Thursday, 6 March 1924
Seanad Éireann Debate
ATTORNEY-GENERAL: That was an amendment that was discussed on a point you raised, and I now submit the following new amendment: In Section 23 to insert the following words: “That no judge shall sit upon the hearing of an appeal in an action tried before him, whether with or without a jury, or upon any appeal from a judgment or order made by him, or to which he was a party, whether concurring or dissenting.”
Mr. JAMESON: These were left over to enable me to ascertain from the Chamber of Commerce whether I should agree with them or not. I had a conversation with the Secretary of the Chamber of Commerce, and I believe that Senator O'Dea, on behalf of the Chamber, will deal with any matter concerning it. I do not propose to deal with them.
“(v.) If the plaintiff so elects, in any action founded on contract, whether the claim be to enforce, rescind, dissolve, or annul the contract, or for damages or other relief for the breach thereof, by the judge for the time being assigned to the Circuits within which the contract was made.”
Mr. O'DEA: I am concerned with this amendment which the Attorney-General has proposed. Of course, we  only got this amendment yesterday, and there has not been time to call a meeting of the Council of the Chamber of Commerce. I have, however, spoken to several members of the deputation that waited on and had a consultation with the Attorney-General. In the first instance, I am instructed to thank him very much for the great courtesy and great pains he took with the matter which we are discussing. They feel perfectly satisfied that this amendment meets their case very fairly so far as Section 46 is concerned. What they instructed me to ask the Attorney-General was to apply the same procedure to the District Courts. I think the Section they mean it to apply to is Section 76. I think it would be very prudent, and it would save a lot of confusion and expense if the same procedure were applied to the other clause. In case the Attorney-General is willing to do that we would have no further opposition to the Bill.
ATTORNEY-GENERAL: It is difficult to see how it will be framed. There will be always power to take the matter to the High Court, and ask the High Court to send it to the District Court. I do not see for the moment how we can frame one.
AN CATHAOIRLEACH: The objection was that in many cases where an action was founded on a book or a contract debt it would involve a man taking his book-keeper and accounts to the country, and the point you met is to provide that if in such a case as that the contract was made in Dublin the plaintiff could sue in the Circuit Court in Dublin. Senator O'Dea says his Association is anxious that a similar clause with reference to District Courts should be inserted.
AN CATHAOIRLEACH: Shall we leave it over for a little while? Are you satisfied with that, Senator O'Dea? The Attorney-General says he is not quite sure that under the terms of the Bill you have not got that power already. You can raise the point again when we come to Section 76.
ATTORNEY-GENERAL: No. 26 stood over in order that we might examine the form of words. There is no difference of opinion as regards the idea, which is that judgments should be executed in any part of Ireland which are judgments of the Circuit Court. I propose a new Section 58 in these words: “Rules to be made under this part of this Act shall provide for the service of all originating or other documents or notices both inside and outside the circuit of the judge before whom the matter is intended to be brought or is pending. Any judgment or order of the Circuit Court may be enforced in any part of Saorstát Eireann in any of the modes in which a like judgment or order of the High Court might be enforced.”
Section 63. After the word “Ireland” in line 44 to insert the words “of whom one shall be a solicitor having his office and carrying on the practice of his profession outside the City and County of Dublin.”
ATTORNEY-GENERAL: During the week I had a deputation from the provincial solicitors in Ireland with reference to the Bill. The only complaint they had was as regards representation under the rule-making authority, and I undertook that I would offer an amendment in which provision would be made that one of their body at least should be on the rule-making authority in both the Circuit Courts and the District Courts. They will be most interested in the procedure of both these Courts, and it is highly proper that they should have a voice in the making of the rules.
AN CATHAOIRLEACH: Section 64, Government amendment:—To insert immediately after the word “costs” in line 6 and within the bracket the words “and also the entering-up of judgment and granting of summary judgment in appropriate cases.”
ATTORNEY-GENERAL: That amendment is in fulfillment of a promise that I made to Senator O'Dea's colleagues in the Chamber of Commerce and the Mercantile Association, that there would be in the Circuit and District Courts provision for entering up judgment where no defence is made to a claim, and also power to apply for summary judgment on affidavit. This amendment is for the purpose of enabling rules to be made carrying out these ideas.
ATTORNEY-GENERAL: The Government asks the House not to press the amendment, which was carried in Committee. The position of the District Justices is undoubtedly that of Judges; there is no question of that, and there can be no question of it. But when it comes to putting the same designation  on Judges of every grade in the hierarchy of Judges, it may lead to some confusion. We do not want the thing made ridiculous, as in the case of the colonels after the American Civil War. However, there is also another feature in this which makes one suggest that it should not be insisted upon. These District Justices were created something over a year ago, and they have become an established institution. They are known by this title of District Justice throughout the country. All their stationery, forms and rules are printed, and to make this change would lead to another upheaval. We had one upheaval when we got rid of the Resident Magistrates, and it would lead to another if the title of these Justices were to be altered now. I met Deputy Johnson on the matter half-way in the Dáil by accepting as the Irish term the term Breitheamh. This is the same term that is applied throughout to all the Judges, and I think that with that compromise perhaps Senator O'Farrell will not insist upon this amendment.
Mr. O'FARRELL: When I moved this amendment I pointed out that in my opinion it was not one of supreme importance, but that I thought it was desirable if they were looked upon as judges and thereby rendered independent of every power, except the Constitution and the law, that it should be so stated in plain English, that they should get their proper definition. The Attorney-General has made that definition in the Irish language, but he does not see fit to make it in the English language, which is an extraordinarily anomalous position. Of course, he follows the same line as the President did on the last occasion, that it is to prevent confusing of these judges with Circuit Judges, but I think on that occasion we also pointed out that there might be a similar danger of confusing Circuit Judges with High Court Judges, and that it was hardly a very legitimate objection to the change. There is also, of course, the position, as we pointed out on the last occasion, that the jurisdiction of these judges or justices, or whatever they may be called, will be considerably changed or widened as the result of the passing into law of this Bill, and that it might be desirable to mark that great  change by calling these people judges instead of justices. It would be one other means of bringing home to the community as a whole the fundamental change that had been made in the matter of the administration of the law. Of course, as to whether they are called justices, from the point of view of convenience, as against judges, is a matter perhaps for consideration. There is nothing fundamental in that. But what makes me apprehensive of the whole position is this, that this amendment seems to be only paving the way for the amendment which the Attorney-General has down, providing for the salaries of these justices to be paid out of moneys voted by the Oireachtas, and consequently open for discussion every year. That is the dangerous part of it——
ATTORNEY-GENERAL: I wish to assure the Senator that there is no relation whatever between them, as he will see when I come to the other. It never occurred to my mind that there was any relation between them.
Mr. O'FARRELL: I accept the assurance of the Attorney-General, but these are the motives that inspired me to move the amendment, and I confidently left it to the House, which decided, after a pretty full discussion on the last occasion, to change the name. It is rather undesirable, in my opinion, that after we discuss a matter pretty fully, taking the views of both sides, and passing in Committee a certain amendment, we should, without any new cause being shown, come along on the Report Stage and reverse our decision. I am afraid that is putting us in the position of simply passing amendments to show that we can pass them, but when they come back, without any new argument adduced or any new reasons advanced, we are asked to alter our position right away. If the House agrees to adopt that procedure, I cannot accept any responsibility for it, and the House itself will be at liberty to adopt that attitude.
ATTORNEY-GENERAL: I was not here when the matter was discussed on the previous occasion, and I did not know I was covering the same ground as the President had covered. I should have tried to avoid it otherwise. But  it has been impressed upon me that there would be a large amount of administrative inconvenience, and I merely put it as a request that the thing should not be pressed. I leave it entirely in the hands of the Seanad.
AN CATHAOIRLEACH: The manner in which confusion has undoubtedly arisen is this, that in the old days one never thought of describing as Judges Resident Magistrates or the unpaid Justices. “Judge” was a name reserved for the County Court and High Court Judges, and I think it was this that the framers of the Constitution had in their minds. But, nevertheless, on the strict interpretation of the Constitution it would certainly include Judges of all Courts set up under the Constitution, and that being in the Constitution, therefore, covers District Justices. This was fully discussed before. The Seanad took the view that it would be better to call them Judges, and the question now before the House is whether the reasons put forward by the Attorney-General are persuasive enough to induce the House to go back upon their previous decision.
Mr. KENNY: I would like to put this aspect of the case before the House. In the public mind the term “Justice,” from the legal point of view, is largely associated with Justices of the Peace. Knowing that would tend to give the impression to the general public that these Justices were reduced, as it were, or not considered to be equally entitled to the appellation of “Judge,” I think it would be rather unfortunate. I anticipate, owing to the increased jurisdiction that has been given to District  Justices, there will be, at the outset, at least, a large number of appeals. We should raise the dignity of these Courts in very possible way, in the matter of title or otherwise. They will be largely used as lesser courts, by defendants and plaintiffs, for the purpose of testing the strength of the other side with the ultimate intention of appeal. They will be used just as a sort of going over the course to find out as much as they can of the case of the other side. That was the practice heretofore in the lesser courts; the idea always was to appeal.
Unless you give the impression to the public mind that those who preside over the courts are, as in fact they are, in every way capable of dealing with the matters that will come within their enlarged jurisdiction, I think that will increase the chances of appeal from these courts. That is not an end that is to be desired, and the fact of selecting out from a whole series of courts, those presiding over these courts, and describing them simply as justices, will have the effect of conveying an impression to the public that they are of a minor capacity, or for some reason or other are not entitled to the appellation of judge. That would be rather unfortunate. The Government has proposed to meet the case by calling them Breitheamh. I think Breitheamh would possibly mean more than the ordinary conception of a judge, and it is a higher title than judge, but if there is a change at all to be made why not change consistently, and call everyone presiding over any court a judge of that court? That is a very rational suggestion to make, and there can be no confusion arising. If you call one who is presiding over a district court a district judge, one presiding over a circuit court a circuit judge, and so on, you will have no ambiguity, and you will know what is meant. The point I wish to stress particularly is, that in making any distinction of this sort, which is a rather subtle one, it should be one that would satisfy the ordinary man. The ordinary man in the street will simply know and observe that there is that distinction made, and that it is derogatory, and that would be unfortunate.
Mr. BROWN: It occurs to me that the inconvenience referred to by the  Attorney-General is entirely temporary, whereas the name District Justice or District Judge, whichever is adopted, is going to be adopted permanently. Therefore I think temporary inconvenience ought to give way. I will have great pleasure in supporting the view of Senator O'Farrell.
Mr. FARREN: I have been looking up the Standing Orders, and although I am satisfied the Attorney-General, with his legal knowledge, has got inside the Standing Order, I suggest he is sailing dangerously close to the wind. If Senator O'Farrell's amendment had been defeated on the Committee Stage he would have been out of order in reintroducing the amendment in the Report Stage.
Mr. FARREN: It would be in the hands of the Chairman; if the Chairman thought it was brought forward for obstructive purposes he has power to rule it out. I suggest that if a member of this House proposed an amendment on the Committee Stage, and it was defeated, and he put down the same amendment on the Report Stage, that it would be within the power of the Chairman to rule it out of order. I say the exact position is the reverse now. The amendment was passed in the Committee Stage, and the Government come along now and propose an amendment to change that amendment. I suggest that is sailing dangerously close to the wind. However, dealing with the merits of this case, we have to remember that the District Courts will approximate to what the County Courts were, and that the functions of the District Justices or Judges will be similar to those performed in the old days by the County Court Judges. If it was right that those who presided over the County Courts should be designated judges, there is no reason why those who preside over the District Courts should not have the designation of judges also. After all they are acting in the capacity of judges, and what  is the reason the Government are not anxious to give them their proper title? The Attorney-General's argument does not hold water. A rubber stamp put over the present stationery will meet the inconvenience that would be caused regarding the stationery at present in stock, in which they are described as District Justices. If that is all the inconvenience, I think the House has not sufficient reason why they should alter the decision arrived at on the Committee Stage.
EARL of MAYO: The Attorney-General has said that he has given these District Justices an Irish name. That is by way of compromise, I believe. What I want to know is, what is the difference between a Justice and a Judge? I have a dictionary here, Cassell's New English Dictionary, which is the latest, and I find there that the Lord Chief Justice is a Judge combining the former functions of President of the King's Bench. I take it that Justice and Judge are much the same, then. If so, why all this trouble and fuss about papers that have been printed? After all, that is not a very great matter, and, with all due respect to you, sir, after having consulted the latest dictionary and finding that Justice and Judge mean the same thing, and as a District Justice has been labelled with an Irish name, which seems to please people very much, why should we not let it remain as it is and allow the Government amendment to pass? We are discussing a matter in which there is really the difference between Tweedledum and Tweedledee.
The PRESIDENT: I spoke on this amendment on the last day, and I think if Senator O'Farrell will look up his list of amendments he will find four, or possibly five, amendments disposed of on the last occasion, which again appear on the list. I do not complain of that. I simply point out that the Attorney-General has not secured any special treatment for the Government by introducing another amendment. I mentioned on the last day that these District Justices were set up by the Government during a time of great trial and stress. It was at a time when, I think we might reasonably  confess now, the positions were not regarded as plums, and that there was considerable danger attached to the holding of these offices at that time. I think that during the 14 or 15 months not one single District Justice resigned his office. They performed their duties sometimes under great difficulties in a time of stress, and they honoured this particular distinction by which they are described in the Bill, by the Committee which advised the Government, and upon which the Bill is founded.
The term “District Justice” has become during a time of stress an honoured term, a new institution in the country under which the Justices were given much more jurisdiction than formerly attached to the elementary courts, which is probably the easiest way of describing them. They have come to be known as District Justices. I hope and believe they are respected and that the people have a considerable amount of confidence in them. Relabelling them “Judges” will not enhance or increase that confidence. It might, however, lead to some mixing up of terms if we had District Judges, Circuit Judges, and Judges of the High Court, as we would then have something like forty judges in all. The term “Justice” is not a term of reproach in the hierarchy of the judiciary, as the Attorney-General has stated. Practically all the Judges of the High Court, I think, are known by the term “Mr. Justice.” There are also special distinctions with regard to particular Judges, such as the Lord Chief Justice or the Lord Justices who are Appeal Judges. In this case I urge that this has become an honoured and honourable method of describing this particular class of Judge through the country, and the present occupants retaining that office I think ought to be allowed to retain whatever credit they acquired during that period of trial and of stress when they did their duty fearlessly, and, I think, with great satisfaction generally.
Mr. NESBITT: The compromise suggested by the Attorney-General, I think, is rather a bad compliment to the Irish language. We have the three-star Judges, whom we might call the  Judges of the High Court; and the two-star Judges of the Circuit Court. We are now going to give the District Judges an Irish title and put them on the lowest rung of the ladder, with one star.
AN CATHAOIRLEACH: The Attorney-General made it quite plain. That was the suggested compromise as Senator O'Farrell described it. He made it quite plain that he was trying to meet the position by giving them the Irish title of Judge.
Mrs. STOPFORD-GREEN: Might I venture to suggest that this matter should be referred to Dr. Eoin MacNeill. He has definitely stated in his last work that “Breitheamh” is not a judge, but a jurist—one of the leading jurists.
Mr. JAMESON: I think the remarks made by the President are really a good, sound reason why we should take his advice, and I think the whole Seanad should agree with him. Senator O'Farrell is trying to give a title of honour to the Justices, or Judges, and the President's argument is that the greatest honour is done them by leaving them with the title of Justice. We have two amendments dealing with these judges. If the same treatment in reference to their pay and the source of their emoluments is given to them, then probably the President is perfectly correct. But if we find that their pay is to be left to be chargeable on moneys provided  by the Oireachtas, whereas all the other judges are charged on the Central Fund, then I hold that there is a great deal in what Senator O'Farrell said and that the title of Judge will probably carry with it the fact that they will have to be paid also out of the Central Fund. I think the two amendments are very much tied together. Refusing the title of Judge, because Justice is a higher title, and at the same time refusing to put their salaries on the Central Fund, because they are Justices and not Judges, seems to be the argument as far as I can make out. Therefore, I think Senator O'Farrell is absolutely consistent in his two amendments. I would like if it were possible to debate the second amendment of Senator O'Farrell before we come to a decision on this one, because the two hang together. If the District Justices are to be placed on a different and more uncertain Fund which renders them likely to be severely criticised in a way which the other judges are not liable to, then I think we ought to do the best we can to give them the title of Judges, whether we can carry the other amendment or not.
“69. So far as may be practicable having regard to all relevant circumstances the Justice of the District Court assigned to a District which includes an area where the Irish language is in general use shall possess such a knowledge of the Irish language as would enable him to dispense with the assistance of an interpreter when evidence is given in that language.”
69.—The age of retirement of a Justice of the District Court for the time being assigned to the Police District of Dublin Metropolis or to a District comprising or including the City of Cork shall be 70 years, and the age of retirement of every other Justice of the District Court shall be 65 years.
As I said yesterday, the Government is prepared to fix the retiring age in every case, with the exception I mentioned, and to provide that the retiring age for the District Justices shall be 65, and for those who function in the City of Dublin and City of Cork, 70. This amendment gives effect to that.
Section 71.—To delete, in lines 3-4, the words “The remuneration payable to every Judge of the District Court under this Act shall be charged upon and paid out of the Central Fund of Saorstát Eireann or the growing produce thereof” and to substitute therefor the words “The several salaries aforesaid shall be paid out of monies provided by the Oireachtas.”
With reference to this amendment, unfortunately, sir, I think your attention was not called to the necessary preliminary to all matters of finance, namely, a message of the Governor-General upon which every piece of financial legislation must be based. If it had, I think you would probably have dealt with the amendment that was carried in a different way. I think really the resolution should accompany Bills when they come up here. The message under Article 37 of the Constitution provides for the charge upon the Central Fund of the remuneration and  pensions of the judges of the High Court, the Supreme Court, and the Circuit Court, and for the payment out of moneys provided by the Oireachtas of the remuneration of temporary Assistant Circuit Judges, the remuneration and pensions of Justices, Deputy Justices, and temporary Assistant Justices of the District Court, and any other expenses incurred in carrying such Act into effect. The financial resolution of the Dáil was in the same terms as the message.
AN CATHAOIRLEACH: What exactly do you suggest? This point is quite new to me. I have only heard it now for the first time. There was no suggestion of it when it was going through Committee. I think you were present.
AN CATHAOIRLEACH: Certainly, unless I am very much mistaken, the President was here, and I do not think this point was raised. I think I ought to have got some notice if it was intended to raise it to-day. It is a very serious Constitutional point, and I do not profess to be capable of dealing with it straight away at a moment's notice. The position appears, from a copy of the Governor-General's message which has been sent up by the Attorney-General, to be quite clear.
“On the advice of the Executive Council and for the purpose of Article 37 of the Constitution I have to recommend that for carrying out the provisions of any Act of the present Session to provide for the establishment of courts of justice according to the Constitution and for the better administration of justice, authority be granted for (a) the charge upon the Central Fund of the remuneration and pensions of the Judges of the High Court, the Supreme Court, and the Circuit Court; (b) the payment out of moneys provided by the Oireachtas of the remuneration of Temporary Assistant Circuit Judges, the remuneration and pensions of Justices, Deputy Justices, and Temporary Assistant Justices of the District Court, and any other expenses  incurred in carrying such Act into effect.”
AN CATHAOIRLEACH: This is a Message, I take it, in pursuance of Article 37 of the Constitution. “Money shall not be appropriated by vote, resolution or law, unless the purposes of the appropriation has in the same Session been recommended by a message from the representative of the Crown acting on the advice of the Executive Council.” The first point that occurs to me is that that only deals with the purpose of the appropriation. It does not deal with the fund from which the money is to come. I am not at all satisfied even if this resolution is binding on the Seanad when it comes to discuss the financial clauses of a Bill like this, that this Article covers it. This Article only seems to make it a condition precedent that the purpose of the appropriation is to be specified. It does not make it mandatory to specify out of what fund it is to come. The question here is, inasmuch as the Message of the Governor-General limits the authority over the financial grant in the case of the District Justices to payment out of moneys provided by the Oireachtas, whether that is binding upon the Seanad here, and prevents them saying: “No, the payment for the District Justices is to come out of the Central Fund in the same way as the other Judges.” That is the question. It is a very difficult question to spring here now after completely ignoring it in Committee. Certainly I am not prepared to pronounce an opinion on it.
Mr. O'FARRELL: Is not the net effect of that Message from the Governor-General to render nugatory and abortive our deliberations, as a part of the Oireachtas? Does it not mean, according to the Attorney-General, that we have no right to amend a Bill except in accordance with the Message? Does it not forestall the whole of our proceedings?
AN CATHAOIRLEACH: It raises a  very grave and serious question which I anticipated must be raised some day, and dealt with. At the same time it has never been raised until now. It is this, whether in the case of a Bill not certified as a Money Bill, the hands of the Seanad are tied, so that it is incapable of making any change in any scale of salary or otherwise that is provided in the Bill as it comes up from the Dáil. There is no such limit in the Constitution that I can find. I am speaking now as I anticipated this and looked into it. There is of course a restriction on the powers of the Seanad in the case of Money Bills so certified with which you are all familiar. There is no actual restriction imposed by the Constitution upon the Seanad in regard to Bills that are not Money Bills in dealing with the finances of these Bills. That leaves untouched the question whether having regard to Article 37 of the Constitution, there being no Resolution in accordance with the Message of the Governor-General which sanctions this payment otherwise than out of moneys provided by the Oireachtas, the Seanad can go behind that. That, I think, is the Attorney-General's view.
The ATTORNEY-GENERAL: The procedure is, before the Committee Stage of the Bill begins the Message is presented to the Speaker and then in accordance with the Message a Resolution of the Dáil is passed. The whole object of that of course is to keep control of the finances in the Dáil, acting on the advice of the Executive Ministry responsible to the Dáil.
AN CATHAOIRLEACH: As this is a question that may form a very serious precedent, speaking for myself, and as it, in one way or another, must necessarily affect the powers and privileges  of the Seanad, I am not prepared to give a decision now. If that important point is pressed, this particular amendment will have to stand over until we meet on some future occasion. I do not mean by that that I want the question to be put aside at all, as it is a very serious one that some time or other must be determined. In fairness to myself and in order to make my advice worth having to the Seanad, I shall have to look into it.
AN CATHAOIRLEACH: That, I think, is the view. I take it that the view of the Attorney-General is that we cannot go outside the Resolution passed on the Message of the Governor-General. That confines payment in regard to District Justices to monies provided by the Oireachtas as distinguished from those charged on the Central Fund. Any amendment here transferring that charge from the monies provided by the Oireachtas to the Central Funds would be ultra vires.
Mr. DOUGLAS: Would it be possible if we were to ask you to report at a future date on the actual position? I think it is extremely important that whatever decision is made on this matter it should be clear that it applies equally to the Seanad and the Dáil.
The PRESIDENT: On that particular point I should say that this question has already been raised in the Dáil, and there is no doubt about it that the Ceann Comhairle has no option but to keep within the terms of the resolution and of the Message.
Mr. DOUGLAS: There is no question under the Constitution but that the appropriation of money must be recommended, and that applies to both Houses. We are not likely to go beyond that. It seems, however, to be a matter of interpretation of the word “purpose”—whether it includes the expenditure of money in a different way.
AN CATHAOIRLEACH: That was the point of difficulty that occurred to me. The Constitution only prescribes that the Governor-General is to prescribe the purpose for the appropriation and not the particular fund out of which the money is to come. In this particular Message he has gone further and has specified the funds out of which, in the case of District Justices, the money for their pensions and salary is to be derived. The question then arises—Does that cripple the action of the Dáil and of this House?
Colonel MOORE: This particular motion was debated at great length in the Dáil and I heard it discussed, but I would like to know whether on that occasion this particular resolution was brought to the notice of the Dáil and objection made to the amendment brought forward.
AN CATHAOIRLEACH: As regards Senator Moore's point my recollection is that this question was not raised in the course of the debate in the Dáil. I have only read the official record. I am quite clear, however, that it was not raised here in the course of our debate in Committee. That, of course, does not do away with its effects if it is a good point now.
Sir THOMAS ESMONDE: I think that as this question has come to us so very suddenly before we had any notice of it, or any opportunity of discussing what might be a very important question in all its bearings, the least the Seanad should do, having regard to its own dignity, is, in my opinion, to take steps to consider the matter at its  leisure. I think that we should report progress and resume the consideration of this Bill next week.
AN CATHAOIRLEACH: Might I suggest, if this is to stand over for consideration, it might be desirable to have a small Committee appointed to consider it. I should like to have the assistance of Senator Brown and Senator Douglas on this matter, and I think it would be a very desirable thing that they should be associated with me in the consideration of it. It does not merely affect this particular Bill, but it affects our procedure and raises a question of precedent for all time. It is the most important and far-reaching question that has been raised in my time here. Is it the wish of the Seanad that consideration of this particular amendment be postponed, and that in the meantime the Seanad refers it to a Committee consisting of the Chairman, the Vice-Chairman, and Senator Brown, to report.
AN CATHAOIRLEACH: Yes, that is a good suggestion. It is proposed that further consideration of this particular amendment be postponed, and meantime a Committee consisting of the Chairman, Vice-Chairman, Senator Brown, and Senator O'Farrell be appointed, whose duty it shall be to consider the matter and draw up a report for submission to the Seanad. Do Senators agree with that proposal?
ATTORNEY-GENERAL: May I say that that amendment stood over to enable the Government to bring in a certain amendment. I merely want to state that we complied with our undertaking that was given with regard to the summary judgment in District Courts.
Section 74, page 16, lines 53-54. To delete the words “for a declaration of title or in ejectment in relation to such land” and to substitute therefor the words “except in any proceedings brought for the same cause of action.”
This is really a drafting amendment. I explained it when the Bill was in Committee. The Attorney-General was not there and it stood over. The effect of my amendment is to widen the cases in which the decision of the District Court is not to be an estoppel. If you look at the Section in the Bill you will find it gives the District Court jurisdiction in cases where title is involved. My amendment confines the cases in which the decision of a justice is not to be an estoppel to those two particular cases. My amendment widens the possible cases in which the decision of a District Justice might be pleaded in an estoppel. I suggest it is a useful amendment, as there are several other cases where that might occur.
ATTORNEY-GENERAL: I am afraid I can hardly agree that that improves the Section. As a matter of clearness, the expression, “the same cause of action” is so wide and indefinite that I think it would defeat the object in  view. The idea was this, that a District Justice might have a case of trespass brought before him. If the matter of title was raised he might dispose of it and the parties might go away, but it left it open, if they liked, as a matter of title, to come to the Circuit Court. The weakness I see in Senator Brown's amendment is this. As a matter of trespass you might have trespass on Monday, Tuesday, and so on, and if Senator Brown's amendment is substituted the decision on a matter of trespass would not be final at all, because a trespass on each day would be a separate cause of action.
ATTORNEY-GENERAL: Certainly, as a tort. It was not intended to encourage that sort of thing. It was intended that there should be an estoppel as regards suits for trespass. It left it open to the parties to go in for a declaration of title. I submit the expression “the same cause of action” is so dangerous and would give rise to such disputation that it is really opening up a field of litigation instead of closing it.
Mr. BROWN: I should have thought that “the same cause of action” to a lawyer would have meant nothing but the same cause of action. I do not think there would be any danger whatever of confusion. It is to meet the case of one trespass on one day and one on the other that I put this in the amendment.
AN CATHAOIRLEACH: I could well imagine cases where the trespass could be repeated. That would make the measure of damages different from what it might be the previous day. A gentleman could walk across your ground the first day and commit a trespass. The next day he might cut up a pathway as he went along. Your cause of action the second day would be a much more serious one. I do not think there is much difference in effect between the two. If I may venture an opinion, I prefer the form which the Government have.
Mr. HAUGHTON: As a lay man who knows very little about the details that  learned members of the Bar know, I cannot see exactly how the District Judges are to compass all the work laid on their shoulders.
Mr. JAMESON: There is only one difference between the Government amendment, which is drawn to meet the question I raised, and the amendment which I have brought forward. I had in my amendment the words “and the accused shall so consent.” In the Government amendment the words are “and the accused does not object to being so tried.” There is only one little thing left out. Is it certain that the accused will be asked whether he objects or not? He may not know. As long as you say that he shall be asked, your clause is right. But if you add the words “after having been asked if he does object” it would be clearer.
AN CATHAOIRLEACH: I can quite understand an argument lasting for weeks on the question whether his conduct amounted to election or not. I think if the Government could see their way to say: “And the accused, when questioned, does not object to being so tried.”
AN CATHAOIRLEACH: There might be a grave doubt raised. Unless consent was given in a prescribed form it would be a difficult thing to prove. If you accept the suggestion “provided that the accused on being questioned” it would make it certain that he must be questioned.
ATTORNEY-GENERAL: As matters stand, the Justice can deal with any number of the cases mentioned under those sub-headings. If this is made very strong it may have the effect of altering the law and they could only be dealt with in a Circuit Court.
AN CATHAOIRLEACH: That, of course, raises another difficulty. Perhaps this thing requires to be thought out a little more, and as we are not concluding the Report Stage to-day by reasons of the difficulty that arose over that particular amendment that had to be adjourned, we might let this stand over, because, you see, the peculiarity about this whole clause is this. I think myself it is an excellent clause, particularly because it was I who recommended it. But the difficulty about it is this, for the purpose we are at now, that it excludes some things that a District Justice can already try without the consent of the accused. So that if you were to put these words in a very  stringent form it might deprive the District Justice of jurisdiction that has already been conferred on him in certain cases. There are other offences enumerated which he could not try under the existing law, and which he is given power to try for the first time by this Bill. Therefore, I think it might be desirable to separate it and to put in one category—(a) those whom he can already try without consent, and (b) those for which he will require to see that the accused realises his position and is satisfied he should be tried. If it is the desire of the House that this particular matter should stand over to be dealt with until the Bill is finally considered, I think it would be much better.
ATTORNEY-GENERAL: Some of the districts of the District Justices encroach upon different Circuits, and it would not be sufficient to say, as it is in the Section, that he is to send to the Circuit Court within which his district lies, because his district may touch upon several Circuits and, therefore, he must send to one of them. The object of the amendment is to enable him to send to the appropriate Circuit Court.
ATTORNEY-GENERAL: This amendment deals with the position of Peace Commissioners, and I am told that it would be a great convenience if a Peace Commissioner were not limited to the precise area of the County for which he is appointed, but that he should be allowed to act in the immediately adjoining Counties, and that is the object of the first part of the amendment. The second paragraph I would not press on the House. It proposes to permit a single Peace Commissioner to act where two or more Justices of the Peace would have acted, for instance, in reference to the committal of lunatics, and I do not think I could recommend that. The third part of the amendment is to include bonds in the matters that can be sworn before a Peace Commissioner.
Mr. KENNY: No. I wish to say in regard to that, that in Committee, in submitting that particular amendment I purposely left out the words “where practicable,” because I was given to understand that there are very suitable citizens in these Irish-speaking districts who are sufficiently intelligent, and who have a thorough knowledge of the  Irish language, to be appointed as Peace Commissioners. The President said at the time that he was in favour of it, but he would consult the Minister for Home Affairs, and the Minister for Home Affairs told him that his greatest difficulty was in finding Irish speakers in these Irish-speaking districts of sufficient intelligence and education to carry out the functions of Peace Commissioners. I was rather surprised at the statement, and since that time I put myself in communication with certain sources of information. There is a Committee of the General Council of County Councils, which has been formed for the purpose of developing Irish culture and the preservation of the Irish language, and if the Minister applies to that Committee he will get very full particulars and very extensive lists of names of men in prominent public positions in these Irish-speaking districts who are fluent Irish speakers and who are sufficiently well educated to carry out the functions of a Peace Commissioner. I throw that out——
Mr. KENNY: No; but I give one instance, the Dingle peninsula, where four or five Peace Commissioners have been appointed, and not one of them understands the Irish language—in an Irish-speaking district. I have had names given to me of thirty eligible citizens in that peninsula who are well qualified in every respect to take these positions. These other men are practically useless. Nobody understands them, and they cannot understand anybody. I think the sources of information tapped by the Minister for Home Affairs must be very meagre. In the amendment the Government have introduced these words in reference to appointment of Peace Commissioners, “where practicable.” I have information that it is practicable in every instance to find men in these districts who are fluent Irish speakers, well educated, and willing to take these appointments. However, I am satisfied to accept the Government amendment.
Mr. HAUGHTON: I am afraid there is a danger of running considerable risks on this question. We would all like to see the Irish language revived, and the younger generation well grounded in it, but the action of my friend, Senator Kenny, reminds me of an incident that occurred some years ago. A certain gentleman came down from Dublin to Cork, appeared before the Corporation there, and enlarged on the desirability of the Irish language being universally adopted, suggesting that the minutes of the Corporation should be in Irish, and that Irish should be, as far as possible, broadcasted in the Corporation. A friend of mine who was a member of the Corporation, now gone, I trust, to a better world, asked him a question in Irish, and he could not understand it. The question was repeated, and then he had to admit, with considerable shamefacedness, that he did not know a word of Irish. He was thereupon told by my friend that he should go back to Dublin by the next train and not be wasting the time of the Cork Corporation, that they knew how to conduct their own business without being dictated to from Dublin. I think in this age of broadcasting, when the countries of the world are drawing closer and closer together, and communicating with each other so marvellously—a friend of mine was listening to “The Blue Bells of Scotland” being played in New York the other day—my friend, Senator Kenny, and others wish to have a narrow wall drawn round us, and to have the law interfered with by persons who, if they happen to know a little Irish, are to be appointed to Judgeships and other positions in preference to a prominence of knowledge of the law. I do not wish anyone to think that I am not as earnest and as keen on the younger generation being taught Irish as any member of the Seanad, but I think there is a danger of going too far on this question.
“(2).—So far as may be practicable, having regard to all relevant circumstances, every person appointed to be a Peace Commissioner in a County which includes an area in which the Irish language is in general use shall have a knowledge of the Irish language adequate for the transaction of the business of his office in that language.”
Mr. BENNETT: The amendment of the Government is, to my mind, the smallest concession that can possibly be made to the Irish language, Irish sentiment, and Irish thought. Senator Haughton made some very attractive remarks, and he told a pleasing story at the expense of the Irish language, but he has altogether overlooked the fact that, I am glad to say, the Government has not overlooked, that in a great many districts Irish is the only language really understood. Senator Haughton speaks from a knowledge of a particular part of the country. I have been in many parts of the country, and my Irish may be bad, and my English worse, but they understood my Irish and did not understand my English. For any Senator to suggest now that it is an injustice to allow Irish to be spoken is hardly a fair attitude to adopt. I think in a country like Ireland where, I might say, the position we have attained is largely due to the great interest which was taken in the Irish revival, such an expression from any member of the Seanad at this stage is very retrograde. I think, and I hope, that the attempt that is being made to revive the language will make each and every one of us feel more keenly the pride of race which we ought to have. Let us be Anglo-Saxons, Anglo-Irish, or whatever we wish to be, we can all have a pride in the past of Ireland and a pride in the ideals transmitted to us through the vehicle of Irish. That being so, anyone who suggests that Irish should not be fostered in these days of broadcasting ought not to get sympathy from anyone who desires to make Ireland what we all hope she will be eventually, a real Irish-Ireland, thinking through the culture inspired by  Irish thought and the ideals transmitted to us, kindling in our veins a responsive chord struck through the ages, through the medium of the Irish tongue. All these things affect our national existence. I, for my part, thank the Government for having made the only concession possible to assist in the method of administration of justice at the moment. I think the Government will find in a short time from the interest taken in the language that it will be practicable and possible to secure in every Irish district every administrator of justice from the District Court to the Superior Court who will be able to expound the language for the benefit of the people.
Mrs. COSTELLO: As I supported the various motions by Senator Kenny before, I should say that I am very grateful to the Government for the generous concessions they have made in this matter. It is only what we have expected from men who themselves were nurtured in the language movement, to which fact I think it is not too much to say it is due that we are sitting here making our own laws to-day. I think they met us in every way possible, and I do not think any advantage will be taken of the words “where practicable.” I think if, as has been suggested by Senator Kenny, men have been appointed who are not suitable, that is a matter if brought to the attention of the Minister for Home Affairs could be rectified.
Colonel MOORE: Senator Haughton's speech reminds me of a good deal of the talk and statements made outside by people who profess a great Platonic affection for the Irish language, but at the same time hold that on no account is it to be used in the Courts or taught to anybody, and that if you give Irish its proper place then the person who does not know English is not to have any fair play in the law or anything else. That is the effect of what Senator Haughton stated. Senator Bennett pointed out, very correctly, that it is due practically to the efforts made by the Gaelic Leaguers for the past twenty years that we have gained all we have since then.  That is due to the Irish language, and Senator Haughton would not be sitting in this room at present were it not for the movement on behalf of the language. There is no doubt whatever of it, but Senator Haughton perhaps is not as well acquainted with these matters as some of us. There are people who do not know the history of the past twenty years so well. Senator Haughton, I think, ought to be a little more careful before he attacks the national language of Ireland in the way he has done. People who have hitherto felt with him have adopted quite a different attitude. I congratulate the Government on making some effort, and I hope they will make stronger effort in bringing forward the Irish language.
Section 85, page 19, line 3. To add at the end of sub-paragraph (d) the words “and providing for the remuneration of the medical officer and the examiner of lunatics under Section 14 of the Lunatic Asylums (Ireland) Act, 1875.”
ATTORNEY-GENERAL: This amendment is for the purpose of enabling a Peace Commissioner who acts under Section 10 of the Act, 1867, mentioned in paragraph 3, to provide for the remuneration of the examining medical officer in the way which a Justice of the Peace formerly did by a certificate that he has examined.
AN CATHAOIRLEACH: Pardon me. Is this covered by the Governor-General's Message, and does this require a resolution, because I want to understand it, and I confess frankly I do not at present understand it?
“(g) condemning and ordering the destruction or disposal of any article intended for the food of man which appears to him to be diseased or unsound or unwholesome or unfit for the food of man under Section 133 of the Public Health (Ireland) Act, 1878, as amended by Section 28 of the Public Health Acts Amendment Act, 1890.”
ATTORNEY-GENERAL: The object of the amendment is this. Under the existing law a Justice of the Peace could condemn on report of the Food Inspectors material that was displayed for sale for consumption as human food if it happened to be unsound, and order its destruction. This amendment enables a Peace Commissioner, on having similar certificates produced to him, to make an order condemning and ordering the destruction of unsound food. If it were to wait for the arrival of the District Justice it might have become more unsound.
Section 87, line 30. After the word “purpose” to insert the words “including one at least of the Justices for the time being assigned to the District including the Police District of Dublin Metropolis.”
ATTORNEY-GENERAL: This is to guarantee that one of the Dublin Justices should be one of the Justices on the Rule-making Authority because it may be that very special rules in certain cases will be required. There are special Police Acts in Dublin and I thought it right when providing for the country solicitors to provide also for one of the Dublin Justice.
Sir J. KEANE: I want to ask why under Section 87 the number of Justices on the Rule-making Authority is not stated. Apparently, as it reads now, the Committee could consist of only two Justices. I would also like to know, although I do not usually  champion it, why a knowledge of the Irish language is not necessary in the case of the District Justices as it is in the case of a certain number of the Circuit Court Rule-making Authority. There seems to be a totally different procedure adopted in the case of the Rule-making Authority for the District Courts and there has been no explanation why a different procedure is required.
ATTORNEY-GENERAL: As regards the language, the great majority of the District Justices have the language. The range of selection for the other Courts does not afford the same opportunity. It would be almost impossible to constitute a rule-making authority of District Justices without having men who know the language amongst them. A great number of them are fluent speakers of the language, and it is probable for that reason that it did not occur to anyone as necessary to stipulate it. As regards the number, a large number of District Justices are actually engaged at work, and the difficulty always will be that these Courts, being actually constituted, it will be a matter of trying to recall a certain number of the most efficient for this particular class of work and forming them into a Committee. We thought it better to leave the number at large.
Mr. BROWN: I beg to move:—
Section 90. Immediately after the foregoing Section to insert a new Section (91) as follows:—
“91.—Nothing in this Act or in any rules to be made by virtue thereof shall affect the mode of giving evidence by the oral examination of witnesses in trial by jury, or the rules of evidence.”
This is a Section which is practically taken from Section (66) of the present Judicature Act in Ireland. Its objects are, first, to ensure that evidence will be given vivâ voce in open court and be subject to cross-examination and, secondly, that the established laws of evidence shall not be altered by any Rules of Court. I think it is a necessary limitation of the power of a Rule-making authority that they should not have any power by rules made under the Bill to alter the established rules of evidence. It is a Section which was thought necessary when the Judicature  Act was being framed, and I submit it is a Section which ought to be introduced into this Bill.
ATTORNEY-GENERAL: I am rather afraid of this amendment. There was a reason, of course, in the Judicature Act why it was necessary, but in this Bill, as it stands, there is absolutely nothing that purports to touch the rules of evidence or the method of giving evidence. I am rather afraid that if a qualification of that kind is put in, it might suggest that other things are affected. The Bill does not purport to touch the Rules of Evidence and I do not see myself, if we were to change the laws as regards evidence, how we could do it otherwise than by a subsequent enactment.
Mr. BROWN: If the Attorney-General assures me that no Rules of Court can alter the existing established rules of evidence, I will be perfectly willing to withdraw this.
ATTORNEY-GENERAL: That is my view.
AN CATHAOIRLEACH: That would depend upon the ultimate decision as to whether the Rules of Court are to be made ultimately by Parliament or not.
Mr. BROWN: I am assuming for the moment that the Rules of Court are to be made in accordance with the provisions already in the Bill, and not as I tried to amend them. If so, it would be quite impossible, I think, not to have a Section like this.
ATTORNEY-GENERAL: I may say that I have never contemplated these rules as making alterations in substantive law. As a matter of fact, at an early stage when we were working out the scheme of this Bill, I foresaw that we would necessarily have to introduce some kind of consequential Bill dealing with a number of matters that would become evident, and that would involve alterations in the law. It has always been my view that at a later stage when we have worked out the draft rules, we will see a number of matters in which amendments of existing laws will be necessary. As an instance, we can take the Petty Sessions Act procedure. I feel sure that we will require a kind of  Omnibus Bill dealing with a variety of repeals and amendments of Sections which at the moment it would be impossible completely to visualise, but which will become apparent when the Rule-making Committees get to work. We do contemplate one alteration as regards evidence, by a Bill which shall be submitted to the Oireachtas, enabling accused persons to give evidence in criminal cases.
Mr. BROWN: I am not entirely satisfied with what the learned Attorney-General has said. I am greatly afraid that they might, by rules of court made under this Bill, provide that the mode of giving evidence in cases tried with witnesses before a jury might be altered. I think that is a very serious thing. It was thought absolutely necessary in the Judicature Act to put in these limitations as to what could possibly be done by Rules of Court. I ask the Attorney-General to consider seriously whether he ought not to have some provision of this kind limiting the power of the rule-making authority in these two matters.
AN CATHAOIRLEACH: Do you not think it would be very desirable that this amendment should stand over until we see what becomes of your other amendment? If that was carried what you are proposing now would be quite wrong. You are proposing that the rules of court shall be given effect to by Parliament. If they are given effect to by Parliament they are law. Therefore, I think you had better let this amendment stand over.
Mr. BROWN: I agree.
Consideration of amendment postponed.
Mr. BROWN: I move:—
Section 91, line 2. To insert after the words “the High Court or” the words “(save as hereinafter provided).”
lines 3-5. To delete all the words in brackets.
line 8. To delete the words “the High Court or”
 The object of the amendment is to retain in the High Court the right to a jury in all cases. As the Section stands it deprives a body of the right to a jury in the High Court as well as in the Circuit Court, in actions for liquidating sums or for the enforcement of damages for breach of contract. I submit that this is too great an invasion on the old-established practice of having a question of fact tried by a jury. It is right, I think, in a Circuit Court where the amounts sued for will be comparatively small, and where the juries are not likely to be quite as satisfactory as they are in Dublin. I, therefore, think that the Section should be altered so as to preserve in the High Court the right to a jury in all cases. I quite agree that in the Circuit Court the Section should stand as it is.
ATTORNEY-GENERAL: I anticipate that Senator O'Farrell will say that what is sauce for the Circuit Court goose should be sauce for the High Court gander. In this Section we have dealt only with matters of contract. We have made it necessary to apply to the court for a jury, and I really cannot see in principle why there should be a distinction between the Circuit Court and the High Court. Moreover, I am having appeals from all directions to enable some kind of commercial court to be set up in Dublin, and in my judgment this really is the first step towards that end. I submit that the Section should be allowed to stand.
Mr. BROWN: If you want to go to the Commercial Court naturally you would not want a jury.
AN CATHAOIRLEACH: There is no Commercial Court established by this.
Mr. BROWN: Not yet. That is a matter for Rules. In England, where they have this very useful Commercial Court, it was established, not by Act of Parliament but by one of the Rules. It merely means that a certain court will be listed for certain kind of cases which will be tried by a jury and by short cuts in the way of pleadings. If you want to go to that kind of Court you do not want to have a jury.
AN CATHAOIRLEACH: Why do they deprive the parties of that right in that case in England?
Mr. BROWN: They did not deprive them of their right, but both sides decided to go to that Court and waive their right to have a jury.
ATTORNEY-GENERAL: Under this, application might be made to the Court by either party, and the Judge might say that it was not a case for a jury and that it was largely a matter for commercial consideration, and he might send it to a commercial court.
AN CATHAOIRLEACH: And he might of his motion dispense with the jury.
ATTORNEY-GENERAL: Yes, if he really thinks that the matter in dispute is not one of fact but one of the consideration of documents.
AN CATHAOIRLEACH: I think, Senator Brown, you might safely accept this. Your interests are guarded.
Mr. BROWN: Very well.
AN CATHAOIRLEACH: What about the amendment in line 10, to insert the words “in any action for the recovery of land.”
Mr. BROWN: I do not think that that is necessary. I think that was intended to exclude in the Circuit Court, where you might not have a very good jury.
ATTORNEY-GENERAL: I am content to have the same rules apply to both contract and the other.
AN CATHAOIRLEACH: I think it is a good amendment, and should be accepted.
Amendment—“In line 10, after the word ‘contract,’ to insert the words ‘or in an action for the recovery of land’”—put, and agreed to.
AN CATHAOIRLEACH: The next amendment is to Clause 92, which stands in the name of Senator Brown.
Mr. BROWN: I do not move that.
Amendment not moved.
Mr. BROWN: My next amendment is No. 61, which reads as follows:—In Section 93, line 30 to 31: To delete the words “or the Circuit Court.” Line 32: To delete the words “or the Circuit Court.” Line 34: To delete all after the words “new trial” to the end of the Section and to substitute therefor the words “or to set aside the verdict, findings and judgment, and to enter the proper judgment upon such grounds as were heretofore recognised as proper grounds for similar applications in the High Court of Justice in Ireland.” I have seen an alternative amendment by the Government. It is not on the Order Paper.
AN CATHAOIRLEACH: You have the advantage over me.
Mr. BROWN: I think the Attorney-General will explain. I think it provides for the matter better than my amendment.
ATTORNEY-GENERAL: It has only been drafted a short while ago. When I studied Senator Brown's amendment I ventured upon an alternative proposal “to add at the end of Section 93, after the full stop, the following ‘In any appeal to which this Section applies, the Appellate Tribunal may, in lieu of an Order for a new trial, set aside the verdict, findings and judgment appealed against and enter such judgment as the Appellate Tribunal considers proper.”
AN CATHAOIRLEACH: Would that saisfy the point raised in Senator Sir John Keane's next amendment?
Sir JOHN KEANE: Senator Brown is going to argue that.
AN CATHAOIRLEACH: Are you satisfied with this new amendment, Senator Brown?
Mr. BROWN: I want to be certain that it applies to a case like this. Under Section 93 as it stands, the application by way of appeal from a Circuit Court, where the case was tried by a judge and jury, is for a new trial, and the only order they could make would be either to refuse the appeal or direct a new  trial. The amendment of Senator Sir John Keane provides that instead of doing that they might, on the evidence before them, enter a verdict.
AN CATHAOIRLEACH: This amendment expressly does that.
ATTORNEY-GENERAL: It was intended to cover Senator Sir John Keane's amendment as well.
AN CATHAOIRLEACH: May I suggest a slight change. I think that the repetition of the words “Appellate Tribunal” is a little tautological. I suggest that you use the word “Court.”
ATTORNEY-GENERAL: Very well.
Amendment, as amended, put and agreed to.
AN CATHAOIRLEACH: The next is a Government amendment to Clause 94.
ATTORNEY-GENERAL: The amendment is: Immediately after Section 94 to insert a new Section, as follows:—“Report of stenographer to be certified.” 94.—“Whenever under this Act an appeal is required to be grounded or heard on the report of an official stenographer, such report shall not be accepted by the Appellate Tribunal unless it is certified by the Judge of the Court of first instance.” I think it would be right that the notes of the stenographer should be vouched by the signature of the Judge in order that there may be no question of their identity. I desire to alter the amendment now on the Order Paper by making it end after the words “in Court of first instance.”
Sir JOHN KEANE: Does the Judge certify that the notes are accurate? Without qualification this might mean anything?
AN CATHAOIRLEACH: I think it is intended to certify that it is the work of a stenographer—that these are the notes.
Sir JOHN KEANE: Should not the wording be qualified?
Sir THOMAS ESMONDE: Why should you not use the words “true and accurate report?”
AN CATHAOIRLEACH: I think  there is great danger in that. First of all it would impose upon the judge the necessity of reading from start to finish these notes. Supposing an appeal is taken from the Judge's own judgment, human nature being what it is, there is always a temptation to read the evidence in a particular way. It is irresistible. You would really be making the Judge the arbiter of what is said and not the stenographer. I think what you really require is to certify that these are the notes taken by the stenographer in a particular case.
ATTORNEY-GENERAL: Yes, certified as such.
Mr. JAMESON: I thought that the Judge's certificate meant that they were a true description of what took place.
AN CATHAOIRLEACH: That would be so if you put in the last two lines, That transfers to the Judge who has not taken the notes the responsibility of supplying a correct copy although he has not taken the notes. Furthermore these notes will be used for the purpose of endeavouring to upset his judgment. It would be putting the judge in a false position if he were compelled to certify in the way you suggest. What is wanted is some guarantee that the stenographer's notes were those taken by the stenographer in that particular case.
Sir JOHN KEANE: Is he going to certify the actual shorthand record or the transcript? The transcript would be satisfactory. What we want to ensure is that the actual notes taken in shorthand, are the notes taken in the Court.
AN CATHAOIRLEACH: Then you would require every judge to be an expert shorthand writer.
Sir JOHN KEANE: No, what I want is simply to certify the document. What happens to those documents? Are they impounded after the trial and kept free from access? What is to prevent some other document being substituted in an important action?
AN CATHAOIRLEACH: In England —I am only speaking from the experience of having watched the operations —there are responsible officials attached to the Court and when they make their transcript they lodge it and keep the original notes.
Sir JOHN KEANE: I take it that this matter is to be provided for in the Rules. It shows how important those Rules are and how dangerous it is to allow any laxity.
Mr. BROWN: I thought that the object of this amendment was to be quite certain that a transcript was a transcript?
AN CATHAOIRLEACH: How can a judge do that?
Mr. BROWN: If you put in a proviso that it is true in substance and in fact.
AN CATHAOIRLEACH: Then the responsibility for the notes is shifted to the judge?
Mr. BROWN: I thought that was the object of the Attorney-General. I think we can trust to the judge rather more than to the stenographer.
ATTORNEY-GENERAL: That is hard on Civil Servants.
Mr. GUINNESS: There seems to be some difficulty in understanding what this Section is going to carry out. The word “certify” is hard to explain.
AN CATHAOIRLEACH: I think that the matter requires careful consideration and revision, and that it should stand over. As the amendment was originally framed it threw the responsibility for the correctness of the notes on to the judge who did not take them.
Mr. GUINNESS: As originally framed it was all right. The difficulty was caused by striking out the last two lines.
ATTORNEY-GENERAL: There can be no objection to having the shorthand notes passed on to the Appeal Court as part of the documents of appeal. I will amend that wording so as to have the original notes and transcripts certified as such.
AN CATHAOIRLEACH: How can a judge certify a transcript to be a transcript of the notes if he does not understand shorthand?
ATTORNEY-GENERAL: He certifies it to be a report.
AN CATHAOIRLEACH: That does not carry us much further.
ATTORNEY-GENERAL: It might.
AN CATHAOIRLEACH: You will want to think it over.
ATTORNEY-GENERAL: Very well.
Amendment deferred for further consideration.
AN CATHAOIRLEACH: The next is a Government amendment to Clause 96:—
ATTORNEY-GENERAL: This Section was referred to by you, Sir, yesterday, as perhaps going a little further than was contemplated. I have reconsidered the Section, and have had it re-drafted. I propose to move it in the following form:—
Section 96.—To delete the Section and insert in lieu thereof the following Section:—
Age of retirement for existing judges appointed under this Act.— 96. Where any person who is at the passing of this Act a judge of the Supreme Court of Judicature in Ireland, a Recorder, County Court Judge, Divisional Justice of the Police District of Dublin Metropolis, or District Justice, is appointed to be a judge or justice under this Act, the age of retirement prescribed by this Act may in his case be extended by the Executive Council, after consultation with the Chief Justice and the Attorney-General, to any age not exceeding the lesser of the two following ages, that is to say, the age of 75 years, or the age of five years beyond the said prescribed age of retirement.
A person who has been a judge of the Supreme Court of Judicature in Ireland, a Recorder or County Court Judge in Ireland shall not be disqualified from being appointed a judge of the Supreme Court, the  High Court or the Circuit Court by reason of his having at the date of such appointment already attained the age prescribed by this Act as the age of retirement of the judges of such Court, and where such person as aforesaid is appointed to be a judge of any of the Courts aforesaid after he has attained the age of retirement aforesaid, the age of retirement shall in his case be deemed to be extended to the maximum age to which it could be extended by the Executive Council under this Section.
AN CATHAOIRLEACH: Might I make this suggestion in all seriousness? Would it not be far better to say that where any person is appointed to be a judge or a justice that the age of retirement prescribed by this Bill shall be extended for three years? The way that will work out is this. In the case of a judge newly appointed he would retire at 72. In the case of an existing judge kept on he would retire at 75. That is the case of the High Court. In the case of a Circuit Court any newly-appointed judge would retire at 70. Any existing judge re-appointed would retire at 73. In the case of a District Court any new appointment would retire at 65, but any re-appointment would have until 68. In other words, make an automatic addition of three years to the period prescribed in the Bill in the case of men re-appointed.
ATTORNEY-GENERAL: There are two cases to be considered. There is the case of a man who has not attained the full age limit, where the Government might be willing to recommend his appointment for the balance of that period. Then there is the case of a man where they would like to extend that particular case or the case of a man who has attained the age of 72. It is proposed in that case to give automatic extension.
AN CATHAOIRLEACH: You do not want to extend it in any case beyond 75?
AN CATHAOIRLEACH: Would it not be met by what I suggest, that for the newly-appointed judge he should  automatically retire at 72, but in the case of re-appointment he should have three years automatically added, whether he be a Circuit, District, or High Court Judge, that the particular period mentioned in the Bill should be automatically increased by three years in the case of every re-appointment? That would leave the maximum in the High Court at 75, Circuit Court at 73, and a District Court at 68, except in the case of the Dublin Justices, in whose case it would run to 73.
ATTORNEY-GENERAL: The difficulty is in looking at people just on the border line of the age limit. A person might be appointed under 50 whom it might not be desirable to continue until 75.
AN CATHAOIRLEACH: Under the Constitution you still have control over them, and can remove them if they are inefficient.
ATTORNEY-GENERAL: That is an unpleasant expedient.
AN CATHAOIRLEACH: The last amendment you read out strikes me as being very complicated.
ATTORNEY-GENERAL: The position the Government take is this, that a man whose age would be the retiring age, they would wish to treat him as automatically having an extension. But if you take a man under the retiring age, either they will give him a fixed limit in the Bill or, if the House assents, they will take power to extend his period, but they are not prepared to give an automatic extension in that case.
AN CATHAOIRLEACH: No, but why should they, if they take a man who is below the age and give him an automatic extension? But if at the time of re-appointing he has reached 72 years of age, then I would give it to him.
ATTORNEY-GENERAL: If he has actually reached the age of retirement he gets an automatic three years to 75 years, and that would apply to all courts. But if he has not reached that age, they reserve that right.
Mr. HAUGHTON: There is no differentiation between the age of the Dublin Justices and the Recorder of Cork.
AN CATHAOIRLEACH: The Dublin Justices have nothing to do with the Recorder of Cork, but the extension that is given to the Dublin Justices is also extended to the Recorder of Cork.
Mr. BROWN: Might I call the attention of the Attorney-General to an objection to the second part of his proposal, that is, in the case of an existing Judge who has not yet reached the retiring age and is re-appointed. In the amendment, as it stands, the extension of the age of retirement in a case of that kind is on the recommendation of—I forget if it is the Minister for Home Affairs—and the Attorney-General.
ATTORNEY-GENERAL: The Chief Justice.
Mr. BROWN: The Chief Justice and the Attorney-General. As was pointed out when the Bill was in Committee, that puts a Judge in a rather unpleasant position, just as he is reaching the age of retirement.
AN CATHAOIRLEACH: Does it not put the Attorney-General in a worse position, because he might be expecting succession?
Mr. BROWN: What I was going to suggest to the Attorney-General is this: in the case of a Judge who is an existing Judge, and has not yet reached that critical age, that in his case an extension should be made on his appointment, so that he will know how far the age of retirement is to be extended. It would take away that invidious position in which you put him, that his case is to be considered when he reaches the age of retirement. You have done it in all the other cases.
ATTORNEY-GENERAL: Of course, the option of extension has been given up. It was originally a concession. In all the cases of the ordinary appointments this power of extension was suggested as a thing that it might be desirable to have with reference to some of the re-appointments. If it is thought well of, then the age limit could remain.
Mr. BROWN: I doubt very much if you could persuade any existing judge who has not reached the age to take advantage of that. I think he would rather go out at 72.
AN CATHAOIRLEACH: Would it not be far simpler and better in the case of any judge, whether re-appointed or not, who was below the prescribed limit, that he should go at the prescribed limit, but that in the case of all judges of any court who are re-appointed, when they reach the prescribed limit, they should have the automatic extension of three years?
ATTORNEY-GENERAL: I accept that.
AN CATHAOIRLEACH: I am glad the Government make that concession. I really think it simplifies it. The Seanad understands what is proposed. In the case of all existing judges, including in these words District Justices, Circuit Judges and Judges of the High Court, if in the case of any of these Courts an existing Judge is re-appointed who has reached the age prescribed in the Bill for retirement, he gets an automatic and further term of three years added to his term. If, however, at the date of his re-appointment he has not reached the prescribed period, he has to go at the prescribed period and he gets another three years automatically added. That is the proposal, that a new section to this effect be inserted in lieu of the existing section.
Mr. BROWN: There is an amendment on the Order Paper which I now withdraw, because it is merely to delete Section 97, and would have been necessary if I carried my amendment yesterday.
Amendment, by leave, withdrawn.
Mr. BROWN: The amendment which I now propose is as follows: To delete Section 97 and to substitute therefor the following new Section: “All Rules of Court made under this Act shall be laid on the Tables of both Houses of the Oireachtas but shall have no force or effect unless within six months from the date of their being so laid they shall  have been passed into law by the Oireachtas.” I think I may say that this is my last effort to keep the Rule-making provisions of the Bill within the Constitution, and the amendment is one which I hope will meet the views of some Senators who voted against my amendment yesterday and may even capture the support of the Government. The effect of the amendment is this, that it leaves the Rule-making Authority untouched; that is, the Rule-making Authority as provided originally in the Bill.
Rules are to be made by the Minister for Home Affairs in the manner provided by the Bill, but instead of laying on the Tables of the two Houses and coming into force automatically if not objected to, as they would under Section 97 as it stands, I propose that the Rules of Court shall be enacted as laws by the Oireachtas. Under that amendment the Government will have obtained all the objects which they desire, and which they told us they desired yesterday. The Rules of Court will be prepared in the way they are proposed in the Bill. They will be able to provide by these Rules for the cheap litigation, for arrangements for vacations, and all other matters they have at heart and the only disadvantage to them will be that they will have to put a Bill, scheduling these Rules through the two Houses, and in a matter of such importance as this, I suggest that that is a small thing. It certainly is a small price to pay for the certainty that these Rules will be within the Constitution and that they will be understood by the Houses, and that the Houses will have an opportunity of understanding them. We all know what papers laid on the Table of the House means. Personally, I never physically saw the papers on the Table of the House until yesterday, and I very much doubt whether any member has ever read any of the papers.
AN CATHAOIRLEACH: I had them put there for the occasion.
Mr. BROWN: I am very much obliged to you. Therefore, if these Rules are to be approved of by the House— and that is what Section 97 means— and if this laying of them on the Table  is to have any real effect the only way that can be carried out is to have them passed as Acts through both Houses.
Sir JOHN KEANE: I should like to second the amendment, and in doing so I desire to call the attention of the House to the fact that fresh evidence in this matter has been revealed to-day in certain statements of the Attorney-General which must convince us that this Rule-making power is very closely allied to legislation. He has told us that when they come to consider these Rules there will then arise a necessity for further legislation. If they are so intimately bound up as that, I do think that it is very important to this House to have a close and positive scrutiny of the rules. Further, I think he gave us to understand that some question of the rules of evidence was to be considered under the new Rules. I am sure the House will realise how important the procedure of evidence is, and how very necessary it is that any change of that kind should be fully reviewed by the sovereign power which is the Houses of the Oireachtas. Then, there is a small but important matter that came up to-day, as to the method in which these shorthand notes are to be taken, and what happens to these notes after they are made, what happens to the transcript, and so on. These are only a few of many other matters which will concern the Rule-making Authority, and I make the point that it is not sufficient that the House should be satisfied by tabling papers. They should take definite cognisance of these rules whether in the form of an actual Bill or by Resolution, or by some method to ensure that they receive full and careful scrutiny.
Mr. DOUGLAS: I have tried, to the best of my ability, to understand the position in regard to the discussion on the Rule-making Authority, and I should be prepared to support some definite sanction by the Houses of the Oireachtas, and if Senator Brown had brought that in in a form which seemed to me both constitutional and workable, I, for one, would be prepared to support it. As brought in, in this amendment, I doubt if it is strictly  constitutional, and I doubt if it is workable. In the first place, I do not think that one Act can say that another Act must be passed within six months, because it seems to me that once these Rules are brought in as an Act they would then stand as an Act by themselves, and will have to pass under the Constitution subject to such delays and amendments as would take place. From that point of view I doubt the workability of the statement that they shall have no force or effect unless within six months of being so laid they shall be passed into law. Passed into law presumably means the introduction of the Rules by someone in the form of an Act and that might mean a delay of nine months. I doubt, as I have said, six months is possible, or that it would be correct under the Constitution. Sir John Keane suggested that a simple Resolution might meet the case. I rather question the statement of Senator Brown, with great respect, that we all know what papers laid on the Table means. I should like to point out to members of the Seanad that the papers laid on the Table differ according to the Regulations and Acts under which they are laid. Certain papers are laid for the information of the Seanad, and other papers the Seanad have power to prevent coming into force by Resolution, but all these papers are not only to be laid on the Table, but they are actually quoted in the Orders of the Day which every member receives. Apart from that question, I have not much sympathy with members of the Seanad who feel because they do not read these Papers, and are not interested in them, that therefore they have no powers. At the same time, I would rather hope, as this matter has been debated so far, and as Senator Brown has said that the main thing he wants is effective control by the Oireachtas, it might be possible to alter the form and substitute a simple Resolution approving without amendment by both Houses. I have no idea of the view the Government will take in that matter, but if that were done it would be more acceptable than the form proposed by Senator Brown.
ATTORNEY-GENERAL: With regard to what Senator Sir John Keane  has said, what I said earlier in the day was that we contemplated a change in the law of evidence by a Bill for that purpose, enabling prisoners to give evidence on their own behalf, and I never suggested that we contemplated a change in the rules of evidence.
Sir JOHN KEANE: I am sorry I misunderstood the Attorney-General.
ATTORNEY-GENERAL: Further, I said at an earlier stage, if in course of preparation of these rules we find, as I believe we will, that there will be substantive laws here and there that require amendment, adaptation or alteration, we will bring in a sort of omnibus Bill, to cover these points. It appears both Senator Brown and myself have spent some of our midnight oil on this, and I only wish it was the same oil we had spent, because I have here a proposal alternative to Section 97, which is exactly on the lines of Senator Douglas's suggestion, and which, I submit, meets the situation. The desire that was evinced here yesterday was that a responsible Minister should come in and definitely propound the body of rules, and that there should be an opportunity of discussing the body of rules, having them first laid before the House by him, and expounded by him. In order to give effect to that I propose this alternative to Section 97—“No Rules of Court made under this Act shall come into operation unless and until they have been laid before each House of the Oireachtas and have been approved by a Resolution of each House.” I do not know if Senator Brown will say that that is a workable alternative to his, which I agree with Senator Douglas in thinking is neither constitutional nor workable, and with the leave of the House, and your permission, Sir, I would offer that as a Government amendment.
Mr. BROWN: May I say this, that the alternative which he now proposes is in exact form the amendment I proposed in Committee. It was then ruled out as practically unconstitutional by my friend, the President, who said that this was not legislation, and I am afraid, that if I accept this I would be  giving up the constitutional point which I have insisted upon ever since.
AN CATHAOIRLEACH: I think I would take it.
Mr. BROWN: As it is more or less a triumph to accomplish, I will take it.
AN CATHAOIRLEACH: This will always be known as Brown's clause. I think you may be proud of yourself. This will be always known as Senator Brown's Section.
Mr. GUINNESS: When the Resolution suggested by the Attorney-General comes before the Seanad, will the Seanad be offered an opportunity for discussing it?
AN CATHAOIRLEACH: Seeing that they will have to approve of it, they will certainly have the power of discussing it. This means, of course, that they can disapprove of any one of them.
Mr. GUINNESS: That is what I wanted to get at.
AN CATHAOIRLEACH: I think, Senator Brown, you had better look in to the wording of this. You and the Attorney-General are on the same lines, I think, but it should be made plain that the resolution should be capable of approving of some and disapproving of others. This says “No Rules of Court made under this Act shall come into operation unless and until they have been laid before each House of the Oireachtas and have been approved by a resolution of each House.”
Mr. BROWN: If the word “rule” was used instead of “rules”? That was my original amendment.
ATTORNEY-GENERAL: Unfortunately you might have a separate resolution for each rule.
Mr. BROWN: No, I provided for that.
AN CATHAOIRLEACH: Could you not add this “any such resolution or resolutions may approve or disapprove of the said rules in whole or in part”?
ATTORNEY-GENERAL: It will be observed that that was the object of  the original Section 97 because that provided that the same or any of them might be annulled.
Mr. BROWN: As there are some other matters left over we might be allowed to have a little further time to consider this. I will confer with the Attorney-General.
Consideration of amendment postponed.
Sir T. ESMONDE: I beg to move:—
“Section 98, line 32. After the word “tenure” to insert the words “and upon the same terms and conditions, and receive the same salaries; and if entitled to pensions, be entitled to the same pensions.”
This is a small matter which I raised in Committee and the Government said they would look into it. It deals with certain officials connected with the various Courts who are to carry on their work under the new regime. The idea is that they should be confirmed in their pensions and emoluments as they would have been if this Bill had not been passed. The Government agreed to the question of principle some time ago. When the Bill was first introduced it had a Section which was drawn up to the satisfaction of the persons concerned. In Committee in the Dáil that Section was amended and certain words were taken out. The taking out of these words these persons think means their case is not as water-tight as it was before. I propose therefore to insert the words that were in the Bill when originally introduced, unless the Attorney-General can assure me that the word “tenure” means that they will get the same treatment and receive the same pensions, etc., as they would if the Bill had not been passed.
Dr. SIGERSON: I beg to second. Those who have remained faithful to the State under its new aspect certainly deserve much consideration because it was open to them to adopt a different mode of action. They have shown their faith in the Free State, and the Free State should consider their case.
ATTORNEY-GENERAL: When the words were taken out there was added at the end, nothing in the Section shall prejudice their rights under the Treaty. Of course the position of any civil servant who had his salary reduced or his position in any way affected is that he can retire with 17 added years, and so on, under the Treaty. I am advised by the people concerned in the establishments that the Section, as it stands, preserves the position of these persons, which is the intention.
Sir T. ESMONDE: If the Attorney-General can assure me that their position is secure I will not press this. I take it that it is perfectly safe?
The PRESIDENT: I am informed by the Ministry of Finance that their positions are safeguarded by Article 10 of the Treaty and by Article 77, I think it is, of the Constitution. I do not know that there are any cases which have a right to be considered which are not covered by these two Articles. There was, however, one particular instance, which I think I mentioned here before, that there were certain people employed in the Courts, for a very considerable sum of money, at work which could easily be done for something like half the sum. In that case there was no position analogous to that of the civil servant. If there be such a case I would undertake to look into it. To accept the amendment in this form might prejudice the Chief Justice when he would have to decide whether the terms were analogous to those they had already. Let us take the instance of the Courts opening at 11 o'clock. Should it be decided that they should open at 10.30 some person employed there might say that it was unreasonable to expect him to attend at 10.30. Only in such a case as that would there be a likelihood, so far as I can learn, of anything in the nature of a dispute. I am informed that the Section, as it stands, safeguards the rights and privileges and pensions, so far as they are consistent with Article 10 of the Treaty and Article 77 of the Constitution. I am advised that it would be scarcely within our power to go outside of those Articles, as they are above the Oireachtas.
Sir T. ESMONDE: If the President and the Attorney-General assure me that every reasonable and proper case will be properly attended to I will not press the amendment.
Amendment, by leave, withdrawn.
Amendment 67 (Senator Kenny) not moved.
AN CATHAOIRLEACH: That disposes of the amendments, subject to the three matters which stand over for further consideration.
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