Treason Bill, 1939—Committee.

(1) Every person who commits treason within the State shall be liable on conviction thereof to suffer death.

(2) Every person who, being an Irish citizen or ordinarily resident within the State, commits treason outside the State shall be liable on conviction thereof to suffer death.

Mr. Douglas

I beg formally to move amendment No. 1:—

In sub-section (1), line 23, to delete the words "suffer death" and substitute therefor the words "penal servitude for life."

This amendment requires very little explanation. The subject was dealt with incidentally on the Second Stage, and a good many of the reasons, pro and con, were discussed. I do not propose to take up the time of the House at any great length, but to state briefly the reasons why I believe it is a mistake to include the death penalty for treason in our normal legislation; and secondly, to give the reasons why I prefer the form of amendment which I am moving to the other similar amendments which were handed in afterwards, but which I still think are not as suitable as the one which stands in my name. It was emphasised by the Taoiseach that we should remember that, of the two Bills dealing with offences against the State which come before us to-day, the first, that is the present Bill, is the normal ordinary legislation which is intended to be part and parcel of the ordinary law of the State. That, I think, was accepted pretty generally by all sides and all sections of opinion in this House, and, I think, in the Dáil. The question, then, we are considering is not whether there might be exceptional circumstances or a state of actual war, for which special measures might have to be taken, but as to whether in our opinion the death penalty should be the penalty, in fact the only penalty, for treason as defined in that part of the Bill.

I am opposed, and always have been opposed, to capital punishment but I do not think it necessary or wise to initiate a debate on the principles involved, for or against capital punishment. I prefer to confine myself entirely to the specific matter before us—that is, as to whether capital punishment should be the penalty for treason in this country. I should like to point out, first of all, that we are not now dealing with the inevitable loss of life that will occur in a state of civil war, should such a regrettable event occur again in the history of this country. We are dealing now with persons who have been arrested, imprisoned and tried by an ordinary court. In most cases that would apply. The court having found them guilty, after full trial, the State decides that the only penalty that can be enforced is that of taking away their lives. I am particularly anxious that nothing I should say should minimise the seriousness to my mind of an attempt to interfere with the legitimate Government of the State. I do not want anything I should say to appear as though I had a trace of sympathy with the kind of theoretical excuse which can be brought forward, that of course treason is a terrible thing, except in the particular circumstances with which the person who is arguing has sympathy. It does not seem to me that if I had 100 times the objection to the present Government that I have, there would be any possible excuse for aiding, abetting or assisting in any way the overthrow of that Government by force.

Having made that, I hope, clear, I think we have to face the fact that the vast majority of the people in this country feel that there were, at any rate, and that there possibly may be, circumstances in which it would be right to take up arms against the State and that we do not place the man or the woman who is found guilty of treason in the same moral category as one who is found guilty of murder. If a man is found guilty of treason and if he is imprisoned, as I suggest, with penal servitude for life, he is safe in the keeping of the State. He can do no harm, and if circumstances change, and the Government of the day is satisfied that that man, or those with whom he was associated, are no longer dangerous or if circumstances change in any direction, it will be quite possible to release him at such time as the Executive think fit. I see no reason whatever in making the period seven years, ten years or 14 years. It seems to me that the alternative to the death penalty is imprisonment, virtually at the discretion of the Executive. That is, for all practical purposes, what penal servitude for life means. I do not think that the period of imprisonment should be left to the discretion of the judge. We have not provided for different degrees of treason in this State. I understand that an effort to provide for these different degrees of treason was ruled out of order because of the definition in the Constitution. I, therefore, think it would be unfair, unwise and not in the interests of justice to leave it to a judge to decide: "So-and-so has been found guilty of treason; shall I use clemency, as it is commonly called, and sentence him to penal servitude for life or shall it be the death penalty?" For that reason, I am opposed to the amendments which leave that decision to the judiciary.

I should like to suggest what is my own strong conviction. I believe we have had too many executions for treason in this country, in the last 20, 30 or 40 years. I believe that for a very considerable time the carrying out of the death penalty will create sympathy, not so much for the persons concerned but sympathy for the cause for which they are believed to have suffered. What I might call the niceties of explanation would suggest that, in such circumstances, a particular treason might be justifiable. I think it is a definite mistake to include, as is included in this Bill, the death penalty as the only penalty for treason. I know that under another Bill which is of a more temporary nature, and which An Taoiseach has said is an addition to what he hoped would be our normal legislation a person can be charged with other types of offence against the State and the penalty is different, but in this Bill the fact is that we are dealing with treason and the Bill, when an Act, is to be the normal law of the State. I suggest it would be a wise step and that it would not endanger the country in any way should there be—an opinion which I do not personally share but which I know is held by a considerable number of people—a danger of circumstances in which the death penalty may have to be reverted to, if that were done by special legislation or by a special order, in unique circumstances, and not be left, as it is in this Bill, as the normal penalty.

I also consider that it will be rare, if this Bill becomes law, except in these exceptional circumstances to which I refer, that the death penalty will be carried out. I suggest that you will not provide the necessary preventive effect by keeping the death penalty for treason when normally it will be, in practically all cases, commuted. The fact that in this Bill, as it stands, for every type of treason—and almost every type is included—you have one penalty, and that penalty the death penalty, means that the Executive will, in a great number of cases— I think the great majority of cases— under normalacy, have to commute that to some other form of punishment. I suggest that that means that you get all the drawbacks of the death penalty and none of the advantages. There perhaps I am arguing against myself because, as I stated before, I do not believe in the death penalty.

I think I have said sufficient to indicate my views on this section. I gave expression to similar views a considerable number of years ago. I think there were eleven members in the Seanad who were then opposed to the death penalty in the Treasonable Offences Act, which is now law but which is going to be repealed. I think it is desirable that the number of Senators who still hold that view should be registered even though they may be in a very small minority. For that reason, I want to press this amendment to a division.

Dr. Rowlette

I should like to know whether the discussion on this amendment is to be taken as covering amendments Nos. 3 and 4? They all deal with the same clause of the Bill.

Cathaoirleach

That is a matter for the convenience of the House. The effect of the amendments is to provide alternative punishments for the death penalty. If the Seanad is agreeable, discussion may range over all the amendments dealing with the death penalty and a decision may be taken on any one or other of the amendments. Do Senators agree that that is the best course to pursue?

Dr. Rowlette

Are you taking them all together?

Mr. MacDermot

It seems to me that there is nothing to be gained by taking them all together. The first amendment can be discussed on its merits. It is quite true that a lot would be said in discussing it which it would be unnecessary to repeat on the other amendments but each of the amendments makes a different proposal and stands on its own merits.

Mr. M. Hayes

That is quite true, but the attitude of the Minister towards the first amendment would have an important bearing on the matter. It would be very important that a Senator should know, before making up his mind as to how he should vote on amendment No. 4, what the attitude of the Minister was on amendment No. 1. If we are going to have the death penalty remaining, and if it is not going to be, so to speak, diluted in any sense, then one may take certain action on amendment No. 1 which he would not take if the Minister showed a different attitude. We should, therefore, like to hear the Minister's views before coming to a decision.

Minister for Justice (Mr. Ruttledge)

Amendments Nos. 1, 2, 5 and 6 seem to be practically the same. Amendment No. 3, I think, is unconstitutional, but of course that is a matter for other people.

Mr. M. Hayes

I think it is myself.

Mr. Fitzgerald

As I read them, they are not the same. One is to abolish the death penalty altogether and make it only penal servitude for life. Is it not a fact that the others permit the death penalty, leaving to the judge the alternative?

Mr. Douglas

I suggest that we should discuss amendments Nos. 1, 2, 5 and 6. If my amendment were then to be defeated, there really would be no object in putting amendments Nos. 5 and 6. If it were carried, then amendments Nos. 5 and 6 could be put as amendments to it.

Cathaoirleach

Then amendments Nos. 1, 2, 5 and 6 will be discussed together.

Dr. Rowlette

I agree with much that has been said by Senator Douglas. Like him I have an objection to the death penalty in any circumstances. I gave some reasons for that a fortnight ago when discussing the Second Reading, and I do not propose to tire the House by repeating them. I agree with Senator Douglas also in his remarks, that even if there is the death penalty attached to treason, there are great differences of degree in treason, and they should not all be subject to the same penalty. I cannot agree with the argument put forward in the debate on the Second Reading that reason is as grave a crime as murder. I do not think any Senator, searching his own mind and thinking of a particular act of treason, will really hold the view that that act of treason was on a level with the act of murder. That view seems to me to rest on the belief that the State is something sacred; that it is something more and greater than the instrument or the people who set it up, thereby approaching certain modern and highly dangerous doctrines. I do not think that an attempt to injure the State as it is regarded as existing at a particular moment is at all the same thing as endeavouring to take the life of an individual citizen of the State. That view was expressed by others in different terms in the debate a fortnight ago.

The judgment of the gravity of an act of treason does not depend ultimately on deep moral reasoning, as the judgment of the gravity of an act of murder depends, but depends very largely on public opinion at the particular moment. We find in the history of any country that what was regarded as treason and punished at one time was regarded as heroism in a succeeding age; that the traitors of to-day became the heroes of to-morrow. It is not necessary to quote examples of that which are familiar to us in the history of any country. To apply to that a priori the same penalty as to the act of murder seems to be an entire misapprehension of morality. I think Senator Douglas stated that high moral authorities have declared that the act of rebellion is justified morally in certain circumstances. The act of rebellion is what constitutes treason, and if we adopt the penalty set out in this section we are determining that certain acts which are morally justifiable in certain circumstances are nevertheless to be regarded as the most serious crimes in the State, to be punished with the death penalty.

I have been speaking so far of what may be regarded as an a priori argument against the death penalty. But I think there is an argument which ought to affect us as practical men—that the death penalty will not be carried out in so far as a trial for treason is conducted in the ordinary courts and the decision given by the verdict of a jury. I do not think any Senator will believe that, where the penalty of death is the only one permissible to a judge, a jury will, in every case of alleged treason, or even in a large proportion of cases of alleged treason brought before them, bring in a verdict of guilty. If there is no escape for the jury except by breaking their oath, they will break their oath as they have sometimes done in the past. Where the penalty is extreme, it hampers instead of helps the administration of justice. Admitting, if it is admitted, as Senator Douglas suggested, and I think Senator Mrs. Concannon made the same point a fortnight ago, that there are different degrees in treason, it cannot be expected as a practical measure that convictions will be obtained in the ordinary courts.

In introducing the Second Reading a fortnight ago, the Taoiseach said that this crime of treason would be tried in the same way as murder is tried, but there is nothing in the Bill stating that. There is nothing in the Bill, and as far as we can see in the other Bill which will come before us presently, which secures that. This Bill states: "Whenever a person charged with treason is indicated therefor before the Central Criminal Court, he shall be so indicted in the same manner in all respects as a person charged with murder is required by law to be indicted...." That does not suggest that all persons to be charged with treason will be indicted in the Central Criminal Court; and, if we are to have any regard to the Bill which is coming before us presently, it is clear that persons charged with treason are, at any rate, at particular periods, unlikely so to be indicted in the Central Criminal Court and are likely to come before other courts. It is possible that convictions will be obtained in that way; but, as long as the trial is by the ordinary courts of the land—and I think every Senator will agree that as far as possible all trials should be by the ordinary courts of the land and not by a special tribunal—then this section will render the Bill inoperative. That is a practical consideration which Senators should bear in mind, and they should decide to provide an alternative penalty.

The difference between my amendment and that of Senator Douglas is one of degree. Senator Douglas wishes to delete the words "after death", and substitute therefor the words "penal servitude for life". I suggest the substitution of the words "penal servitude for a period not greater than twelve years". It is possible in practice that they will work out in much the same way, because, as Senator Douglas suggested, once the danger is over, if the person convicted has not been executed, he is likely to be set free and his imprisonment will come to an end. I submit that it is bad policy to put into a very serious statute conditions which are not intended to be carried out.

If a person convicted of this crime is sentenced to penal servitude for life, and if, as Senator The McGillycuddy proposes in his amendment, power is taken from the Executive to interfere, I think the sentence is going to be a very long one. It seems to me there are many degrees of treason for which 12 years would be adequate. I ask the House seriously to consider this matter, and to decide in the first instance, if the death penalty should be removed from the Bill altogether, and, in the second instance, I hope it will accept my suggestion that the highest penalty should be what I propose in the amendment.

Mr. M. Hayes

Are we to hear the Minister as to the attitude he will take up on the amendments? It would be important to know that attitude at the beginning.

Sir John Keane

I do not know if Senator Rowlette is right in suggesting that even normal treason cases will be tried by a jury. I anticipate that if Part V of the Offences Against the State Bill comes into operation, if there is any degree of treason, it will be tried by special courts.

Mr. Fitzgerald

That is not in the Bill.

Mr. Ruttledge

I ask the Seanad to reject these amendments. I feel that Senators who have certain very definite views against the imposition of capital punishment feel in a particular way towards the punishment set out in the Bill. Senator Douglas seems to regard the offence of treason in some lesser or lighter way, if one might so describe it, than the offence of murder can be regarded. In this Bill treason is clearly defined as the levying of war against the State. Treason, as defined in the Constitution, in that way visualises the levying of war against the State, or inciting, for the purpose of levying war, or to achieve their object by violent methods. The Offences Against the State Bill, with which the House will be dealing shortly, provides penalties as punishment for the smaller or more minor forms of treason, but the treason contemplated in this Bill is treason where people incite, and actually levy war against the State, and if the House can bring its mind to realise what such a position might be, Senators will realise that it is not one life might be lost, but very many lives. While Senators might have at the back of their minds some means of getting an opening, if I might so describe it, on the abolition of capital punishment, I suggest that this Bill is a most inappropriate place to do it. We have capital punishment in this country at present.

I think some reference was made that this should not be introduced in a normal Bill, but it is quite normal to introduce it in a Bill if we regard the infliction of capital punishment, say in murder cases, as undesirable, and if we regarded it as abnormal it would be the duty of the Government, if so inclined, to introduce a Bill to abolish capital punishment. I am not going to allow myself to be influenced by my own views, which are that I have not been able to see a position where we could abolish capital punishment. Everyone loathes it, but it is like a lot of other loathsome things that people have to put up with, and to stand by as a deterrent, and for the purpose of protecting the lives of citizens such deterrents are necessary. I cannot see the varying as to the seriousness of certain cases of treason that some Senators seem to have in mind. If it was only to write it up there as a deterrent, which is not exactly the purpose meant in the Bill, and as pointing to people who are contemplating levying war against the State, or inciting people to levy war against the State, that the punishment they would have to meet is death, then I think it would be a very valuable deterrent. It does not follow, because a person is sentenced to death, that the sentence is carried out.

In that connection, if I might go away for a moment to what has been introduced by some Senators, the alternative, I think, that would be a most undesirable position to have. In the first place, I do not think any judges would wish to have such onus placed upon them. Judges are appointed by the State, and when appointed they are put in a position where they are protected and more or less detached from the State. If one might use the expression, there is a political head in the country, a political authority, who has to take into consideration, in any particular circumstances, that whole situation as it affects the lives of the citizens, and the protection of the State itself, and they are the people upon whose shoulders the responsibility should rest. We might also find one judge having, like other human beings, his feeling with regard to capital punishment, when another judge might have different views, and it would be the luck of one individual if he was put before one judge rather than the other. That would be a very undesirable position to have.

It is mentioned also that, in certain circumstances, and in a certain situation, probably, the Central Criminal Court would not be available. I hope such a situation would not arise, but I should like to remind Senators that if such a situation did arise, in the Bill that will follow this one, as amended in the Dáil, there is an appeal from those special criminal courts contemplated being set up to the Court of Criminal Appeal. I can sympathise, perhaps, or at least I can understand that from human motives or otherwise Senators regard with certain loathing, I suppose, the imposition of capital punishment. We have to face the position that by having that punishment so written into this Bill you have, first of all, a deterrent. I believe there will be a deterrent effect on people who may be contemplating the activities which this Bill proposes to deal with. It has happened and it does happen that, from time to time, when sentences of imprisonment or penal servitude are imposed, there is a review and either an amnesty or a release under some other conditions, and it may get into people's heads that by inciting to and encouraging they may bring about the position which they desire and that, if they are arrested and charged with it, they can feel that, at any rate, in a year or two, or three or four years more, they are going to be released from prison. I am only talking hypothetically, but I am speaking in the way that I feel it would affect people who may have in mind activities of the sort that this Bill contemplates dealing with. I ask as strongly as I can that the Seanad should reject these amendments.

Mr. MacDermot

I agree with everything that has fallen from the lips of the Minister for Justice in the remarks he has just been making. In fact, they have almost deterred me from speaking, because he said nearly everything that I felt should be said on the subject, but there are just a few words I should like to add.

Something has been said about the difference in moral guilt between a murderer—a common murderer—and a person who is levying war against the State, and who, in levying war against the State, declares himself necessarily ready to kill and cause to be killed multitudes of his fellow-citizens. I do not deny that very often there will be a difference of individual character in favour of the man who is guilty of treason as compared with the common murderer, but is that what we have to consider? We are not here to apportion punishment according to the precise depth of a man's moral guilt, of his guilt in the eyes of the Almighty. We have to apportion punishment, surely, in such a way as to consult the welfare of the community. I detest the death penalty, and I would be personally very slow to vote against a Bill for abolishing the death penalty altogether, with the one single exception of the sort of political offences that do not seem, in the eyes of many of our people, to have much moral guilt, and it is for the very reason that they do not, owing to historical circumstances, disgust and horrify our people as much as they ought to disgust and horrify them, that the preventive effect of the death penalty is necessary.

Now, if an invading force were arriving on our shores to-morrow, whether it were a force of English soldiers or German soldiers, or a force of any sort of soldiers except Irish soldiers, what would we do with them? Would not our Army do its best to shoot them down? It would. Does that mean that those invading soldiers would be persons of as much moral guilt as ordinary murderers or of more moral guilt than ordinary murderers? Of course it does not. They might be perfectly decent men carrying out the orders of their superiors as they were obliged to carry them out, but we should shoot them down none the less. And our reason for that is that it is the only way we have to protect the life of the State and to preserve our liberties. So, too, in the case of people within our shores who are levying war against the State, there is no other effective way, I submit, to deal with them except by keeping alive the death penalty in regard to such offences. Some of these men may be high-minded and misguided enthusiasts. That is quite true. It is quite true that there is an old rhyme: "That treason never prospers, what's the reason? Why, if it prospers, none dare call it treason." It is quite true, therefore, that those who have been guilty of treason to-day may be acclaimed as heroes to-morrow if history goes their way, but that is not a reason for indulgence, but quite the contrary. This is a free Constitution. If we were living in a country where there was not a free Constitution, and where the people could not make their own choice by their own votes, the situation would be very different; but here we have a free Constitution, and surely it is our job to protect it.

As the Minister says, if the death penalty were not applicable there is not the smallest doubt that a great number of optimistic politicians would think that they could go forward endangering the lives of their fellow-citizens by treason without much more risk than that of a short term of imprisonment, because they would feel that the natural kindliness of the Irish people—even if politics did not take the turn they hoped—the natural kindliness of the Irish people and the indulgence that foreign oppression has naturally produced on the subject of such offences as treason would lead the people of this country, and the Government of this country in obedience to the people of the country, to release them from jail in a very few years. Therefore I really do not see how we can get on without the death penalty in the case of political offences that involve death or danger of death to the citizens of this country, even though I personally would like to see the death penalty disappear in respect of every other class of offence.

The one argument that seems to me to have any weight against the death penalty in the case of treason is the difficulty of securing convictions from juries. I do think that there will be that difficulty, but I see no way of escaping from it except by the gradual education of our people as to the attitude that is proper in respect of our own Constitution. We shall not always continue, I am sure, to be as indulgent on the subject of treason as we are now. Our people will not be, as they have been even up to the present, in many cases, confused by the fact that what has been called treason has been glorified in the past, which leads them to think that there is something glorious in treason even in the present, when we have our own Constitution, and a free Constitution. That being so, I think we may reasonably hope that, as time goes on, juries, even if at first it is difficult to obtain convictions from them, will learn to do their duty without fear or favour.

Mr. M. Hayes

I am glad we have heard the Minister, and with some part of what he said I am in agreement, but it is difficult to discuss this amendment of Senator Douglas by itself, because other amendments on the Paper are involved; but it seems also to involve, as the Minister himself suggested, that we must consider how this particular Bill will operate when it becomes law, when the other Bill which we will have later on this evening—the Offences Against the State Bill—becomes law. In the first place I should prefer not to have to vote on this particular Bill against the death penalty in itself. The principle of whether or not the death penalty ought to exist in our law at all is something which ought not to be decided in this particular Bill but ought to be decided by itself.

There may be a great many reasons in favour of it. It is possible that, if the matter were discussed at some length, dealing merely with the principle of the death penalty for any offence, some of us might be induced to vote for the abolition of the death penalty. I think that this is not the place in which to decide it, and, therefore, in the ordinary way I would not be prepared to vote for Senator Douglas' amendment.

When you consider this Treason Bill you find that treason is defined in it in the same way as we find it defined in the Constitution. It is "levying war against the State or assisting any... person or inciting or conspiring with any person to levy war against the State, or attempting by force of arms or other violent means to overthrow the organs of government". Now it must be plain to every person that there are a great many different types of offences which would be regarded as treason under that Article of the Constitution, and which, therefore, under this Bill would be punishable by death. But it seems to me, from our own knowledge of life in this or any other country, it is not just that there should be only one penalty for any and every form of treason. For example, on what occasions is this Bill going to be used? Is it ever going to be used? For my part, I cannot conceive at all of any case in which a man will be indicted before the Central Criminal Court and a jury for treason. If you indict a person for anything less than the use of arms, involving the actual death of attempted death of citizens, there will be two reasons why that man should not be found guilty. In the first place, I think it is unjust, and will be agreed to be unjust, that a person should be indicted and executed say, for a membership of an organisation. Presumably, if a young fellow joins an organisation which has arms and which is prepared to overthrow the State by force of arms, he is conspiring to overthrow the State. If he is prosecuted before a jury, it is surely unjust that, in a state of affairs which is not a state of emergency and is not so proclaimed, death should be the penalty. But, apart from the injustice of it, do we not all know from our experience that there is no chance at all of getting a conviction. In other words, if you are going to leave this Bill in such a way that only one penalty is provided, it is not only unjust in certain circumstances, but it seems to me also unworkable.

I agree entirely with Senator Rowlette that jurymen here, when confronted with that kind of position, will do what they have been known to do in other cases, and not cases entirely concerned with treason, in certain kind of cases where murder was involved and where the jury thought—it is now generally agreed thought quite properly—that death was not the proper penalty. When you have no proclamation to the effect that there is a state of emergency, is there a case for bringing a person before the Central Criminal Court, trying him before a jury, and getting him condemned to death? If there is not, what is this Bill for? If actual attacks are, in fact, being made on the State, then quite clearly the provisions of the other Bill which we will have before us this afternoon—the Offences Against the State Bill—come into operation. Presumably, then, a proclamation will be issued under the provisions of that Bill, and persons will be tried for making war against the State by special tribunal which will not have a jury and from which, as the Minister says, consequent upon an amendment which he accepted in the Dáil, there will be an appeal to the Central Criminal Court.

The offences for which I think myself death is the appropriate penalty, will not occur during periods when we have not got a special state of emergency. If these offences are tried before a jury there may be the possibility of getting a conviction, but if a person is indicted before a jury in the Central Criminal Court for any minor forms of treason, and we must admit that there are different forms of treason, then a conviction will not be obtained. For that reason it seems to me that the Minister is not well advised to insist that this Bill should remain in its present form. In the other House this Bill was put through by the Taoiseach and no kind of amendment was accepted to it. The Offences Against the State Bill was put through the other House by the Minister for Justice. A great many amendments were accepted to it, the Minister showing himself, I think, a very reasonable person. I suggest that he should consider continuing that reasonable course in this House where we are discussing the matter with such extravagant calm, and see that this Bill is made more in consonance with justice and reason and with what will eventually prove to be the possibility of practical working.

I would like to hear from the Minister what kind of interlocking there is going to be as between the working of this Bill and the working of the Offences Against the State Bill. Is the Government of the day—the Attorney-General of the day, presumably, which means the Government I suppose although it ought not—going to have the option of saying under what particular Bill a man is to be indicted? If the Government is to have the power of bringing a man under this Bill before the Central Criminal Court, with death as the penalty, or of trying him under the other Bill with a lesser penalty, then for my part I would be very much inclined, if the Minister's attitude is what he has stated it to be and if it continues to be that, to vote simply for the deletion of the death penalty rather than have the position that you have a Bill which has only one penalty for all kinds of offences—the death penalty— because I think that that is both unjust for certain offences, and unworkable in the circumstances of this country.

Mr. Quirke

I intend to vote against the amendments. While doing so I have the greatest possible sympathy for those who have spoken in favour of them. We have a certain number of people in this country who are against the death penalty in any circumstances. The death penalty has not been carried out in many cases in this country over a considerable period. When the circumstances were such that one would imagine that 99 people out of every 100 were in favour of the death penalty you still found that you had a considerable number of people who loudly protested against it in the cases in which it was carried out. You have the same position in other countries. One particular case occurs to my mind. It was the case of Hauptmann who paid the extreme penalty in connection with the kidnapping of the Lindbergh baby. Quite a large number of people in the United States of America were against the carrying out of the death penalty in that case. For my part I would be in favour of it in such circumstances. That is one of my reasons for voting against the amendments.

We had a long speech from Senator MacDermot. There is only the one part of it that I disagree with, and that is where he stated that treason in the past was more or less looked upon as a glorious deed. I think that is a fair representation of what he said. In my opinion, if we are to consider this Bill properly and the amendments that have been submitted to it, the first thing we must do is to rid our minds of any confusion that is in them so far as the present conditions and the past are concerned.

Mr. M. Hayes

Hear, hear!

Mr. MacDermot

If I may be allowed to intervene for a moment, I may not have made myself clear. That was the very point I was trying to make. I drew a sharp distinction.

Mr. Quirke

I accept the Senator's explanation but I took it from his statement that it was liable to misinterpretation by a number of people in this country. If the Senator will read the Official Report he will find that that is so. There is no use in going back on the past. There is no similarity between the position now and the position 20 years ago no more than there is between the position now and the position 100 years ago. We must accept the position as it stands—that is, that this country is a free and independent State as far as the Twenty-Six Counties at any rate are concerned. I can understand people who will go out the whole hog and say they are against capital punishment under any conditions. I think Senator Douglas and Senator Rowlette made such a bald statement.

There are numbers of people in this House who during their time were faced with the death penalty and I am sure if they will carry back their minds to that particular time, they will agree with me that it would come as a relief for them to hear that they were to be sentenced not to the death penalty but to penal servitude for life. Just in the same way, if we eliminate the death penalty here, we will have people under the impression that even should the worst happen they will only get penal servitude for life and there will be the feeling that whatever King reigns they may get out of prison in a few years. If the death penalty were abolished that would be the obvious interpretation put on it as far as this type of treason is concerned. There is no use in looking lightly at the crime of treason. We must put treason over any other crime even the crime of murder. If we do not do that we cannot judge the situation in the particular way in which it should be judged under this Bill.

There can be no real deterrent against treason unless there is to be the death penalty. We may, if we like, take up the attitude that, as suggested in another amendment here, we should allow an alternative. That would be putting the judges in an impossible position. Somebody else suggested that the Executive will always have the power to act if they think it is desirable. If there is anybody on whom the responsibility for the alternative should be placed it is only on the Executive. I intend to vote against the amendments and I hope the House will look at it in the way in which I look at it.

Mr. Fitzgerald

I disagree with the arguments that have been put forward for these amendments. If anybody suggests that the position now is different from what it was ten years ago; if anybody suggests that the crime of treason is a different kind from what it was ten years ago, I cannot follow his arguments. However, I do not want to go into that side of the case now, beyond just saying that this country to-day is exercising the sovereignty that was achieved by the previous Government. This Government and this country has inherited that sovereignty——

Mr. O'Donovan

Under a different Constitution.

Mr. Hayes

No; under an amendment of the Constitution.

Mr. Fitzgerald

Yes, under an amendment of the Constitution. The Constitution was amended by virtue of the fact that this Government, when it came into power, inherited from its predecessors all that the previous Government had achieved. If they had not done that, this amended Constitution would not be legal, and it would not be binding on the people. However, that is only an aside. I think it is undesirable that these things should be gone into now, or that these things should be brought in by the Senator who has spoken. I object to the amendments put forward by Senators Rowlette and Douglas. It seems to me that implicit in Senator Douglas's proposal is a conviction that strictly speaking the State has no right to forfeit a man's life for a crime against the State, or for any other crime.

Senator Dr. Rowlette says that the crime of treason is different from the crime of murder. He says that the judgment of treason depends not on a deep moral reason but on the state of public opinion at the moment. If it were only a matter of public opinion, then clearly the Government is only a government and Authority is only authority, and the State is only a State because of certain conditions of public opinion. If that be accepted, then it is quite clear that the State has no right to recruit any man into the Army in such conditions that the man may be called to give his life for this State. Senator Dr. Rowlette says that religious and moral authorities agree that rebellion is justified in certain circumstances. The rebel of to-day is the hero of to-morrow. That is what he says—in certain circumstances. Now, in certain circumstances I may be allowed to kill a man, but we cannot assume from that that every time a man is killed it may be under these justifiable circumstances. When we have a right to rebel against the State, it is because the State is illegitimate or it is because those people who form the Government are performing certain acts which are not lawful.

The only function of government undoubtedly is the promotion of the common good. When a government is not promoting the common good it is not acting as a government. What is implicit in the arguments put forward in favour of the amendments is that we must assume that people have a right to rebel. But people have no right whatever to rebel. At the back of the minds of the people who put forward these arguments is this: "We do not know whether this State is legitimate or not; we do not know whether it has a right to call upon people to obey its laws, or whether it should not be overthrown." That is implicit in the arguments put forward. But we must assume that the State is a legal State, functioning for the common good of the people. It is for that it exists. For that reason the crime of treason is greater than the crime of murder, because the crime of treason is directed against the common good, which is more noble than the private good.

I do feel here to-day as I did on a previous occasion, that when Senators talk about bad inheritance in the past we are actually indicating that the bad inheritance exists in us. We received a bad inheritance in the past because there was a period when those who exercised power did not possess legitimate authority. For that reason we are called upon to assume—and it is safe to assume—that those who exercised power in the past did not possess legitimate authority. If we are going to say that whatever happens in this country, there is never going to be an authority whose authority should not be questioned, then we are denying to the Irish people the right of ever creating a sovereign nation of their own. This people has a right to sovereignty. It is exercising sovereignty, and that sovereignty is vested in the Government.

The Government has power to pass these laws; anybody who seeks to overthrow the State is committing a greater crime than the crime of murder. Just take what is happening at the present moment. There are men who have been over in England carrying out outrages. It is significant that everybody here hastens to assure everybody else that this Bill has no relation whatever to what is happening in England. That, again, is part of our bad inheritance. We must assume that it is quite right and natural in this country that we should allow an organisation to plot crime and outrages in a neighbouring country. That is not so. It is our Government's duty to put down any organisation in this country that is plotting outrages in a neighbouring country. What is happening at the moment is that there are men in this country organising crime and outrages which may lead to murder in a neighbouring country, and which may lead to the execution of the unfortunate dupes sent over there. The instructions and orders of the men plotting crime here in this country have already led to these unfortunate dupes of theirs in another country being sentenced to long terms of imprisonment. If we sit down here and say it is right to allow those people to plot outrages in a neighbouring country, that certainly is part of our bad inheritance.

There is, undoubtedly, a moral right inherent in the Government to take life, and to order the taking of life, in the protection of this sovereign society that exists here. Any attempt to deny that, I must necessarily stand against. The crime of treason—and I am not necessarily sticking to the definition in the Constitution or in the Bill —is a crime eminently worthy of death. I admit that there may be special certain circumstances in a particular case in which justice would be adequately met without the imposition of the sentence of death. The power to remit or to commute sentences exists in the Government, and I know that the present Government, some years ago, were guilty of injustice against the citizens of this country; at the same time, they are the legitimate Government here, and they have that power. We must either get rid of them from that position, or assume that they will exercise their power justly. If we are going to say that the Irish people are never going to have a Government which can be trusted to see that the people receive justice, we may as well abandon all hope of the Irish nation.

I got up to speak particularly because of the statement of Senator Rowlette, who says that because there are cases in which it is legitimate to rebel, in the case of the Irish State we must assume that it is automatically legitimate to rebel, and that, therefore, no sentence of death should be imposed. I also object to the statement that the crime of treason is less than the crime of murder, because it seems to me that the crime of treason is about as enormous a civil crime as it is possible for anybody to commit, and I object to the statement that because the act of rebellion is sometimes justifiable, because, strictly speaking, it is not an act of rebellion, just as one might say that the act of murder is sometimes justifiable because, strictly speaking, it is not an act of murder, you are allowed sometimes to overthrow what purports to be the Government, as you are allowed sometimes to kill a man. But when treason is rebellion against the legitimate Government, and the Government, such as it is, which we have here was elected according to the legal forms of this country put forward quite legally, we must insist that here, as in every other country, the crime of treason is going to be put down, and, I think, even more here than in other countries.

We are at the moment sentimentalising and saying that this crime has been endemic in this country for generations and that, therefore, it had better be allowed to go on. It is the very fact that this crime is endemic in this country which makes it more abundantly clear that definite steps have to be taken to put it down, and my complaint against the Government since it has been in office is that it has actually encouraged the continuance of this national evil, this evil in the very character of our people, by its refusal to face up to its duty and to take the proper steps to destroy that seed of disorder in the country and to set a term to the period during which that national unhealth will continue. I would necessarily have to vote against amendments Nos. 1, 2, 4, 5 and 6, because it seems to me that they are based on the assumption that the Government has not the right to protect its people, even to the extent of exacting the death penalty in doing so.

Professor Johnston

I find myself somewhat confused in my thinking about all these matters and, in the hope of clarifying my own mind, I should like to express one or two points of view which have occurred to me. I should, first of all, like to say that I agree with Senator Douglas, not so much on any ground of principle as on the ground of expediency. I agree also with those Senators who argue that the State and, indeed, one might say, especially a democratic State, is bound to take every legitimate step to defend its existence and is bound to resist, if necessary by force, and by force acting in support of the law, any attempt to overthrow the State by lawless force. We are now concerned not with death which might result to persons engaged in civil conflict, which seems to give rise to no heart-burnings afterwards and to be accepted with remarkable philosophy by all concerned—after all, it is all the luck of the day, so to speak—but we are concerned with the kind of situation that might exist if, before an actual armed rising took place, the State took action to arrest persons who were meditating such a rising and had them tried, either by the ordinary or by special courts, or the kind of situation that would exist if, after the successful suppression of an armed insurrection, the State retained in its hands a number of persons who were then brought to trial on account of their treasonable actions.

The object of punishment in either of those cases is vindictive, reformatory or deterrent. No one nowadays argues in favour of vindictive punishment; the theory of reformatory punishment is not to be overlooked and despised; but, for practical purposes, the State must take into account especially the deterrent effect of punishment; and the only point of view from which this matter of the death penalty should be approached is whether or not the existence of the death penalty will be a greater deterrent than the existence of some lesser penalty in the case of treason. I recognise the enormous distinction that exists between political circumstances as they were in 1916, when we were governed by a Government which was looked on by the majority of the people as an alien Government, and the present totally different circumstances in which we have a democratic national State of our own; but, at the same time, I think it is pertinent to point out that, in the state of public opinion immediately after the insurrection of 1916, it is quite arguable that if the courts which then dealt with the prisoners had exercised clemency, had, instead of shooting people in large numbers, even gone so far in the direction of clemency as merely to bind them over to keep the peace, the effect on public opinion would probably have been quite different from the effect of what actually happened and, in fact, the whole history of the country might have been different. In other words, in dealing with a thing like treason we cannot, in any democratic State, ignore the effect on public opinion of the punishments which we have in the law and which we expect the courts to carry out.

As I have said, the State has an obligation to use whatever degree of force in support of the law is necessary in order to resist and suppress any armed insurrection, and if any one of the insurgents should lose his life in the process of so doing, no person in his senses will have any sympathy— people are so constituted that they will not be likely to have any great sympathy with such cases—but in the case of persons who have had their lives taken, not in the course of what is called in law, flight or hot pursuit or actual battle, but in a cold-blooded way, after the fight is over, the death penalty has a far more serious effect upon public opinion and is liable to produce such a reaction on public opinion as may defeat the very objects the Government have in view. I agree that, from the philosophical point of view, treason is a far more serious offence than murder, and if murder is worthy of the penalty of death, from the purely philosophical point of view, I would argue that treason is worthy of a greater penalty, if such a penalty could be invented; but the fact remains that public opinion has not been educated up to the point of view of regarding treason as a more serious offence than murder, and it is doubtful whether, if we assign a penalty which goes far beyond what public opinion is likely to tolerate, we will be educating public opinion or whether we will not be merely bringing the law into contempt, for a law which is too far in advance of public opinion is likely to be ineffective. Therefore, I would advocate a milder penalty which is likely to be enforced and which is likely to produce no repercussion on public opinion, rather than an extreme penalty which is not likely to be enforced and which will probably produce the very opposite effect to what is intended, by reason of the reactions on public opinion.

Mr. Ruttledge

I think that Senator Hayes had in mind different types of treason. It is very hard to conceive what those types are. I think that Senator MacDermot put his finger on the point when he said that what we have to weigh are not moral values but practical consequences. With the State as it exists to-day, no crime, so far as I can see, is so serious or may have consequences so dangerous as the crime of treason. There is always, of course, the safeguard—it would, I think, be impossible for anybody to provide by way of amendment or otherwise to this Bill a safeguard so effective—that the Attorney - General responsible for indicting offenders will weigh up the particular circumstances and the gravity of the offence and decide whether he will have the persons concerned charged outright with treason or have them charged with one of the offences set out in the Bill to come before the Seanad. That is the only protection one can get.

As regards the argument that juries will be slow to convict, juries have convicted in murder cases and, if the jury system fails, provision is made in the Bill to come before the House for resort to another system. I do not know any other way by which the matter can be dealt with. Senator Johnston seems to think that the Bill goes somewhat too far. The position is that an Act exactly like this Bill has been in operation since 1925. That Act provides the same penalties. I refer to the Treasonable Offences Act. One of the reasons why we had to bring in the Offences Against the State Bill is that, since the passing of the new Constitution, our legal advisers seem to be doubtful as to the validity, under present circumstances, of certain provisions of the Treasonable Offences Act.

Mr. Douglas

I am not sorry that I raised this matter, though the Senators who think with me are in a small minority. It is well that these matters should be calmly faced without any political feeling and as a matter of wise policy. I entirely respect the point of view expressed by the Minister and the point of view expressed by Senator Fitzgerald, with whom I have disagreed on this matter for a long time. When one argues that it is not wise to have this penalty, one does not necessarily argue that the State has not the right to impose the penalty. I do not want to go into the question of the moral right of the State, at the moment, but when a person urges that it is not wise to have the death penalty, he does not necessarily argue that there might not be circumstances in which the death penalty should be provided. To that extent, I would disagree with one line of Senator Fitzgerald's argument though I do not want to go into the matter now.

As the Minister pointed out, we have had a similar law for a number of years. I myself was convinced that it was a mistake to apply the death penalty to certain treasonable acts. However, I knew something of the circumstances; I knew the members of the Government and I was completely and absolutely convinced then, as I am now, of their sincerity. I was satisfied that their only reason in doing this was to try to build up a State which, ultimately, the whole people could respect. I have nothing but respect for the present Government for coming to this decision, even though I think it is a mistake. I should be sorry that any attempt would be made on any side to make this a matter of Party politics. It is a matter of sincere opinion on which we have simply got to differ. The Minister and Senator MacDermot are convinced that the death penalty has great deterrent value. We have had it now for a considerable number of years and I am completely unconvinced that our experience shows it to possess a deterrent value. I think that you must gradually educate the people to the seriousness of treason as an anti-social crime —a crime which would make it ultimately impossible for us to have good, democratic government or any of those things which most of us think worth while if we are to have a State at all. Some people may say that there are certain types of State which they would rather lose their freedom than have. Others may say that that is absurd. But if you are going to make treason easy, you are going to make it impossible to build up a State approximating to the ideals set before us by our leaders during the last century. I do not want to be taken in any way as having sympathy with treason or as minimising its importance. I do not think that it is a useful thing at all to contrast the crime with murder and discuss the various degrees of guilt. There are so many different circumstances that you will have confused thinking if you argue in that way.

We have to accept it as the most serious crime we know against the community, and, therefore, one which cannot be minimised. I think it is a mistake to provide death as the only penalty, save in so far as it may be commuted by the Government. The Minister referred to the levying of war, but he did not go on to refer to "attempting by force of arms or other violent means to overthrow the organs of government... or taking part or being concerned in or inciting or conspiring with any person to make or to take part or be concerned in any such attempt." Until the Minister spoke a few moments ago, I was frankly in a difficulty, and I understand that Senator Hayes was in a similar difficulty. If we read our newspapers, we know that there are persons doing the things set out in the latter part of the preamble and in the definition of "treason" in the Constitution. I believe it would be extremely unwise in a question of justice to bring these people to trial and to execute them. The Minister more or less hinted that he agreed to that extent. I am to some extent satisfied, though I am not convinced that it is wise to simply leave it, as he says, to the Attorney-General, but I appreciate the difficulties. I would ask this House to divide on the general principle whether there should be the death penalty, but I hope we will not have to divide on the smaller points.

Dr. Rowlette

There were some remarks made by the Minister to which I will advert very briefly. He rebukes some of us for having discussed this matter on the question of the general desirability of the death penalty. I do not think that we wish to have this amendment or any of these amendments or this Bill decided on that point; but those of us who think the death penalty to be wrong from any point of view are entitled to come before the Legislature to express our opposition. I do not in the least wish that there should be a debate at length on this point, or that it should be debated at all to-day: I do not think it would be a proper occasion for deciding that principle; but where that principle is applied in fresh legislation I think it is the duty of Senators who believe the death penalty to be wrong in principle to register that opinion.

In discussing the death penalty, both the Minister and Senator MacDermot stated absolutely, without any attempt at proof, that the death penalty was a deterrent. I question that. I do not object to their stating it as their opinion, but I would like to draw the attention of the House to the fact that no evidence or argument has been adduced by the Minister to establish that the death penalty is, in fact, a deterrent. On the Second Reading of this Bill I suggested, although it appears an anomaly, that the death penalty, or the risk of the death penalty, is attractive to certain unbalanced minds.

I was puzzled at one remark the Minister made. He said he could not follow some Senators in the distinction they seemed to draw between different degrees of treason, but, two or three sentences further on, he remarked that the next Bill that we are to discuss would provide lesser punishments for minor degrees of treason; so it is apparent that the Minister has differing degrees of treason in mind, and he confirmed that when he said just now that it will be the function of the Attorney-General to decide in advance the gravity of particular acts. When the Minister thinks it over he will see that we are not altogether unreasonable in this matter of degrees.

He mentioned too, just now, that in most of its clauses this Bill followed the lines of the Act of 1925, but I would point out that that is no reason why we should accept the present Bill. Is this Bill right because it follows to a large extent, clause by clause, any certain sections of that Act? I may say that I was immensely interested and humiliated by Senator Desmond Fitzgerald's speech—humiliated, not because I think he showed that I was wrong, but because of my incapacity to make my opinions clear to the House and to a Senator of the intelligence of Senator Fitzgerald. He has suggested that I argued that the Government had no right to impose penalties on its citizens. Certainly nobody was more surprised than I was at that interpretation. At the beginning of my speech on the Second Reading, I made it quite clear that the State rightly regarded treason as an offence, and rightly imposed penalties; that it was the duty of this Legislature to take the advice of the Government of the day as to the legislation dealing —not in detail but in general principle —with such crimes. I find myself in agreement with what I think were Deputy Fitzgerald's basal principles as to the authority of the State. I did not suggest that the State had no authority over the citizens, but I did suggest that the State should use discretion in the manner in which it uses that authority, and that, while it may be right to impose the death penalty, they should use discretion as to whether this is a particular crime which needs the death penalty, or whether there is justification for considering this a crime which should be visited with the death penalty. There is nothing in that to suggest that it is not within the authority of the State.

Mr. Fitzgerald

I quite agree. The Senator said that religious and moral authorities had held that treasonable acts might be justified in certain circumstances and seemed to me to adduce that as an argument against the death penalty, and I could only infer that he meant that that had some weight in the matter and that there was doubt as to the right action or legitimacy of the Government in reference to it.

Dr. Rowlette

I am obliged to the Senator. He has made an implication which I did not see and do not yet see.

Mr. Fitzgerald

Nor will not.

Dr. Rowlette

My point in stressing that was to emphasise that theologians and moralists wished to show that there is not a clear and definite opinion about it. From the moral point of view, of course, the Senator is entitled to take the view that morality has nothing to do with it. That may be right. I am concerned, to some extent, to try and defend myself against the interpretation that Deputy Fitzgerald put on my speech, which I hope other Senators have not interpreted in the same way. I agree with him in the fullest sense in what he thinks of the high authority of the State to do certain things. I think the authority of the State is never higher than when it insists on doing certain things which it has a right to do.

Question put—"That the words ‘suffer death', in line 23, proposed to be deleted, stand part of the section."

The Committee divided: Tá, 32; Níl, 9.

Tá

Baxter, Patrick F.
Blaney, Neal.
Brennan, Joseph.
Butler, John.
Byrne, Christopher M.
Colbert, Michael.
Concannon, Helena.
Conlon, Martin.
Counihan, John J.
Fitzgerald, Desmond.
Goulding, Seán.
Hawkins, Frederick.
Hayes, Michael.
Hayes, Seán.
Healy, Denis D.
Honan, Thomas V.
Johnston, James.
Keane, Sir John.
Kennedy, Margaret L.
Keohane, Patrick T.
MacCabe, Dominick.
MacDermot, Frank.
MacEllin, Seán.
Mac Fhionnlaoich, Peadar
(Cú Uladh).
McGillycuddy of the Reeks, The.
Moore, Maurice G.
O'Donovan, Seán.
O'Dwyer, Martin.
Nic Phiarais, Maighréad M.
Quirke, William.
Robinson, David L.
Stafford, Matthew.

Níl

Alton, Ernest H.
Campbell, Seán P.
Crosbie, James.
Douglas, James G.
Hogan, Patrick.
Johnston, Joseph.
Kehoe, Patrick.
Kelly, Peter T.
Rowlette, Robert J.

Tellers:—Tá: Senators Goulding and O'Donovan; Níl: Senators Douglas and Rowlette.

Question declared carried.

Cathaoirleach

That decision disposes of amendments Nos. 2, 5 and 6.

Amendment No. 3 not moved.

Sir John Keane

I move amendment No. 4:—

In sub-sections (1) and (2), line 23 and line 26, after the word "death" to add in each place the words "or penal servitude."

The object of my amendment is to allow some alternative to the death penalty in the case of treason. I do not see how the ends of justice can be met at all if you merely have the death penalty, because you may get offences which are treason of a minor character, for instance, interfering with electric lines and blowing up electric standards. Nobody suggests that incidents of that kind should be punishable by death. If they were persisted in on a large scale, perhaps the leaders might be punished but I do not think the rank and file should be punished by death. I suppose the Minister will tell us the way they are going to get over this difficulty is that the Attorney-General is only going to indict on clear cases of treason which he considers should be punishable by death and any cases which he thinks do not fall within that category will not be charged as treason at all but will be charged as lesser offences. I would meet that point of view by this: how can the Attorney-General know what view a judge or jury is going to take of the charge? In his opinion the evidence may be perfectly clear that it is an aggravated case of treason which should be punished by death. Evidence may be produced to diminish the gravity of the charge and, although it may be treason, it may be treason of a minor character. I suggest that it is necessary to have some lesser punishment than that of death, if the ends of justice are to be met. Otherwise, what will happen? If there is no penalty but that of death in minor cases of treason—serious cases of treason—that in the opinion of the court do not deserve the death penalty, the parties charged will be acquitted and the ends of justice will be defeated. I suggest that it is in the interests of everybody, the accused and the State, that there should be an alternative punishment for treason to that of death. The object of my amendment is to secure that.

The McGillycuddy of the Reeks

My view is very much the same as that of Senator Sir John Keane, that we want to cut down the number of people who will actually suffer death for treason in any form to the absolute minimum. There was a time when man considered it was absolutely necessary to have only one punishment for stealing a sheep, and that was to be hanged for it. There was a time, which was very recent, when flogging was regarded as absolutely essential for certain offences, and to-day, in 1939, the Minister for Justice gets up before us and says there is only one punishment for treason in any form, and that is death. The Minister, when he is actually deciding whether a man should be tried for treason, is liable to make a mistake on the evidence which is put before him, just the same as anybody else, and we want, if we possibly can, to reduce the possibility of mistake. We do definitely say that there are various grades of treason in the shape of levying war against the State.

In the various arguments I have heard as regards the death penalty and the abolition of it, I am not at all concerned with the death of an individual, but I am concerned with the effect which the death of any one individual may have on the State. That is why I want to cut it down to the minimum. We have a chance here of using some of the lessons of history, instead of entirely ignoring them, as this section does, so far as it stands now. I think history, not only in this country, but elsewhere, provides many instances of the death penalty being used as punishment for indictable offences, but, though the penalties of the time were honestly imposed by honest people, as honest as we are to-day, I can find in history very few cases where the effect of these executions on the State was not regretted in the years that followed. Our own history is quite complete with cases of individuals who have become martyrs simply through having suffered the death penalty. I do not want to develop that. I will only give you one classic case, which affected the development of a State, and that was one we all know, the case of Charles I. Recollect that, after the civil war, he plotted with both sides, and the result was that the people who were administering the country thought they were definitely justified in putting him to death. The result was that the body politic in England was shaken absolutely to its foundations, and, in ten years' time, instead of a steady development of democracy, there was a return to very nearly absolute monarchical rule. That is the sort of thing which happens when you use the death penalty inadvisedly, but there are, undoubtedly many cases where it would still have to be carried out. There are cases of great brutality where the death penalty would probably carry the whole weight of public opinion behind it, but there are many cases where the minor punishment, which Senator Sir John Keane has put down in his amendment will be quite sufficient to meet the case.

Donnchadha O hEaluighthe

Badh mhaith liom iarraidh ar an Aire féachaint isteach san scéal, féachaint an féidir leis aontú leis an leasú so.

What I referred to is the power to commute, or, in other words, the power to reprieve. Certain people have been sentenced to death here in the past. They have not died. The same thing may happen in the future. That, in my opinion, is the way in which a degree—if you like to call it a degree—of treason can be interpreted, and the only way. I will read the Article of the Constitution for the Senator:—

"The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities."

Mr. Conlon

I think that the Minister, in his original statement, has met all the arguments in connection with this particular amendment. Under the ordinary criminal law, if a person be found guilty of murder, the judge has no option but to pronounce sentence of death, and I think that that is very proper. Nobody, I think, would suggest that the onus should be placed on a judge to decide—if a person had been found guilty of treason—whether he should pronounce sentence of death or reprieve the prisoner. I think we should not legislate in that way, and that we should not adopt this amendment which would place that onus on the judge. As far as I am concerned, I will vote against this amendment.

Mr. O'Donovan

I have a very open mind on this question. Senator Quirke mentioned that he had been discussing this matter with some of his colleagues. There certainly seems to me to be some difficulty attached to the interpretation of the definition of treason as contained in the Bill. It is the same as in the Constitution, but I must admit that, reading the Bill as it stands, to my mind there are degrees of treason, and if all those offences are to be charged as treason I do not think they are comparable, whereas as provided by Article 39 of the Constitution: "Treason shall consist only in levying war against the State or assisting any State or person or inciting or conspiring with any person to levy war against the State." I am satisfied that all offences covered by these terms should be treated as treason, because, to my mind, a person guilty of the offence of inciting and conspiring to levy war is guilty of a more serious type of offence than a person who actually uses arms. The Article then goes on to say: "or attempting by force of arms or other violent means to overthrow the organs of Government established by this Constitution, or taking part or being concerned in, or inciting or conspiring with any person to make or to take part or be concerned in, any such attempt." All these "ors" and "ands" towards the end of the Article seem to me to deal with a lesser degree of treason.

While I agree with what the last Senator said, that once a person is found guilty of treason, it would be very difficult for the Legislature to impose upon the judge the duty of deciding whether any alternative to the death penalty should be imposed, to my mind, what requires clarification is the extent to which offences can be charged as treason, or to what extent the offences can be placed in the category of the Bill to come before us subsequently. Certainly my idea would be to educate the people as far as possible into an abhorrence of treason against our State. All history has taught us down to quite recently, I might say down to the adoption of the present Constitution by the people, that treason was a thing which was not to be abhorred. It was a thing which I, personally, did not abhor. Treason against the Constitution freely adopted by the Irish people is a thing which I shall try to educate the Irish people to abhor and detest.

I shall try to educate them not to sympathise with anybody who is charged with such treason. I should like to see every citizen respect the law to that extent and to abhor treason. Having adopted this Constitution, I maintain it is our duty by every means to maintain that Constitution. I must say that I am not clear in my mind as to how, we shall say, the Attorney-General, is going to define whether these offences which are set out here are to be dealt with under the Treason Act, or whether the persons charged are to be indicted under the Offences Against the State Act. I do believe that there are degrees of treason, and on that account there should be alternative punishments. Therefore, my mind is running entirely in favour of Senator Sir John Keane's amendment. I see the difficulty mentioned by the last speaker, that if a person is to be charged with treason and found guilty, it is impossible to put upon the judge the onus of defining an alternative punishment to that of death. I am afraid, as the matter stands, we cannot discuss any alternatives to what is in the Bill and what is in the amendment. I must say that I am in favour of the amendment, and I am sorry that I have to differ with my colleague, Senator Quirke, in that matter. Another speaker, Senator Honan, stated that he expected that nobody would ever be charged with treason. I hope so, but it is only a hope, however ardently expressed. We must make provision for the eventuality of its ever occurring.

There is one other point to which I would like to refer. Article 38 of the Constitution provides for dealing with a state of war or armed rebellion. I understand that the law dealing with such conditions would be martial law. I shall read the clause of the Constitution dealing with the matter:—

"Military Tribunals may be established for the trial of offences against military law alleged to have been committed by persons while subject to military law and also to deal with a state of war by armed rebellion."

Therefore we shall have further legislation to deal with matters arising out of actual war by armed rebellion. Martial law would be declared in such circumstances, to my mind. Therefore we would have a different enactment from the Treason Act and, under each, the punishment of death could be enforced. I wish to state again that I think there should be an alternative punishment for degrees of treason, as, to my mind, there are degrees of treason.

Mr. Robinson

I am supporting the amendment on the ground that I think the definition of treason is too inclusive. On Second Reading, I commented on the fact that the Minister for Justice in the debate had expressed astonishment that when the Constitution was being discussed, there was not more discussion on the definition of treason in the Constitution, and I said that while an academic discussion might have taken place, the definition of treason was to all intents and purposes dead bones, which by a strange reversal came to life again on the imposition of the death sentence. I think that is right. It requires very little ingenuity on our part to conceive all sorts of circumstances under which a person might be charged with an offence included in the definition of treason.

Here is, I think, a case which perhaps, though not a serious case, would fall under the definition of treason. In Western Canada about 30 years ago a paper used to appear at irregular intervals called "The Calgary Eye Opener." The reason it appeared at irregular intervals was that the entire paper was written by one man, and there were times when, I suppose, his brain did not work very well. At any rate, it consisted entirely of scurrilous articles about each Minister of State in turn. Every article always ended up with the one sentence—"Chop his bloody head off!" I think that that would come within the definition of inciting people by force of arms or other violent means to overthrow the organs of State. I think with regard to this Bill it is not a case where judges or juries, the Attorney-General, Ministers, or the President of the State will behave in this way or that way. It all depends on whether a state of panic exists or not. I think if there was a state of panic, certain persons who might otherwise not be executed for a particular type of treason they had committed would undoubtedly be executed. For that reason I think we should send this amendment to the Dáil and let them consider the matter further.

Mr. M. Hayes

I am not, like some of my fellow-Senators, a convert to the notion that treason against an Irish State should be punished. I feel that if it is an offence to teach people how to commit treason, Senator O'Donovan is liable to find himself before a jury in the Central Criminal Court, because if the argument is sound that you believe in treason against the State only when you get a Constitution that satisfies you and your own Government, that is exactly what the people outside are saying at present, that they do not like this Constitution and therefore they want to fight against it. Before Senator O'Donovan starts educating these people, he will have to start self-education.

I agree with Senator Robinson that this amendment is very tempting. I still do not understand what exactly this section is going to do, what value it is to the Minister, when you take into consideration another Bill which is sure to become law. I wonder whether it is intended to work at all. I have the greatest possible sympathy with Senator Sir John Keane's desire that some other penalty than the death penalty should be available. But I agree with Senator Conlon and others that it is a most undesirable thing to have an indictment and a trial and then have a judge put in the position that he may sentence a prisoner who has been found guilty either to death or to a lesser penalty. That is a very disagreeable burden to place on the judges.

The most grievous objection to the section is not that there is a danger that people who do not deserve death will suffer the death penalty, but that nothing more will happen under it at any time than that people will be indicted and that the jury will bring in a verdict against the weight of evidence, thus bringing the law into contempt. That is a very undesirable thing. I would rather see the Bill not passed at all than have a law and work that law and have it brought into contempt by juries or by any other process. I do not agree at all with Senator Quirke or anybody else who says the safeguard is that the Government of the day may exercise clemency. It is undesirable that anybody's life, for this particular kind of offence especially, should be within the power of an Executive Council. Treason against the State is apt to be regarded —it is not the same thing, of course, but it is apt to be regarded by Governments as an offence against the Government. It seems to me that it is a very wrong thing to have our law so situated that the only possibility of doing justice lies in the hands of the Government of the day; that justice cannot be administered by the courts; that justice is not to be found in the law; that the only argument you can bring up is that if injustice happens the Government will remedy it. That is a very bad scheme.

I dislike the amendment because I think it is an unfair burden to place on the judiciary. I do not think they will like it and I do not think it is fair. At the same time, the real remedy appears to me to be to specify much more clearly and narrowly what offence it is that should be punishable by death in ordinary times. In the other house, I think, amendments to that effect were ruled out of order, and possibly that ruling will be followed here; hence no effort was made to frame that kind of amendment. But, having some experience of Ministers, Attorneys-General and Parliamentary draftsmen, I feel it would not be beyond the ingenuity of the Minister and his advisers to frame an amendment which would have the merits of Senator Sir John Keane's amendment and which would meet the views expressed here. That would leave the Bill a much more effective instrument than it is at present, and at the same time would not in any way allow to escape a person who had committed the gravest form of treason. The Minister should consider doing that. I do not think any of us here can do it.

I can understand the Minister's desire that this kind of Bill should be drafted by his own advisers, but I feel that he could draft an amendment which would meet the points that Senator Sir John Keane is making and those made in subsequent amendments by other Senators and which would, at the same time, leave the Bill effective. But the amendment as it stands— although if I have to vote for it I think I will if the Minister can give us no satisfaction—imposes an unfair burden on the judge and I think the Bill imposes a burden on juries which they will refuse to bear.

At the same time, if the Bill remains as it is without being amended on the lines I suggest to meet the points made by Senator Sir John Keane and other Senators, the Bill will become a dead letter, and it is impossible for me to understand for what reason we have to consider it at all. The Minister ought to consider not leaving it to administrative action. I know that all Governments argue that everything will be all right if you leave it to the Minister; but only a small number of people really believe that. The Minister should make some effort to provide that the punishment of death would only be available for certain types of treason.

This is a section which will be law all the time. Senator O'Donovan pointed out that there is an Article in the Constitution dealing with rebellion. Apart from that Article, there is also a Bill which we will be considering later which allows the Government to issue a proclamation and to deal with a certain state of armed rebellion. Why we should have in ordinary, everyday law for trial before a jury in the Central Criminal Court a provision like this which leaves no other penalty but the death penalty is beyond my comprehension. The Minister should accept the principle of the amendment and frame something which would not have the defect that the amendment has of imposing that unfair burden on the judge.

Mr. Brennan

I rise to support the amendment, as I have not heard any real argument against allowing some discretion to the judge. After all, our judges are accustomed to exercise discretion in regard to punishment in every case which comes before them. We know, of course, that there is a substantial difference between the infliction of the death penalty and any other penalty, and there might be some other penalty for certain offences, if not perhaps for what you might describe as the ringleaders, then for those who might be described as more or less innocent followers. In the Bill as it stands it seems to me there is no such discretion left in any court. I think it is bad that it should be left in that way. As treason is defined in the Bill, it seems to me quite possible that people might be charged with that offence, and if the jury were to have respect for their oaths and were to find a verdict of guilty, the judge would have no option whatever except to inflict the death penalty. Senator Hayes tells us that he is against administrative action after there has been a verdict and sentence by the court. If that is so, surely there is only one alternative, and that is something on the lines of the amendment. I do not think it would place our judges in any great difficulty, any more than the Attorney-General would be placed in any great difficulty when deciding whether a person shall be charged under this section or not. I feel from what we have heard from the mover of the amendment and others who have spoken that all the merits are on the side of the amendment.

Mr. Hawkins

Before I cast my vote I would like to have more information. I have already cast my vote in favour of the death penalty for treason against the State. Between the section and the amendment, I would not be prepared to differentiate between treason committed by a person inside the State and treason committed outside the State. I would like to have the position clarified by the Minister.

Sir John Keane

My amendment covers treason both inside and outside the State.

Mr. Hawkins

Would a person who had given information and who came to this country be liable to the death penalty under the section?

Mr. Ruttledge

If I got my choice in the matter I would certainly recommend the House to abolish capital punishment altogether. That would be much more acceptable to anyone who has charge of a Bill of this sort, rather than what is proposed now. A question has been raised by Senator Sir John Keane, and by other Senators, as to the various degrees of treason. I should like to remind the Senator that there are various degrees of murder, but there is no alternative but to pass the death penalty, and I would think, if we believe in the safety of the State, and the protection of the State, that we get certain national selfrespect for the State, and that certainly we are not going to regard the commission of the crime of treason in any lighter or lesser way than the commission of murder. There can be degrees of treason and degrees of murder, but I would like to point out that an Attorney-General in framing indictments in his various prosecutions, does not rely upon one particular act alone. I have seen indictments brought under certain Acts and apart from the main indictment, I have seen 16 other counts brought forward as well. Senator Sir John Keane referred to some particular instance that he had in mind, or to some example that might be brought under the provisions of the Firearms Act, but 30 or 40 other Acts might be available to deal with the matter. There are always alternatives, and any Attorney-General, or anybody responsible for law in this country, is not going to risk what the Senator seemed to have in mind, that juries would be reluctant to convict. He is going to give the jury, in certain circumstances, an alternative that they can decide upon. In cases of murder you have counts with regard to manslaughter and so on, and it is the same when it comes to particular cases of treason. I believe that any Attorney-General would see that there were other alternative indictments with which he might have the accused charged, and the jury would have the opportunity of deciding if he was guilty on one or not guilty on another. That is happening every day before the Central Criminal Court.

There are alternative counts, and if Senators are under the impression that a person who must be charged with treason is guilty in some way under the definition there, that does not follow. What does follow is that the Attorney-General, in a particular matter, is the judge of the indictment on which the person is to be charged, and he can put in whatever alternative indictment he thinks fit and proper. I would much prefer, if I had any preference in the matter, to see the death penalty abolished altogether rather than see this amendment carried. My reason is that it puts judges in an invidious position, in an impossible position. As I pointed out earlier to-day, a judge is appointed and is independent. I might say, of the Executive, and is removed from them. Judges do not want discretion in this matter. It is for the Legislature to define the offences and the penalties. As well as that, who should have the discretion but the people responsible for the time being for the security, the peace, and the order of the State? It is their responsibility. They have the information at hand and available to them, and it is their responsibility to see whether in any particular set of circumstances it is in the public interest that a sentence might or might not be carried out. To go and put it on the judge is to put on him an impossible burden, and one that no judge wants to accept or to carry. How is a judge going to decide without the information that would be available in the ordinary way to the Executive? How is a judge going to decide in a particular set of circumstances whether the death penalty should be inflicted or not?

I think Senators are really exaggerating the dangers that they think are inherent in this section. I am only visualising or thinking what an Attorney-General would do or should do— that he will, at least, leave alternative counts under other Acts to enable the jury to pronounce on the matter, if they do not think the matter sufficiently serious to be dealt with as treason. I ask Senators to reject the amendment. I could not under any circumstances accept it. As to the remarks of Senator Hayes, I can say that my advisers are of opinion that it would be impossible and would be beyond their ingenuity to frame an amendment to meet what the Senator had in mind.

Mr. O'Donovan

I wish to say that the Minister's reply has clarified my mind, certainly as far as other indictments being included. I thought when a person was indicted for treason that there would be no other indictment, and no alternative to the death sentence. I am satisfied now that there is an alternative, and I wish to withdraw what I said previously, that I would support the amendment. I am in favour of the death penalty for treason, and I am not against it in cases of murder.

Mr. Hogan

I am afraid the Minister has not clarified my mind but has rather confused it. He said that a judge would be in a rather awkward position in having to decide what the surrounding circumstances were. Surely, he would have all the evidence in the case to show him what were the circumstances, and I do know that it might be justifiable, as it is at present, under other circumstances, to have a person indicted under various Acts, but I think that it would be only right that the judge would have some opportunity of seeing that, notwithstanding the fact that a man might be indicted for treason, he might very probably be indicted for ordinary felony under the Offences against the State Act. The definition of treason here is "attempting by force of arms or other violent means to overthrow the organs of government." That is treason according to this present Bill, for which the death penalty will be the punishment. We find an almost similar offence defined under Section 7 of the Offences against the State Bill, which speaks of attempting to prevent or obstruct, by force of arms or other violent means, the carrying on of the Government of the State, and so on. I cannot see any sense in obstructing by force of arms or other violent means unless it is your intention to overthrow the Government, and you might find "A" indicted for treason for attempting by force of arms to overthrow the Government, and a judge having no discretion to mitigate the sentence, whereas "B" might be indicted for an ordinary felony under Section 7 of the Offences against the State Bill, the punishment for which would be seven years. I confess that I am somewhat confused as to why a judge, in a case where there might possibly be an opportunity for a miscarriage of justice, should not be able to mitigate that sentence and bring it in line with the case of the person indicted under Section 7 of the Offences against the State Bill. My mind is confused on the matter and I cannot understand how it is going to be done.

Mr. Ruttledge

Of course, the answer to that is that nobody can be sentenced until he is first convicted by the jury. What I have been trying to emphasise is that an Attorney-General, in those cases as in all other cases, is more than likely to submit alternative indictments, or rather different counts arising, perhaps, out of the same charge, but with lesser punishment. That is happening every day. I am sure every Senator knows that in practically every criminal case you come across you will find that there is a whole lot of counts arising out of the same offence, that is alternative counts. That is what I am trying to emphasise: that it does not follow that that would be the only count a man would be charged with.

As regards the other point that was made, that the judge should have all the information before him, the public cannot make representations to a judge. The only people to whom the public can make representations, and that would be amenable to receive the public view is the Executive Council for the time being. They are the people to whom public representations can be made and who will be in a position to understand the situation in the country at that time, and in the light of those things they are the proper people to exercise discretion in those matters where it is a question of life or death.

Mr. Goulding

There is one question I should like to ask. May I ask the Minister, are all these verdicts to be automatically reviewed by the Executive Council? Is it mandatory on the Executive Council to review a death sentence, or must that be done by an appeal from the public? I was inclined to support this amendment also, because I was not aware of the fact that the sentence could be reviewed. I had thought that once the sentence was passed it had to be carried out, and that the judge had no option at all. For the first time, I learn that the sentence can be reviewed by the Executive Council, but I should like to know if a movement has to be made by the public to get that sentence reviewed, or will it be done by the Executive Council as a matter of course?

Mr. Ruttledge

I shall answer that. There is no provision for automatic review by the Executive Council, but I do not think there ever has been any conviction, in cases where the death penalty is involved, where the Executive Council have not considered these sentences, and not only do they consider them—speaking from my own experience—but the judge is asked for his views, the reports are got and, in fact, the script of the evidence is got and the whole thing is gone into in the most careful and most minute possible way. In my experience—and I am sure it would be the experience of others—where the sentence of death has been imposed, the Government go in the fullest and most minute possible way into the whole question before they say that the sentence must be carried out.

Mr. Baxter

I feel, with the Minister and Senator Hayes, that to put a judge in the position of having to decide as to whether this was a very grievous offence, that was treason in its worst form or not, would be an impossible position in which to put any judge. I do not think that any judge would want to be in that position, and I do not think it would be fair to justice and the country that he should have that responsibility put upon him by the Legislature at all. If there are degrees of treason, and if we now, in passing this Bill, visualise the possibilities of that question cropping up, then here and now we ought to try to catalogue the degrees of treason. Let the Legislature take the responsibility and pass it over to the judge and, in addition, let the Legislature catalogue the different degrees of treason and the sentence for each type of offence. It would have grave consequences for our judicial system if you were to put that responsibility on the judge. That is my feeling on the matter at any rate.

When the Minister tells us that his advisers—his Attorney and his administrative staff and draftsmen—do not feel that they can possibly give what Senator Hayes suggests might be given, specifically and definitely in the Bill, that is, a list of offences in degree less serious than treason that should be punishable with death, I must confess, listening to the discussion, that I am rather confused now as to whether or not the Minister believes that this Bill when it becomes an Act is to be operative at all, because I get the impression somehow, that, although I may commit treason or an offence which may be styled treason, it is open to proceed against me under some Act entirely other than the Treason Act. I feel that when the Minister tells us that, he is rather saying to all and sundry: "We are passing a Treason Bill, but it probably will not be under the Treason Act at all that you are ever going to be prosecuted, even though you commit an offence which is styled treason". I think that is leaving the road open to all people to believe that only in very rare cases is this Act going to be applied, and then, as a matter of choice, the Attorney-General will decide. In itself, I do not regard that as very satisfactory. I myself believe that, if it were possible to have in the Bill a list of offences, with varying sentences for varying degrees of treason, for the court and for the offender, it would be much more satisfactory. I cannot understand why the House should be asked to pass this Bill in view of the fact that we have had an indication from the Minister that its provisions are not likely to be applied at all in quite a number of cases. What the Minister said would seem to indicate that this Bill, when it becomes an Act, is going to be put on the shelf, and that while it is there as an Act of the Oireachtas that it may not be invoked. What I am quite satisfied we cannot do is to ask the judges to determine between varying degrees of treason: to ask a judge to take the responsibility of saying whether a man is to be sentenced to death or not. I do not think that we ought to do that.

Brennan, Joseph.
Butler, John.
Campbell, Seán P.
Concannon, Helena.
Crosbie, James.
Healy, Denis D.
Hogan, Patrick.
Keane, Sir John.
Kehoe, Patrick.
Kennedy, Margaret L.
McGillycuddy of the Reeks, The.
Nic Phiarais, Maighréad M.
Robinson, David L.

Níl

Blaney, Neal.
Byrne, Christopher M.
Conlon, Martin.
Corkery, Daniel.
Fitzgerald, Desmond.
Goulding, Seán.
Keohane, Patrick T.
Lynch, Peter T.
MacCabe, Dominick.
MacDermot, Frank.
Mac Fhionnlaoich, Peadar
(Cú Uladh).
O'Donovan, Seán.
O'Dwyer, Martin.
Quirke, William.
Rowlette, Robert J.
Stafford, Matthew.
Tierney, Michael.

Tellers:—Tá: Senators The McGillycuddy of the Reeks and Sir John Keane; Níl: Senators Goulding and Blaney.

Amendment declared lost.

Section 1 agreed to.

Adjourned at 6.10 p.m. and resumed at 7 p.m.

SECTION 2.

(1) Every person who encourages, harbours, or comforts any person engaged in committing treason shall, unless he satisfies the court that he did not know and had no reason to believe that the person encouraged, harboured or comforted was so engaged, be guilty of felony and on conviction thereof shall be liable to a fine not exceeding five hundred pounds or, at the discretion of the court, to penal servitude for a term not exceeding twenty years or imprisonment for a term not exceeding two years or to both such fine and such penal servitude or imprisonment.

Dr. Rowlette

I move amendment No. 7:—

In sub-section (1), to delete all words from and including the word "harbours" in line 41 to and including the word "engaged" in line 45 and to substitute therefor the words "any person to commit treason".

I would ask those present to read the section carefully in order to get an understanding of how the section will read if the amendment I am proposing is accepted. The section, as it stands, reads: "Every person who encourages, harbours, or comforts any person engaged in committing treason shall, unless he satisfies the court that he did not know and had no reason to believe that the person encouraged, harboured, or comforted was so engaged, be guilty of felony and on conviction thereof shall be liable..." and so on. My amendment would make that read: "Every person who encourages any person to commit treason shall be guilty of felony and on conviction..." and so on. You will see that the amendment deletes all reference to harbouring and comforting and changes the words "encouraging any person engaged in committing treason" to "encouraging any person to commit treason". It also proposes to delete the reference to his knowledge or lack of knowledge of the acts that that person may have engaged in. In the section, as it stands, he must satisfy the court that he did not know and had no reason to believe that the person was so engaged. I think it is quite proper that the State should lay down a penalty for the encouragement of any person to commit treason, but it is quite a different matter to lay down a penalty for any person who, knowingly or unknowingly, encourages, harbours or comforts any person engaged in committing treason.

I do not know, as a layman, the precise legal significance of any of these words, "encourages,""harbours,""comforts." I can understand what would be meant by the term in the amendment, "to encourage any person to commit treason," but I do not know what is meant by "encouraging any person engaged in committing treason." I think I can guess what is meant by "harbouring,""comforting."

I would point out that harbouring or comforting any person engaged in committing treason is not in itself in any sense a treasonable act. It may be done from the ordinary actions of humanity. When one is approached by a person in distress, one does not know what he may have done or what he is likely to do in the future, but one gives him the relief that a charitable, humane Christian person would give to any individual. He may be unknowingly harbouring or comforting some person who is engaged in committing treason, and the presumption of guilty knowledge is taken against him, contrary to the almost universal —not entirely universal—principle of the administration of justice that holds in our courts. It is a general principle of justice in our courts that every person charged is regarded as innocent of the charge against him until the charge is proved. In this case he is regarded as having guilty knowledge until he is able to prove the contrary—that is, that he had no such guilty knowledge. It seems to me almost impossible to establish such defence by any persons who had in fact harboured or encouraged somebody who had committed treason, although the harbourer or the comforter was not aware of that. It would be nearly impossible for him to prove that he was not aware of it. I would like to ask Senators to consider this section from a practical point of view, and to consider what state it would bring about if it became law and if it were enforced with the rigour of the law. An amendment on a somewhat similar line, of a much more limited kind, was discussed at considerable length in the Dáil. It was an amendment intended to exclude from the operations of this section any person who was engaged in medical or surgical work, any person engaged in an hospital, a doctor or nurse. I can see that there are objections to making a limitation excluding people of particular occupations from the operations of legislation dealing with criminal acts, but I would ask you to consider whether it is a criminal act in itself and whether it becomes, except in the legal sense, a criminal act to help some unfortunate person who has got into trouble and seeks relief from it. I think, within the memory of most Senators in the House, that instances have occurred where men were wounded, who had been in all probability engaged in what the law at the time regarded as treasonable acts, but what they, the men themselves, did not regard as treasonable acts. These men sought refuge very frequently with people who had no sympathy with their political outlook, who thought these men were misguided, and possibly guilty, but they got the help they looked for.

They got the comforting and harbouring. Such a thing may take place again. It is quite possible that people engaged in treason in the future will not have general sympathy. They will not have general sympathy if they are engaged in treason, but the particular individual who is suffering for what he thought to be his duty, wrongly if you like, wrongly, as the majority thought, nevertheless, if he looks for individual help from any charitable person, he is likely to get it. If, let us say, a wounded man, who has been in trouble with the forces of the State, comes to the home of any member of the Seanad and asks to be allowed to lie in the loft over his outhouse or to take refuge in the house, I cannot see any Senator, in such a position, who will run to give information to the police. That may be right or wrong. I am arguing the practicability of this section and whether it could be enforced.

If you were to consider the sort of case that was argued in the other House, you would get this position: It is no part of the business of any person connected with the medical profession to concern himself at all with the actions of any person to whom he gives medical or surgical relief. That applies equally to a doctor, a nurse, a nun, or anybody else employed in hospital or medical work. They are not concerned with the conduct or life or past history of the person who looks for relief but they are concerned, as members of an honourable and charitable profession, in giving the relief that is sought. That, no doubt, in the terms of this Bill, if it becomes law, will be harbouring and comforting, one or both. Is it conceivable that such people, who do not interfere in political matters at all, who ask no question as to how this man got his wounds or into the condition he is in, are to be prosecuted, as this Bill would provide, and be liable to a fine not exceeding £500, or to penal servitude for a term not exceeding 20 years, or imprisonment for a term not exceeding two years or to both such fine and such penal servitude or imprisonment? I do not think it is conceivable. I do not think anybody can imagine such a thing taking place.

It is quite possible that the Minister may reply on somewhat the same lines as he replied to other questions this afternoon—that one must consider that those who will have the administration of the law are reasonable men. Admitted. But it seems to me that one is bringing the law into contempt by putting into statutes, after solemn consideration, deliberation and discussion, a clause which it is never intended to put into practice. I do not know if the Minister will make that reply or not, but it would be similar in spirit to some remarks he made this afternoon, and it would be in the same spirit as certain answers which were given to similar criticism in the other House by the head of the Government.

I submit to the House that this clause is unnecessarily severe. It is right to provide a penalty for anybody who encourages any person who commits treason, that is, anybody who encourages an act of treason, but I think it is unconscionably harsh to arrange a penalty for people who perform an act of Christian charity, of common humanity, to somebody in distress, without concerning themselves at all with what his past history is. I hope that the Minister will see his way to accept this amendment.

Dr. Rowlette

I am thankful to the Minister for promising to consider the amendment. With regard to Senator MacDermot's speech, he rather surprised me, but that does not matter. There was some difference as to terminology. I spoke rather of Christian charity and humane action, and the Senator spoke of woolly-minded sentimentality. That is merely a difference of description. My argument was based on the view that Senator Hogan expressed afterwards, that whether that is Christian charity or woolly-minded sentimentality, it is the actual effect on the citizens that has to be taken into account in any law that is passed, and if it tends to produce the effect that Senator Hogan and I foresee, then we are overlooking practical results, irrespective of whether people are woolly-minded sentimentalists like Senator Hogan or myself, or people with legal views like Senator MacDermot. I do not know which section of our people is the larger, but I have my hopes.

Mr. MacDermot

Senator Rowlette's mistake appears to me to be that he assumes that the psychology of our people in regard to these matters cannot possibly undergo a change. I think it can. But I think that psychology will continue for ever if we encourage it by the sort of speeches that Senator Rowlette has been making and by the sort of legislation that he wishes us to pass. I hope the day will come when nobody in this country will think that Christian charity calls upon him to help people to evade the law when they are in the process of committing serious crimes against the State.

Of course, it is. There is an enormous difference between Merrion Street and Kerry.

The McGillycuddy

Because I happen to sit near Senator Rowlette is surely no reason why I should share his opinions. I would again ask the Minister to reconsider the matter before Report Stage.

Mr. Ruttledge

I propose to leave the position as it is.

Amendment, by leave, withdrawn.

Question proposed: That Section 2 stand part.

Mr. M. Hayes

It appears to me, after all we heard to-day about Section 1 and the various amendments to Section 1 in this Bill, that it is a purely ornamental section, not intended to be used but intended to be occasionally displayed in some political shop window. Section 2, though, it would appear to me, is one which may come into use very frequently, because, as far as my examination of the Offences Against the State Bill goes—the Minister will be able to inform me if I am wrong in this—that particular Bill does not deal with the offence of harbouring. This particular section here does.

We are again up against the difficulty that treason is defined in a very extensive manner and that only one penalty, the penalty of death, is provided. Similarly, as regards Section 2, the difficulty that arose in the debate on the amendments proposed to it is that, for example, the question was asked "If a murderer comes into a doctor's house to be treated, should the doctor tell the authorities"? I do not know what the answer is from the point of view of the doctor. There are various forms of treason. They are not all as heinous as the crime of murder, but they are all lumped together in this section on account of the way the definition is framed, so that when the section will come into operation it may very well be that people will be prosecuted for harbouring persons who have committed what will be very far indeed from the crime of murder.

That arises from the fact that the definition is so wide and that there is only the one punishment prescribed. As I feel that this section will be very much used, I was glad to hear the Minister say that he would give consideration to the amendment suggested whereby a person charged would not have thrown upon him the onus of proving that he did not commit the offence, but that the prosecutor would have to prove that the offence was actually committed by him. If that was done, I think the section would be substantially improved. It needs improvement, because, apparently, it is a section which is going to come into use quite unlike Section 1.

Question put and agreed to.

Sections 3 and 4, and the Title, agreed to.

Report Stage fixed for Wednesday, 17th May, 1939.

Seanad Éireann díospóireacht - Wednesday, 3 May 1939

Treason Bill, 1939—Committee.

Mr. Hayes

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Seanad Éireann díospóireacht -
Wednesday, 3 May 1939