Vol. 1 No. 6
Bille urn Bunreacht Shaorstáit Eireann—Bille chun Bunreacht do Shaorstat Eireann d'achtú chun an Connradh idir Shasana agus Eire do sighnigheadh i Lundain ar an 6adh lá de Mhí na Nodlag, 1921, to thabhaurt chun criche.
"Constitution of Saorstat Eireann Bill —Bill to enact a Constitution for Saorstat Eireann for implementing the Treaty between Great Britain and Ireland, signed at London on the 6th day of December, 1921."
I presume at this, the first stage under Section 60 of the Standing Orders, that this is a Bill to be introduced to the Dáil, and a copy handed to the Clerk. It is really leave to introduce the Bill. Copies of the Bill, or at least of the Constitution, have already been circulated, as well as some other information which was requested. In asking leave to introduce the Constitution in the form of a Bill, I should say that the Constitution is really in three compartments—in three divisions—as the sections are mixed and intermixed, and there are, first of all, the sections or articles of the Constitution which are vital to the Treaty or Articles of Agreement which have been entered into with the British Government. There are, secondly, those articles which concern the Agreement entered into by the late President and the late Commander-in-Chief, on the one hand, and those who represent what are described as the Southern Unionists. And the third part would refer to recommendations that have been put up, in connection with the Constitution, by the Grovemment, which are not vital to the instrument itself, so that the Dáil would have a perfectly free hand with regard to these precise Articles. Now, these articles will be explained when we reach the stage at which the discussion on the Constitution will take place, and I Have asked, with the sanction of the Cabinet, that the Minister for Home Affairs shall take charge of this Constitution in putting it through the Dáil. These articles are vital to the Agreement that has been arrived at after a considerable amount of discussion with the English signatories to the Treaty and our representatives on the other side. They may not represent all that Members might wish, but they do represent the maximum that our representatives were able to secure at that time, and, I should say, now. And it will be found that, if compared with the Constitutions of the other members of the Commonwealth, they are equal to the best of them, and combine all the best elements that are represented in any of these Constitutions. That is as far as that part of the Constitution is concerned. The next part is a question of honour which affects the Government, and I should say the Party which supports the Government, having been made in much the same way as the Articles of Agreement with the British Government that is, the Agreement entered into with the representatives of the Southern Unionists on the one hand and Mr. Griffith on the other—mainly Mr. Griffith, although I believe the Minister for Home Affairs was also associated with him.
It should be mentioned first that the adoption of the principle of Proportional Representation in the elections for the Dáil was one of the matters offered in the Draft Constitution itself as originally prepared, for the purpose of giving effect to President-Griffith's Undertaking in his published statement on the subject. It is therefore a special safeguard for the representation of minorities, in what is known or called Proportional Representation. That is not mentioned in the Letters of Agreement, but I intend to submit it for the sanction of the Dáil. The heads are as follows:—"(1) The Senate to consist of 60 members, of whom two are to be selected by the National University of Ireland and two by the Dublin University. If the Six Counties remain in the Free State there would also be two members added from the University of Belfast. (2) The remaining 56 members of the Senate to be elected from a Panel consisting of three times he number of members to be elected, of whom two-thirds are to be nominated by the Dáil and one-third by the Senate, in each case voting according to principles of Proportional Representation; and also of persons who have at any time been members of the Senate and indicate their desire to be included on the Panel. (3) The Electorate for the Senate to be persons of thirty years and upwards. (4) The period between the first presentation of a Bill to the Senate and the date upon which it shall be deemed to be passed, whether the Senate agree or not, to be 270 days, as provided by Article 37 of the Draft. (5) Power to be given to three-fifths of the members of the Senate to require a referendum during the 90 day period mentioned in Article 46, without a petition as there provided, that is to say, A three-fifths majority of the Senate in Session and voting may call for a referendum, or, in the alternative, the petition there mentioned to remain. (6) Provision to be made for joint debate of the two Houses in case of disagreement, but not for joint voting (see end of Article 37). This provision, not be applied to a money bill. (7) Decision on a referendum to be final, without further delay. Voting at the referendum, to be by ballot. (8) The question whether any particular Bill is or is not Money Bill to be certified by the Speaker of the Dáil, subject to appeal to a Committee of Privileges drawn equally from both Houses presided over by a Judge of the Supreme Court who shall have a casting vote, but no other vote." That is to say of the twenty-eight Members who are nominated, fourteen will draw lots and fourteen successful Members will have twelve years of office, and the other fourteen will have six years of office. Of the elected Members the first fourteen elected will have nine years term of office and the last fourteen elected three years term of office. That would be for the first Senate only. The nominated Members will be nominated by the President in the manner calculated to represent minorities of interest not represented adequately in the Dáil, and such nominations to be made on the advice of the following bodies:—
Chambers of Commerce,
College of Physicians and oUege of Surgeons,
Benchers of King's Inns and Incorporated Law Society, and
The Corporations of Dublin and Cork.
The stipulation as to consultation not to be embodied in the Constitution but to be contained in an undertaking to be embodied in a resolution of the new Parliament. The text of the resolution to be submitted to the new Government was agreed between President Arthur Griffith, the Southern Unionists and the British Government and will be properly submitted when that portion of the Constitution is dealt with.
10. A matter which gave rise to considerable difference of opinion and was ultimately after much debate agreed to, was that the constituency for the election of Senators should be the Saorstat taken as a whole, that is the entire country was to be the constituency.
11. It was also agreed that the entire term of office of a Senator should be twelve years and that no person should be eligible for election who had not reached the age of 35 years.
12. The clauses in which these various headings of agreement are set out were. first settled by the Law Officer on behalf of the Provisional Government and by Sir F. Greer and Sir F. Liddell on behalf of the British Government and the Southern Unionists and the texts were submitted at a conference and agreed to as they are now contained in the draft Constitution. All these matters are the subject of deliberate agreement between the Irish Government representatives and the representatives of Southern Unionists and the British Government; and the Irish Government is accordingly bound to pass all these provisions as Government provisions.
It is a matter of honour with us and with those supporting us. Now I can if it should be so desired circulate that memorandum amongst the Members so that there should be an understanding of the position—(I have already explained it to some)—so as to leave no doubt on Members' minds as regards our position. We are committed absolutely in honour to this agreement, which was made, as far as we are concerned, speaking on behalf of the Government, by the late President Griffith and accepted by the Government of the day. As regards the other matters, which concern, let us say, the Constitution of the Executive and the internal business of the Constitution—that is the internal business of the country generally—they are entirely for the Dáil, and the Government propose to leave them to the consideration of the Dáil. They will be explained better perhaps when we consider the Constitution. Now I have in accordance with the Standing Orders, moved that leave be given for the introduction of the Constitution.
I beg formally to second the President's motion for leave of the Dáil to introduce a Bill to give effect to the Constitution, as agreed upon between the representatives of the Provisional Government and the British Government. I had myself a certain amount to do with the negotiations consequential on the Treaty, and with the late President Griffith I met representatives of the British Government. I have intimate personal knowledge of the situation that had to be faced and of the very considerable difficulties and embarrassments that arose by reason of the situation existing here. The Constitution is one which I hold to be a strict but-fair interpretation of the Treaty. Had circumstances here been other than what they were, I do believe that we could have got a more pleasantly worded Constitution; but I do not boheve that in any important point of substance we could have got a better Constitution than we in fact have got. It was our duty— it was the duty of those who went to represent the Provisional Government and the Irish people-to see that the broadest possible Constitution, within the limits of the Treaty, was secured. I think we have got that. I think it was the duty of the Irish representatives to hug the safety line; to walk as it were the cliff's edge while being very careful not to hurl their country over that cliff's edge. And I know that the cliff's edge was walked and I know that the safety line was hugged. I know that there will be many in this Dáil to say that they died soft with the British; that we brought home a Constitution dictated by the British. There are many who will raise little finessing points to show as it were that the men who went representing the Provisional Government and representing Ireland to sit down at a table to work out the interpretation of that Treaty were not sufficiently insistent on their country's rights. Well, while we expect that kind of criticism, while we resign ourselves to the inevitable with the best grace we can muster, we do expect that this Dáil collectively will realise that the men who went to England were not out to cheat their country out of one jot or tittle of her rights, and perhaps they will say too that the men who went to England were not personally of the type that would be at all likely to do that. Every time we crossed to England to negotiate points consequential on the Treaty, things happened here that were meant to be mines under our feet. There was never a time we sat down at the table with the British that wires did not come pouring in of soldiers shot in College Green, or raids across the Six-county border or some such incidents that were not calculated to smooth our path and create a better atmosphere. It was in that kind of atmosphere that we had to negotiate the Constitution. Above all it was in the atmosphere following on the Pact, which conditions here made necessary, or which some people considered that conditions here made necessary, that the Constitution had to be worked out, and fought out, across the table. And while I say that, and stress that, it is with no apologetic note that we introduce this Constitution. We introduce it as something that we are prepared to stand for, something which we believe holds great possibilities for our country, something, too, that we consider, as I have said, a strict but fair interpretation of the Treaty. Later you will hear the other side—for the moment we have the floor—and you will hear from many quarters criticism going to show how much better other people could have done than the men who went. That may or may not be the case. We at any rate as a Government are standing over certain parts of this Constitution, which we believe to be vital to the settlement effected on the 6th December last, and if the Dáil rejects these portions of the Constitution, we will be very glad indeed to hand over to other people, who, perhaps, will do better. In considering this Constitution as a whole, very frequent reference will be made to the Clause of the Treaty which reads: "That the law and practice and constitutional usage governing the relations of the Crown with the Government and Parliament of Canada, shall be those governing its relations with the Government and Parliament of the Irish Free State." And you come up against the fact that that peculiar thing known as the British Constitution, which is not a written Constitution, is largely a bundle of fictions, largely a collection of things which have a theoretical existence and which have not an existence in fact, and it is only when, and if, that is thoroughly grasped that one can read in cold blood, and without any particular tremor, some things that are set out here in this Constitution of the Irish Free State. Article I states: "The Irish Free State (Saorstat Eireann) is a co-equal member of the community of Nations forming the British Commonwealth of Nations." That is to say that the administration of Ireland, the making and moulding and amending of its laws, the shaping of its destiny, is as much in the hands of the Irish people as those matters with regard to England are in the hands of the English people. That is something which we hold. is worth cherishing. That is the thing-we are fighting for—that the Irish people may be the sovereign authority here a really as the people of England are the sovereign authority in England, or the people of Canada are the sovereign authority in Canada; that the will of the people may rule; that at any time the people may change the law or change their administration; that in reality they. are the supreme authority in the land. Back through the ages we have had a. traditional ouilook on law and government which no reasonable man expects to change in five, or seven, or even ten years. That attitude of protest, that attitude of negation, that attitude sometimes of sheer wantonness, and waywardness, and destructiveness, which is very evident at the moment, has been to a large extent a traditional attitude on the part of the Irish people. The early Governments of Ireland—the first Government, and the second, and the third, and the fourth-while keeping a firm, cool grip on the land, will have always to bear in mind that fact. It will take time, it will take actual examination of this Constitution in working, to convince the people that they are, in fact, the authority here. The Constitation is, after all, the mechanics of government, and the people will have to see these mechanics at work before they alter that traditional outlook of theirs, and before they grasp the real fact that the Constitution puts them definitely m the saddle in Ireland. There are things in this Constitution which we would wish out of it, just as there were things in the Treaty which we would have otherwise, if we had our way; but we had to look beyond these things to the really precious thing that is embodied in the Constitution, and that is the real freedom that it contains, the real control it gives the Irish people to live their own lives and develop their own civilisation. We did not drive the British out of the country; we were not able, and there was no great prospect that we ever would be able. Many would have liked to do with the British what we read that Brian Boru did with the Danes, not far from here. But we did not do it. We were not able to do it. If we had been able to do it, the things that are in the Treaty and that are in the Constitution, that many here find irksome, would not be there. And we felt that only by doing that could 100 per cent. of our war programme be attained. And so we took less than 100 per cent. of our war programme, and we abandoned something of those inscriptions which were written on our battle standards. and we abandoned them for the sake of the Irish Nation, the living Irish Nation, and the Irish Nation of the future. No man abandoned them lightly, and no man abandoned them without pain. But they were abandoned because to our minds, at any rate, it seemed the best thing to do for the Irish people in the circumstances that had arisen. Not with any note of apology, not on the defensive, but with the desire to explain fully to all here the circumstances in which this Constitution was moulded, we come before this Dáil. I am convinced that there are not any Members in this Dáil who, confronted with the set of circumstances which the moulders of this Constitution were confronted with, would not have done the thing which we have done. We will go through it clause by clause; much of it is an open matter for the Dáil; much of it will be dealt with with the whips off, and no party divisions; but certain parts of it, as the President has explained, must be regarded as matter on which the Government stands or falls. If the Government falls we will give every support to OUT successors in any efforts they may make to attain better.
Mr. Chairman, it was not very easy to follow the speeches that have been made, because the proposal is, I gather, simply to ask leave to bring in a Bill to implement the Articles of Agreement for the Treaty. But inasmuch as the proposer and seconder have gone into some little detail in describing the Constitution, and consequently the Bill, it is perhaps desirable that there should be some debate OR the whole question, and some indication, at least, of the mind of the Dáil should be given. There is one matter that strikes me as worthy of consideration and that is that there is no compulsion—so far as I can read in the Treaty—for a Constitution —a written Constitution—to be established at all.
Certainly there is no compulsion that such a written Constitution as that submitted to us should be established this year, and, in view of the supreme importance to the Nation of the enactment of a Constitution, it is of very doubtful wisdom that such steps should be taken at a time when the country is not able to give consideration to such a Constitution, when large numbers of people are not acquainted with the circumstances or implications of any Clause, are not acquainted with the proposals, as a matter of fact, which will bind them for a generation perhaps. It would be wiser, I suggest, to leave the enactment of a Constitution until there is something like quietude in the country, and time to consider seriously such a very important Act. I submit that it would be enough, in so far as any obligations that have been entered into, to re-enact, re-affirm, or ratify—whichever phrase you like—the Treaty itself, and let the Constitution grow out from that and thereby flatter our neighbours by following their own practice, in allowing the Constitution to develop by custom and usage. Certainly that may well be the procedure that could be adopted by this Dáil for a couple of years, because let us bear in mind—and I am reminded of this by the emphasis that has been placed on the Clause dealing with the Law, Practice and Constitutional Usage of Canada—there is some doubt as between the British Dominions and Great Britain herself as to the Constitutional powers of those Dominions. The Constitutional Practice or Constitutional Usage has not yet been formulated. It varies slightly as between one Dominion and another, and we are aware that there is a proposal afoot that there shall be a Constitutional Conference set up as between those Dominions and Great Britain, so that some clear understanding shall be arrived at as to what the Constitutional Usage permits those Dominions to adopt. What we are asked to do is, not only to set the law for Ireland, not only to establish a Constitution for Ireland, but, in effect, as it seems to me, also to formulate the Constitutional Usage of Canada, Australia, and South Africa, because what is established in these Agreements for Ireland is thereby also established for those particular Dominions, and vice versa. We are asked now to put down in writing what that Constitutional Usage is, and I submit it is very well worthy of consideration whether it is not premature to do so, and whether it is not prejudicing the movement towards the greater freedom of those Dominions. Assuming that that view is not accepted by the Ministry or the majority of this Dáil, I would submit for earnest consideration as between to-day and the later stages, that those parts which the President spoke of as not being vital, and which are to be open to a general discussion and a free vote, should be taken first, and discussed on their merits, as something applicable to this country, and affecting this country alone. It probably would add to the amenities and help also those of us who are novices in this business, to accustom ourselves to the practices of a Legislative Assembly, and shall I say, a Constituent Assembly. The use of the words "Constituent Assembly" reminds me, too, that the draft, as submitted, indicates that this is a Constituent Assembly. Well, I have read any history that I have read very badly, if a Constituent Assembly is not acting on its free volition, and prescribing, as the late lamented President wrote in a letter, a Constitution for itself. We are not doing that. The Minister for Home Affairs has told us that the Constitution was agreed upon between representatives of the Provisional Government. In Saturday's issue of the Irish Time a very illuminating passage occurred in an article by Mr. Michael MacDonagh. “In `Poyning's Law,' ” he said, “only such Bills could be passed as had been submitted to the King and Council of England and approved by them before the Irish Parliament was even summoned.” That is a very interesting side light, and one would be loth to think that it is the mind of the Ministers that we should be re-establishing Poyning's Law in the practice and Constitutional Usage of Ireland. In the same article there is another passage which I would commend to the House. The Journal of the Irish House of Commons of the 17th or 18th Century, shows that “a Committee was always appointed for the purpose of comparing the Bill which came back from London with the Bill that left the House or the Council Chamber at Dublin Castle. Sometimes the Bill was found to have undergone so radical a change either at the hands of the Irish Privy Council or the English Privy Council, or both together, as to be almost unrecognisable by those who had originally drafted it, and if they could not re-shape it again to their liking they preferred to kill the maimed thing rather than have it kept alive on the Statute Book.” I think it is common knowledge that that procedure is the procedure that is being adopted in regard to this Constitution. It is admitted by the Minister for Home Affairs that it was submitted to the British Government and that in consultation with them it was radically altered. After that radical alteration, it is brought before this Dáil for the Dáil to pretend to future generations that it arose out of this Dáil, of the Dáil's own initiative, when it is nothing of the sort. I take the view, and I think my view is the same as that of the vast majority of those who support us in the country. I take the view that the revolutionary effort of the last few years has fallen short of its objective, and that the Treaty was the best that could be obtained at that the time. That being the case, I think we should have dug ourselves in at that position, and made the utmost, of everything we could get under that Treaty, but I am sorry to think, a Chinn Comhairle, that the evidences show that that has not been done. The Constitution, as drafted, is not as good a thing for Ireland as the Treaty itself was. It is much less valuable for Ireland than the Treaty itself, and we are asked here to enact a Constitution which contains clauses which no assembly elected as this has been, and as its predecessors were, could enact as a voluntary effort-on their part. I make a great distinction between proposing an enactment in the form of a Constitution initiated from the Irish people or from tho Dáil, and accepting or abiding by something which has been forced by excessive power over comparative weakness of this country, What we are asked to do here is to initiate of our own volition something which the country will despise us for in another generation. It would be infinitely better, for the good name of this country, if we were to say to the British Ministers “if that is your decision, we will submit.”“If that is something which you are going to impose upon Ireland then in view of the circumstances Ireland may submit,” but to ask us to consider this as a constituent assembly enacting a Constitution for ourselves by ourselves and of our own volition, and then to go forward and speak of these things, these references to the power of the monarchy, to the power of the Privy Council, to the various positions that the King is brought in in this Constitution, is something that, I am sure, in ten years' time, in five years' time, the country will regret exceedingly, and will look upon this Dáil as having failed to take advantage of the opportunities which lay at their hand. There will be, of course, many opportunities to discuss the whole question. There will be, I take it, opportunities to enlarge upon the various portions of the Constitution draft on the second reading, and I don't propose to go any further into this question, but I would ask somebody who is speaking for the Ministry at a later stage to explain how it is intended that this Bill shall become an Act of this Dáil.
I would like to know have we power to draw up a Constitution, or have we not? We knew nothing about this draft Constitution till it came here the other day. It was submitted to us by somebody we may know of or not know of. We were told that under the old Dáil a Committee was appointed by the Provisional Government to draw up a Constitution. They drew up a Constitution; three drafts at least were submitted to the Provisional Government. Now we have only one draft submitted to us. Where are the other drafts? Are we going to have the other drafts submitted as well as this one, or is this Mr. Churchill's draft, that we must swallow? We can change, perhaps, the number of buttons on Dick Mulcahy's coat or on the uniforms of the Civic Guard, but we cannot change a vital part of this Constitution. I other words, we are only play-acting; we have no power here at all. I said at a private meeting of the Pro-Treaty Party that the Government was committed up to the eyes to the British Government, and that they dare not put their record on the table. The British Government has got the Government here that it wants, audit is the Government that will do the bidding of Mr. Churchill. There are certain essential points in this Constitution that you must adopt. Some members were complaining the other day that it was not fair that they should vote against their consciences. They will have to vote against their consciences or else be excluded from the machine of the majority or the machine will walk over them. I am one of those who do not care a jot about the machine. I do not want a job nor I do not care whether I am returned to Parliament again or not. It is a farce for us logo into this Constitution if we cannot change every line of it, and it as our duty to change every line of it if we feel inclined. To say that there are certain parts of this Constitution that we must accept is an insult to this Dáil, and I hope, that this Dáil will regard it as such.
I wish to speak equally as pronounced as the last speaker, but with a slightly different attitude towards this matter. Of course, we would have a different Constitution and a different Treaty if England was not where she is. In fact, we would not require the Treaty at all if England were at the bottom of the sea. But that big geographical fact that England is there is something you cannot get rid of. We accepted the Treaty as an arrangement between Great Britain and Ireland. Some of us accepted it with reluctance in some of its aspects, but we did accept it as an instrument by means of which the Irish nation could get a grip of its own country and develop the country in accordance with the ideals and interests of the Irish Nation. As the late Gommander-in-Chief said, it gave us freedom to achieve the freedom that the Nation aspires to. I do not say it was an ideal Treaty, but, as I said, if we had been able to dictate terms to England the Treaty might have been different. Everyone who voted for the Treaty and 99 out of every 100 of the Irish people realised when that the Treaty was under discussion and under process of negotiation that Ireland was not dictating terms to England but that Ireland was trying to extract the best terms she could get from England. Now I come to the question of the Constitution. I take exactly the same standpoint in regard to the Constitution as I did in regard to the Treaty. I do not Suppose there is any man in this Dáil who will deny that England is there, that she is only a few miles away from our shores, and that she has the control of the resources of an Empire. If you imagine that by ignoring that fact you eliminate her from the considerations of this Dáil, then you are simply doing the best you can to lead the people of this country into a morass. I take exactly the same view with regard to the limitation of conditions and resources in regard to the Constitution as I do in regard to the Treaty. I said with reference to the Treaty that. it did give Ireland real power over its own resources. It gives Ireland not perhaps full power but power to take hold of the Nation and build it up and make it strong in order to achieve that status winch was the goal and aim and ideal of the aspirations of our people. There is not perhaps that full measure of National freedom we should all like, and it may be short of that status for the Irish Nation which we have always been desirous to see. We have got to plough along strenuously the path before us, but we will never make a start on that road unless we build on what we consider the sure ground of realising the fact that this Constitution gives the Irish Nation power over life and death within its own shores. The Minister of Home Affairs said—and I think we can attach considerable weight to his words—that this Constitution is the strict and fair interpretation of the Treaty, and by that I infer that it does give to the Irish people these powers and these rights which we considered we were gaining through the Treaty when we were considering it. I have looked through the Constitution, and these parts which are symbols of the relations between, the two countries do not in my judgment diminish in the slightest degree the effective control and power of the Irish people over the resources within the Irish Nation. There may be symbols we do not relish—symbols which if we were ten thousand, two thousand, or even one thousand miles away from England we might be able to disregard. Are we going to reject that vital power of life and death and the future of the Irish Nation rather than allow these symbols which are really nothing more than symbols to remain? Are we going to reject these vital matters in the future of the Irish Nation because of the presence of these symbols? Deputy Johnson suggested that the enactment of this Constitution should be deferred for two years. I wonder what does the Deputy mean by that. Is this another attempt to torpedo the Treaty. If he understood anything about the Treaty he knows that to defer the Constitution for two years would be one year and nine months too late. As I understand the arrangement entered into, it means that it this Constitution is not in operation on the 6th December next the Treaty expires.
Give us your authority.
The authority I have is the authority of the Law Adviser to the Provisional Government, Mr. Hugh Kennedy, and I think he knows as much about a matter of this kind as Deputy O'Shannon, who shakes his head incredulously.
On a point of personal explanation. I shook my head because I have studied the Treaty, and there is nothing of the kind in the Treaty. There is, in what is called the Free State Act, which is a different thing altogether.
Article 79 of the draft Constitution says:—
"The passing and adoption of this Constitution by the Constituent Assembly and the British Parliament shall be announced as soon as may be, and not later than the sixth day of December, nineteen hundred and twenty-two."
That is the draft Constitution and not the Treaty.
The Deputy is still incredulous; well, here is Article 1 of the Treaty:—
"Ireland shall have the Constitutional status in the community of Nations known as the British Empire, as the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, and the Union of South Africa."
Very well, then, by a little intellectual strain, Members who are doubtful about the accuracy of my remarks and arguments will probably realise that Ireland will not have that Constitutional status unless she has a Constitution. I want to know on what that Constitution is to be based.
On the English, is it not?
The English have an unwritten Constitution.
So can we.
I have not seen any indication of it in this Dáil; in any case that is a point that other Deputies who may follow me can rebuff if they care to do so. I make this point of argument that if the Constitution is not in operation by the 6th of December the Treaty expires. If my argument is fallacious other Deputies can rebuff it. If my argument is true I want to ask Members to weigh well before they take any step that is likely to undermine this Treaty and render it nugatory. It would mean that they were again going to reduce this country into a state of chaos and place it in the military occupation of the foreigner as was the case before the Treaty between Great Britain and Ireland was arranged. I urge that point and I say it is one of very serious import and one that should have the weighty consideration of all who seriously think whether there is any value to be attached to the Treaty or not. I think there is great value to be attached to the Treaty. I held that opinion when, it as first discussed. I held that opinion when I voted for it, and I hold that opinion now when I want to see enacted an instrument which will secure for Ireland the benefits of the Treaty and enable us to get on the work of reconstruction. I was amazed on listening to Deputy Johnson, who is Chairman of the Irish Labour Party, quoting the Irish Times as an authority on Constitutional Law.
It is as good an authority as Churchill, and it is Irish anyhow.
I am not quoting Churchill. Deputy Johnson suggested we were engaged in a game—I do not know how exactly to frame his expression—of attempting to bamboozle the country by the pretence that we were enacting a Constitution. Different people will hold different opinions about that. I for one am not standing for this Constitution as an ideal thing, but I am standing for it because I believe it will enable the Irish Nation to get the full powers of which the Treaty speaks. That I my attitude, and I am here not to declare that the Constitution is the most ideal thing we could frame if we were unaffected by external association with a foreign State. The great fallacy which many politicians in this country and other countries fall into is that they overemphasise their arguments. Of course there are exceptions to that. Now when I hear some intellectual men, like Deputy Johnson, saying, if we enact a a Constitution then in ten or five years the Irish people will despise us, I say, if that is not an example of over-emphasis of argument and exaggeration of statement I do not know what is. He says that in five or ten years the Irish people will despise us if we do not reject or else decline to enact this Constitution. I say in five or ten years the Irish people will not only despise us, but condemn us, if we do not take steps to get the Treaty into operation and give the Irish people the management of their own affairs and the entire resources of the nation. If you reject this Constitution you imperil that stage being reached. That is how I view it, and l want to see all this discussion about commas, phrases, and full stops put an end to, and all this disorder and tumult finished, and Irish people entering into such a state that every honest man will get an honest days pay for an honest day's work. I say we should get on with this Constitution such as it is, as it is a step to put us in possession of the powers of the Treaty. For that reason I support the motion to bring in this Bill.
Before calling on Deputy Figgis I wish to say it is only right that Deputies should be allowed to speak without interruption. Deputies who feel inclined to speak when other Deputies are speaking should reserve their remarks for a subsequent speech.
I rise to support the motion that leave be given to bring in this Bill. I may say leave to introduce the Bill hardly admits of so full a discussion as it is now receiving. I desire to confine myself to meeting briefly one or two of the points which have been made, and ask the Government if they would answer a certain question which I think will prove to be of some subsequent importance. Deputy Johnson stated the reason why the Constitution should not be passed was the fact that we were a Constituent Assembly, and his argument, if I rightly interpret it, is that, being a Constituent Assembly, we must be entirely free. That is not the case. If one looks at the historical facts as one knows them in Europe to-day, we discover how far from the case that is. Take the facts of the last two or three years. Poland passed and prescribed a Constitution for the Polish people. They elected what was a Constituent Assembly specially for the purpose, but that Constituent Assembly was restricted by a document known as the Treaty of Versailles. The same is true of Czecho-Slovakia and Germany. They were all bound by treaties even more than the international document that bound Ireland in respect of the Treaty passed last December. Deputy Johnson will have an opportunity of seeing that when he gets a large book on the subject which will be put before him in a few days. All Constituent Assemblies are necessarily tied by the International Treaties by which they come into being. This Assembly is coming into being by reason of a certain International Treaty, and the conditions of this International Treaty has bound our freedom to that extent. So one comes to another stage in Deputy Johnson's argument not so easy to meet, and that stage is, we are bound here as a Constituent Assembly by a good deal more than was bargained for in the International Treaty, and I believe that may be to a certain extent true. I think, as all Deputies will think, whether they fought for the Constitution or against the Constitution, it will be agreed by even Deputy, it is not exactly the instrument we would like to see. It is not as good as it could be made; there are words in it that could with advantage and dignity be dropped out of it. I believe it will be found in subsequent discussions that these words, however they seem to be, do not in fact very materially change the nature of the institutions embodied in the Constitution. These words are not nice words, but if we look past them to the actual machinery of Government we will find that the machinery itself, apart from the little adornments, is the machinery of freedom. I think it would be very much better if we were to pay more attention to perfecting that machinery, as I believe it might be perfected, than by paying an unnecessary amount of attention, to the little flags and emblems put over the machinery, but which do not form part of the machinery. We wish to get the machinery of this Constitution to the last point of perfection we can, and I think the best attention of the Dáil might be directed towards it rather than to other matters which, I suggest, are not matcrial. This is the third Dáil following upon the second Dáil, and the second Dáil entered into certain contracts which are obligatory upon us and certain negotiations the effects of which are obligatory upon us, and they also made certaily mistakes which the Nation judged as mistakes of which we are also necessarily the heirs. Criticisms have been made by Members of this Dáil, by those who do not see fit to attend the proceedings, who said that certain parts of the Constitution are badges of serfdom. I beg to say that those parts of the Constitution would never have been in the Constitution if we had peace from the 1st January until now, and it is the things that they have done in this country which have brought the Constitution into its present form when it might have been in another form. But we being the third Dáil and the successors of the second Dáil are heirs of all the mistakes made by the Members of that Dáil, and of those responsibilities we cannot acquit ourselves. There are some adornments which are not peculiarly picturesque adornments, and some of them, I hope, we may be able to prune away. For these reasons, and because I believe that the substantial machinery of this Constitution is the machinery of freedom, and because this Constitution has been put before this Dáil under certain international circumstances which you have to recognise, circumstances in the first case of an International Treaty and circumstances in the second case of subsequent bargainings adopted by the Ministry of the Dáil which preceded this, bargainings with the English Ministry, the responsibilities of which we have to shoulder and acquit ourselves. I believe that this Constitution, subject to certain changes in that machinery, changes in which the President will agree in a large number of matters are not material at all to the obligations incurred in the Treaty. I welcome the assurance he gave to the Dáil that in all matters of that kind that the debate will be free of divisions taken without any whips being put on. In these matters I believe that we could improve this machinery, and I hope at a later stage to be able to make one or two suggestions for the consideration of the Dáil for that purpose. There were one or two matters discussed by certain parties, and I would like the President to hear this, as it may have escaped his attention at the moment. It is this—I do not know exactly what the draft is that we are granting leave to introduce because the text of the draft itself is not in, our hands unless this printed version be the text. If it is the text I do urge upon the Ministry for consideration this point; they will be aware that the text should be the actual text of the Constitution without any sectional or chapter headings lest in subsequent litigation, these chapter headings be construed in connection with the text, a thing that has occurred in other countries and has led to a great deal of confusion. I suggest that the actual text should be given by itself and that all chapter and sectional headings be omitted and the text debated article by article. I believe that will lead to simplification in the future and avoid a great deal of confusion.
Ba mhaith liom cupla focal a rá i dtaobh ruda seo. 'Sé mo thuairim go mba cheart go mbeadh an Dáil saor chun an Bun-Reacht do chur i bhfeidhm. Dubhairt an Teachta Figes go raibh an sgéal céadna ag an bTólainn. Ach bhí an Thólainn ag troid gualain le gualain le na daoine a chuir Connradh Idir-Náisiúnta ar bun. Ní dubhairt an Teachta Figes an rud sin. Connradh idir-náisiúnta a bhí ann; Connradh do rinneadh idir chó-oibritheoirí. Ní Connradh idir tír mhór agus tír bheag do rinneadh. Dubhairt sé an rud céadna mar gheall ar an nGearmáin. Bhí an Ghearmáin buailte. Mo náire an Teachta! Is mór an difríocht atá idir an dá rud agus an dá bhun-reacht. Do rinne sé tagairt do Czecho-Slovakia leis, agus bhí an chuis chéadna acu-go mbeadh comhacht agus congnamh ag an dá náisiún, na Gearmáini agus ua Austrians, do throid. Ach níl sé mar sin linne, náisiún amhaín, agus ní rabhamar ag troid ar thaobh na Sasanach. Bhíomar ag troid in a n-aghaidh nuair a rinneamar an Connradh seo.
I have just been saying that there is no analogy at all between the case of Poland and Czecho-Slovakia, which Deputy Figgis referred to, and the case of Ireland. It is perfectly true that these countries, as Deputy Figgis reminded us, and also Germany, drew up, enacted, and prescribed Constitutions, and although they were bound by the infamous Treaty of Versailles, that in the first case was an International Treaty. It was not a Treaty between one big State and a little State, but in the case of Germany it was the case of a State beaten to the ropes that was down in the dust, smashed almost into one thousand fragments. Ireland even yet is not smashed into one thousand fragments. There is no parallel between Poland and Germany and Ireland. If there were a parallel between the case of Poland and Ireland, then the President of Poland would have gone to Moscow to draw up certain clauses which he would have brought back and which he would explain, as the President explained to-day we must have. The President of the Polish Republic did not do anything of the kind. The Poles drew up the Constitution within the four walls of the International Treaty; they acted as a Sovereign State and a Sovereign people in enacting and prescribing their Constitution. I was sorry to hear the Minister for Foreign Affairs saying that the Ministry was not going to apply for membership to the League of Nations just now. My friends and myself have no cause at all to be proud or fond of the League of Nations. It is far from perfect, but in this particular it would have furnished a test of the status of this State of ours. It would have furnished a test of the status of the State that is going to be built up on that Constitution, and whether it is in any sense of the word, even in the sense in which the term is applied to the British Dominions, a new State or a Sovereign State. It would also have applied a test of the genuineness of the Treaty between Great Britain and Ireland, and a test of the genuineness of other things as well. I am sorry for another reason that this Constitution has been brought forward to us in this way. Unless my reading of things has been very much astray, there has been a movement amongst what I might call the most liberal and generous students of what is rather, I think, generously referred to as the British Commonwealth, to procure what is called, I believe, a Declaration of Constitutional rights. Now I am not one of those who are going to argue, as some members of the late Dáil did, on the legal authority and sovereignty of the British Parliament, or Crown, or anything else. The Constitutional position might be good enough for me provided that Constitutional position was made clear and defined. It seems to me that now that there was to be an opportunity of making that Declaration of Constitutional Rights clear and explicit in this document of the draft Constitution of the Irish Free State, that opportunity has not been taken advantage of by the Committee which drafted that Constitution, or the party on the other side of the water which agreed with the Provisional Government on this draft Constitution. There must be in ordinary human relations limitations and restrictions on the acts of any Assembly, as there must be on the acts of every individual; otherwise we would have nothing but philosophical anarchism. There must be restrictions on the acts of this Assembly, but I submit the restrictions and limitations which the President and Minister for Home Affairs mentioned to-day in connection with this Constitution are a stultification of the rights of this National Assembly, and that we have no right to submit, without some kind of a protest, to these limitations. I need not go back to the incident between Deputy Milroy and myself. Deputy Milroy was not able to show that the 6th of December comes into the Treaty or the Free State Act of this Constitution. He refers to Mr. Kennedy, K.C., the Legal Adviser to the Provisional Government—a very eminent authority, no doubt, but we are the Constitutional Authority. This Dáil is the Constitutional Authority and not Mr. Hugh Kennedy or any other legal gentleman. This is the Constitutional Authority, and if it is not, better then put an end to the farce, walk out and make an end of the pretence of being the authority, the supreme authority, the sovereign authority, representative of the people's will. If it is to be a question between this Assembly and the Constitutional Authority of this Assembly and the legal eminence of any gentleman in England or Ireland, we have got a right to stand by the Constitutional Authority of the National Assembly, no matter what the pains or penalties they might inflict upon us. There has been mentioned, and we have been told, that the Constitution is necessary for the implementing of the Treaty and that this particular draft Constitution is necessary for the implementing and carrying into operation of the Treaty. We have not been told why. We have not been told why some other Constitution may be a better Constitution or a worse Constitution, but on Constitution except this particular one, or rather no Constitution except the Constitution embodying certain particular clause which we are not allowed to change, is necessary for the implementing of the Treaty, and the Treaty has made no mention, I think, of a Constitution at all, much less of this Constitution. Some of us have always considered, so far as the Treaty is concerned, that there can be more than one interpretation of the Treaty. Some of us are honest enough to think that the late Provisional Government has been, to a certain extent, blameworthy, and that there can be an Irish interpretation of the Treaty, that we in Ireland should interpret that Treaty, and give it the widest possible limits. We should like that to be done, being our own interpretation of the Treaty. The British, we see, are confining it to the narrowest limits and are making it, I think, narrower than the ordinary common English interpretation, by squeezing it into this draft Constitution, minimising it.
If there is an Irish interpretation, and if that interpretation differs from the British interpretation, or if the expression of the Irish interpretation brings a clash between the Government of Great Britain and the Government of Ireland, surely there is a reasonable way out? Surely the Irish people and an Irish Assembly will not be so unreasonable as not to submit the matter to arbitration? But we might be told from the Government benches, "No such thing would be submitted to arbitration, because Great Britain would not allow it to be submitted to arbitration." If that is the position, it is the end of the alleged generosity, of the fair and square dealing of the British Government. If the Ministry were wishful to enable the Irish State to claim arbitration on such matters as a clash between Great Britain and this State, then that opportunity, if it arose, came in an application to a body like the League of Nations. There is a provision made for arbitration by British citizens within the British Commonwealth—or British Empire, as l prefer to call it. There is a vision in the Treaty itself on the arbitration question, so that the argument against arbitration on the interpretation of the Treaty does not carry us very far. Deputy Milroy has made what I might call a Treaty speech, that might have been delivered between the 6th of December and the 7th January. Now we want to have finished with all this, because we want to get down to business and get things done, and don't want to be debating and arguing the question of the Treaty all over again. But Deputy Milroy and some Ministers on the other side of the Dáil went as far as this: the throwing of bombs—intellectual, verbal bombs, if you will—at people who are outside this Dáil. We should not allow ourselves to be bullied into doing anything in this Dáil by bomb-throwing at other people outside this Dáil. Deputy Milroy and others have put it to us that by objecting to certain clauses of this Constitution, by opposing certain clauses, we are torpedoing the Treaty. If that is not the attitude of "Hit me now, and the child in my arms," I don't know what is. We have had a good deal of talk, and I could go on for a long time talking about the Constitution, the legal position and the Constitutional position of the British Dominions, and when, I am speaking about them I think it would be well for the Dáil to know that one of the things round which the whole discussion ranges, the Constitutional position—the Constitutional status—of the Dominions, is the question of appeal to the British Privy Council. Now the Canadian Constitution, the Australian Constitution, and even, though of more recent date, the South African Constitution, were all Constitutions of the old time—if I may put it, of the time previous to the great European War. Anybody who has made any study at all of the history and events of these last few years, and particularly of British Constitutional history, knows that the whole face of things, the whole Constitutional history of the British Empire, changed between 1908-'09 and 1919; changed particularly and specially during the years of the great European War of 1914-1918. Now in this draft Constitution where the Dominions who have been claiming and who will ultimately get the abolition of the right of one of their citizens to appeal to the British Privy Council, this draft Constitution could have made that secure and fast by leaving out that Article, but it didn't leave it out. It is one of the provisions which President Cosgrave, or perhaps the Minister for Home Affairs will tell us we must accept, although the sons, the grandsons, and the great-grandsons of British Colonists are claiming and demanding, practically unanimously, to have this thing done. We who are not, and never have been, British Colonists, are told that we must swallow it holus bolus. Now the whole thing could be put in a nutshell; it comes down to the thing whether this Dáil is the Sovereign Assembly or whether it is not. I do not want to quibble with words, but you must have certain words to define certain, things; you cannot, and nobody not even this Dáil, can deliberate or argue or deal with certain things unless these things are put down in definitions and unless we use words that have a common acceptation. We want to know right at the beginning what the Ministry means by "prescribing and enacting a Constitution," an act which I say is the Sovereign act of a Sovereign Assembly. I claim that this is a Sovereign and Constitutional Assembly and Authority in Ireland, and I think the Ministers and Deputy Milroy will find that out if they make enquiries. I will quote one, and I am not, if you will notice, putting this discussion at its highest level. If I were putting it at its highest level I should put it as separatist, pure and simple, thinking only of the relations between one State and another State. But because certain things have happened, because certain acts were done, because a certain instrument was agreed to, we must bring it down from that higher level and consider it from a lower level of the relations between one State and another within the British Empire Therefore I will wind up by quoting a gentleman who, I think, is of some authority in these things. Perhaps this gentleman's statement may have some effect, if not on the Ministry—I don't think anything could have any effect on the Ministry—on some private members of this House. Now, the statement is:—"That a general declaration of Constitutional rights as described elsewhere would fully qualify the Dominions for separate membership in the League as Sovereign States will become clear if we compare the status thereby secured to them with the definition of a Sovereign State given hy authorities on international law." That shows the importance of the question which the Ministry shirked—the question of whether they could or could not apply for membership of the League of Nations at this moment. This authority quotes Halleck, and says: "By a Sovereign State is meant a community or number of persons permanently organised under a Sovereign Government of their own, and by a Sovereign Government is meant a Government, however constituted, which exercises the powers of making and enforcing the law within the community and is not itself subject to any superior Government." That is a question which we want resolved by this Dáil in the enactment of this Constitution, whether in the enacting of this Constitution we are to act as a Sovereign Parliament or whether we are to act as an inferior to a superior Parliament. The Minister for Home Affairs said that we had got this draft Constitution.
Before the Deputy goes any further, may I ask for he courtesy of the name of that authority he quotes?
The authority is Dr. E. Duncan Hall. The Minister for Home Affairs stated that by this arrangement between the Provisional Government and the British Government we had got a draft Constitution, rather we had got the Constitution. We have not got it. We have no guarantee at all that if it is passed without the alteration of a comma by this Assembly that we will get it at all as it is in this document, because it has got to go not only through the British Cabinet—it has already gone through that—it has got to go through the British Parliament. That Parliament may be the Parliament that at present is sitting—or it may be a different Parliament, and there is nobody, least of all, I am sure, the President, can assure us that even if we pass it without a single alteration that it will pass without alteration in the British Parliament. Therefore we have not got it, and we are not acting as a Sovereign Assembly. In conclusion, I should like to urge upon the Government, as Deputy McCartan has, that if there are any other documents in connection with these agreements or with this draft. Constitution, whether they are drafts of other Constitutions or not, if there are any other agreements made upon or above board or behind backs with any sections of the people of Ireland or England we should have them on the Table, because the Government should put all its cards upon the Table so that we should have a fair square deal here in this Assembly, if not elsewhere.
I think that, some of Deputy O'Shannon's arguments rather told against the position taken up by Deputy Johnson. We have before us a Motion for leave to introduce a Bill to enact a Constitution, and it was suggested to us that there was no need at all to hurry with the enactment of a Constitution, that we might simply re-enact the Treaty and go along with that. Now it seems to me, on my reading of it, that Clause 17 of the Treaty proposes and does make it obligatory to get through the Constitution before the 6th December next. It begins: "By way of Provisional arrangement for the administration of Southern Ireland during the interval which must elapse between the date hereof and the constitution of a Parliament and Government of the Irish Free State in accordance therewith, steps shall be taken forthwith for summoning a meeting of Members of Parliament elected for Constituencies in Southerly Ireland since the passing of the Government of Ireland Act, 1920, and for constituting a Provisional Government." ...; then it goes on to say: "But this arrangement shall not continue in force beyond the expiration of 12 months from the date hereof," which seems to me to mean that the Provisional Government must cease to exist and operate on the 6th December, and that a Government and Parliament of the Irish Free State must come into being. It seems to me, therefore, necessary that some arrangement in the way of a Constitution must be come to before the 6th December. Again, the suggestion was that we should, as it were, use the Treaty as a Constitution. Now Clause 2 of the Treaty deals with Law of Practice and Constitutional Usage of Canada, and it states that the relationship of the Crown shall be so and so, and that there should be a representative of the Crown appointed in a certain manner, and soforth. It seems to me were to attempt to carry on under the Treaty alone, and without specifically making Constitutional arrangements for Ireland, the effect would be that the Law of Canada, in so far as it would be applicable, would be the Constitution of Ireland.
Constitutional Usage.
"The Law, Practice, and Constitutional Usage." If we did not-make law for ourselves, it seems to me that the law of Canada applies, and that the law of Canada would be very much more disagreeable to the Members of this Dáil than the law which is proposed in the draft Constitution. There certainly you cannot separate the Law from the Practice and Constitutional Usage; you cannot hold that one cancels the other, or that you subtract one from the other and take what is left. We, I take it, in the Treaty, are bound by the precise wording. We are bound to have the law. We have got a thing greatly preferable to the law as it is in Canada; and the English, as you may see, are entitled to the Law under the Treaty, which is to their advantage; and we, on our part, are entitled to the Practice and Constitutional Usage, and I hold, therefore, it would be very undesirable, if it were possible in other ways, to rely on the Treaty, and work, as it were, under the Treaty, on some sort of a basis of an unwritten Constitution, because, I believe, that would commit us to the "Law, Practice and Constitutional Usage of Canada" without modification. There is another reason why I think it is necessary that we should go on at once with the enactment of a Constitution, apart altogether from these formal reasons, and technical reasons, and that reason seems to me to lie in the state of the country. We cannot have the Irish Free State firmly set up, we cannot bring a period to this controversy, until we have enacted the Constitution. I believe that one of the means of dealing with the state of affairs in the country, is to put the matters which we are in doubt about, in regard to the Treaty, beyond doubt. I believe that it should be clear to everybody exactly what the Treaty means. I believe it should not be possible for anybody to think that by going on kicking up a row that they are going to alter what the Constitution is going to be, or that they are going to get any advantage for their side by continuing their operations against the Government. It is for the purpose of putting the political and constitutional issue beyond doubt—to close that chapter of it—that I think this is one of the ways by which the situation in the country can be solved; and I think if there were no other reasons for hurrying on with the Constitution, that would be a good and sufficient reason for doing so. Now, I do not want to take up much time dealing with the matters that Deputy O'Shannon referred to as to the Sovereignty of this Dáil, or as to this Dáil having no power, or as to this Dáil being forced to accept this, or that, or the other. When the President said certain clauses were vital, I think the Minister of Home Affairs explained the position. He said that on certain clauses in the Constitution the Government will stand or fall. The Government believe that with these clauses the fate of the Treaty is tied up, and for that reason the Government is prepared to stand or fall with these clauses. It is quite competent for this Dáil, if it so desires, to repudiate the Treaty. It is quite competent for the Dáil, if it so desires, to put out this Government and carry on with some other Government on whatever lines it cares to carry on. That is the position. The Dáil is only bound by the act of the previous Dáil, if you like to put it, in accepting the Treaty on the 7th January. This Constitution, in so far as it deals with our relations with England, is an interpretation, or an explanation, of the general terms of the Treaty. For my part I think that it is a very fair interpretation, both to us and to the British, of the Treaty. I think that it is a most foolish proceeding to be writhing about the things that are in the Constitution, when we have accepted the Treaty. I think there is nothing in the Constitution which we are not bound by the Treaty to have. I think there is nothing in the Constitution which we did not accept, in accepting the Treaty, and I think if the objections to the provisions of the draft Treaty—the provisions which are objected to—if these are entirely sincere, then I think some people, both people who were in the Dáil when the Treaty was passed, and people who were outside the Dáil when the Treaty was passed but who were willing it should be passed—they have taken very little trouble indeed to understand the Treaty.
May I say one word? Why not submit the one that was written by the Provisional Government, and let us compare them? They dare not do that.
I would have no objection whatsoever to submitting it. In regard to that, I would just say this: Our Representatives and the Representatives of the British Signatories met together to arrive at an agreed interpretation of the Treaty, because they were only concerned with these portions of the draft Constitution which dealt with the relations between Ireland and Great Britain. They met to arrive at an agreed interpretation. Now, any agreement of that sort is arrived at, as practically all agreements are, by bargaining. When you go to bargain with a man it is always a good thing to ask more than you are prepared to accept——
And with a woman, too.
And to accept less.
Yes, as Deputy Figgis suggests, and with a woman, too. For my part, I never had any belief whatever that the British would agree to all that was in the draft that was taken over to London, and, for my part, I believe the draft went outside the terms of the Treaty, and was such as we had no right to expect would be agreed to. I agreed to it as the first draft because it left room for bargaining.
On a point of order. Documents that are being discussed in the Dáil ought to be laid on the Table of the Dáil.
That is just the point that is arising.
I am not referring to the document in any way. I am not giving any details or anything that would call on me to lay it on the Table, as a matter of fact. Now that, I think, deals with the point that was made by Deputy Johnson, when he said that we should have dug ourselves in at the point which we had reached by the Treaty, and when he said that the Constitution was much worse than the Treaty. In my view, I think Mr. O'Higgins put it as well as it could be put, when he said it was a fair but strict interpretation of the Treaty. The phrase I would use myself would be that it was a perfectly fair interpretation of the Treaty, and in that view I am relying, as it were, on Clause 2 of the Treaty.
To anyone who will read the Canadian Constitution it is clear that the British did not insist on the whole of the law of Canada. I believe, on the other hand, if different conditions had prevailed in this country they might have been inclined to do with still less of the law than they were, but that is a matter over which we have no control. I do not think there is much point in Deputy Johnsons remark with regard to our action being prejudicial to a movement for greater freedom on the part of the Dominions. I do not think that movement could he affected, in the slightest degree, by anything we might do. I hold that now the duty of the Dáil is to do the best it can for the country. I believe that in this matter, as in other matters, the Dáil has to make its choice. It is not forced to do anything. Proposals are being submitted to it and the Dáil makes its choice. The Government has no duty in regard to the matter but to make the proposals and to make it clear, so far as it can, what is the consequence of any action that the Government may take. To my mind, the draft Constitution which has been submitted gives us the full fruits of the Treaty. Nothing has really been challenged or I think is likely to be challenged in this respect but forms or symbols. Whether they may have been avoided at one time or not is of very little consequence now. I hold that this Constitution gives us the fruit of the Treaty; that it imposes nothing on us which we did not accept in accepting the Treaty. If some of us did not realise that we were accepting those things when we accepted the Treaty that fact, to my mind will, to a large extent, discount the arguments and criticisms of the Members who failed to see where they were going.
I wish to say a word or two on the Resolution. I have not the good fortune to be a member of the Incorporated Law Society, nor have I at my disposal, as Deputy Milroy appears to have, the highest Constitutional experts of this land. However, when I was elected as a Member of this Dáil, now termed the Third Dáil, or a Constituent Assembly, or, as I read it on this document, a Provisional Parliament, I understood that one of the principal objects was that we, the Members of this Dáil or Parliament, should be allowed, without any limit being placed upon us, to draft a Constitution in accordance with the Irish interpretation of the Treaty. I find now, for the first time, and I want to make it quite clear that it is the first time, so far as I am concerned, that there are limitations. The Minister for Local Government, in effect, states that it is an agreed interpretation, an interpretation agreed on by Members of the Provisional Government with the British Government, and that we are asked now to do nothing more or less than to ratify that agreed interpretation. The Minister for Home Affairs, in seconding this Resolution, said that this was a strict but fair interpretation of the Treaty. I have read the Treaty, I will admit not very carefully, and it lays down certain stipulations in regard to the Irish Army. Naturally I expected that in the Constitution we are asked to frame, that the status of the future Irish Army would be clearly defined. Now as one Member of this Dáil, I want to see the future position of the Army clearly defined in this Constitution.
So it is.
It is not, as far as I can follow it. I am not anxious to see in the future Ireland the whole of the young people rushing to get uniforms, at the expense of the Irish people.
May I refer the Deputy to Clause 45 of the Constitution?
I will accept your word, because you have had a good deal to do with this thing. I merely rose for the purpose of drawing that to the attention of the Minister for Home Affairs, because as far as I have read the Constitution it does not lay down the position of the future of the Irish Army in a way that the Irish people would like to have it defined. Now I want the people of Ireland to understand that the Members of this Dáil have now learned for the first time that we are going to enact a Constitution which is limited by certain agreements that have been come to without the people or the Members of this Dáil having been consulted. The Minister for Home Affairs said that so far as certain Clauses of the Treaty are concerned the Government stand or fall by them. I hope we will hear what those particular Clauses are before we go much further in the Debate on the Constitution. It appears to me that so far as these particular Clauses are concerned there is little use in this Dáil discussing them when the Party Whips are put on and when discussion will not help to make them better than they are as framed by Members of the Provisional Government.
There has been criticism about Clauses that were said to be vital. We have been asked what those Clauses are, and it has been suggested that the Dáil has not a free hand in regard to this Constitution. That is not so. The Dáil has an absolutely free hand, but we also have a free hand, and we can decide what things we will take responsibility for and what things we will not take responsibility for, and knowing the position as we do, we cannot advise the Dáil to reject certain clauses in the Constitution, and if the Dail rejects them we have a free hand to decline to take further responsibility for the direction of the political affairs in this country. There is no Constitutional hybrid between a Republic and a Monarchy. Mr. De Valera had thought that he had begotten one, but nobody loved it and he abandoned it himself. What we are asking the Dáil to face is simply that fact, because we failed absolutely to win out the 100 p.c. of our programme and secure the inscriptions on our battle standards, we have had to swallow certain things which to many of us are objectionable. You will find no Constitutional hybrid between a Republic and a Monarchy. It is because we faced that fact that we are standing for certain Clauses in that Constitution and telling the Dáil that they are vital to the Treaty.
On a point of order, it is usually the custom in an Assembly of this kind that if a Bill be drawn up in detail and published before the Dáil, that leave to introduce it is presumed to be granted and it is not voted on. I think it is a good procedure and with deference I would suggest it to you as being a desirable course to adopt on this Motion.
Under the existing Standing Orders if a division is called for it must be granted.
The Standing Orders are not veiy clear on that point. In most Assemblies of this kind when a Motion is brought forward leave should be asked to table a Bill, and it is drawn up complete in all its clauses and articles, and permission is presumed to have been granted. I think it is a good procedure. I think it would be well that leave be given aud that we then come to the conflict that will arise as to the fundamental general principle that underlies this Bill.
The Motion was put and carried.
On a point of order, may I ask that Members have copies of the Free State Acts or any other documents that bear on the Bill that is to be introduced to the Dáil. We have got copies of three Constitutions, but we want the Free State Agreement Act, and some others.
Copies of the Bill, copies of the Treaty, and copies of the Free State Agreement Act.
And copies of the draft Constitution—of this Government's Constitution—before Churchill and his friends made up their minds.
There is nothing before the Dáil except the suggestion that certain facilities be afforded to the Members. I do not wish for a moment to stand between the Members and any things they may decide to have, but Deputies who have already made speeches on this subject should refrain from making further speeches.
The President of the Dáil was good enough to undertake on the last day, in reply to my request, to circulate copies of the Treaty, the Dominion Constitutions, and the Free State Agreement Act. Copies of the Constitution and of 3 Dominion Constitutions have been prepared. I presume it was merely the difficulties of the Post that have delayed delivery, as we have not received them yet.
The Free State Agreement Act could have been bought by anybody for several months past at Eason's.
So could the Constitution I brought out. You may announce that the Volume of Constitutions to which I referred will be in the Dáil, I believe, on Wednesday evening.
The Volume of 20 Constitutions will be available on Wednesday, and copies will be supplied to the Deputies.
In connection with the rest of the Orders of the Day, Deputy Gavan Duffy has raised a point. I intended that his Motion should come up on Tuesday, because I understood the Government's decision was to be given on Tuesday. Therefore I omitted the Motion from the Agenda for Monday. Subsequently the Deputy himself came in and gave special notice, and it was put on at the end of the Agenda. If he wishes to have it taken up it can be put to the Dáil immediately.
It can easily be disposed of. I think as the answer was given this morning it would be more convenient that it should be discussed now.
