Wednesday, 30 March 1927
Seanad Éireann Debate
MINISTER for JUSTICE (Mr. O'Higgins): The greater part of this  Bill is simply a codification of the existing law. If Senators refer to the Schedule of the Bill they will find that no less than seventeen statutes, beginning with one passed in the year 1800, are co-ordinated and codified within the provisions of this Bill, as introduced. That is, no doubt, a matter of importance and of considerable convenience for lawyers and officials, but it has very little interest for the general public.
I conceive that what Senators would be interested in is not so much the consolidation but such changes in the law as are proposed to be effected by this current Bill. It is mainly with the changes that this Bill purports to effect that I propose to deal. The first substantial change is the exemption of women from jury service. Senators are probably aware that from the beginning of our legal system down to the year 1919 there was no such thing as jury service for women. In that year the Sex Disqualification Removal Act was passed by the British Parliament, and women became liable to jury service on a parity with male citizens. In the year 1919 we were not sending our representatives to the British Parliament and we had no special responsibility for the provisions of the Sex Disqualification Removal Act. I doubt if such an Act would be passed by the Oireachtas of this State. I think we take the line that it was proper to confer on women citizens all the privileges of citizenship and such of the duties of citizenship as we thought it reasonable to impose upon them.
I just want to make the point that if the proposal came in the first instance before Parliament here I doubt if representatives in a majority would be found to favour the proposal that women should be made liable for jury service on terms of complete equality with male citizens. That particular provision was never effective here. Nobody wanted it and everyone seemed to be in a conspiracy to render it inoperative. Women themselves in a great majority resorted to every possible device to evade jury service. The Attorney-General very frequently, or his representatives, ordered them to stand by in criminal cases. In civil  cases both parties exercised their rights of peremptory challenge and the net result was that the liability of women citizens for jury service was never operative, was never effective in practice here.
In the year 1924 we did something to mitigate the farce. We made a provision that if women notified the appropriate official, while the register of jurors was in process of preparation, that they were unwilling to serve, they were automatically exempted. That improved the position, but as was inevitable, we had still this situation, that large numbers of women, either through carelessness, ignorance of the law or from one cause or another, did not avail of the opportunities of getting their names taken off the register, and when in due course they were summoned for jury service they besieged the various officials—the Clerk of the Peace here in Dublin, the Under-Sheriff, and, finally, the Judge in his court, and so on— pointing out how very inconvenient it was for them to serve in the capacity of jurors and what great hardships would result to other people—their husbands, children and so on—if they were compelled to serve. Further, you had this administrative position, that whereas the actual number of women who did ultimately serve on juries was so small as to be negligible, yet all the administrative expense had to be gone through of placing on the register all the women who were prima facie liable for jury service and deleting the names of those who took trouble to apply specifically for exemption.
Then you had the balance, who did not apply, to deal with—their petitions for exemption after the time for such exemption had passed, their reproaches to the judges and the officials of the court, the process of fining and of remitting fines subsequently when reasonable excuses were put up and so on.
I have come to the conclusion that we are compelled to take one or other of two lines, perhaps I should say three. You have either got to have jury service for women on terms of complete parity with men and administer that stringently or you have got to have complete exemption or this third  line, which is in the Bill at present and regarding which I have the minimum of enthusiasm—providing that women who say expressly to the official preparing the register that they, if otherwise qualified, are desirous of serving, may have their names entered on the register. That is the proposal in the Bill as it stands—that there is general exemption of women, and then there is a provision that the woman who possesses the necessary rateable qualifications and who is desirous of serving in the capacity of juror may have her name entered if she so wishes. There is discontent about that, but I know no course in this matter regarding which there would not be discontent, very acute discontent. Does anybody suggest that there would not be the most acute discontent if one were to take compulsory service for women and administer that on terms of complete parity with men? There would of course. I think that under this middle line you will have, at any rate, the least sense of grievance, since the only grievance it leaves the advanced propagandist women—if I may refer to them in that term without any desire to be offensive—is that the Government refuses to dragoon their unwilling sisters into jury service, but they themselves have no grievance.
It cannot be said that they are denied the opportunity of serving on juries because that is not the position, and in so far as they have any grievance themselves, it is that the Government begs leave to be excused from the task of dragooning their unwilling sisters up and down the country into the jury box. We will not take on that task. We have too many other difficult tasks to attend to. The administrative problems that confront us in various spheres are quite numerous enough and quite grave enough without taking on that thankless task of dragooning women jurors into the jury box, particularly when we ourselves feel that it would be a hardship on the women of the country to impose that particular duty upon them. If Senators dislike this idea of voluntary women jurors it is open to them to strike out this provision. I moved this  in the Dáil with, as I say, the minimum of enthusiasm. I know that it does not meet with the approval of the various women's organisations that exist here in the capital, the personnel of most being the same, but after all one has occasionally to take steps in legislation and administration with regard to which there is an absence of unanimity.
There is, of course, an absence of unanimity on this proposal with regard to women jurors. I doubt very much if 25 per cent. of the electorate or 25 per cent. of either sex on the electorate would favour the conception of compulsory jury service for women on terms of complete parity with male citizens. I may be told that it exists elsewhere with excellent results, but I think the excellence of the results may be over-estimated on the same basis as the length of the horns of Connaught cows. My own information is that it is a good deal of a farce in Great Britain and that political considerations and so on operate to prevent the elimination of that farce, that circulars are sent to women jurors practically inviting them, imploring them, to seek exemption on grounds of health. Of course, a great many take the tip and do seek and get that exemption, and consequently the wrinkles are ironed out a bit by that process. I believe this is the soundest and the sanest proposal. It is certainly one that reduces the administrative difficulties to a minimum. Now, I never heard it suggested seriously that back through the centuries when women were relying on juries composed exclusively of males that they received less than justice in the courts. I should say that I never heard it suggested until recently, and I do not accept the suggestion as a fact. That is about all I have to say on that aspect of the Bill.
There are other changes in the existing law. There is, for instance, the abolition of the special juror. I doubt if people's honesty or intelligence can really be measured by the standard of their rateable qualifications. That seems to be the theory underlying the existence of the special juror. Looking into this question of rates, I found that the people who live, say, here in Dublin in houses with the highest valuation are, for the most part, licensed traders  and boarding-house keepers. I do not think that either of these classes would put up the plea that they are either, as a class, more honest or more intelligent than their fellow citizens who live in smaller houses with lower valuations. There is no case for continuing the special juror. He is an anomaly that may well disappear, and if I am to be told that in the ranks of the common jurors there are people of such low intelligence and low standards of civic sense and so on that they could not be relied upon to decide, let us say, between two big farmers as to whether a horse had or had not glanders at the time of sale, I would remind them that these are the people who decide whether a man is to be hanged by the neck until he dies, or not; they are the people who decide the question of guilt or innocence upon which a capital sentence or more frequently the question of a long term of imprisonment depends.
Unless a better case can be made for the survival of the special juror than I have been able to find for myself it is proposed that he shall disappear from our legal system. There is a change in the matter of challenges. We propose to reduce the number of peremptory challenges, that is, the number of jurors a defendant is entitled to remove from the jury box without showing cause. There is no limit to the number of challenges for cause shown, and in so far as we are interfering with the challenge question at all we are only interfering with it to the extent of reducing the number of challenges which were made without cause shown, but if a defendant, in any case, can show cause for objecting to a juror, then he has, without limit, a right of challenge of that kind.
Mr. O'HIGGINS: I am not interfering with the Attorney-General's right of stand-by, which is a different thing. This is the defendant's right of challenge. There are certain changes in the mechanism of preparing the jurors' book and so on. They are, perhaps, more Committee and certainly difficult technical points. If Senators are  especially interested in them, we might go into the matter at a later stage of the Bill, but they scarcely affect the main outlines. I think perhaps it is unnecessary to mention the other features of the Bill at this stage.
Mr. BROWN: This is a very necessary measure and, with certain exceptions, a very excellent one. Apart perhaps from one or two additional exemptions which I shall mention, the only matter of real controversy in this Bill is the subject to which the Minister has alluded at some length, that is, the mode in which the Bill deals with the question of women jurors. In my opinion, the mode in which this Bill deals with the question of women jurors is both unconstitutional and illogical. What it does is this: Under Clause 3 of the Bill it provides that only male citizens with certain rating qualifications are to go on the jury list.
Then, under a section which was put in at a late stage in the other House, it gives to a woman the right to undertake the obligation of which she had been relieved under clause 3. In my opinion, that is a wholly unconstitutional way of dealing with this question. Under Article 3 of the Constitution every citizen of the Free State, regardless of sex, should have the same privileges and the same obligations. Now, some people might think it a privilege to be on a jury. Some women might think that; personally I do not, but at any rate sitting on a jury is an obligation to the State, and you cannot deprive a woman of that obligation without acting contrary to Article 3 of the Constitution. I do not argue for a moment that women ought not to be exempt from service on juries under certain circumstances and in certain ways. I agree with the Minister when he thought compulsory service on juries for women, exactly in the same way and administered with the same sternness that applies to men, would probably not be carried in either House or in the country if put as an issue, but that is not the question. This Bill is to relieve a woman of an obligation which as a citizen under Article 3 of the Constitution  she is bound to bear. I, therefore, when it comes to the Committee Stage, intend to move that the word “male” be omitted from clause 3 in the Bill, the effect of which will be that the name of every woman who is otherwise qualified, who has the property qualification and the ratepaying qualification, will automatically go on the jury list, and then that the clause which was put into this Bill by the Dáil and which gives the woman the right of asking to have this obligation imposed on her, be deleted, and instead thereof, a section, relieving her if she so desires, be inserted in the Bill. I pointed out one reason why I consider this Bill, as it stands, is unconstitutional. There is another reason. Under the Constitution as it stands and under our jury law as it at present exists, the litigant, whether he is a litigant in a civil case or whether he is a prisoner or an accused person in a criminal case, has a right to what I might call his chance of a mixed jury. There are many cases in which a woman and indeed perhaps some cases in which a man might prefer to have a jury with a woman or some women on it. It is no question of whether justice is going to be done or not. I think justice was done long before women were allowed on juries at all, but that is not the reason. For some reason the litigant or the accused himself may prefer to have a mixed jury of men and women. If the Bill goes through in its present form the chance of a mixed jury would be greatly diminished, if not abolished altogether, because I am not very hopeful as to the number of women who will be so imbued with the civic spirit as to apply to perform the rather unpleasant duty of serving on juries. I am greatly afraid that you will have very few of them, and I am sure you will not have the ones you would desire there. Therefore, on this second ground I respectfully urge that this Bill is unconstitutional.
But it is not only unconstitutional but illogical; you have given the franchise to every woman of twenty-one in this country whether she has the property qualification or not, and you are denying to a woman, who is bound to have the property qualification for the  purpose, the right or the obligation of serving on a jury. In my opinion the average woman knows far more about the question which will come before her when sitting on a jury than she knows about the political issues involved, say, in the next general election. I know that the Minister will probably say in answer to what I have urged that women jurors have hitherto been a failure. I am greatly afraid there is a certain amount of truth in that. I am not here to make a case for women jurors that does not exist. I think up to the present they have, to a large extent, been a failure, but that is not altogether, or indeed to any great extent, their own fault. They have never had a chance before. That kind of job is not one which comes to you by nature, and especially it is not one which comes to people whose lives have been more or less in domestic retirement but with time, better education and wider experience of life I have no doubt that the average woman will be just as good a juror as the average man at present. The Minister has made a plea on the ground of economy. He suggests that it will be a very great saving to this country if you have not to make out a long jury list and then knock off a number of jurors.
Mr. BROWN: That is the fault of the court very largely. I do not think that they ought to be knocked off. On this question of expense I would like to remind the Seanad of this. The number of women who pay rates which would qualify them to be put on the jury list is not very great compared with the number of men who would go on the list. The expense of putting them on the list would be relatively very small, and the difficulty of knocking them off would be equally relatively small, so I do not think they themselves should be the least afraid that they are going to burden this country with any unnecessary or great expense. That is all I wish to say on the question of women jurors.
There are two other matters that I would like to mention, and to suggest amendments on. They refer to cases in which jurors  would be taken off the lists; that is, they would not be put upon the lists. All those cases in which you provide that certain persons are not to be included in the jurors' lists are cases that involve the public interest.
You do not exempt a man from service, as a juror, because he is a doctor, in his own interest. You do it in the interests of the public. In the same way you keep off a practising barrister and a practising solicitor and I think you used to keep a practising engineer off a jury. But all these were cases where the public interest was the reason for the exemption. Now there are a certain number of exemptions in, I think, the first schedule to the present Bill, but there are two omissions to which I would like to call attention. The first is the case of light-house men. There are a very large number of individuals employed by the Board of Irish Lights and they serve light-houses and light-ships. They also are engaged in the repair of the light-ships, light-houses and buoys, and such like. These men are doing work which is absolutely necessary. It is entirely for the good of the public and you would be doing great injury to the public if you made any of these men come in and serve on juries, attending the courts for five or six weeks at a time. I, therefore, suggest to the Minister that he should agree to an amendment which would exempt these permanent employees of the Board of Irish Lights. I know that under the present administration of the jury law they are exempt. I do not exactly understand how, but I think it is under the O'Hagan Act of 1876, but at any rate they are not exempt under the present Act, and I suggest to the Minister that they ought to be.
The only other point I make is on behalf of journalists. The working journalist who is an editor or a reporter or a printer, or who is in some way actively engaged in the actual production of the paper as distinct from the clerk, ought, in the public interest, to be exempt. He is not exempt as the law stands and I suggest to the Minister that there might be a way in which the real journalist might be exempted from service on juries.
Mr. BENNETT: I wish merely to say a few words in regard to my view on the question of the inclusion of women on jury panels. The statement of the case as set forth by Senator Brown seems to me to be the exact position defined in the Constitution, and any amendment to accomplish that which may be moved will have my support. Anyone who reads Section 3 of the Constitution cannot fail to come to the conclusion that the exclusion of women from juries is a violation of the Constitution.
Mr. BENNETT: Yes, even an Attorney-General. Apart from the constitutional principle involved, I think one may say a case might be made, and could be made, for the inclusion of women on juries in a great many cases, and that there are many cases in which they should be actually included. Some of the most ugly cases, I am sure, are cases in which women jurors would be eminently desirable. I should like that the right of challenge against women, which has been so flagrantly exercised in the past, should not be used so adversely as it has been. Women possess a great many qualities that would be advantageous to them as jurors, and because they have not served, or were not anxious to serve, is no cause whatever for their exclusion. The law is such now that women are on a parity with men in everything, and to single them out as being unable from some lack of special qualification to judge as regards questions of fact put before them, in the clearest and most concise way by the best and ablest men, is a slight on their capacity to which I would not subscribe.
Apart from the question of women jurors, the Bill seems to me to be an excellent one. Everything seems to be codified, and the arrangements made seem to be ample. I should like to ask one question, and that is as regards the standard of qualification for jury service. The second section reads: “The rateable value of land which is to be  the minimum rateable qualification.” I take it that “land,” in this section, would mean other hereditaments, because, if it does not, it seems to me there is no provision in the Bill for a householder. I think it is important that we should be assured that the rateable value of land would include the rateable value of other hereditaments. I assume we will get that assurance from the Minister as we go on.
On the question of special jurors I cordially agree with the Minister that they were an anomaly. After all, the possession of a few acres of land, more or less, does not endow a man with any extra capacity that would justify him to sit on those juries above an ordinary juror. The right of challenge also was, I think, too large, and while I regret that some diminution of that right on the part of the Attorney-General is not made equally with the diminution of that right on the part of the others, on the whole I think the change is for the good. One other point, and that is with regard to the summoning of juries. Jurors will henceforth be summoned by ordinary letter, and if they do not respond they are liable to heavy fines of from £3 to £5. They may make a case as against the imposition of such penalties, but I think if they made the case that they had not received the letter summoning them the judge would hardly take that as a reasonable excuse. I suggest that in this very important matter it is right to have the summons by registered letter. That might entail more expense, but when you are imposing a penalty I think you are preventing the chance that a man might put up a defence that is not a proper defence. If summoned by registered letter he would not be able to say the letter did not reach him and he would be liable to a fine for non-attendance. I think the Bill should get a Second Reading, and I intend to vote for it.
Colonel MOORE: In common with other Senators who have spoken I oppose this scheme of pushing women off juries. The reasons given by the Minister for his proposal were not very excellent or convincing to me, at all events. First of all he said women did not want to be on juries. I wonder if  men want to be on juries. Supposing the case were reversed. Supposing hitherto women were on juries and men were not and it was proposed to put men on, would the Minister get up and say men did not want to go on juries? Everyone knows a man does not want to go on a jury. The argument that women do not want to go on juries is negligible, as Senator Brown pointed out. The Minister also said that the Oireachtas would not have put this into a Bill at any time if brought before them specially. I think if he knew the feeling that existed three or four years ago he would find they would have done so. So far as I can judge, there was nothing about which they were more unanimous. There are hardships to women, but there are hardships to men also, and that seems to me to be an equally small matter. The Minister talked about expense, but the expense of scratching a few names off a list cannot be great. There are a great many more foolish expenses than that in the country. The Minister said that if women were put on juries and kept on juries they would cause a great deal of discontent and would require a great deal of dragooning. There is a great deal of dragooning going on now. We have sheriffs dragooning and I do not think the Minister is opposed to that; he rather approves of dragooning of that sort.
Colonel MOORE: The Minister says that back through the ages women got fair trials. No doubt in certain cases they did, but in certain cases they got unfair trials. An ugly woman has a better chance than an ugly man, or even a good-looking man, especially if she sobbed. But back through the ages witches were burned or hanged and drawn and all sorts of things done to them, whereas I have not heard of wizards treated in the same way. I differ entirely from the Minister on the subject of allowing the prosecution to have more challenges and more rights than the defendants. I think it ought  to be the exact reverse if there is to be any challenge at all. Everyone knows in this country the extremely unfair way in which the prosecution treated prisoners, and obtained sentences against them. That is notorious in the last hundred years. The Minister, I daresay, will get up and say that is all changed now, but these things always happen. Prosecutors always want to convict people, except in very few instances. If there was to be any sort of difference made, I should allow the defendant more opportunities of challenge than the prosecution.
Mr. HAUGHTON: I do not want to throw the apple of discord into the discussion which has taken place. Senators seem to be unanimous in their disapproval of the clause excluding women from juries. No member of the Seanad has greater respect for what women accomplished in the past than I have. We all rejoice to know that they have adorned the various professions, medical, surgical, engineering, the solicitors' profession and practice of the Bar, and we all trust they will distinguish themselves more and more as the years go by.
In theory it might well be an excellent idea that women should be allowed to serve on juries in a similar capacity to members of the opposite sex. I venture to say that in that case a great many verdicts would probably be more in accordance with the evidence than is the case at present. That is all correct in theory. But what is it in practice? We have heard very lucidly from the Minister what the facts are. I know that in the South of Ireland, as well as here in the Dublin Courts, those who are responsible for empanelling juries have been pestered in the past with regard to the begging that goes on to be excluded and not to be given the responsibility of appearing as jurors. Furthermore, I agree that the legal profession want enlightenment and education on this subject of allowing women to serve on juries. They are prejudiced against women of every description serving on juries. It is extremely irritating to many women travelling from a distance, going into the court house and, after waiting there  to be empanelled on a jury, to be then told to stand by. It is extremely irritating to have to endure this, and it is naturally inclined to arouse their temper. In addition to that, I was surprised to ascertain that the cost and expense involved in compiling the names of women on the jurors' list is a great deal larger than what I anticipated. It is so large that it necessitates the keeping of officials permanently employed for that purpose. As we are now anxious to cut down expenses of all kinds in the country as much as possible, I think that is a matter that we should bear in mind when we come to give our vote on this important question.
There is another subject on which I ventured to put down an amendment to this Bill. This is a new section, and it is with regard to the payment of the travelling expenses of jurors. There are in these strenuous times a great many jurors who find it very hard to make ends meet. They are anxious to comply with the obligations placed on them by the State of serving their country by serving on juries. Now, they go up to their county borough or county town from a considerable distance; they wait in the courthouse for hours, and perhaps they have to wait in the city or town for several nights and days at a time, and there is a great deal of out-of-pocket expenses. I do not think that is fair. Everybody else in connection with the discharge of legal duties is paid. The members of the Oireachtas are paid, and everybody else is remunerated. Why should jurors be left out? I shall bring in an amendment dealing with that matter, but I cordially support the Second Reading of the Bill. As to the point that women should be in exactly the same position as men, I think you will find that Section 16 meets that case fairly.
Mr. LINEHAN: In this Bill there are two classes prevented from acting as jurors; one is a class of person whose valuation does not reach a certain figure to be prescribed by the Minister. I do not know what is the amount of the Poor Law valuation that the Minister intends should be the  qualification for a juror. Possibly it may be £10 or £20. Persons who will not have that valuation are to be excluded from the privilege—if it is a privilege—of serving on juries. I am not aware of any agitation by those persons under that valuation to be placed on a jury list. Possibly if they have a grievance we would have heard something about it. As regards the other class, the women that are to be excluded, I really think that the majority of the people I represent are very thankful to the Minister for giving them an opportunity of being excluded from the jury list.
As regards the other part of the Bill, that is the Section 58 which relates to the right of the Attorney-General to exercise an unlimited number of stand-bys without cause, in empanelling a jury, that in my opinion prevents anything like a fair trial whenever there is a political issue at stake. Under the old system of stand-by it was quite possible for the Attorney-General to place upon the jury all the opponents of the prisoner. For the last forty years I have seen cases where the juries had been packed. I have seen some of the men who were Attorney-Generals and who afterwards became judges, simply placing on the jury the political opponents of the prisoner, and, under that system you could not expect that fair play would be given. On this matter of jurors I have been for a long time of opinion that this procedure about placing jurors on a list and empanelling them to try a prisoner or to try an ordinary civil case could very well be obviated by a simpler system. If I were a prisoner I would much prefer to be tried by three judges than by a jury empanelled where the prosecutor can order all the persons, that he might think would be sympathetic to me, to stand by. I do not know whether it would be in order at present—possibly it may not—to bring forward a proposal for the abolition of juries. Even in civil cases I can imagine no person better qualified to form a decision than men who have been trained in the law, and have had experience of the demeanour of witnesses, and who would be quite competent to give a proper  decision when they had heard the evidence in the case. If that were carried out, it would save an enormous amount of expense in making out a jury list in addition to saving all the loss incurred by jurors when they attend court to try cases. The result, in my opinion, would be that there would be much more likelihood that justice would be done than under the present system.
Mr. O'FARRELL: I think the most drastic proposal we have heard yet is the suggestion of Senator Linehan to abolish juries altogether. I suppose he is influenced by the policy of the Government in abolishing public authorities and that he believes in setting up a similar system instead of the jury system. I do not, however, believe that he is serious in that. To the extent that this Bill excludes women from jury service it is legislation with an extremely feminine bias. It leaves them all the privileges and relieves them of some of their duties, on making application to be excluded. There is a tendency nowadays to give women all the privileges of the male sex and to relieve them of all the corresponding, or nearly all the corresponding, obligations. The only profession in the State from which women are now excluded is the Army. From what I know of Irish women in recent times, I fancy some of them would make better soldiers than the men, and I do not see why the avenue of service in the Army should not be thrown open to them. I do not feel that in this matter of service on juries that women have any grievances. It is the men who have the grievances. I think that the right way to ascertain the views of the women of the nation would be by placing them on an absolute equality with the men, summon them to the courts, keep them there, and in some murder trial, when the trial is not finished in one day, to lock them up with the men all night, and we would then be in a position to ascertain what the general views of the body of the women of the nation are.
With regard to this matter there is a difficulty in ascertaining what the views of the women generally are, because in any case there would only be a small proportion of the women eligible  for jury service. Unfortunately, as the Minister for Justice has stated, though you might get the views of a half a dozen different organisations, you find that in the main they are the same people under different names. This is a matter on which it is very hard to ascertain the views of the women. I think the obligation should be imposed upon them rather than ask them whether they are prepared to discharge these duties or not. I was talking to a criminal lawyer recently on this question, and he said that there is a distinct objection on the part of the criminal particularly, and on the part of many litigants, to have women on the jury. I asked him what, in his opinion, was the reason for that, and he said they believe that women generally make up their minds before the trial starts, or, in other words, they follow the principle of a certain juryman who was asked what principle he followed in arriving at a verdict, and his reply was: “I always looks at the criminal in the dock and I says to myself, ‘Only that you did something wrong you would not be here,’ and I find him guilty.” He said that was the kind of feeling people got into their heads— that women made up their minds too soon, and that all the arguments of the best advocate could not alter that. That has placed them in an unfavourable position, and it has not given them an opportunity of qualifying to be competent and impartial jurors.
The plea has been put in the Dáil and elsewhere to the effect that where women are being tried, at all events, it is desirable that women jurors should be available to hear the case. Here again it is alleged that if you ask a woman criminal whether she would prefer a woman juror to a man she says: “A man for me every time.” She would prefer a male juror for reasons of her own. Senator Brown said that women have not unfortunately been a brilliant success as jurors up to the present time. Now, that statement coming from a competent lawyer with a wide and brilliant experience of law is going to be responsible for more women being challenged in the future. Because, what litigant is going to allow himself to be practised upon by incompetent jurors in the hope that some  day they would become competent? Once the idea gets abroad that women are not suitable for that particular type of work it is going to cause women jurors to be challenged in an ever-increasing degree. But that, I think, is no justification for relieving them of their obligations. The women who profess to speak for the women of the nation have all spoken against this exclusion of women. No body of women has come forward to say anything to the contrary, and, until they do so, I think we should admit them on perfect equality with men. It is up to the litigants and the criminals to challenge woman jurors to the extent that is in their power if they feel that they are not suitable. I think the mere question of economy is not sufficient in a matter of this kind. The talk that has been about it has been quite unnecessary. The Minister might save himself a lot of unpleasant attention from women in the coming general election if he left matters as they are. Apart from that aspect of the case my opinion is that women have not a grievance at all in this matter, and that it is really on the male side the grievance is in relieving the female sex of their obligation whilst leaving them all their other privileges.
Mr. DOUGLAS: I also find myself in entire agreement with what has been stated by Senator Brown. With the enthusiasm of Senator Colonel Moore on this subject and the further enthusiasm of Senator Farrell, who is prepared to lock them up with men, I am not prepared to go. At the same time I would prefer, and I think the Minister for Justice would have been wiser had he taken as his first alternative, and applied it with the principle as set out by Senator Brown—that if men and women are going to have votes, they must take the obligations of citizenship, and then start to provide a separate list of exemptions having regard to the public interest. It must be recognised that you cannot provide exactly for women in the same way as for men. Women who have complete charge of a family or of a home cannot or ought not to be expected, as a State obligation, to come to court day after day, and then possibly find themselves  on a jury where they would be locked up for a period of days, sometimes a week or even longer. It is probably simpler to do as Senator Brown suggests and provide for an option, that is, that women may be exempted if they ask for it.
I do not think the Bill as it stands is really satisfactory, as women who are perfectly willing, if required, to undertake the service or obligation of serving on a jury will hesitate to volunteer for the reason that if they volunteer and then find, through unexpected obligations, such, for instance, as illness that they have to ask for exemption, they will not expect any sympathy on the grounds that they have asked for this right of service, whereas if it is a statutory obligation I think the position would be somewhat different. A man in exceptional circumstances can get exemption. I think women should be in the same position. The sooner we make up our minds in the Free State that the political education of women will come about by their accepting their obligations, that their failures or difficulties are due to the fact that women have not been politically educated, or educated in State service, and that it is better to face the drawbacks in this connection as we faced other things, and go on logical and sound principles the better. I think they should be liable to serve on juries, and then in certain circumstances they could be exempted.
Mr. BARRINGTON: I regret I do not always find myself at one with the Minister on the views he holds, but on the present occasion I must say I am perfectly at one with him. It is all nonsense for people to come here and say that the only means they have of ascertaining the views of the country at large, or of women, on this subject is through the views of the different societies. That does not appeal to me, because, as the Minister has said, we know that many of these societies are composed of the same people. I fail to see why one small militant section of women should be allowed to coerce the great majority of women who, we are certain do not want to serve on juries and who, furthermore, in the public interest, ought not to be called on to do  such service. Women have a great many private duties to perform. They have to look after their houses, and in many cases have to cook their husbands' dinner and look after their children. Why these women should be taken away from these duties which are essential to the welfare of the State, to serve on juries which they hate, and simply at the bidding of a few of the prominent women who are engaged on the militant side of the question, is more than I can see. I do not know whether it would be better to accept Senator Brown's suggestion, or the Minister's proposal.
I am in absolute agreement with the Minister on the principle he has enunciated, but I would like to make one suggestion to him which I hope he will see his way to accept with regard to the schedule of exemptions. I know that engineers and architects who have various duties to perform which take them away from home, and cause them frequently to be employed as witnesses in cases, have as good case for exemption as the solicitor's clerks mentioned here. They may have been called upon to report professionally on some of the questions involved. However it has been managed, I know that in the past it has never been the custom to summon engineers and architects to serve on juries, and I suggest to the Minister that it would be desirable, if he could see his way, to include them in the schedule of exemptions.
Sir EDWARD BIGGER: I have not found myself in opposition to the Minister on many occasions, but on this occasion I am sorry I cannot agree with him. I can see no good reason why objection should be taken to women serving on juries, and I think the proposal to exclude them is a retrograde step. During the last 40 or 50 years they have forced their way into the different professions against a great deal of opposition, and by degrees they have justified themselves in these professions. They have also had to fight for the vote, which no one now wishes to withdraw from them. Why should we now, after a short experience of their serving on juries, withdraw that right from them? I can see no justification for anything the Minister has  said, or that has been said by other Senators here to-day, against the women's right to serve on juries, and nothing has been said which would cause me to change my opinion that they should be allowed to continue to serve on juries. No doubt they have not had great experience, but they have been more or less excluded from these matters and are only beginning to realise their responsibilities, and as time goes on they will, I am sure, give as efficient service on the juries as men, and in many respects better. There are many cases in which women would be of great advantage. They are liable to be put in the dock and to be called as witnesses, and that being so, I cannot see why they should not be on juries.
Mrs. WYSE POWER: There is little for me to say at this particular stage except to protest as strongly as I can, and my protest is entirely influenced by the fact that if this Bill becomes law the civic spirit that is developing in women will be arrested. In fact the suggestion that there shall be only male jurors in the future cuts at the very root of this development of the awakening of the civic spirit. We all know that in the past this spirit had been repressed and became stunted and did not grow. But by the happenings, political happenings if you like, during the last 50 years the men who led political movements and carried them in the main to success, utilised women in order to achieve their object. That utilisation of women helped in a great degree their civic spirit, and some  of them, encouraged more or less by the way they have been thrust out, as it were, to do work that they never did before, came gradually into public life and have done social work which is generally regarded as successful. It is for that reason I deplore so much the Minister's attitude in this matter, not so much, perhaps, because we want to be on juries, or anything else, but because he is doing such an injustice to what is really a necessary asset to every State, the co-operation of its men and women.
The Minister by a bold stroke eliminated females from the panel. Sir James Craig—I am sure in a kindly spirit, I will not say anything else— put down in the Dáil an amendment giving women the right to ask for the privilege of being jurors. I give him all credit for his kindly spirit, but I think it would have been better, before he put down that amendment, if he had a little consultation with those who certainly knew better than he did that that amendment was entirely wrong, and that by it he was about to place a burden on women that perhaps he did not understand. Sir James Craig having been shown this side of the question, became very angry and threw up his hands in despair. He said: “Absolutely nothing will please you. I am like the old man and the ass.” When he was angry, I am sorry to say, he made the statement I am about to read to you. He said: “That was not the reason why I put it forward. I said that between the ages of 20 and 40 the majority of women have a much more important duty to perform to the State than serving on juries, that their functions were motherhood and looking after their families, and they objected to these other women who have missed these functions and who wanted to drive to serve on juries those who have something else to do.” Only that Sir James Craig was angry, and very angry, I do not think he would have made that statement.
None of the newspapers reported that, but the morning after the debate one of them set out to make a column of merriment of it for its readers. I commend the Deputy in his hour of need to the women voters of Trinity  College. I think the Minister knew the material he had when he accepted this amendment. Naturally, Deputies were anxious to vote for anything rather than the total elimination of women. For proof of that I will read what one Deputy said: “This is the movement of a truculent minority, and this proposed amendment gives us a means out.” The “means out” was a voluntary panel. The proposal was carried by 39 votes to 11. There were 50 votes in all. One wonders where were the other 50 Deputies. All who have thought out this question and who have given consideration to cases where women may be in the dock have come to the conclusion that it is right and proper that a proportion of women should be on juries in such cases. In the Dáil no consideration was given to that question. I think there is a general feeling in the country that in cases where women are concerned a proportion of the jury should consist of women. If consideration had been given to that point I do not think Deputy Sir James Craig's amendment, as embodied in the Minister's Bill, would be carried, because we know that out of that panel you will not get a sufficient number to serve on mixed juries. Some play was made here to-day about the personnel of these associations being similar. I may be active on one association, but I am only on the one. I am sure Senators received a copy of a resolution passed at a meeting of the Dublin Christian Citizens' Council, the Dean of Christ Church being in the chair, in connection with this Bill. The resolution was proposed by Rev. Sinclair Stephenson. I do not think the personnel of that Association can be cavilled at. While I cannot do anything at this stage I do not think I could do less than protest against the motion.
Sir NUGENT EVERARD: I think it must be obvious to the Minister that if on the Committee Stage an amendment is moved giving women the privilege, if it is to be called such, of serving on juries, it will be carried by a large majority. That is only an assumption, but from the consensus of opinion expressed that looks to be the case. Several objections have been urged  that I do not think are fair. One was as to the number of women's associations that have protested against the exclusion of women from jury service. That is hardly fair. Only a certain number of ladies take part in civic life. Under these circumstances is it any wonder that the same names are found in several associations? Unfortunately the same public spirit does not prevail amongst all women. The argument was also used that if women were to have the privileges they should also accept the responsibilities and duties, including military service. In reply to that I ask: Has there ever been an occasion for service—military service of a sort —that there has not been a large response, and that women have not accepted the responsibilities? It is only necessary to recall the late war when thousands of women volunteered to do service for which they were properly suited. Honestly, I feel that women have nearly all the privileges of men, and I do not see why they should be exempted from any of the obligations.
Mr. FARREN: I desire to touch upon a side of this Bill that has not been dealt with concerning the qualifications necessary for the jurors list. Under the present Bill the Minister has power to deal with this matter. To be eligible for the jurors list a person must have a property qualification. I do not think the possession of property is all the qualification that is required for the jurors list. I know plenty of people who have property and, honestly, I would not put them on a jury to try a dog. On the other hand, I know people without any property who would make excellent jurors. The mere possession of property should not be a qualification for jury service. Several Senators dealt with the propriety of women acting on juries. I do not like to interfere in this question further than to say that the same obligations should be imposed on women as men. On the whole I think women can give as good a verdict as the majority of men. Men have had charge of the affairs of the world for centuries and they have made a nice job of it. If women were in control I am perfectly satisfied Europe would not be in the condition it is to-day.
I am afraid if Senators have their  way the Minister will be compelled to rely on women for jury service, as everybody wants to be exempted from such duty. Judging by the list of people who are exempted in the First Schedule and by the number of people who want to be exempted, the Minister will have to rely on women. Amongst those exempt are members of the Oireachtas, solicitors and medical men. Senator Brown wants lighthouse keepers exempted, and someone else wants engineers, architects and journalists. I am afraid if all these are exempt the Minister will have to rely on the women for jury service. The Minister stated that the majority of women did not want to serve on juries. Surely the Minister will not attempt to argue that the majority of men want to serve on them. It is a notorious fact that people who are summoned to serve on juries are anxious to get out of it. If one section of the community is to be relieved from that duty every section will have to be relieved. I think it is unfair to make any discrimination and for that reason I am opposed to any alteration of the present law.
Mr. O'HIGGINS: This matter of the liability of women for jury service has taken up a great deal of time in this House as well as in the Dáil when the Bill was under consideration there, and I only hope when it is passed that the Bill will not be found to be in other respects the worse for that. What I mean is that this question is absorbing the attention of both Houses to the exclusion of other portions of the Bill. I trust that I and my Department have made the other portions of the Bill so good that they will not be found faulty owing to lack of consideration by the Dáil or the Seanad. Senator Brown based some of his objections to this provision in the Bill on Article 3 of the Constitution. It is better to be clear about that. Article 3 of the Constitution says:—
“Every person without distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State at the time of the coming into operation of this Constitution, who was born in Ireland or either of whose  parents was born in Ireland or who has been ordinarly resident in the area of jurisdiction of the Irish Free State for not less than seven years, is a citizen of the Irish Free State and shall within the limits of the jurisdiction of the Irish Free State enjoy the privileges and be subject to the obligations of such citizenship.”
What does that mean? As I see it, and as I am advised, it means that the obligations of citizenship created by law may constitutionally be imposed on every citizen. It does not mean that it is necessary that a Government is constitutionally bound to impose an absolutely equal burden of citizenship on all its citizens. I think Senator O'Farrell referred, of course in a jocose way, to the possibility of war, of a national crisis, such a crisis as might demand a measure of military conscription, such a situation as might not merely justify the demand that the Government would impose upon all male citizens of a particular age the duty of army service. Is Article 3 of the Constitution to come in there, to effect that the Government dare not pass that Act without including women, deleting the word male as proposed here, and making the Act applicable to all citizens, male and female, and then proceeding by way of administrative subterfuge, to exempt females? The whole clamour is “Let us pretend there is equality, and then in a back office somewhere let us recognise there is not.” To delete the word “male” in Section 3, we are to say with a bold sweep, there is compulsory jury service for all citizens, and then we are to proceed to draw a careful schedule giving exemptions to women. We must advert to what the exemptions would be like. Presumably expectant mothers, women with the care of young children, women with the charge of a household upon them, and so on, will be exempt—in other words, all women performing the normal functions of womanhood in the State's economy. You do not proceed and say “Male citizens shall be liable for jury service,” and then proceed to say “Fathers of families shall, of course, be exempt.” That would be an  absurdity, but it is an absurdity which we are asked to perpetrate apropos of women, so that we may keep up the pretence that Article 3 of the Constitution means something it does not mean and that there is a duty on the Government to weigh in grammes the burden of the obligation of citizenship and impose that burden equally amongst all citizens of the State. Article 3 of the Constitution, with the deference that is due from me to Senator Brown's standing as a lawyer, does not mean that. It means that if at any time the obligations of citizenship are created by statute it shall be competent for the Government and the Oireachtas to impose these obligations upon all citizens of the State.
Senator Douglas talked of the need for the political education of women. I will not deny the need, but are we to cater for that need by imposing on women throughout the State—the Senator must not think only in terms of the capital but women throughout the rural areas of the State—the duty of trooping into county towns to attend the Circuit Court, to hang about the chambers of the Circuit Court awaiting their turn for jury service or waiting around on the chance of their being needed for jury service? We must have a sense of proportion. We must recognise the need for political education, but we must not cater for that need by imposing on our women citizens a duty that is essentially distasteful to 85 or 90 per cent. of them, a duty that it is not necessary to impose upon them. The machine will work without them just as it worked without the rich man who lived in a club but who is not followed up because it is not worth while flinging the net for him, because as a matter of administrative convenience one can get along without him and it is not worth while roping him in. No slur or stigma is intended in this matter whatever, but is it suggested that it is not in fact a greater hardship on a woman down the country to turn out and drive ten, fifteen, or seventeen miles into the county towns —hang about the environments of the court and so on, possibly for days on end, waiting her turn for service on a  jury or waiting on the off-chance of being required for such service—than on a man? It is of course. In that sense one recognises the distinction just as one recognises the distinction when it comes to a question of physical combat with arms.
I recognise there are women who excel in various capacities. One may point to such and such a woman and say: “Did not Miss So-and-so make a promising solicitor or a promising dentist.” That has nothing to do with the case. I am in favour of throwing open every avenue to a woman who has a special aptitude for a particular line or a special capacity for it; but here there is a question of imposing a duty evenly over all women citizens who possess certain rateable qualifications. Is it suggested that that is the same thing as admitting a woman to a stock exchange, to the solicitors profession, to the bar or to medicine? It is not the same thing? It is an essentially different thing. If I am a reactionary in this matter I am reactionary in good company. America is supposed to be a country where women are most emancipated. It is said that the state of the women of Britain, of this country and in fact of Europe generally, is mediaeval compared with the degree of emancipation that has been attained by their American sisters. Well the Legislature of New York within the last month or six weeks has flatly turned down a Bill the purpose of which was to impose jury service on women.
Senators may piously desire to adhere to the great principle of co-equality, and Senators may genuinely believe that that principle is at stake with regard to this particular provision. It is not, of course. It is no stigma, no slight on the women citizens of this State to say that all things considered, we are prepared to exempt them, at the same time leaving open the door to such of them as notify the county registrar that they are available for jury service and have no reluctance to serve. What I object to is the hypocrisy of saying in one section with a great gesture, “Here is complete equality; there shall be jury service  for all citizens who possess a particular qualification,” and then going into a back office and drawing up a schedule which recognises that in fact there is no such equality—saying with one breath that women are liable, and saying with the next breath that the mother, the person with the charge of children, the person with the responsibility of the management of the household, shall not be called upon to perform this service. In other words, any woman who, as I said, is performing the normal functions of womanhood in the State's economy, who desires, is to be exempted. If that is so, why go through the farce of stating that women shall be liable for jury service?
Senator Brown has asked me to justify a little more clearly my objection based on the administrative expenses and the inconvenience of the 1924 position, which seems to be the position he is seeking to get back to— the position of putting women on the panel and then practically automatically exempting any women who apply. The difference between the 1924 position and this Bill is that if Senator Brown's suggestion is carried, if under Section 3 of the Bill women are to be made prima facie qualified and liable for jury service, their names will have to appear on the draft jurors' list— all their names. Under the Bill the names of the women will not appear on the draft jurors' list; but at the revision stage such women as apply have their names added in this way, and you avoid having women's names put on the list who are not in the final result going to serve as jurors. It is a matter of considerable expense, first of all, to ascertain the women who are otherwise qualified, who possess the rateable qualifications, to draw your panel with those names on it, to send out your circular to these women asking whether they propose to apply for exemption, and when you get back replies to strike off a great many of the names, and get out a new list. As I say, even when you have done it you are only at the beginning of the trouble, because you find that at least half the remainder only omitted to apply for exemption through carelessness  or some uncertainty as to the state of the law, and raise quite a considerable fracas when they are summoned into court to serve as jurors.
If Senators between this and Committee Stage have a talk with the under-sheriff of the city of Dublin or the county registrar of Dublin they will get a little enlightenment both on the expense aspect and on the trouble aspect of the operations of the 1924 Act. We are supposed to be a democratic State. We drew a democratic Constitution and we say that all power and all authority in Ireland, legislative, executive and judicial, is derived from the people. Now, I have not yet got so blasé and cynical that I repeat that Article with my tongue in my cheek, but I brand this as essentially a minority demand, as a minority demand whether you take the electorate as a whole or whether you take one or other sex of the electorate. I do not believe that 20 per cent. of the electorate as a whole want compulsory jury service for women. I do not believe that 20 per cent. of the women electorate want compulsory jury service for women, and in face of that, lest, forsooth, I trample on that great principle of co-equality, I am to write into this Bill a provision for compulsory jury service for women. Where is our reverence for democracy? What becomes of the provision that all authority, legislative, executive and judicial, is derived from the people, if we are to do a thing which we know, everyone of us, that not 15 per cent. of the electorate would wish or approve of?
Mr. O'HIGGINS: I think there is a clear case for the imposition of taxes. We find ourselves frequently in the position of preventing people getting something which they pretend they want, and which would not be good for them. Politically and economically, that seems to be our chronic position. In this matter I am really the champion of women in the State, but I never expect to get any gratitude for that.
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