act, not a return to the position of the 1919 Act of the British Parliament. I rather regret that the Senator did not join issue all along the line. I rather regret that he has contented himself with defending the 1924 line. It does seem to show a little dubiety in his mind on this great principle of co-equality, and, after all, we should take our ground and try to hold it. A return to the Act of 1924 does not, in fact, decide any question of principle at all; whereas the contention that we should return to the Act of 1919, and administer that Act, would be a joining of issue on the question of principle. Here there is really no principle, and in so far as the argument that the Senator put forward turning on Article 3 of the Constitution, is concerned, it has no relevance to this issue as between the Act of 1924 and the Bill of 1927. If it is, as he suggests, unconstitutional to confine jury service to male citizens, I submit for his mature consideration that it would be equally unconstitutional to say that any woman citizen who liked need not serve on a jury. If, in fact, Article 3 of the Constitution is jeopardised and infringed by the provisions of this Bill, it is equally trampled on by the provisions of the Act of 1924, because if the wording of Article 3 of the Constitution is to be held to mean that all citizens of the State, without distinction of sex, are to be liable, and liable equally, to the obligations of citizenship, then the Act of 1924 infringed that Article, because it said that any woman who disliked jury service might be automatically exempted on application, and I take it that the Senator's construction of Article 3 of the Constitution would not and should not allow that. The Senator's construction of Article 3 of the Constitution is not mine, and is not the Attorney-General's. As I am advised, Article 3 of the Constitution means no more than this, that it is competent for the Government at any time, or from time to time, to impose obligations of citizenship on all or any citizens.
I ask Senators to envisage a situation arising which not merely warranted but demanded, in the defence of the life of the State, a measure of military conscription and I put the question whether Article 3 of the Constitution is interpreted by Senator Bigger to mean that we would be bound to conscript, by legislation at any rate, all women citizens for military service and then by furtive administrative measures, proceed to exempt them. Article 3 of the Constitution as I am advised by the present Attorney-General and as I was advised by previous Attorneys-General, does not mean that the Government is bound to weigh out in grammes the burden of citizenship and distribute that equally over all citizens regardless of sex. If the Attorney-General is wrong the Courts are there to decide that but I must proceed on the advice which is available to me and I am doing so. I therefore cannot accept the contention of the Senator that this Bill or any provision of it is contrary to the Constitution. So much for that.
As I say, the Senator is not joining issue on principle. The net effect of this amendment is to return to the Act of 1924. My principal objection to the Act of 1924 is that it failed to achieve its purpose. Its purpose was to keep unwilling women jurors off the register and it did not do that because unwilling women jurors were unfamiliar with the forms and statutes and were apparently too much occupied with their own affairs to give the proper notice at the proper time. Even if that were not so I submit, it is farcical to go to the trouble and expense of putting thousands of women on, in order to save scores of women—if there is a protest I will be prepared to say hundreds of women — who are willing to serve, the trouble of intimating that fact. Supposing in a Parliament of 600 members the Speaker insisted on taking the names of 570 who objected to a proposal rather than the names of 30 who favoured it, you would say it was almost criminal waste of the time of that Parliament. Let us apply that to this situation. A very small minority of women feel a yearning for jury service.
The proposal of Senator Bigger is that we should put all women rated to a particular amount on a jury register and then take off the vast majority who wish to be taken off, leaving on that small minority, rather than that we should invite the small minority to intimate that they are available for jury service and willing to undertake it. It does not hold water and the great principle on which issue would be joined, if the Senator's proposal were to return to the Act of 1919, is away in the background, not touched at all, for as between his proposal and mine there is no question of principle; there is simply a question of administrative expediency and expense.
Might I intervene to apologise to the Minister for having entirely misquoted him. I can find no reference to the statement and I cannot understand how I imagined that he made it.
I quite accept that. I submit I am really in agreement with Senator Bigger in so far as there is any question of principle because we both seem to agree that the woman who does not want to undertake jury service should not be compelled to undertake it. I suggest to him that does infringe his own interpretation of Article 3 of the Constitution. We do seem to agree that no woman should be obliged to undertake jury service who is unwilling to undertake it. It then becomes merely a question of whether we are going to perpetuate the folly of the Act of 1924, of putting on the 100 per cent. of women who possess the rateable qualifications and then taking off the 85 per cent. who do not wish to serve or merely invite the 15 per cent. who wish to serve, to intimate that fact to the county registrar or the appropriate officials. I hold I have the best of it on that ground.
Senator Hooper queried the relevance of any reference to democracy in this matter. Perhaps the Senator misunderstood me. I insisted that this was a minority demand, whether you take the electoral register as a whole, whether you take the males on that register or take the females on that register separately — that whatever way you approach it, this is the demand of a small minority and the predominant view amongst the remainder would be wholly against it. If you take the male voters I think you will find a great preponderance amongst them against women jurors. If you take women voters I think you will find the same and a fortiori, taking the register as a whole, you will find it is in fact the demand of a very small majority of the electorate.
That applied equally to men in the past.
I submit not, because if I believed that only a small minority of the electorate in this country were in favour of the jury system I would abolish it, but I do not believe it. Therefore I do not propose to abolish it.
The Minister will not deny that the majority of men do not want to be put on the jury lists.
They want other people put on.
They want the jury system, and wanting it, they are prepared to put up with the inconvenience of service but if, at any time I find a different view, you can take it that I will act on it. Both Senator Fanning and Senator Bigger spoke about the success of women as Poor Law Guardians. There again there is a fallacy because there you are dealing with the individual woman with a particular aptitude for public life and with particular talents that fit her for such life. Senator Fanning went on to say that they are admitted to the practice of law, medicine, dentistry and to the Stock Exchange. I do not know of anywhere they are not admitted now except to the priesthood. I am in favour of giving the individual gifted woman the fullest and freest opportunity, but surely this is quite another matter. This is a proposal to impose on women who possess the particular property qualification the duty of jury service.
On that, let me say that the people who advocate it are thinking in terms of the Terenure tram and Green Street Courthouse, or the Dalkey train and Green Street Courthouse, and not envisaging the rural districts at all. Who are the people most likely to come under the qualifications set out in the Bill? Who are the women most likely to be rated in a particular amount? For the most part, widows who have been left property by their husbands, and in many cases, left not merely property, but the sole responsibility and charge of children. Let us take a concrete case. Let us take the case of a widow in Belmullet who, if the champions of the 1919 Act had their way, would be liable to compulsory jury service on a parity with men. That woman, when she gets her summons to jury service, has to yoke her horse and car and drive to Castlebar.
She has to hang around the town of Castlebar for a week or so while the Circuit Court is sitting, on the off-chance of being required for jury service. So with a woman living in Dowra, County Cavan, who must set out for the county town thirty-five or forty miles away on the same mission. It is not sensible to urge that a man must do the same, because I am not prepared to accept, and I do not think many Senators will be prepared to accept, that it is not a much greater hardship on the woman to undertake that journey and that work than it is on the man. There are a very small number of women here in Dublin thinking, as I say, in terms of the comfortable Terenure tram and Green Street Courthouse, and the comfortable Dalkey train and Green Street Courthouse, who want me to impose compulsory jury service on women rated to a particular amount up and down throughout the State. I will not do it. Certainly not until I have much greater evidence than I have yet received that that is the demand of a substantial proportion of the electorate. However, I have been perhaps slightly out of order, because I should confine myself to Senator Bigger's amendment.
I think the House understands that; so far as the Senator is concerned, his amendment is linked up with the second amendment, and that that is part of his policy. Am I not right?
The two amendments taken together show a desire to return to the Act of 1924, but they do not show a desire to return to the Act of 1919, and I did devote some little time to combating the Act of 1919. But the Senator is really on a line with me, except that he wants the thing differently done. He agrees with me, apparently, that no woman who does not want to undertake jury service should be obliged to undertake it, but he wants to revert to the system of automatic exemption rather than entrance on application. There are, as I say, quite substantial arguments against that. The 1924 Act did not achieve the purpose of keeping off the register the reluctant woman juror, and many judges and court officers have painful evidence of that fact. They have painful recollections of stormy interviews with women who fully demonstrated their reluctance to serve on juries, while they had omitted to take the necessary step that would have secured them exemption. Forty per cent. of those possessing the jury qualifications in Dublin are women. That is the nearest I can go to giving Senator Hooper the measure of the administrative problem, the measure of the trouble and expense of entering so many people on the register, only to be-taken off again if they apply, and only to make a fuss when they get their summons if they do not apply. Is it reasonable to ask at this time, when there is a rather strident clamour for economy in administration and so on, that we should perpetuate that farce of the Act of 1924 — that we should put on the 100 per cent., strike off the 85 per cent., and have to fight 50 per cent. of the remaining 15 per cent. because they forgot to take the step of seeking the exemption that was available for them? Why should we have to do that? Is it not more reasonable to ask the woman who feels she is available for jury service, to whom it would not be a particular hardship, or a hardship to anyone else to undertake it, to intimate that fact?
Senator O'Farrell made a suggestion that I should agree to strike out the word "male" and then proceed to exempt all women in the schedule. Of course I have grown wary with years. I will agree to strike out the word "male," conditional on a full acceptance of what is to follow upon it. I will take the word "male" out of Section 3 if it is agreed that the word "woman" goes into the exemption schedule.
Leaving in the Bill the provision which enables a woman on application to be entered on the register. There is even a suggestion which occurred to me, and which I would like to explore, that the exemption schedule might be broken into two parts, putting in Part I. those whom you would not allow for good and sufficient reasons on juries, and in Part II. those whom as a class you are prepared to exempt; but to the individuals of this class you are prepared to give the right of entrance on the jury register if they make application. There are some classes set out in the exemption schedule that for good and public reasons ought not to be allowed to serve on juries. I do not think it would be proper, for instance, that people engaged themselves in the practice of the law should be jurors—that barristers, solicitors, and people of that kind ought to be allowed to serve in the courts in the capacity of jurors. No doubt one could find other classes set out in this exemption schedule regarding whom it would be safe to say it would be undesirable on public grounds that they should be jurors. There might, however, be room for a division of that schedule—for making a Part II. of the schedule for classes that we are prepared to exempt with a sweep, but if individuals amongst those classes feel that they are willing to undertake jury service, that it would not be a particular hardship to them or to anyone else if they did undertake that service, then they can make application, they can intimate their availability to the appropriate officials, and their names shall be entered on the register accordingly.
So long as I get what I want I am not over-particular as to the form in which I get it. I am quite willing to take the word "male" out of Section 3, to insert the word "woman" in the schedule, and thereafter to say that women who intimate their willingness to serve shall be entered on the register. If it would be any consolation to them not to be in a class alone in that respect, then I am prepared to examine that exemption schedule, and see whether the right of individuals to be entered on the jury register on application might not be extended to some other of the classes exempted in the schedule. There is an offer. Senators may hold their individual views as to the worth of it, but for what it is worth I put it forward. In the absence of acceptance, I must only continue to plough my furrow in this matter. I may say that if I do not get accommodation on those lines, or some such lines, I would not think of recommending to the Dáil an amendment that would involve either (a) a return to the Act of 1924, or still less (b) a return to the Act of 1919.
Would the House let me make a suggestion, in view of what the Minister has said. I am not going to intervene or refer to the controversial question that was raised at all, but simply to call his attention to a very important question of procedure. Under the old law the practice was that all persons, even those exempted from service, had their names inserted on the original jury list by the officer. The result of that was that although they were entitled to be exempt, their names being on the list, they were called. If they wished to claim their exemption they had to attend. Otherwise, they would be subject to a fine and would have to come in afterwards and point out that they were exempt and get the fine removed. That was a great inconvenience. There is another matter that I think the Minister has perhaps overlooked. In a great many cases, particularly in the case of professional men, although they were members of a profession which they never pursued, practised or followed, they were very anxious and desirous of serving, and consequently when they were called, their names being on the original list, they did not claim exemption and they served. I may say, speaking from an experience of forty years, that there were no better jurymen than those professional men who had not pursued their profession. They were well enough off not to pursue their profession and they simply took out their degrees for the sake of the dignity, perhaps, attached to them. They were eminently desirable jurors and we never challenged them. We were always anxious to see them on a jury. As I understand this Bill that portion of the old system will be perpetuated: that is to say all the persons in the exempted schedules will have their names put on the original jury list.
There is nothing in the Bill to say that they are not to be put on. I drew up a clause last night, thinking possibly that some compromise such as the Minister has suggested might be in his mind, which might not only get rid of that difficulty, on the assumption that his offer is accepted, of the remaining element; that is to say, the expense of putting on the original lists all these exempted persons. It is a rough draft, but it will show what I have in mind, and perhaps the Minister may think it worthy of consideration.
It shall not be necessary to include in the original lists the name of any person who, under the provisions of this Act, is exempted from jury service, but any such person if otherwise qualified to serve may by notice in writing under his or her hand intimate his or her willingness to serve and upon receipt of such notice the name of every such person shall be inserted on the list.
In other words, there would be no obligation on the officer to put any person who comes under the exempted schedule on the original lists. That avoids the expense to which the Minister referred. Women will then be put in the same category, and every exempted person will be given the right, if he or she wishes, to write to the officer and requiring his or her name to be put on the list. If that is done you will retain that very useful class of men, professional men, or men in any other walk of life, who never actively pursued their profession, ought not really be subject to exemption and who make really excellent and useful jurors.
There is a provision in Section 14, sub-section (2), which is as follows:—
There shall be entered in every draft jurors list the names of all persons who by reason of being themselves rated or by reason of their wives being rated for the relief of the poor in respect of land in the county, borough, or district to which the list relates are qualified and liable to serve as jurors and are not exempt or disqualified from so serving, and there shall also be entered in every draft jurors list the last known place of abode and the trade, profession, calling, or description of every person whose name is entered in such list and also the situation, description, and rateable value of the land in respect of which such person is so qualified and liable.
The list as it would be prepared, under the Bill as it stands, would not contain the names of any persons mentioned in the exemption schedule.
Under Section 3 I am afraid you are bound to put every male or, if you insert women, every person over twenty-one who has the property qualification.
That was my view of the effect of the Bill. At any rate it ought to be made plain.
Has the Senator read sub-section (2) of Section 14?
The county registrar will not know who comes under this section. He will find "John Jones" but will not know his qualification.
The rate collectors will know.
It was only in the event of your compromise being accepted I suggested this.
My suggestion amounts to this. In the exemption schedule there are classes to which we are prepared to give exemption on public grounds. Even in those classes there might be individuals who feel that it would be no hardship or inconvenience either to themselves or to others, if they were to take on the burden of jury service. There would be no objection to the names of such persons being entered on the jury register, but if you exempt the classes and leave it to the individual to size up his own circumstances, to decide whether or not he is available for jury service, whether or not he is willing to undertake it, I think it is a reasonable thing. But amongst these classes mentioned in the exemption schedule there are some classes it would be undesirable to have serving as jurors, for reasons that would be fairly obvious. I think that exemption list is capable of division, that you could have a Part 2 of it that would have this difference from Part 1, that while you exempt this class as a class, you are prepared to put on your jury register the names of any individuals within those classes who are willing to undertake jury service. My proposal is this then, that I would agree to take the word "male" out of Section 3 of the Bill if I am allowed to put in the exemption schedule the word "woman," but I put "woman" in Part 2 of the exemption schedule, together with some other classes; and say that out of these classes any individuals who are willing to take on jury service may intimate that fact to the appropriate official and their names shall be entered on the register. I hope I have made clear what is in my mind. It is an extension, with a slight alteration, of Senator O'Farrell's proposal.
I hope Senator Sir Coey Bigger will not withdraw his amendment. With all due respect to the Chair, I think it is very embarrassing that amendments should be brought forward from the Chair and speeches made on them.
I do not know what the Senator is referring to. I brought forward no amendment. I suggested to the Minister that if his compromise were accepted he ought to bear in mind the point I make about not compelling all those names to be put upon the list.
I think the word "male" will have to come out even if the Bill is to remain as it is because the Bill as it is contains the idea that there can be the panel for women. Therefore the word "male" in the beginning must disappear even if the Bill is to remain as it is. While speaking of this all these suggestions come back to the one thing. We take out the word "male" and then we come to the schedule and the schedule is divided and there will be two schedules. These to me are mere formalities. Men will remain on whereas there is to be a voluntary panel for women. I think very few people realise the position of a woman when she feels herself in the position of being ready and willing for jury service and comes on a certain day to enter her name for that service. In the beginning of the debate in the Dáil it is stated that all this was only to release women from serving in an unpleasant position and to place them in a sheltered corner as it were. But I should like to say that the voluntary panel places women in the most invidious position as jurors that they could possibly be placed in. Both men and women will come forward ready to do their duty but you will also find both men and women not so disposed. That is human nature but the woman who comes forward and places her name upon the voluntary panel if the time comes when she has ever to seek exemption her position will be a most difficult one indeed. Jibes and sneers are very often flung about upon this question and if a woman, I repeat, who had the courage or the strength to put her name down for the voluntary panel, should come and claim exemption on proper and right grounds we can all realise the taunts that may be flung at her and her sex.
That is only one of the peculiar positions that the woman would be placed in who would do this. Very little is said about the few women who are liable for jury service. People talk about 21 years of age and short skirts. I think anybody who looks into the question, and looks through the register, will realise that women in regard of 21 years of age are rarely rateable, and they must be rateable, and must have a rateable capacity before being capable of serving on juries. Therefore, I think the question of 21 years of age and short skirts is outside the matter, and has nothing to do with it. Anyone who takes up the register of any county—I looked through the County Dublin Register last evening — will see that the number of jurors in a house where there are eight or nine votes is small — usually only the man or woman of the house. Only the latter, being rateable persons, would be liable for jury service. The number of jurors in proportion to the franchise is exceedingly small. In consideration of that, I do not think that a great deal that has been said with regard to women is justified, for the reason that very few women have a rateable qualification until they obtain property in their own rights. The Minister has put in a clause which I approve of highly, that where a woman has property it is added to her husband's, and he is made liable for jury service. I realise that has been rendered necessary by the fact that men in the past took houses in the names of their wives in order to escape jury service. If there is any evidence wanted that men do not want a jury service, I think that fact proves it. Men do not want jury service, and in Dublin and the suburbs we all know that there were numbers of men who took houses in their wives' names for the purpose of getting exemption. The Minister spoke of the people who think in terms of the Terenure tram, the Dalkey train, and Green Street Courthouse. People think a little more than that, and the Minister is aware himself of a certain woman in the County Wexford who was eligible for jury service. The Crown Solicitor wrote to that lady asking her to exempt herself. She said no, and took no notice of the letter. The Minister knows all this. Later she met the Crown Solicitor socially, and he gave her to understand that it was a most unwomanly attitude she had taken up not to apply to have herself exempted from jury service. She did not apply for exemption. She said she would serve, and that she had three years to think over the matter. On a third occasion the Crown Solicitor again mentioned the matter to her, but she still refused. She lived in a rural part of the County Wexford. We have evidence in that lady's case, but we have not evidence of numbers of the same kind going on all over the country, and of the attempts that are being made to prevent women from putting themselves on as jurors. The present Bill gives the right for a voluntary panel. I suggest that if the Bill remains as it is you will have to take out the word "male." How will you have a voluntary panel for women if the word "male" remains in?
I think the word "male" should come out if you have a voluntary panel. I would appeal to those who have supported us so far, to give us their further support by voting for Senator Bigger's amendment. By doing so, this House will be helping to preserve the civic spirit that is still left amongst the women of Ireland.
I do not want to add very much to what has been said, except to repeat that Senator Bigger's amendment does not affect any of the ideals which Senator Mrs. Wyse Power has just been advocating. The Senator's amendment is simply a proposal to perpetuate the administrative farce of the 1924 Act. It does not bring us back to Senator Mrs. Wyse Power's ideal of the equality of the Act of 1919. Now I do not want to go into details or to discuss white blackbirds in the County Wexford, but I do say that this is a clamorous demand from a very small number of women in Dublin who are thinking in terms of Dublin and its environments, and who are not thinking at all of what their proposal would involve for women, mostly widows, throughout the bleak and backward parts, such as Connaught, West Cork, Cavan, and so on. I have to think otherwise than in terms of Dublin and of Dalkey, and otherwise than in terms of Green Street and Rathgar, and because I do try to think in that way, I came to the conclusion that the Act of 1919 was out of the question, and administratively I have come to the conclusion that the Act of 1924 is rather a good deal of a farce which ought to be ended.
It is quite obvious that the Minister is perfectly sincere in believing that there is no difference between the position in this Bill and the Act of 1924. There are some of us who feel that there is much more in the difference in Senator Bigger's amendment than he feels. Personally, my view is that sooner or later the position of the 1919 Act will be regarded as the proper position for women. I do not think that is practicable at the present moment unless you were to provide a very difficult and complicated list of exemptions, but I do believe that sooner or later the women who take what are the so-called privileges of citizenship must also share the responsibilities that that will involve — namely, a general service on juries in so far as it is the same for men. Now because of the position in the country, and because of a good many other circumstances in Ireland, it is not practical politics I think—I am sure that some of my lady friends completely disagree with me on this— to apply the Act of 1919, and it is interesting to note that there is no amendment put down to this Bill, which goes back right to the position of 1919. To those of us who believe that is the logical and the proper position which eventually we should reach, it is, I think, far better to suggest to women that they have a duty, even though you do give them voluntary exemption. The position in the Bill suggests to women that they have no right and no duty in the matter. Of course, if any of them wish to do it, they will have the right to have their names entered on the register, but I cannot see that many of them will ask for it. I respectfully suggest to the Minister that, while he may be right in his view, it is not just a matter between farce and another way of doing it. There are two clear points of view to be considered. The point for us to consider is what we should do in the Seanad, in view of the fact that the Minister has a complete majority at his back in the Dáil. The point whether we should oppose this amendment and let it come back to us again from the Dáil is one on which I do not feel very strongly, but at any rate I do think there is a very clear difference to be considered. For my part I would be prepared to give my support to a reasoned amendment which would go back even to the 1924 position, but not because I think that the 1924 position was the final position. If I did think that, then the Minister's position would be quite logical and reasonable.
You, sir, have ruled that we are taking the two amendments. On that I desire to say that I think the second portion of Senator Bigger's proposal is absurd in view of the provision already in the Bill. Under the old Act of 1924 that might have been necessary, but I think it is absurd here. The second portion of the Senator's amendment provides that it will be compulsory: that there will be no right to ask for exemption in the case of the wife of a man who happened to be on the exempted list, in other words the wife of a Senator or of a Deputy. That might have been necessary under the 1924 Act, but as there cannot be an evasion now from jury service by putting rateable property in your wife's name I do not think the second portion should have been included in the Senator's amendment. I desire to say that I do not at all agree with some of my lady friends who think that it would be better not to have any provision in the Bill than have the Bill as it is with an optional right to serve. I do not think that is the best arrangement. I think it is a great mistake, because you cannot get all you want, to prefer the Bill simply with jury service for men. I believe that with all its defects it is better, for the present at all events, to have a Bill with optional service if we cannot get anything better. Further, I think that this matter would be better dealt with if put in the form outlined by the Minister than left as it is in the Bill. Senator Mrs. Wyse Power says, with a good deal of reason, that there is no fundamental difference. I do not agree with her because I think that the form proposed by the Minister is much more desirable. Therefore, whatever our point of view may be, I think that clearly the best thing to do is to vote for the first portion of Senator Bigger's amendment. I am quite prepared to do that, but not for the second portion.
I agree with Senator Douglas and the Minister in their view that the only original and consistent position is that of the Act of 1919. I suppose I voted for the 1924 Act myself, but if that was a mistake I shall now vote for this amendment, because I think it is a step back towards the 1919 position. At present you have the 1919 position, when State duties were first publicly put upon women. From 1919 to now is about eight years. I scarcely think that is long enough in which to judge rightly of the results. I think if it had taken fifty years for the thing to become perfect it would be much better. Naturally, women in the country and in backward places would be the last to realise their duty in this matter. I think, as we have the vote, and have been given privileges, we should also obey the obligations, and if I thought there was the slightest chance of going back to the 1919 position I would have put down an amendment to that effect. I think the present amendment is a step towards the 1919 position, which was whittled down by the 1924 Act. It is being further whittled down now by this Bill. I would ask the Minister if he really thinks he has settled this question for good in the present Bill. I suppose the next step will be that in a couple of years we shall have total exemption proposed, but even that would not end it. I think if women are to take their part as citizens, these duties should be put upon them and enforced, because that is the only way they can be educated into good citizenship.
I have expressed very fully on the Second Reading of this Bill my views upon this particular subject, and I do not intend to repeat them now, but I do recognise the very great value of getting the word "male" struck out of Section 3 of this Bill, because that will be a recognition of the right and, indeed, of the duty of every woman in this country who has the necessary property qualification to perform those duties of citizenship and serve on juries. Though I look upon this as a very valuable thing to get into this Bill, and much as I would prefer Senator Sir Coey Bigger's amendment to the alternative proposal of exemption, and then allow women to get themselves on, I do not think we ought to risk the loss of the amended section which will leave out the word "male" for the purpose of getting at some future and very distant time what we really want. The Minister is out here to get what he wants. We are also out to get what we want, but he has the power to get it sooner than we have, because when this Bill goes back to the other House he will be in a position to say this is not what we want or what the country wants. If the word "male" is excluded from Section 3 we will get something very valuable, and something which at some future time will prove a recognition of this right. I do not think the method that the Minister has suggested, if carried out, would be the best.
He proposes to divide the schedule into two parts and then introduce a section giving anyone in the second part the right to get off. That would put women into the class with a number of other people and they would be lost there. If we cannot carry what we want it is much better to have a clause in the Act giving to a woman expressly the right to get off. If you bury them in the schedule they will be lost and nobody will know anything about it.
Therefore I would press the Minister to allow the section to remain so that there will be in the Act itself an express right.
Part of the Minister's suggestion was to leave that section in, which gives women a right to claim to be put on the list. They must appear in the exemption schedule. The Minister did not propose to strike out the clause which enabled them to volunteer to serve.
Possibly these women who have been able to make this issue acute may object to a provision applying expressly to them and to them only. Therefore I had an idea that this exemption schedule should be capable of division, that one could pick out from that schedule certain classes, and put them in Part 2 of the schedule, put women also in Part 2 of the schedule and say that individuals exempted by Part 2 might, on application, secure their names on the jury section.
That would be applying to everybody in Part 2. In that case there would not be an express condition to the effect that women should apply. I prefer the section as it stands.
Senator Brown referred to what we wanted and what the Minister wanted. Is there any doubt about what the country wants?
The Committee divided: Tá, 19; Níl, 10.
- T.W. Bennett.
- Sir E. Coey Bigger.
- S.L. Brown.
- Mrs. E. Costello.
- J. Douglas.
- M. Duffy.
- M. Fanning.
- T. Farren.
- T. Foran.
- Mrs. A. Stopford Green.
- B. Haughton.
- Patrick J. Hooper.
- C. Kennedy.
- P.W. Kenny.
- J. MacKean.
- Colonel M. Moore.
- J.T. O'Farrell.
- Mrs. Jane Wyse Power.
- W.B. Yeats.
- J.C. Counihan.
- Countess of Desart.
- J. Dillon.
- J.C. Dowdall.
- Oliver St. John Gogarty.
- T. Linehan.
- J. O'Connor.
- M.F. O'Hanlon.
- B. O'Rourke.
- T. Toal.
Amendment declared carried.
Before Section 4 to insert a new section as follows:—
"4. — (1) Every woman to whom this section applies who is qualified and liable to serve as a juror in any administrative county or county borough shall be entitled, if she so desires, to be entered in the register of electors for the registration area comprising such administrative county or county borough as exempt from serving as a juror and while so entered shall be exempted from so serving.
(2) This section applies to unmarried women and to widows, and also to married women whose husbands are qualified and liable to serve as jurors in the same administrative county or county borough as that in which such women are themselves so qualified and liable."
In effect, as the Minister pointed out, there is very little difference between this amendment and what the Minister suggests in the Bill. It is only a matter of procedure. In one way, you do not cast any slur on women, but in the other way, I hold that the Bill does cast a slur on them. If it is right that women should be on the register, it is not right to say "yes, you can go on the register, but you must write and apply to get on it." I think the amendment carries practically what is in the 1924 Act. I do not know what was in the minds of Senators when they passed that measure as I was not here, but I take it, from what one of the Senators has said, that it was well considered and it was probably a step towards the 1919 Act which ultimately, may prove to be the one to be followed. The 1924 Act has only been in force for two years, and while a large number of women on the register did not claim exemption, that was probably because they were not aware of it, but in a short time they will be.
I think the proposal amounts to this, namely, that the vast majority of women, who do not wish to serve on juries, will be put to the necessity of making application for exemption. The alternative to that would be that the minority of women who desire to serve on juries would be relieved of the necessity of making application to be placed on the jury list. I think we ought to legislate for the majority. Women who do not wish to serve on juries are usually women who are busily engaged on other matters, and have really less time to write letters asking for exemption than the other class of women who have plenty of leisure. I think the amendment should be rejected in the interests of the vast majority of women.
I regard this amendment, to some extent, as consequential on the one which Senator Bigger moved previously, and which the Seanad thought fit to accept. I took the two together when considering them, and I do not intend to ask the Dáil to accept them. Taken together, they constitute one single counter proposal to the provisions of the Bill, namely, a return to the 1924 Act. I do not propose to accept that, and I do not propose to ask the Dáil to accept it. My counter proposal is what I suggested in discussing the previous amendment, namely, to put women as one of many classes exempted in the schedule, and to say that individuals amongst those classes may secure entrance on the jury register on application, if they are willing to take the burden of jury service. I consider that a reasonable proposal, but I have not, of course, very much hope that the Seanad will consider it reasonable. I think that, perhaps, I ought not take up the time of the Seanad in discussing it, in view of the result of the previous amendment. This amendment hangs on to the one just passed, and is complementary to it. The two together embody Senator Bigger's idea, namely, that the Act of 1924 was the last word in legislative wisdom, and should be continued. I do not think so. I do not think it should be continued or returned to, and I will ask the Dáil to agree with me in that view.
It occurred to me that the chief objection is to the matter of the voluntary panel, in the case of women. I suppose it also applies to men who are in employment. If they are obliged to serve, their employers will allow them to go on the jury. But if it is a voluntary thing they will say: "Well, perhaps you need not go, it is optional, and therefore I will not consent to let you go." That is what will happen. That I think is the real objection.
I am quite satisfied after listening carefully to the Minister's statement that he has put the case in such a fair way that there is no one who could quarrel with it. I want to keep friends with the ladies throughout the country. The Minister's statement is that the ladies who wish to go on a jury should apply to be put on it and that those who desire to avoid that great hardship and that trouble and annoyance especially in country places should be permitted to do so. I can speak perhaps more for the country than for the town. In a great part of the South of Ireland of which I have some knowledge, it will be found that in many cases a lady may have to travel twenty miles to the county borough. Now down in Nenagh where my father and myself had to go on jury service we had to put up with much inconvenience and hardship. Consider the unsuitability of such service for a lady. We all know that ladies are entitled to respect and attention and I must say I appreciate very much this great privilege the Minister has given them of not being compelled to go on jury service. At the same time he is leaving the right and the privilege with those ladies who desire to do this service to the State, who have the spirit and the opportunity; he is allowing them to go forward and serve on the jury and give notice of their wishes in the proper quarter. I think that ought be sufficient. Now there is the question of where there are two jurors in a house, the man and wife. Take the case of a farmer and if both he and the wife are jurors and liable to service, look at the inconvenience. If both are summoned to serve on the same jury or on the same day, they would both have to leave the house and perhaps leave a young family behind them.
That would be a deplorable position to be in. To my mind it is a great privilege for the women to be allowed to escape service as jurors and so escape all the trouble and inconvenience to which women should not be put.
The Minister says this amendment is purely consequential on the one that has been carried. Women ought to be exempted in some way. If you reject this there is nothing in the Bill. Those who were in favour of putting them on the list must be in favour of the exemption proposed here. It is purely consequential. Otherwise the women would be liable to serve without any exemption.
I am prepared to vote for this amendment, but I think the proposer would have been wise to accept the suggestion of the Minister. I do hope that those who vote for the amendment now will stand for the amendment afterwards, if it comes back after being rejected by the Dáil. We have here very often a situation in which Senators are very emphatic in supporting amendments. When, however, these amendments are rejected by the Dáil they make equally eloquent speeches in support of their plea that the amendment should not be insisted on. That is the experience we have had here. I hope that any Senator who votes for it now will stand by it when it comes back from the Dáil.
I suggest that in the event of the Minister signifying his willingness to bring in such an amendment as has been suggested, that the discussion on the matter at present should be postponed.
The House is in a certain difficulty with regard to this, because the Minister has suggested his willingness to, at any rate, consider an alternative amendment to this. That is an amendment which, instead of putting women on the panel, and then giving them the right to get exempted, would exclude them from the panel and give them the right to get accepted. But we have not got that before us and consequently there is a difficulty in the House of following it, and perhaps following the distinction that exists between the two. I think it is obvious that Senator Sir Edward Bigger's proposal is to leave the women eligible in the same way as the men to serve on the jury panel, and that they should be included in the jury list giving them the right, however, not given to men to get exempted by serving notice of their desire to be exempted. That is Senator Sir Edward Bigger's proposal. What the Minister has suggested as an alternative is to exclude them from the panel originally, and to give them the right, if they claim it, to be put on it.
If Senators would turn to Section 16 of the Bill, they would see just what my proposal amounts to:—"Inclusion of women in jurors lists on request." Under my proposal that section would be altered to read: "Inclusion of individuals of the classes set out in the schedule on request." For instance, turning to the schedule one can see many classes that it might be desirable to treat in that way, such as veterinary surgeons and dentists.
And practising barristers.
Yes. "Barristers-at-law actually practising as such." Non-practising barristers are not exempt. I will try on the Report Stage to have an amendment embodying what I mean. It would be to sub-divide the exemption schedule, and to say in regard to that part of the schedule in which I propose to put women that individuals, amongst the classes, may secure the inclusion of their names on the jury list on application.
Do you wish me to put the amendment, Senator Sir Edward Bigger?
Would it not be better to leave it on the Paper, and the two could come up together?
In that connection, the proposal I am making now would perhaps involve an amendment of the amendment already carried.
I think we should be quite clear as to what we are doing. I think the Minister was wrong when he said that to give effect to his proposal would require an amendment of what the House has already done in passing Senator Sir Edward Bigger's first amendment. I think he sees now it would not, that in fact that amendment was necessary to give effect to his alternative proposal. The position is very simple. The real difference between the two propositions is that while Senator Sir Edward Bigger proposes to allow that every woman's name shall be on the original list, he proposes to confer a special right on women to claim exemption and to have their names taken from that list. The Minister suggests on the contrary that the better way to do that would be to exclude them from the original list and to put them into the list of exceptions, and then to provide that they, in common with certain other persons in that excepted list, shall be entitled to have their names inserted on the list if they so elect and ask. The Minister's suggestion, if accepted later on, will require certain consequential amendments in the Bill. It is only to keep that point open that I refer to the matter, so that if the House understands that the whole question is to be reserved and kept open without prejudice to either side until Report, we may pass from the matter. Do you agree to that, Senator Sir Edward Bigger?
The Seanad rose at 2 o'clock and resumed at 3 o'clock.
Sections 4 to 42, inclusive, put and agreed to.
SECTION 43, SUB-SECTIONS (1), (2) AND (3).
(1) The Minister may at any time by writing under his hand addressed to the summoning officer or the several summoning officers concerned direct that summonses for the attendance of jurors—
(a) in the High Court sitting in the county borough of Dublin or the county of Dublin, or
(b) in the High Court sitting in any particular county borough or county other than the county borough of Dublin or the county of Dublin, or
(c) in the Central Criminal Court sitting in the county borough of Dublin or the county of Dublin, or
(d) In the Central Criminal Court sitting in any particular county borough or county other than the county borough of Dublin and the county of Dublin,
shall be served by sending the same by post to the persons to whom they are respectively addressed at the addresses specified in such summonses.
(2) The Minister may at any time by writing under his hand addressed to the summoning officer or the several summoning officers concerned direct that summonses for the attendance of jurors in the Circuit Court sitting at any place or at any particular place or places in a particular Circuit shall be served by sending the same by post to the persons to whom they are respectively addressed at the addresses specified in such summonses.
(3) Whenever any such direction is given by the Minister then, unless and until such direction is revoked by the Minister, every juror's summons to which the direction applies shall be served by sending the same by prepaid post in a closed envelope addressed to the person at the address named in the summons and, unless the same is returned by the Post Office to the summoning officer as undelivered, every juror's summons so posted shall be deemed to have been served on the person to whom the envelope containing it was addressed at the time at which such envelope would have been delivered in the ordinary course of post.
In sub-section (1), before the word "post" in line 34 to insert the word "registered."
Section 43 provides for jurors being served by ordinary post. I think such service should be by registered post, because it would otherwise be very difficult for a juror to satisfy the judge as to the non-delivery of a postal packet. I grant that there would have to be some sort of consultation with the Minister for Posts and Telegraphs, but it would be much better to have a registered list, and I do not think there could be any loss to the Government, because, after all, what you lose on the swings you gain on the boats. In England, whose jury system we are following up, the summons is properly attested by Sheriff's seal, and, bearing the words "Jury summons" on the side of the address, may be sent by registered post, two additional days being allowed for transmission. That is according to Halsbury. As far as I can find out, this proposal to serve by ordinary post is altogether new, and to my mind is one which should not be permitted. A fine of £3 may be inflicted on a person for not answering to a jurors summons, and Section 45, sub-section (4) says: "At the conclusion of every such calling over the names of the jurors who did not answer on such calling over shall be called over again, and as each juror's name is called, unless he then answers, evidence shall be given of the service of the jury summons on him, and the Judge, if satisfied that such summons was duly served, shall impose on such juror a fine of three pounds." I think it would be very difficult to give evidence of service by a letter by ordinary post. In other Bills much less important than this such a condition was accepted, and I appeal to the Minister to accept this amendment and to bring this into conformity with the usage on the other side.
Under sub-section (5) of Section 43 it is provided that the Judge's consent must be obtained to whatever form of service is adopted. The Judge need not sanction service by unregistered post, but if he does I think that the Senator ought not to be more puristic than the Judge. There are known instances where service by the ordinary post has been ordered by Judges, instead of service by registered post, and the reason for that is simply that the astute countryman is suspicious of registered letters, and, with the assistance of a friendly postman, occasionally declines to accept delivery when he has reason to think that the contents are not to his liking. It is under circumstances like those, and having regard to factors of that kind, that Judges have been known to order service other than by registered post.
I do not say on jurors, but in connection with court processes generally. I think that sub-section (5) really meets the case, that there must be the consent, in the case of the High Court, of the President of that Court, and in the case of the Circuit Court, of the individual Circuit Judge of the area, and I think that the Senator ought to be satisfied.
Apparently, once this service by the ordinary post is proved, the three pounds fine is automatic. Is there no appeal from the fine?
There is. There is the automatic fine, and then at leisure the county registrar goes through the excuses, sifts them and puts them before the Judge, who may sanction a remission.
On that occasion can non-service be proved?
Because that would remove a good deal of objection.
I submit that this is against constitutional practice and that it is a precedent that ought not to be set up.
Up to the present they have been served by the police.
Such a system as this would be new. According to Halsbury such service can only be by means of registered letter.
My recollection agrees with that of Senator Brown, that hitherto it has been personal service.
Absolutely. This is an innovation.
But on the other hand I think that you are really defeating your own purpose, because if all that was necessary was for the individual to say "I never got the letter," I am afraid there would be a great temptation to do so.
I submit that such evidence would not be evidence at all. Everybody would say "I got no letter," but surely it would be much better to be able to say, "Here is the proof that you have been served." I submit that it would be much better to have tangible proof. It would cost really nothing, because an arrangement would be made between the Minister and the Minister for Posts and Telegraphs, and what would be lost on the swings would be made up on the boats.
In the old days the jury panel was called, and a certain number did not answer. The police who had served the summonses were then sworn and testified that they had served personally each of the individuals. I do not think that any service through the post was allowed in those days.
All that is provided for in the Bill.
And very reasonably provided for. Sub-section (3) of Section 43 states—
Whenever any such direction is given by the Minister, then, unless and until such direction is revoked by the Minister, every juror's summons to which the direction applies shall be served by sending the same by prepaid post in a closed envelope to the person at the address named in the summons, and, unless the same is returned by the Post Office to the summoning officer as undelivered, every juror's summons so posted shall be deemed to have been served on the person to whom the envelope containing it was addressed at the time at which such envelope would have been delivered in the ordinary course of post.
We really cannot have these administrative refinements of personal service, and I do not think it is reasonable to expect it. There is this point that I made that the registered letter is often an object of suspicion, and on a tip from the postman as to what the contents are it is open to any person to refuse acceptance of it. In those circumstances, on the discretion of the Judge, it should be open to us to have these summonses served by ordinary post. I think that the kind of conservatism that says: "This was never done before, and it should not be done now," is really a mentality that should not be applied to a proposal of this kind. The proposal should be considered on its merits, and not with undue advertence as to whether or not it was sanctified by Halsbury.
On its merits I submit that any man liable to have this big fine inflicted on him should not be summoned by the haphazard manner of the ordinary post. We have known cases where letters posted in the past have not arrived for ten years. If we adopt the method I propose, a register would be kept of letters sent out. We have that register kept, and we would know if the letters reached their destination. The officer reads out his register of letters in court, and there can never be any question as to whether the summons was served or not. I regret the Minister has not seen fit to accept the amendment.
Amendment put and declared carried.
Section 43, sub-section (2), before the word "post" in line 42 to insert the word "registered."
This is a consequential amendment.
Amendment put and declared carried.
Section 43, sub-section (3), before the word "post" in line 48 to insert the word "registered."
Amendment put and agreed to.
Question—"That Section 43, as amended, stand part of the Bill"—put and agreed to.
Sections 44 to 57 inclusive, ordered to stand part of the Bill.
I do not know whether Senator Bennett would resent a suggestion from me, that as there is such a small attendance now, any matter of an acutely controversial kind might be held over for Report Stage.
The following provisions shall have effect in every trial of a criminal issue which is tried with a jury and is prosecuted at the suit of the Attorney-General of Saorstát Eireann, that is to say:—
(a) the said Attorney-General or the counsel or solicitor representing him may at the time prescribed by this Act direct without cause shown any juror who has not been challenged to stand-by and thereupon such juror shall not then be sworn of the jury;
(b) if, before or when all the jurors whose names are entered in the panel and who are liable to be called for service in the jury have been called, a jury is obtained without including the jurors who have been directed to stand-by, such last-mentioned jurors shall leave the jury-box as soon as such jury has been so obtained and no such last-mentioned juror shall be included in such jury;
(c) if, after all the jurors whose names are entered in the panel and who are liable to be called for service in the jury have been called, a jury is not obtained, a sufficient number of the jurors who were so directed to stand-by and are not successfully challenged under the subsequent provisions of this section, shall be sworn and included in the jury in the order in which the cards containing their names were drawn from the box;
(d) the said Attorney-General or the counsel or solicitor representing him may challenge for cause shown any juror who, having been directed to stand-by, is called to be sworn under the foregoing paragraph;
(e) whenever a juror is challenged under the foregoing paragraph the cause shall be shown immediately upon the challenge being made and the Judge shall then allow or disallow the challenge as he shall think proper and such allowance or disallowance shall be final and conclusive;
(f) if any such challenge is so allowed, the juror so challenged shall forthwith leave the jury-box and shall not be included in the jury.
Section 58. To delete the section and to insert a new section in lieu thereof as follows:—
"The following provisions shall have effect in every trial of a criminal issue which is tried with a jury and is prosecuted at the suit of the Attorney-General of Saorstát Eireann, that is to say:—
(a) If there is only one accused person the said Attorney-General or the counsel or solicitor representing him may at the time prescribed by this Act direct without cause shown any five jurors who have not been challenged to stand by and such jurors shall forthwith leave the jury box and shall not be included in the jury.
(b) If there are two or more accused persons the said Attorney-General or the counsel or solicitor representing him may at the time prescribed by this Act direct without cause shown any six jurors, or if the accused are accused of murder or treason any ten jurors, who have not been challenged to stand by and such jurors shall forthwith leave the jury box and shall not be included in the jury.
(c) In addition to the jurors directed to stand by under this section the Attorney-General or the counsel or solicitor representing him may challenge for cause shown any number of jurors."
I must claim the indulgence of the House in regard to this particular amendment for the usage of the words "stand by" as against "challenge" but it is inherent in my amendment that I should do so. I would suggest that where "stand by" is used it should read "challenged by the State." In substituting the word "challenge" for "stand by" I shall be able to give some authority because I read again in Halsbury that a challenge is allowed to the Crown instead of a stand by. Apparently there is not any peremptory challenge by the State at any time, but a challenge for cause shown.
The Senator had better not be confused by Halsbury. We have got to deal with the practice that has been in this country. and the two things were quite distinct —a challenge was one thing, and an order to stand-by was another.
They were the same, I submit.
The result was the same, but they were two distinct and different processes.
I submit to your ruling. The process seemed to me to be this: Every juror whose name was called could be ordered to stand by by the Crown, and he stood by until such time as all the names were called. If, after all the names had been called, there was still a juror required, the names of those who were ordered to stand by were called over again. Then I take it the Crown had to show cause why those people should not be empanelled.
That being the case, I submit that here, where we are making a great change in the constitutional practice of trial by jury, it is well to see that no injustice is inflicted on the accused. What do we find? Again I must appeal to the usage in England— I am sorry if it annoys the Minister. After all, our whole legislative code has been borrowed from the English code, and if we are making a new code, I am anxious that we should make a code which will be in the interests of the citizens, and that the dice, so to speak, shall not be loaded to the injury of the accused. What do we find here? We find under Section 56, sub-section 2:—
In every trial of a criminal issue which is tried with a jury the following provisions shall apply, that is to say:—
(a) if there is only one accused person, such person may challenge without cause shown five jurors and no more;
(b) if there are two or more accused persons, they may join in their challenges and in such case may jointly challenge without cause shown if such persons are accused of murder or treason, ten jurors and no more, in any other case, six jurors and no more.
I am talking altogether of "without cause shown." I am talking of the peremptory challenge, and I will try to prove that the "stand-by" in the position which is going to arise here is really in effect a peremptory challenge. What happens? If the State so desires, a pretty exhaustive panel of jurymen is summoned. The accused person has only the right to challenge, in the most favourable position, ten jurors—that is if two accused persons elect to join in challenges. Assuming that you have 100 on the panel and the accused persons make their ten challenges and no more and the Crown orders seventy to stand by. There remains twenty jurymen from whom a selection can be made, and the probability is that amongst those twenty there will not be sufficient people for the accused to show cause against, so to speak, so that in effect those seventy "stand-bys" by the State will really mean peremptory challenges on behalf of the State. That is my position. As far as I can glean any information on the matter, the number of challenges allowed to the accused in the country from which this system came to us was thirty-five, in the case of treason, as against five in this country. In the case of felony, twenty challenges were allowed. What the cause of the great diminution in the number of peremptory challenges to be allowed to the accused is, it is not for me to say. The State probably was quite justified in limiting the challenges to five, because if you believe in the system of trial by jury and if the jurors are determined in an infant State to accept their responsibility, then I take it that the number—five— is really a sound one, and one which I have already accepted, because I make no attempt to challenge the figures in the section to which I have just alluded. But this section to which I am trying to procure an amendment, I take it, loads the dice in an absolutely unfair way against the accused. Things have changed very much. In the old days there was a challenge against the array. If the officer who made the panel had some grave bias against the accused you could challenge the array and upset the whole panel. The challenge to the array is swept away by this Bill, and you have only the challenge to the polls.
There is no challenge to the polls under this Bill.
It is done away with too.
No matter what the bias of the summoning authority may be, even if you could show that he had grave bias against the accused, you cannot say one word against the panel. Such being the case, it is only reasonable justice to give to the State power to challenge without cause shown, so to speak, because I have submitted that the "stand-by" is really a peremptory challenge in this case, and I would give the "stand-by" the same authority so to speak— I would call it a peremptory challenge and would make the words interchangeable and give to the State power to challenge the same number as the accused and no more. I think that is reasonable. I think that if he is to respect the law a citizen should know that the State respected him and gave itself no greater right to injure a man who was presumed to have offended than it gives an accused person to prove that he has not committed the offence of which he is accused. If the Bill goes through in its present form, such a position is not possible. I have tried to show that with a large panel, by the diminished number of challenges allowed to the accused, "standbys" practically amount to peremptory challenges. The power to do ill-deeds makes ill-deeds done. If at any period in the existence of the Saorstát there is a desire on the part of the State to act harshly towards some particular person who is being tried, then I say it would really be possible for the panel to be so extended that equal justice in the matter of challenges and in the manner of the selection of the jury would not be done as between the accused and the State.
I cannot accept this amendment, and if it is passed it is not one that I could ask the Dáil to accept. The Senator who moved it talks of the limitation of the right of challenge to a prisoner. While he talked of it, and talked at some length, he put down no amendment dealing with that particular section. I take it he merely adverted to it for the purpose of his argument in connection with this section. There is no limit at all to the number of challenges by a defendant for cause shown. Where there is any reduction it is in the number of peremptory challenges, and I consider the number of peremptory challenges that are still left the defendant under the provisions of the Bill is unreasonable. The only reason for interfering at all with the number of challenges as it existed hitherto was, that judiciously used, joint defendants in a case could by exhausting fully their separate right of challenge, practically exhaust the panel and cause considerable inconvenience and dislocation. The Senator speaks of the "stand-by" as the State's equivalent of the peremptory challenge of the prisoner. I do not quarrel with that description. It is, in fact, the State's peremptory challenge, but I put it to him whether it is desirable to force the Attorney-General, who represents the State, into the use of showing cause for his challenges—to limit his peremptory challenges, and putting him to the necessity of showing cause.
In other words, should the legal representative of the State, in the courts of the State be compelled to stigmatise individual citizens by way of showing cause why he objects to their presence on the jury, and why they could not be relied upon to give an impartial hearing and verdict between the prisoner and the State? Surely it is an eminently undesirable position that the Attorney-General, appearing on behalf of the State, should be put in the position that he would have to say: "I do not trust so-and-so to deal fairly as between this State and the man accused of theft, because the police have good and sufficient reason to have strong suspicion of him in connection with the same offence." Is that a proper position to create—to limit the Attorney-General's right of "stand-by" and force him into a resort to challenge for cause shown, so that periodically in the Courts of the State the Attorney-General would be compelled to stigmatise individual citizens other than the man in the dock?
Let us suppose that there is a prisoner charged with a crime, and it is desired to challenge a particular juror on the ground that he cannot be credited with sufficient horror of that particular form of crime because, in fact, he is strongly suspected of frequent indulgence in it himself. Is it desirable that the Attorney-General would have to state the ground of his objection to every individual juror he was unwilling to allow into the box? I do not think so. All this talk of the dice being loaded and the rest of it is just a little thin in the face of what we know about the juror system of the country and its operations. If the dice are loaded, they are, in fact, loaded in favour of the accused and against the State. A unanimous verdict of twelve jury men is necessary to secure a conviction. A single partial or corrupt juror is sufficient to block a conviction. The Senator knows as well as I know that in many counties through the State accused persons are walking free because juries are corrupt and partial. In face of that, the bogey of the sinister State, determined to put the man in the cell at all costs, regardless of the merits, and trying to pack a jury with persons who will do their will in the matter, is rather off the track.
The Senator quoted with reverence precedents from Great Britain. This unlimited "stand-by" for the State is unchallenged there for centuries, and yet, time and again in their history, the British people have shown that they are not inclined to submit to undue interference by the State in the matter of personal liberty. I consider it is eminently undesirable to restrict the Attorney-General in any way in this matter of challenge. If you restrict him in the matter of silent challenge, in the matter of the "stand-by" then you force him into the position where he would have to resort to some form of challenge for cause shown: "I object to so-and-so because he is a disaffected person; because he was known to be doing this and that two years ago; I object to so-and-so, because I do not consider he has sufficient detestation of crime; he is unfavourably known to the police. He is a man who is under constant supervision." You do not want to be saying these things in court.
If the Attorney-General is to stigmatise a man in court it should be the man in the dock, not citizens who are not in the dock. That is the position you force him into if you restrict his right of silent challenge.
I am in sympathy with the amendment moved by Senator Bennett, although I have no special knowledge of this question of jury service. As I read the section, the Attorney-General, or whoever represents him has the right to order every juror to stand by without showing cause, while the prisoner is limited to five challenges. I do not think that is fair. As I understand the law, the prisoner is entitled to the benefit of the doubt if there is a doubt. Surely it is not fair play to the prisoner to say that the person accusing him is entitled to order the whole jury panel to stand-by without showing cause?
Does the Senator say that the prisoner is entitled to the benefit of the doubt about the juryman?
I say that he is entitled to the benefit of the doubt according to the law, if there is any doubt in the case. I say you are not giving him the benefit of the doubt if you load the dice against him, by giving those who are accusing him the right to order every person who is on the panel to "stand-by" without showing cause, and limiting him to five challenges, without showing cause.
Now what brought me to my feet was this: I said I have not much experience of juries. I never served on a jury but I have a definite recollection of the year 1913, in this city, and of having been in court at cases that arose out of the industrial trouble at the time. I have a distinct recollection that the dice was loaded against the accused persons, because every person on the panel of jurors who happened to be of the working class was ordered to stand by and in every case, practically speaking, the jury was composed of employers so that the prisoner did not get the benefit of the doubt. It was natural that employers would sympathise with employers in the trouble that existed. For that reason I think it is unfair and I go further and say that one prosecuting counsel, on that occasion, got a verdict against a man that he knew not to be guilty and afterwards got him released. That was well known in the city at the time. I think it is unfair to give to one side the right of challenge on the whole panel, and to limit the right of challenge to five in the case of the other side. I think of course the State is entitled to be protected but I think there ought to be a limit to the number of those whom the representative, of the Attorney-General or the Attorney-General himself has a right to order to stand by. For these reasons and unless there is some arrangement made to limit the number that the Crown has a right to challenge I shall support the amendment.
I would not agree to any limitation in numbers because if the principle is right it is absurd to suggest that there should be a limit on the number. That right principle is this: that the State should not be compelled to stigmatise citizens other than the man in the dock, and if you take away this right of silent challenge and stand-by you force it to have to blacken people's characters publicly in the court or as an alternative to have a partial and corrupt jury.
Why not expose such man if he has a bad record?
Why should a man who is under the supervision of the police be told of it?
He should show cause why he is under the supervision of the police.
It is not always advisable to tell people under supervision by the police that they are under such supervision.
May I call attention to the fact that you cannot fairly compare the right of challenge peremptorily with the right of stand-by when you come to numbers, because it is a totally different right. The prisoner has a right to peremptory challenge and by peremptory challenge the juror is excluded, whereas in the case of stand-by, it may be given for no reason at all, and does not prevent the juror coming on a jury. Once the panel is exhausted, those stand-by names are put back into the box, and then if the Crown wishes to challenge any one of them it must show cause. You cannot compare it by numbers.
Senator Brown's argument, I submit, is very specious. I submit that if the panel is sufficiently large where there are only five challenges by the accused the net effect is that every stand-by is a peremptory challenge, because the chance of the panel being exhausted is infinitesimal. If there are 100 people on the panel and it is only possible, without cause shown, for the accused to challenge five, you have ninety-five other persons who, in the first instance, can be challenged on stand-by by the Crown, and it is only if you cannot get a jury from amongst this whole ninety-five that the list is gone over again. I think the proper thing in a State where people are trying to sail through the world under false colours, and in cases where there is a question of dealing justice to the accused, is that if a man is not of a proper character to decide between the State and the accused he should not be on a jury, and if the facts are known and are relevant they should, in my opinion, be made known in a court of justice. These are my opinions, and I stand for my opinion equally as the Minister has the courage at all times to stand for his.
The Seanad divided. Tá, 9; Níl, 7.
- T.W. Bennett.
- James Dillon.
- Michael Fanning.
- Thomas Farren.
- Cornelius Kennedy.
- Thomas Linehan.
- James MacKean.
- Joseph O'Connor.
- Mrs. J. Wyse Power.
- S.L. Brown.
- Mrs. Eileen Costello.
- John C. Counihan.
- Michael Duffy.
- Thomas Foran.
- Benjamin Haughton.
- Patrick J. Hooper.
Amendment declared carried.
I move amendment 8—Before section 62 to insert a new section as follows:—
"Every juror summoned on the panel who has travelled a distance of ten miles and upwards from his residence to the Court House at which his or her attendance is required and who has not a place of business within that limit shall be allowed such actual travelling expenses as have been reasonably and necessarily incurred, and reasonable subsistence allowance if prevented by the performance of his or her duty as juror from returning home at night. Such expenses shall be paid in the same manner as those of State witnesses."
If there is any class in the community whose services are deserving of appreciation I think it is that of jurors. I think the country is under a deep debt of obligation to them for the services they have rendered, but I am afraid they are the only body whose services have been overlooked. Since this State was set up the jurors of the country have rendered excellent service to it, particularly here in Dublin where their duties were extremely heavy. The manner in which they discharged their duties was simply excellent. At great inconvenience to themselves they have attended in our courts of justice and discharged their duties in an upright and fair way. Whatever be the inconvenience which jurors have to put up with in the large cities and provincial towns, it is infinitely greater in the case of those who have to attend the courts in the county boroughs because in the majority of cases they have to travel very long distances. It often happens that they have to remain hanging about the courts all day, and then are ordered to stand aside. It frequently happens, too, that they may have to wait for days in the court before they are called for service. Everybody else, except a juror, is paid for his service under the Judicature Act. I do not see why jurors should be left out. I do not know what the expense involved under this will be but as a distance of ten miles must be travelled before anything is paid the amount I think would not be very great. Under the Bill special jurors are done away with. Under the old system they used to be paid in civil cases. I hope that, in all the circumstances the Minister and the Executive Council will agree to sanction remuneration in these cases, and give equitable consideration to the claims of jurors.
This amendment was taken verbatim, I think from the report of a committee that was set up in Northern Ireland to examine the question of jury service. The Government in Northern Ireland did not accept that proposal in their report, and the Senator asks that we should accept a suggestion made by a committee of another Government which the other Government itself refused to accept. I merely point to that and do not say that these are sufficient grounds for the rejection of the amendment. But this provision was contained in the report of a committee set up there and was not accepted by the Government to which the report was tendered. The proposal is to pay actual travelling expenses. I want to point out in that connection the anomaly, let us say, of paying a strong farmer, as the phrase goes, from the country 3/- or 5/- for his train fare, and waiving aside the claim of the waiter or the tram conductor here in Dublin who is a householder for the loss of his day's wages.
My own view about the question of the burden of jury service is that it must be the contribution of the individual towards the legal system of the country, by way of personal service and sacrifice. Under the provisions of this Bill I do not think it will be necessary to call upon an individual juror in any area more often than once in every three or three and a half years, and it would be impossible to take up the equities of each case and deal with them adequately without imposing an enormous additional burden on State funds. Personally, I would see something quite anomalous and inequitable in paying the travelling expenses of a wealthy man down the country and ignoring the claim of a much less wealthy man resident in Dublin for the actual pecuniary loss involved to him by reason of his attendance for jury service. There are men in Dublin of the type of waiters and tram waymen who have bought out their own little houses, who have the rateable qualifications for jury service and are liable for it, and when these men are called upon to serve in the capacity of jurors they are at a distinct and demonstrable pecuniary loss, a loss greater both absolutely and relatively than that of a farmer who has to take a train into the county town and serve a day or be available for some days on the chance of being required for service as a juror.
My objections are, in the order of their importance: Firstly, it involves additional expense to the State which the Senator, I take it, would agree is a strong prima facie argument against this amendment. Secondly, the burden of jury service has been borne by citizens for a long time, and this proposal never found favour to the extent of being embodied in legislation. On the whole, I suppose travelling facilities have tended to improve as years went on, and it is a less difficult matter now than it was in the past to attend for this particular service. I think as long as people value the jury system and regard it as the actual bulwark of their constitution rights, that there is no alternative to having individual jurors once every three and a half years in the same area. It may not be so often, but they must bear this as a contribution towards the system which they regard as useful and the continuance of which they consider necessary. Like the Senator, I am not in a position to form any estimate of what the ultimate cost would be over a given financial year.
Perhaps by the Report Stage the Minister would.
By the Report Stage I would not have any hope of arriving at an estimate. When I was preparing the Bill I had available a report of that Northern Committee. I noted that recommendation and noted it had not been accepted by the Government to which it had been made. It does not obtain in Great Britain, a wealthier country, and I am not prepared to adopt it here.
Amendment put, and declared lost.
Question—"That Sections 6 and 71, inclusive, stand part of the Bill"—put and agreed to.
PERSONS ABSOLUTELY EXEMPTED FROM SERVING AS JURORS.
9. First Schedule. Before "Masters of vessels actually employed as such" to insert the words:—
"Commercial travellers whose business necessitates their absence from their homes for five days of the week during the entire year."
It will not require much argument to those who understand the special work those people do to justify exemption from jury service of the commercial travellers to whom my amendment applies. Its necessity will be obvious to Senators who are in any way connected with the commercial life of the country. It is computed that there are about two or three thousand commercial travellers in the Saorstát, of whom six or seven hundred leave their homes to go to the country and carry on their business there. It is for the benefit of those commercial travellers I am moving this. In former years it was practically an unwritten law that commercial travellers should not be made attend juries. I have been a householder for over thirty years in the city of Dublin and I was only summoned once to attend a jury, and I understand that that was by accident. I had no difficulty whatever in getting exemption. The commercial travellers fully realise their national and civic responsibilities. They have no desire whatever to shirk them, but they do not wish to perform duties which entail considerable loss. Owing to the slump in trade they are having a very bad time now. They have to put in more work, cover a good deal more ground, and work longer hours. There is no eight hours a day for the commercial traveller. He has to work twelve or fourteen hours a day to keep up his returns. Anything that would interfere with that work, especially when there is no necessity that they should be called upon for jury service, is a bad thing.
There is another class of commercial traveller, namely, the commission agent, the traveller who is paid on commission. He is in a bad plight at present, but he is carrying on with the idea that, perhaps, later on things will mend. While he is doing that, however, he is suffering great loss. He is keeping the machinery of industrial life going, and, while he is doing so, he does it at his own expense, and it would be a terrible hardship on him if he were away in the country, perhaps a distance of 100 miles from his home, to be called back to sit on a jury. That is the position personally as to the loss to the individual. The Minister gave a very pathetic illustration of women coming from various parts of the country, and travelling thirty or forty miles to attend a jury, but what about the commercial traveller, a man, say, in Sligo, whose home is in Dublin, a man who lives in Cork and is working in Galway? Is there no dreadful hardship in bringing him back?
Then, there is another aspect of the case. Commercial travellers, generally, have motor vans, and on Friday they leave them in a country town and have to pay storage on them. Coming home, they get a week-end ticket, but on their arrival back, if they find a jury summons awaiting them, the return half of the ticket is lost. They are kept hanging about the dismal precincts of a court for a whole week, and that, in itself, is demoralising to a busy man. They are kept there at their own loss, and sometimes the week is extended into a longer period. Not alone is there a personal loss to the commercial traveller, but there is also a loss to the community. Commercial travellers advise their customers weeks in advance. They plan out their journeys in advance, and the shopkeeper is expecting a call at a certain time. Shopkeepers cannot carry the large stocks which they formerly carried. High taxation and diminshed trade make for very small stocks. Therefore, the shopkeeper must see the travellers more frequently, and see their goods before they purchase. That is a loss to the community. There are many other aspects of the case which I could put before the Minister, but I hope those which I have mentioned will suffice. It is obviously more important that the commercial traveller should carry on his highly-specialised work in the country than to act in the capacity of a juror.
I would like to call Senator MacKean's attention to the fact that the amendment will not do what he wants it to do. He wants to confer a benefit in the shape of exemption from jury service on commercial travellers, and he defines them as "commercial travellers whose business necessitates their absence from their homes for five days of the week during the entire year." That includes even Christmas week, and they cannot have a holiday.
I think that is a farfetched interpretation to put on it, but, with the permission of the Chairman, I will put in such words as "the entire working-week."
I think the House understands what the Senator wants, and if it is in favour of it, the amendment could be put into shape before the Report Stage.
This is a new claim for exemption, and, as such, is, prima facie, objectionable. If every organised body in the country, every body that has an association, is going successfully to press a claim for exemption, the register will begin to get thin. This claim has not been conceded elsewhere, and has not been conceded in Great Britain or Northern Ireland. It was pressed strongly in Northern Ireland.
It is still being pressed there.
The Senator is a prophet and I am not. I only deal with facts as I find them. This has not been adopted there and, I suppose, there is a full recognition there of the importance of commercial travellers in the economy of that particular area. It does a big distributive trade throughout the rest of the country. Commercial travellers leave by trains every morning, and pour down through this State, and yet a claim for exemption has not been conceded there. In regard to that area and its economy, commercial travellers play a more important part there than they do in the area of jurisdiction of this State, and yet their claim has not been conceded there, nor in Great Britain. The Senator, however, is to drive his thin end of the wedge here, and we are to be quoted as the advance guard, the enlightened people whose example is to be followed. I have no objection to being a pioneer, provided I am satisfied that my pioneering is along right lines, but I am not satisfied about this. I am quite prepared, in reply to the Senator's argument, to refer him to Section 50 of the Bill, and in particular to sub-section (2) of that section which gives to any person who has been fined under the system of automatic fine, which the Bill imposes, an opportunity of making a claim for revision. That sub-section meets the case of men who were absent in the West or down the country on business, and who were not conveniently available for jury service. If their case is good, sound and reasonable, the fine will not, in fact, be imposed. The Senator, however, suggests that with a wave of the hand we are to exempt all commercial travellers.
Well, a section, and you have got to watch and see whether a man is at home five days of the week or not. The police would be doing nothing else if they were put on that task. A commercial traveller is rather like an elephant, inasmuch as he is difficult to define, but you recognise him when you meet him in a provincial hotel. It is very difficult to define him for statutory purposes. Then, the test that was suggested, and it was also suggested in connection with other people, namely, membership of an association, is not a test which I am prepared to accept. It has been suggested in connection with other callings. It would, no doubt, help to swell the membership of the association, but it is no satisfactory test at all. If I were put in a corner and a gun were held to my head, and if I were called upon to say precisely what a commercial traveller was, I think I would have considerable difficulty in giving a satisfactory answer. I doubt whether it would be possible to arrive at a definition that would meet the case.
The Senator sets out in his amendment "Commercial travellers whose business necessitates their absence from their homes for five days of the week during the entire year." Then he hedged on that and said "during the entire working year." I do not know how much of the year is a working year. I know a good deal of the calendar year is my working year. How on earth are we expected to find out who the people are who would come under that exemption?
They could be asked to produce certificates from the firms.
I have no doubt that the certificates would be forthcoming. I cannot accept that amendment. I do not think it ought to be accepted. I do not think the case is any stronger for the commercial traveller than for other people whom it would be easy to mention—people engaged in other callings. If a man is genuinely absent and can show that, then the fine will not be insisted on; but I am not prepared to write into the Bill the exemption of a class the boundaries of which are very vague in my mind and, I expect, equally vague in the minds of a great many Senators. What is a commercial traveller? The Senator referred to commission agents; he referred to the dullness of trade and the question of individual hardship. Well, of course, going down through that exemption list, individual hardship was never meant to be the criterion, the deciding factor, in exemptions. It was rather a question as to whether the public interest required that certain classes should be exempt. It was not on the grounds of inconvenience that the doctor, for instance, was written down as an exempted person. It was on the grounds of the undesirability of his being absent on this particular duty when he might be urgently required; and so on in other cases.
There are some few exemptions based on special considerations—the exemptions of persons engaged in the legal profession, such as barristers and solicitors; but, for the most part, the criterion has been the public interest. They have not considered in Great Britain or Northern Ireland that the public interest required this exemption for a commercial traveller and unless we consider it here we ought not to add that class to the schedule of exemptions. I do not think a case can be established on grounds of public interest and if you go into the question of private inconvenience, well then, exemptions would be very widespread indeed.
The Minister has emphasised the difference between private inconvenience and the public interest. I would like to mention the case of a commercial traveller whose duties are mapped out weeks before and if he is called upon for service he has to upset all his arrangements, perhaps lose trade and cancel his journey. The Minister says he does not know the definition of a commercial traveller. The definition of commercial traveller is surely the definition placed upon the profession by the proper authorities. The Commercial Travellers' Association recognise a commercial traveller as a person who goes into the country to get orders or collect money for his firm and who endeavours generally to further his firm's interest. If the Minister did not know that definition before then, at least, something will have been gained by the amendment. Again, the Minister asks how will you know a commercial traveller works five days a week. The railway companies issue weekly tickets and they ask a commercial traveller to produce documentary evidence to show that he is a commercial traveller. A letter from his firm is quite sufficient for that purpose. I will leave the balance of the Minister's arguments where they are.
I think the amendment is lost.
I ask for a show of hands.
A show of hands having been taken.
I now ask for a division. The show of hands has indicated that the amendment was carried.
I cannot take your counting, Senator.
I ask that a division be taken.
I cannot permit a division to be taken. You sought, and said you would be satisfied with, a show of hands. I will let you bring the matter up again on Report. I do not wish to shut you out.
Why cannot I have a division?
I could not allow a division after you asked me for a show of hands.
Then verify the show of hands.
I will not go back upon that either. There must be some finality. I have gone as far as I possibly could go for you. I will allow you to raise the matter again on the Report Stage, if you wish to do so.
If you say anything more about it, Senator, I will have to take another course.
I do not mind what course you take. I want my rights here as a member of the Seanad, and friends of mine have declared the amendment was carried.
Amendment 10 is in the name of Senator Brady.
Perhaps the Seanad will allow me to move this amendment on behalf of Senator Brady? The amendment is as follows:—
First Schedule. To add at the end of the Schedule the words:—
"Bona fide working journalists certified as such by a recognised organisation of professional journalists."
The purpose of this amendment is to exempt working journalists certified as such by a recognised organisation of professional journalists. The grounds on which this exemption is claimed is that it is in the public interest that they should be exempt, and also that it would be a personal hardship to insist on their acting as jurors. By working journalists here is meant every editor or sub-editor of a daily paper, or a member of the reporting staff of any such paper. I am not sure that it would not be better to allow this amendment also to remain over until the Report Stage in order that working journalists might be more accurately defined.
I do not know what view the Minister takes of the amendment, but I am not sure that working journalists is a term that could be very easily defined. In the case of the editor or sub-editor, they both do practically all-night work. It would be a very great personal hardship on a man doing that kind of work to make him attend on a jury during the day. They also provide the public with their journalistic efforts in the morning. It is in the public interest that that should be done, and it is not the kind of work that one could delegate.
So far as the reporters are concerned, they are busy all day and up to late hours at night. In many cases they ought not to be on a jury. There is a large class of cases on which a reporter should not be on a jury. He is not a fit juror. I refer to cases where the reporter has been going around collecting information and particulars. That applies particularly to criminal cases. A reporter who has had anything to do with the working-up of facts in criminal cases ought certainly not be on the jury.
I had some trouble, in connection with this amendment, in ascertaining just what a recognised organisation of professional journalists is. Recognised by whom? By its members? I think that recognition would be easily forthcoming if the net result of it were that all the members of the organisation were going to secure exemption from jury service. Senator Brady, before he went away discussed this amendment with me. So far as I am concerned, the only ground he advanced to which I would be prepared to give any real consideration or recognition was the point which Senator Brown mentioned last—the fact that a man engaged on a particular case might form views and preconceived ideas with regard to it to the extent of rendering him, perhaps, an unfit person to act in the capacity of juror in relation to that case. In so far as there is substance in that, it seems to me a matter that might well be met by ad hoc exemption —that it should be open to a journalist to plead that he had been engaged professionally in reporting the facts of that particular case, that he had interviewed people in connection with it and so on and that generally, he would not go into the box with an unprejudiced mind. Of course, there is this point with regard to a plea of that kind—that those who read his contributions on the matter would not have quite unprejudiced minds either.
Senator Brady asked me to envisage the Malahide crime and reminded me that journalists, representing a great many papers, had been engaged in writing up that crime. Personally, I think they engaged in that particular work to far too great an extent and that at least one paper overstepped the limits of propriety in connection with it after it had become the subject-matter of police investigation. In so far as there is substance in that particular representation of Senator Brady, I think it could well be met by a claim on the part of a particular journalist that he be exempted from serving on a jury in connection with a particular case on the ground that he had been engaged on the case professionally. That would meet the justice aspect of the matter—that this man who had interviewed persons in relation to the crime and so on should not carry his prejudices or preconceived ideas into the jury box. If we put that on one side, there is not really much of a case.
Let us take the public interest criterion again. Just where does it come in? Could one say that it is so important that the public should get their regular daily supply of news and get it in full volume that it is undesirable that the suppliers of that news or any of them, should be interrupted in their work, even for a day, to render service in the courts as jurymen? I do not think that is a strong plea. I do not think, when you apply that touchstone of public interest, a case can really be made out for this particular exemption. There is just that special case on the aspect of the fullest justice and the fairest trial by men without prejudices, without preconceived ideas as to where guilt lies. But I think that that could be met by an ad hoc exemption. When one passes on to consider the general question, I do not think that it stands the test of the touchstone of the requirements of the public interests. I leave the matter to Senators to decide.
The Minister asked by whom "the organisation of professional journalists" referred to would be recognised. Would it not be feasible to have it recognised by the Judge who would exempt? There are some categories in the list of exemptions in the Bill that are equally indefinite. I do not object to registered dentists being on this list. But there is no register of dentists in this country. Who is to decide what a registered dentist is?
It is purely accidental that there is no register here at the moment. I hope there will be a register within six or eight months. Normally, there would be a register of dentists, controlled by a dental board, just as there would be a register of doctors. I object to making membership of an association the test for exemption.
That is quite apart from my objection to the amendment intrinsically. I do not think membership of an organisation should be made a test. I suspect that one anxiety to make it a test is to induce a great many who are not members of an organisation to become members.
It is not provided in the amendment that only members of an organisation should be exempt. All that is asked is that the organisation should certify that its members are working journalists.
And the certificate would be forthcoming only for members.
There is no such intention.
That is really a side issue, because if one were prepared to accept the amendment on its merits the certificate of the editor or proprietor of a newspaper could be substituted for this recognition by an organisation, to which I take exception. I should prefer that that question be put on one side, and that Senators should concentrate on the merits of the amendment as to whether or not there is a case on the grounds of public interest, because I think those should be the grounds for the exemption of working journalists as a class from jury service. That is the net issue, as Senator Hooper will agree. The other question is something incidental, and could be discussed as a thing apart.
Amendment put. On a show of hands the amendment was declared carried.
I move amendment 11:—
First Schedule. To add at the end of the Schedule the words:—
"Persons in the permanent employment of the Commissioners of Irish Lights, and the members for the time being of the Inspection Committee of the said Commissioners."
This amendment applies to a very small class, and here I think public interest is entirely on the side of the amendment. The intention of the amendment is to exempt persons in the permanent employment of the Commissioners of Irish Lights. It might be thought that these people came under the exemption applying to "persons paid out of public moneys," who are provided for in another portion of the schedule. However, they do not come under that exemption, because "public moneys" there would mean the public moneys of this State, and, as a matter of fact, the employees of the Irish Lights Commissioners are not paid out of our public moneys.
It is an amendment to exempt lighthouse-keepers, the men who man lightships, but who live at home for one month out of three, in their own houses. It is not in the public interest that men like these should be allowed to serve on a jury. Lighthouse-keepers are not rated, so that the men who actually live in the lighthouses will get off. I refer to "persons in the permanent employment of the Commissioners of Irish Lights." I do not think that the same case could be made for the rest of the amendment. Hitherto these men have been omitted from jurors lists, but they are generally residing here in Dublin, and I could not make the same case for them.
Then you do not move that part?
I would not have been prepared to accept that portion, to which the Senator makes special reference. When this suggestion was mooted at first, I wondered how those people had got off for the last fifty years without exemption of this kind, and I then found that lighthouse-keepers are not, in fact, rated for the relief of the poor, and are consequently not liable and do not need this express exemption.
That is right as regards lighthouse-keepers.
Yes, but take those with houses ashore. Those houses are built and maintained by the Commissioners of Lights, and the occupants are not themselves liable. They are not rated occupants, and they would be exempt under other aspects. I have no objection to accepting the amendment, though I regard it as something gratuitous, something that is quite unnecessary, because in fact the people to whom it refers are already exempted.
I am satisfied in regard to those who live in the lighthouses, but it is a different matter so far as the men who man the lightships but live in houses of their own, such as at Kingstown, are concerned. There is a house on the pier at Kingstown where the man who mans the lighthouse every night actually lives, but I understand that the men who man the lightships have houses ashore.
You would have to say "persons in the permanent employment of the Commissioners of Irish lights who are qualified to serve."
Yes; who have the property qualification.
The Senator may take it I am prepared to accept the principle that people engaged on this particular work ought not to be liable for jury service.
I am prepared to bring it forward on Report.
On behalf of Senator Sir John Griffith I propose the following amendment standing in his name—
First Schedule. To add at the end of the Schedule the words "civil engineers and architects engaged in the active practice of their profession."
The grounds on which the amendment is put forward are that they have hitherto enjoyed such exemption; that the proper performance of their public duties in charge of railways, bridges, waterworks, etc., would be interfered with by enforced prolonged attendances at court, and the convenience, if not the safety, of the public affected; that they are frequently employed as witnesses in cases to be tried, and therefore entitled to exemption in the same way as solicitors' assistants.
I hope the Seanad will unanimously and enthusiastically reject the amendment. I do not think it has any merits at all.
Amendment put and negatived.
Title put and agreed to.
Bill ordered to be reported.
The Seanad went out of Committee.
Bill reported with amendments.