Wednesday, 29 November 1922
Dáil Éireann Debate
Mr. GAVAN DUFFY: We discussed yesterday the execution of Erskine Childers. To-day the Resolutions which I have put before the Dáil and of which  I gave notice last week concern the four boys who were executed first. We heard a great deal about doing the same justice to rich and poor. Let us see for a moment what justice it is proposed to mete out to the poor. I agree that there should be no difference between the rich and the poor, provided you base your justice on principles you can stand over. Yesterday I endeavoured to deal with this matter with the utmost moderation, in spite of the fact that it was one that lent itself to very different kind of treatment, and in answer I was overwhelmed with a torrent of abuse from the President. Perhaps that kind of thing may be justified as increasing his votes; it does not add to his stature. Now, any of us can get up here and bewail the ruin of this country and denounce the crimes that are being committed against it, but it is no answer to a specific charge of wrong in particular cases to tell this Dáil of other persons not charged before these Courts who have committed crimes. You are dealing with desperate men; I know that; we all know that. Are we to understand that the united wisdom of the Cabinet can find no better means of dealing with this desperate situation than by taking steps which will inevitably make these desperate men more desperate? Oh! I know it is difficult for men who are under a threat of assassination; I know it is hard for them to take the views that may be safely taken by the man in the street who not only has nothing to fear, but has no responsibility. I know that men are apt to lose their tempers, and have reason to lose their tempers, under circumstances such as these, but I ask the Ministry to remember that there is one thing the country wants above all others and that one thing is a Treaty of Peace between Irishmen. We are going to have that Treaty of Peace between Irishmen sooner or later, and I cannot subscribe to a doctrine that bangs the door upon peace, as the doctrine enunciated here seems to me to do. Now, I introduced these resolutions in order to lay down four principles which, it appeared to me at the time, were perfectly plain, and which I thought would be accepted. They are these——
Mr. GAVAN DUFFY: I am speaking on the first resolution, but probably it  will be unnecessary to deal at any length with the others. First, that it is wrong to take these military proceedings under the mantle of secrecy, that at least the public should be there represented by accredited representatives of the Dublin Press; second, that it is wrong to ignore the natural rights of relatives who are not responsible for any crime of which you may find a man guilty; thirdly, that it is wrong to sentence on one charge and execute on another. I have never before heard the principle enunciated that that is law, or that that is justice, to try a man for one thing, and to execute him for another. Lastly, that under these resolutions no person ought to be sentenced to death except for a crime against the laws and usages of war. When the resolution was introduced, the Minister for Defence explained what he wanted it for, and all the emphasis was upon crimes against the life of this Nation, upon the necessity for dealing drastically with people who are committing the type of crime I am speaking of. And when I proposed that, so far as possible, the principles laid down internationally at The Hague should be applied in dealing with civil war, and, further that the men you take in arms against you should be treated as prisoners of war, I was refused, and I think mainly on the ground that a number of the people who are fighting against the Government are criminals and unworthy of the treatment or status of prisoners of war. The emphasis was on the necessity of dealing with a certain class of crime— crime against society and crime against the nation. One would think that this is the first time in history that there has been a war or a civil war. Now, these principles have been laid down by the nations, all of whom have gone through the very same thing; and I do feel, and feel strongly, that instead of experimenting in new directions with our nation, it would be far wiser now to base what is done upon those rule which have the experience of humanity and the sanction of other nations. The case is much stronger than it was when the resolution was introduced for recognising that those men are prisoners of war and for prosecuting only men who commit crimes against the laws of war, because the Master of the Rolls, before whom the Ministry defended its action the other day refused  to interfere, solely upon the grounds that there is war. Surely if that is the case there can be no answer to the claim of the men to be treated accordingly as prisoners of war. There are crimes against the law of nations which, I venture to say, would meet every case where it would be right to take life— crimes recognised in every country as such; and there is no difficulty in getting a list of them, beginning with the taking of the life of an unarmed soldier or civilian, right through the category that you will find in the Manual of Military Law.
But a new principle was enunciated to-day, and I ask myself whether I can proceed with this resolution after hearing it enunciated. The Minister for Education and the Minister for Defence always command sympathy and respect in this Dáil, even if one differs profoundly from them, as I differ from them to-day, because you feel the sincerity of the men; but in explaining what has been done in the case of these executions they laid down what appears to me to be a most dangerous principle for any Government. The Minister for Defence said, in explaining the executions, that these men were executed because they were part of the scheme of destruction which would destroy the national life. The Minister for Education gave a much more precise definition than that. He said they were executed for having taken a stand whether as leaders or followers, to make government impossible. Now, I ask myself what that means. He admitted frankly that this business about having a revolver is only a kind of judicial handle for convicting the men, and that the real reason is this—and I do not want in any way to trap him in his actual words, but I want to call attention to these words, and they can be corrected later on if they go too far. It seems to me that the expression which he used would justify, nay, on precedent compel, the execution of any man in arms against the Government who is taken either with a revolver or with any other property, or, as it is described in the resolution “unlawful property.” I think the resolution speaks of unlawful possession of property, public or private. Does that not mean in fact—I ask sincerely for an explanation—that the Ministerial policy would justify the taking of the life of any prisoner if you found a revolver or unlawful documents upon him? It seems to  me that you must go as far as that, and I think the matter is so serious, that this Dáil ought to have a considered statement by the Government as to exactly what is the meaning in this matter. If the expression to which I have called attention is to be taken literally, there is no use at all in this Dáil sitting here, and in my calling attention to the minor things, like the secrecy of the trial, or any other of the matters, I have put down here. If in fact you are going to say as a Government that you are justified in taking the life of a man who happens to have a revolver, because he is part of the machinery and because he belongs to the Irregulars, you are enunciating a principle exceedingly dangerous, and to my mind wholly unjustifiable. I do not want to take the Government by surprise. I hope sincerely Ministers have gone further than they meant. I would like to have this thing cleared up. We are entitled to know, whether we agree with Ministers or disagree with them, who are the people they say ought to be executed, and to know that clearly. If the Ministry give us such a statement, I can re-introduce this matter later on, but so long as the matter stands as it does, upon the speeches of the Minister for Defence, and the Minister for Education, it is useless for me to proceed with the resolution which means that the Dáil may as well not sit here at all, because the Government has taken a power which we submit to this Dáil was never intended to be given to them, and because the Government insists on applying this drastic Draconian code, not to war criminals, properly so called, and interpreting the code to mean that any man on the other side, who may happen to be caught with a revolver is to pay the penalty of death because he is part of the machinery that wants to make government impossible. Now, I cannot subscribe to that doctrine. There are honest men on the other side, and also there are criminals, but a doctrine of that kind is one that will make peace impossible and that will ruin this generation in Ireland, and, I devoutly hope, that this is not to be taken literally as the policy of the Government, but, so long as that stands, I feel it is useless to proceed with the minor matters in my resolution.
CATHAL O'SHANNON: Cuidighim leis an rún san. Although, perhaps, I do not agree with the wording of the resolution,  as drafted by Deputy Gavan Duffy, I do agree with most of the arguments he put forward, and if there is one thing more than another, that would compel me to support the resolution, it is the amendment on the Order Paper in the name of the Minister for Home Affairs, because his amendment if carried will make the resolution of the Dáil read like this:
CATHAL O'SHANNON: I think I am quite in order in giving one of the reasons why I am seconding the resolution, but I submit to your ruling. The resolution would read:—“That the Resolution of An Dáil of 28th September, 1922, concerning ‘Military Courts or Committees’ must be interpreted in scrupulous accordance with the laws of humanity and the dictates of the public conscience, and, in particular, that the utmost care shall be exercised to ensure that no penalty shall be inflicted upon an accused person beyond such as may be proportionate to the charge or charges actually proved against him.” I hope that the Minister when he moves his amendment will explain what is meant by this, but the resolution itself I supported because the basis of it is that the things which I have asked for in the previous discussion, the things which I asked for when the original military courts resolution was before the Dáil, have not been gone into either by the Government or by the Ministry, and while admiring the even temper and, in very many respects the fulness and in all respects the sincerity of the replies made by the Minister for Defence I cannot agree that he has made a complete answer to the points brought against him. Now this resolution wants the conduct of those courts and all the circumstances in connection with their conduct to be of a particular kind. It may be argued that they are of that kind. I do not think they are at all, but I want everybody to understand that if the military succeed in crushing the present insurrection, and if a state of peace is brought about, the Government and the Minister concerned will have to come along to the Oireachtas or Dáil and get  an act of indemnity for all the actions of the military officers and men. I should like that to be clearly understood by the officers and by the men. And it was one of the things I had in my mind when I asked about Army Regulations and so forth, because each and every person taking part in these military operations, and each and every person taking part in these courts, will have to come and get indemnification from the Parliament, and the same applies to anybody who feels grieved to challenge in the courts, and remember those courts will be sitting in a state of peace, and they may not, and I hope, in many cases, they will not, take the view that prevails in the courts now. That is an aspect that has never been brought in by the Government. What, in other words does it mean? It means that at a future date the Parliament of the Free State, or whatever it may be, will have virtually to protect and pardon the Military Acts which were illegal in many cases and unjustifiable. Now with a good deal of skill, but I submit without full application, Deputy Professor Eoin MacNeill introduced again the amputation of a diseased member of the body. I do not think it applies so fully as he and other users of it would argue. He and others will admit that the death sentences in all these cases are on the big issue and not on the little issue at all. Then why did not the Government and the Minister for Defence have the charges on that big issue? There is no supporter of the State as a State, no matter what the form of the State may be, who will not admit this much at least, that there are such things as treason, high treason, and treason against the State, and that it should be punishable by a very heavy punishment as within the legal code of the State. But you are not dealing with these things as treason. I cannot understand why the Ministry picks out a particular charge and makes executions. Nominally and officially that is the only charge brought against the men. Even British Law, I think, will be pretty well strained if when a case is challenged in the future courts in a period of peace when there was only a specific charge of having a revolver— British Law will be greatly strained to bring it out that the men who convicted and the men who confirmed the execution on that charge were acting bona fide. I  do not want to lecture the Master of the Rolls at all, but I want to bring the Dáil back a little bit to a case that is not so very dissimilar, and that is the case of Theobald Wolfe Tone in 1798. There was not only a state of revolution then, but a state of insurrection in Ireland. It is to the outstanding credit of the judges in the case and to the code and system they were administering that in spite of their absolute detestation of all that Wolfe Tone and Ireland stood for, in spite of the fact that the situation in Dublin was not perhaps, just as it is in Dublin now but that undoubtedly there was a state of war, rebellion and insurrection, they gave a Habeas Corpus for Wolfe Tone which is being denied and will be denied—I am sure it will be denied—in the case of any man, no matter who he is, who is brought up under these regulations. I am backing the resolution on another ground. I opposed the original resolution on the grounds of policy; I opposed it this week on the grounds of policy, and I say it is all of a piece with a good many acts of policy and a good many other tactics of the Government, and that it will contribute, as every bad policy and bad tactics of the Government have contributed, to the insurrectionary bodies. It has been to many people curious that there should be so many—I will not say in arms—but so many violently opposed, and proportionately so many in arms against the Provisional Government, as compared with the numbers in arms against the British Government. There are more reasons to explain that than one. No doubt the reasons the Government will give will explain it to some extent. Other reasons that might explain it might be the lack of munition and lethal weapons in the Black-and-Tan period, but I have not any shadow of doubt at all that one of the things that have contributed to the increase of numbers of the irregulars is the bad tactics and the bad policy of the Government in dealing with this whole thing from beginning to end. The Government at one period took a conciliatory attitude; that period passed over and they took another attitude. Now, in my opinion, in their methods and the method of conducting these courts and executions they want to show the country and the people up against them that they are strong and that they are determined. In my view these things are not an exhibition of  strength and determination at all. On the contrary they are exhibitions of weakness, because if the Government were strong, and the military forces behind the Government were of the strength they ought to be, then there ought to be no necessity for executions of these men at all. It is because in doing these things the Government are pretending a strength which they have not got that this policy will fail in its effect. I submit that one of the very few grounds that can justify the conduct of these courts and executions as they have been conducted up to the present would be the ground of their efficacy, whether or not they do the job they are intended to do. In my opinion they will not do the job they are intended to do. I know when the Government Forces bombarded the Four Courts and O'Connell Street and did other actions in June that it was intended those actions would suppress the insurrection completely and absolutely; that they were intended to teach these people a lesson and to show the country that they were a Government and were going to govern. But I could at least, as one, and I am not claiming any particular foresight at all, see that the actions, and method of taking action, at that time and the re-action that would be in a big section of Oglac na hEireann would be such that the insurrection would not be crushed in three or four weeks or in three or four months. There were many young men in the Oglac who did not take an enthusiastic view of the Treaty but who did not take the view of Eamonn de Valera and those who followed him, and the bad policy and, from their own point of view, the bad tactics of the Government forced these, no doubt, emotional young men into the ranks of the Irregulars. I believe that the re-action of these executions is going only to stiffen the harder of the Irregulars. It may weed out some of the weaker chaps who only use a revolver because a revolver is easily had and a bank is easily robbed, but anybody who knows anything about the old I.R.A. knows there is a considerable number in the present Irregular or Republican forces, or whatever you may like to call them, who were of the best fighting material—without casting any reflection at all on the National Army—in the Black-and-Tan days. These things will not put them off the course they are on at present; they will only make them keep on their course. In my view they  would if the military forces of the Government were able to disarm, and what is more important, perhaps, prevent the arming of the Irregulars. One of the mysteries of the last three or four months is where all the arms have come from, where they have been got. A good many of them I fancy were got inside Ireland, and, if they were that is not strength; that does not show a strong Government or anything like a strong Government. There is another thing, and it is rather by way of a question than anything else. I should have gone on to deal with. That is the case of the diseased member. We all admit that a member of the body when badly diseased ought to be cut off according to the surgeon's decision on it. If the Ministry or the Dáil or these courts decide that a certain number of people are diseased members of the body politic the analogy may hold, but what is the disease in this particular case? What is the diseased member? Is it the individual member who is in arms against the Government or is it their whole organisation? Is it the rank and file or is it the leaders? People are talking about dupes and those who dupe them. Which is the diseased body? Another point and it is this, my hand may be so badly diseased that it should be cut off. That disease had its origin somewhere—let us say on the little finger. It may be that if that little finger had been properly treated when a scratch came on it that a cure might have been effected and that would have saved the hand; but when the surgeon cuts off my hand because the hand has become so diseased he does not cut it off merely because my little finger got a particular scratch which led to the making of the whole hand diseased; he does not even say that is the reason he does it. He does the contrary thing to the Ministry of Defence and the Government because to me the scratch on the little finger is like the charge of having a revolver on conviction. If you are going to have convictions, convict them on something that is ordinarily worthy of the death penalty. Nobody, I think, wants long drawn-out State trials or anything like that. Certainly I do not. I do not want anything like that merely for the show of the thing, but I cannot, belonging to the class I do belong to— the working class—knowing what the working class in Ireland has suffered from courts and judges, executions and everything  else in the past, I, at least, for one, am not going to, by precedent, allow, so far as I can help it, this or any other Government to set up new judges, new methods, new manners of conducting Government, all of which may be used against the class that I am sent into this Dáil by. Because we know, and I make no hesitation about it at all, that this struggle, this class struggle, that I believe in, is going to be met—and I want the workers of Ireland to know that— by the self same methods and by the same mentality, in the future that is behind these actions now. I second Deputy Gavan Duffy's motion.
Professor EOIN MacNEILL: In reply to the seconder of the resolution one thing may be said that speaking here at the commencement of this Session I knew that we would be at various turns, faced with the doctrine that, because there were a certain number of people—Deputies in this Assembly—who are quite properly and directly elected as Labour representatives, that now and again we would have, and it is part of the ordinary political plan, something like what the Deputy who has just sat down has said. The natural temptation is to point at us, as if we were not simply in the present juncture representatives of the Nation but as if we were representatives of a class. Now, Sir, as I say, that may be a good point to score in argument; it has no other merit at all.
CATHAL O'SHANNON: On a point of personal explanation, I think Deputy Professor MacNeill has not got the exact point I made. The point I did make was, that if these things are allowed to go on as they are going on now,—and I was not making it as merely political side play at all,—then those whom I represent, and those from whom I spring will be met, because precedents have been established now, with people of the same mentality, who will, when we are up against them, or the general working class movement is up against them, cite all these things, and use all these things against us because they were used now.
Professor MacNEILL: I understood the Deputy said something about our mentality, our strength and weakness. It would be stronger for us if we had not attacked General Rory O'Connor's position in the Four Courts; if we had left him  in occupation up to the present day, just to show our strength! As to charges on the big issue, I am not a lawyer; I am not even the making of a lawyer, and I think Deputy Cathal O'Shannon is the making of an excellent lawyer, but little lawyer as I am, I think I can say this with safety that charges that lead to punishment are never on the big issue; that a man who is punished for larceny, and the man who is punished in the court for beating his wife; or men punished in the courts for any such offence, are never punished on the big issue. The measure of the punishment he receives is not the act he has done.
Professor MacNEILL: That is the big issue, and it is the extent of the danger to the community that constitutes the bigness of the issue. I am inclined to agree with what the seconder of the resolution has said about indemnity coming later on, but he is entirely wrong in saying that that aspect has not come before us. I think the first time I challenged the policy of Deputy Gavan Duffy, I said I, for one, was willing to take my stand in doing whatever would be necessary to be done, in order to make this people master in its own house, and to submit to whatever the consequences might be afterwards. That, I think, is in the recollection of all who were present, and I think Deputy Cathal O'Shannon was present on that occasion. Well, really, the sort of case we have to deal with here is an attempt to set the house on fire with utter recklessness as to what may be the fate of its inmates, because the person who happens to have responsibility for the house does not agree on some point with the person who wants to set the house on fire. We have a war, and it has been said by one of the judges that we have a war. I say that the war we have is not a war of any ordinary kind of civil war, nor any ordinary kind of international war. Deputy Gavan Duffy has tried to fix me with giving a definition. Again I say I am not a lawyer, and I am not attempting to give a definition.
Professor MacNEILL: I think I will make the case clear enough now, although I am not in any sense an authority upon these matters. It is not because these people are simply trying to make the Government impossible; it is because the attempt to make government impossible is being conducted in a particular way. I venture to say that, although, technically, they would have entitled the Government to deal with them with very drastic severity had they confined their warfare to direct warfare against the armed forces of the Government. The case is totally different from that, and the thing that has been attempted is to make it impossible for the elected Government of the people to govern by attacking the people, by attacking the life of the people, and not by attacking the Government or the forces of the Government, but by attacking roads, railways and the supply of food, and all the things that go to make up the material life of the people. I do not remember, and I cannot recall at the moment, any instance of a civil war of that kind in history. I do not remember having ever read of one party in one country making war on another party in that country by attacking the people of the country. Possibly some person who has a better historical memory than I have would be able to recall an instance of the kind, for that is what is being attempted. Not only that, but we have abundance of documentary proof that that is the line in which it is hoped to make the war that will make government impossible, succeed. This is no civil war. I wish to emphasise this point. This is no civil war of any kind I have read of. It is not a civil war; it is a criminal war. It is a war against the people, and the hope of success in this war is by compelling the people, by bullying the people, and by making war direct on the people. We had a captured order read here in which one of the principal officers in command of these forces—and I bring this under the notice of those who think they are much more truly the champions of the working classes than I am, and whose mentality is more to be trusted by the working classes than mine—empowers those under his command to commandeer the labour of the working people of the locality in order to destroy their own livelihood; to commandeer the labour of these people, and should they refuse, he empowered anyone of his  subordinates to execute those people summarily. And remember those people are not military men; they are not people in the employment of the Government, but they are ordinary civilian working people of the locality, and if they refuse to take part in this destructive work it is distinctly stated in black and white —we have a copy of the order—that they are to be summarily executed. That is the sort of war. Is there a parallel for that? Is that civil war? I would like to know is that civil war. Was there any civil war in history carried out on these lines in which one of the parties was empowered to execute death on the ordinary working public, the neutral public, who are not engaged in arms at all, unless they come in and obey their orders? Now, that is the state of the case. I have not a thousandth part of the eloquence and rhetoric that is at the command of either the mover or the seconder of this amendment, but we must face the thing plainly. It is no civil war; it is a criminal war.
Professor MacNEILL: I am not bandying phrases and I am not going to correct phrases. You know exactly what I mean. This method of making government impossible by making war on the public is a special crime, a specially and deliberately invented kind of crime, and it will have to be dealt with by special methods.
Mr. GAVAN DUFFY: When I spoke to the motion I said I did not propose to proceed with it if a statement made from the Ministerial Benches to which I referred represents the policy of the Government. It was useless for me to proceed with it if, in fact, the statement made represented the policy of the Government,  the statement being in effect that men charged with the possession of revolvers were really executed on account of a conspiracy.
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