CONSTITUTION OF SAORSTAT EIREANN BILL.

I understood you would go on now to the Standing Orders. The second item on the Orders of the day says that the House goes into Committee on Saorstát Eireann Bill. If that be so I formally move that the House do go into Committee.

Standing Order 16 provides that it goes into Committee automatically.

On a question of privilege before we go into Committee, a very important letter was written by the Minister for Home Affairs to Deputy Johnson, and it appeared in the paper last Saturday. As it covered a matter of very great importance to every Deputy here who might not always like to carry about with him copies of papers of the day, would it fall in with his convenience if a copy of that letter were furnished to the Members? The letter contained information with regard to the unalterable (from the Government point of view) parts of the Constitution.

Mr. O'HIGGINS:

I could arrange to have copies of that letter supplied to each Member.

Mr. O'HIGGINS:

Yes.

Before we begin the debate in Committee I would like to ask the Clerk to read, and the Deputies to refer to, Rule 40 of the first draft of the Standing Orders on which we are at present working, and subsequently to read the new Rule in the second draft.

The CLERK of the DAIL

read the following from the first draft of the Rules. Rule 40:—

The rules governing debate in the Dáil sitting in Committee, and in Committees of the Dáil shall, save as elsewhere provided, be those governing the proceedings of the Dáil. In cases of grave disorder or obstruction on Committees a member may be suspended, but this may only be done by the Dáil to whom report shall be made.

Under that Rule Members in Committee could only speak once on any Motion or Amendment. Under the second draft, the Rule reads as follows:—

The rules governing debate in the Dáil sitting in Committee, and in Committees of the Dáil shall, save as provided in Rule 41, be those governing the proceedings of the Dáil. In cases of grave disorder or obstruction on Committees a member may be suspended, but this may only be done by the Dáil to whom report shall be made.

Rule 41 has special reference to Committee Stage. The new rule (now read) can be proposed by any Deputy and you can adopt it or reject it without debate. Now I will ask the Clerk to read Rule 41 of the first draft.

The CLERK of the DAIL

read Rule 41 as follows:—

(First Draft).

In addition to the Committees consisting of the whole of the Dáil, the Dáil may appoint Special Committees upon motions appearing on the Agenda. Such motion shall, save as otherwise provided in these Standing Orders, specifically state the terms of reference to the Committee, define the powers devolved upon them, nominate the members to act upon them, state the quorum in each case, and, if necessary, fix a date upon which they shall report back to the Dáil.

The revised Rule read:—

In Committee of the whole Dáil a Teachta shall not speak for longer than ten minutes at a time, nor more than three times on any one occasion, provided that this Rule shall not apply in Committee to a Teachta in charge of a Bill.

"Occasion" is not a fortunate word. I take it to mean not more than three times on any motion or amendment. I ask if it be the desire of the Dáil to adopt that particular Standing Order. For the purpose of the Committee Stage we could do so and have a motion to that effect without discussion.

I formally move it.

Rule 41 is adopted, and therefore in Committee Stage now Deputies can speak three times on any particular motion or amendment, but the speeches may not exceed ten minutes, except in the case of the Deputy in charge of the Bill, to whom the rule does not apply.

The first Article of the Draft Constitution is:—

"The Irish Free State/Saorstat Eireann is a co-equal member of the Community of Nations forming the British Commonwealth of Nations."

Before I formally move that that Article stands part of the Bill I want to make a statement which will be as brief as is consistent with clearness. There has been much said about this Treaty which was signed last December to the effect that there was duress. Undoubtedly there was duress on the facts; undoubtedly the big stick was there. The fact that war stood as an alternative is undeniable—the fact was that war was explicitly presented as an alternative to one of the signatories. If that is so it does not alter the situation one way or another. It was a question of comparison and undoubtedly in the face of the alternative, war, that Treaty was signed. Now the position, as I see it, is that the Irish people regarded a certain state of facts with which they were confronted—a certain state of circumstances in which they found themselves —and, deliberately making their choice, as they were perfectly entitled to make their choice, they have taken this Treaty as the best thing they could take in the circumstances of the time, and not believing very much in their prospects of getting better. Now I hold—and I think in what I am going to say now I am expressing the mind of a great many people throughout the country—that in the case of a Treaty signed under circumstances and conditions like that, the position is simply that at any moment in the future the majority will of the Irish Nation can publicly and absolutely without dishonour repudiate that Treaty if they consider it wise to do so— if they consider it advisable to do so. If, weighing the pros and cons of the situation, they are prepared to take the consequences of doing so, therefore in our opinion at any rate, the majority will of this Nation is at all times sovereign. It is sovereign now, it will be sovereign at all times in the future, and we do not deny and we do not limit that sovereignty. It is for that sovereignty we are fighting now, and as long as the Treaty is the policy of the Nation then the Treaty in all its bearings and implications must be the policy of the Nation and the Nation will stand honourably by that policy. We will come later to clauses where this question arises, and we will have something to say with regard to these particular clauses. Deputy Gavan Duffy, speaking here some time ago, said "this is a contract," and he said it in a tone of exultation, with the suggestion that because it was a contract you could avail of any little loophole that you saw to evade the honourable implications of this Treaty—to evade the implications which, beyond all doubt, were present in the minds of the signatories at the moment when they became signatories. Now, this Government will not dishonour the signature of Deputy Gavan Duffy, even at the invitation of Deputy Gavan Duffy, because when he signed the Treaty he signed it on behalf of the Irish nation. That is the position as we see it. I hope we have made it clear that if the Irish nation accepts this Treaty—if the majority of the nation accepts this Treaty—then it must accept it honourably, and the people must act up to it. It is a political experiment. We do not propose to mould in cast iron our country's rights, or mould anything in cast iron. We do not think that, in passing this Constitution, we are fixing the ne plus ultra of the Constitution of the country. Facing the facts as we know them to-day, I say that the Irish people have consented to accept this Treaty, and, until it is repudiated by the majority of the people, it stands, and must stand, as the national policy. I have little to say about this first article. It is an agreed article arrived at after much discussion, and it is a fair statement of the Treaty position. It recognises our nationhood—that nationhood, that sovereignty which is in fact claimed by the Dominions—and it places this country in the Commonwealth of Nations hitherto known as the British Empire, and as co-equal with Great Britain. I formally move the inclusion in the Bill of the article.

The Minister who has just sat down made some personal observations upon me which did not rise to the height of my contempt Certain Ministers seem to meet legitimate criticism by losing no opportunity of getting away from the subject and turning it into trivialities and personalities. Having said that much, I wish to move the first amendment on the paper:—"That the Heading or Title, `Section 1, Fundamental Rights,' be transposed so as to appear after Article 1, and before Article 2." I do not think that wants very much argument. There are people in the country, as is known to us, who would say the first article ought to be "Fundamental Wrong." I, as one of those who accept the Treaty, do not say it should be so held, but when you are issuing a title like that you must be careful that the clauses that come under it be fundamental rights. I think it will be generally agreed that "fundamental rights" is not a proper title under which to insert our connection with the British Commonwealth. It is not a fundamental right, but an accident arising out of a contract we have made. I should like to add that, while I agree with what was said by one of the Deputies the other day about the great need for care in our titles and the desirability of excising most of them, that where fundamental rights are declared in a title it should stand, but it seems quite clear to me that it is not a fundamental right that we should be a member of the Commonwealth of British Nations.

Mr. O'HIGGINS:

The question of these headings is scarcely vital to the Constitution, but I might state that it is under consideration to eliminate all the headings. If we decide not to eliminate all the headings we will carefully consider the suggestion of Deputy Gavan Duffy.

I was responsible for the suggestion the other day that these headings should be eliminated, for in the subsequent legal construction of the Constitution, in considering these titles with the Articles, they might be construed with some confusion as being themselves—as has occurred in other nations—part of the Articles. I am struck by the importance of the suggestion put forward by Deputy Gavan Duffy. The title "fundamental rights" should remain, whatever titles are eliminated, but there is a difficulty that occurs to me: if the title "fundamental rights" remain and subsequent titles are eliminated, the title "fundamental rights" would be construed then as being in respect of all the Articles, and that would lead to further confusion.

Does Deputy Gavan Duffy propose this as an Amendment?

It can come on in the next reading.

In moving the adoption of this Amendment No. 2 I wish to draw attention to some things, and right at the beginning I would like to ask the Ministers, as these Amendments are being discussed, to please pay some attention to the criticism and the nature of the Amendments, and, in the interests of this Dáil, refrain from hurling anything which might make people outside think that the people here are not really concerned. I should like that attention should be given to the Amendment, and that the replies and comments of the Ministers should be directed to that criticism and not to something that has happened outside the Dáil. The Amendment I am proposing is this: "That Article 1 be deleted and the following be substituted:—`Ireland is a Free State, and shall be known as Saorstát Eireann/Irish Free State. All powers of Government and all authority, legislative, executive and judicial, are derived from the people, and the same shall be exercised through the organisations established by or under and in accord with this Constitution."' Now, if all that the Ministry has been telling us about their intentions to stick not only to the letter, but to the spirit of the Treaty of December 6th is true, there should be no difficulty at all in the adoption of this Amendment. If I may put this in another way, I am really asking the Dáil to delete Articles 1 and 2 of the Bill and substitute for these two Articles the Amendment which I have on the Orders of the Day. I shall ask the Deputies in the Dáil to turn to the first Article of the Treaty of December 6th; in that Article they will find Ireland was to have a mere Constitution, and the position in the Community of Nations and so forth, and Ireland shall be styled a nation—the Irish Free State. In parenthesis let me say that I am one of those who believe that there is no obligation, whatever, in any clause or undertaking entered into by the signatories to the Treaty of December 6th, which compels this Dáil to have a Constitution at all. The enacting of a Constitution now is a matter rather of whether it is wise, expedient or necessary, apart altogether from the question of the Treaty. There is no provision in the Treaty that compels this Dáil to insert in the Constitution anything taken directly, or indirectly, out of the Treaty. As a matter of fact, the machinery or framework of the future legislation of the country can be drawn up without any particular reference to the Treaty at all. I want to stress the fact that under the Treaty Ireland enters into a certain community of Nations—Ireland remember, the whole people of Ireland; that is, these 32 counties enter into a certain compact, contract or Treaty, with the peoples of States forming what is called the British Commonwealth of Nations, and inside that community of States, or peoples, or Governments, Ireland, not a part of Ireland, but the whole of Ireland, shall be styled and known as the Irish Free State. It seems to me that the clauses in the Draft Constitution, as it is called, or in the Bill before us, really evade and do not fulfil, to the utmost, the contract or the compact entered into in the Treaty. The First Article here is "The Irish Free State/Saorstát Eireann is a co-equal member of the Community of Nations forming the British Commonwealth of Nations." That is one of the things upon which the Ministry made a great deal of fun the other day. They made a great deal of fun about a declaratory clause. This is nothing else but a declaratory clause, and the insertion of this in the Constitution seems to me as if we do not consider ourselves a Free State at all—that, as a matter of fact, the Treaty of December 6th, and it alone, conferred upon us the Free State. That was not the position as I saw it; it was not the position from which I think any Nationalist could see it. I want to substitute for that Article a kind of declaratory clause that is in Constitutions known to me, including most of the Constitutions in the selection of Constitutions which the Ministry has circulated. They indicate that such and such a country is a Republic, a Monarchy, a Constitutional Monarchy, or something like that. I want a declaration that Ireland is a Free State, and shall be known so, as is in the Treaty. The clause as it is here is not exactly the same thing, but quite a different thing.

We have all seen the Ministry and Members of the Dáil, and a good many people in Ireland, regarding the Irish Free State as the twenty-six counties; that is not the position. The position at this moment, and since December, at least until a month after the passing of the draft Constitution by the British Parliament, and by the Irish Parliament, is that the Free State is the thirty-two counties of Ireland. We want no insertion of the words "Free State." We want the insertion of the historical entity of Ireland. Not only that, but if we are, as Article 1 says, co-equal members of the community of nations forming the British Commonwealth, there are other things we have to take into consideration. If the Treaty laid down that we are to have the same status in that community as Great Britain, Canada, and others, well and good. If the Treaty laid that down, it should be sufficient, and it should not be necessary to lay it down again in our own Constitution. There is just one other little thing, which is worthy of note, said by a man, who is not a Dominion statesman, but the Prime Minister of Great Britain, with whom the Ministry has had some little contact, and, therefore, may get some little more respect from the Ministry than the Dominion statesmen have got. In a speech delivered on the 20th of June, 1921, at the opening of the Imperial Conference, speaking to the representatives of the Dominion, he said:

"In recognition of their services and achievements in the war, the British Dominions have now been accepted fully into the community of nations by the whole world. They are signatories to the Treaty of Versailles and of all the other Treaties of Peace; they are members of the Assembly of the League of Nations, and their representatives have already attended meetings of the League; in other words, they have achieved full national status."

In Ireland we do not require this Constitution, Treaty or anything else to acquire full national status. We have our national status. This Treaty was only the recognition of that status by a neighbouring country. Anything else that we may do, entering within the community of nations, or any other community of nations is only a recognition of our status. We had the status. And then Mr. Lloyd George went on to say:—

"In other words they had achieved full national status, and then our stand beside the United Kingdom as equal partners in the dignities and the responsibilities of the British Commonwealth. If there are any means by which that status can be rendered even clearer to their own communities and to the world at large, we shall be glad to have them put forward at this conference."

There was a means, and the Ministry did not accept that means. I want to ask the deputies to dwell upon that—"not only the dignities, not only the rights, but also the duties and the responsibilities to the community of nations known as the British Commonwealth," because of these things I ask the Dáil not to take your Article 1 as the Ministry puts it before us, but to take the more Irish, the more natural and national, the more correct position, and accept our amendment. I beg formally to move the amendment.

An amendment need not be formally seconded in Committee.

On a division the amendment was declared lost by 38 votes to 14:—

Tá.

Níl.

Pádraig Ó Gamhna.Tomás de Nógla.Riobard Ó Deaghaidh.Seoirse Ghabhain Ui Dhubhthaigh.Tomás Mac Eóin.Liam Ó Briain.Tomas Ó Conaill.Aodh Ó Culacháin.Sean Ó Laidhin.Cathal Ó Seanain.Seán Buitléir.Domhnall Ó Muirgheasa.Risteard Mac Fheórais.Domhnall Ó Ceallachain.

Liam T. Mac Cosgair.Donchadh Ó Gúaire.Uaitear Mac Cumhaill.Seán Ó Maolruaidh.Micheál Ó hAonghusa.Domhnall Ó Móchain.Seán Ó hAodha.Liam de Róiste.Peadar Mac a' Bháird.Darghal Figes.Deasmhumhain Mac Gearailt.Seán Ó Rúanaidh.Ailfrid Ó Broin.Seán Mac Garaidh.Micheál de Staineas.Domhnall Mac Carthaigh.Earnán Altun.Sir Séamus Craig.Gearóid Mac Giobuin.Liam Thrift.Eoin Mac Neill.Pádraic Ó Máille.Seosamh Ó Faoileachain.Seoirse Mac Niocaill.Piaras Beaslai.Séamus Ó Cruadhlaoich.Criostóir Ó Broin.Risteard Mac Liam.Caoimhghin Ó hUigín.Séamus Ó Dóláin.Risteard Ó hAodha.Proinsias Mag Aonghusa.Éamon Ó Dúgáin.Séamus O Murchadha.Liam Mac Síoghaird.Earnan de Blaghd.Uinseann de Faoite.Micheál Ó Dubhghaill.

I desire to withdraw, with the permission of the Dáil, amendment No. 3, as it is bound up with amendment No. 2.

Yes, that is automatic. The Clerk will read out Article No. I.

The CLERK of the DAIL:

Section I, Fundamental Rights. Article 1: The Irish Free State/Saorstát Eireann is a co-equal member of the Community of Nations forming the British Commonwealth of Nations."

Motion made and question put: "That Article 1 stand part of the Bill."

Carried.

ARTICLE 2.

Article 2 reads:—"All powers of Government and all authority, legislative, executive, and judicial, are derived from the people, and the same shall be exercised in the Irish Free State/Saorstat Eireann through the organisations established by or under, and in accord with, this Constitution." That is an Article which we consider a very valuable Article. It was an agreed Article. There is an amendment, I note, to it, which suggests that the word "Irish" should be inserted before the word "people." Well, we are discussing the Constitution of Saorstat Eireann, and the reference there to the people cannot, I think, soberly and sanely be considered as a reference to other than to the Irish people. As a further objection to that particular amendment, it would be equally just if this Article is questioned as it stands, to criticise the amendment on the ground that powers of government in Asia or India are not derived from the Irish people. We consider that this Article is a valuable recognition of the sovereignty of the Irish people. It is the first time, I think, that in any Constitution which the British had to do with, that that fundamental, democratic principle of power deriving from the people of a country was explicitly recognised. I formally move that that Article stand part of the Bill.

I propose to insert the word "Irish" after the words "derived from the," and before the word "people," so that the Article should read: "All powers of government and all authority, legislative, executive, and judicial, are derived from the Irish people," etc. I am surprised there should be any objection to this. I quite realise that the obvious interpretation of the words "the people" there is the Irish people; but you must recollect that, according to the draft Constitution now before us this thing is liable to go to the British Privy Council, and heaven only knows what they may discover there. It is important, for this reason, to make yourself clear that you have in the Oath Clause something about our common citizenship, and taking that fact in conjunction with the word "people," left barely like that, undefined, where you would expect a definition, it is a dangerous thing, and one which I think this Dáil should not pass. If there is any objection other than the objection suggested by the Minister, that it is unnecessary to insert the word "Irish," let us have it; but, in view of the fact of "common citizenship" appearing in the same Constitution, it would surely be wiser, and it is right, to make it quite clear what we mean here, and say the Irish people if we mean the Irish people, and not allow anybody hereafter to twist it into something else.

It is hardly necessary to emphasise the point made by the Minister for Home Affairs in connection with this amendment. If this amendment were adopted it would make the Clause an absolutely ridiculous Clause. It would then read:—"All powers of Government, and all authority, legislative, executive and judicial, are derived from the Irish people," etc. "And the same shall be exercised in the Irish Free State/Saorstat Eireann, through the organisations established by, or under, and in accord with this Constitution." The insertion of that word alone into the Clause would make the Clause a ridiculous one.

The argument used against the insertion applies with equal force to the insertion of the words now in the draft, "in the Irish Free State." If we are to assume that the Irish people must be intended, then we have equal right to assume that "the same shall be exercised through the organisations established by, or under, or in accord with the Constitution," without any reference to the place, and one is tempted to think that in the minds of some of the drafters, on one side or the other of the Table, there is intended as a possible interpretation of this Clause a general declaration that power in these days is derived from the people, and that within the Irish Free State, within some particular part of Ireland, "the organisations established by, or under, and in accord with this Constitution" shall be these powers. If there is no necessity for the words "Irish people," then there is no necessity for the words "in the Irish Free State." It seems to me one goes with the other, and if one is left out the other should be left out, and if one is left in the second should be put in.

With reference to that criticism of Deputy Johnson, I understand that the Treaty provides that within a month from the confirming, or registering, if you wish, of this Constitution in the British Parliament, portion of the North East has to decide to stay in, or go out from, the Irish Free State. Now, obviously, the powers exercised in that portion, if any, which goes out from the Irish Free State, will not be exercised through the organisations "established by or under and in accord with this Constitution." That explains the necessity for the words "shall be exercised in the Irish Free State."

I cannot quite follow the argument the Minister for Home Affairs has just put before us that because within a month of the enactment of the Bill, both in Ireland and in England, a certain part of Ireland has a right to contract out under the terms of the Treaty. Therefore, we should adopt this Article as it stands, and not put in "the Irish people," or the "people of Ireland."

I was dealing with Deputy Johnson's remarks about the words "in the Irish Free State."

Yes, quite. The Minister says because six Northeastern counties have under the terms of the Treaty the right to contract out, therefore, we, in considering this article, have the right to assume that they will contract out. Now, we have no right to assume anything of the kind, until they actually do it. As a matter of fact, I trust that the Minister is with most of us here in the hope that they will not contract out.

It may be that they wish to. We have no right to assume that they will. We have a right to assume in taking up this thing, if we are to observe the Treaty—and the Treaty speaks of Ireland and not of a part of Ireland—that the Irish Free State is Ireland until such time as the Six Counties contract out, but we have no right to assume that they will contract out. Therefore, the Minister has put a false argument when he asks us to accept his assumption that they will, and, therefore, it is necessary to put in "the Irish Free State," thereby meaning the twenty-six counties.

I do not suggest anything of the kind.

I will go further and assert that even after the month Ireland will be known as the Irish Free State.

And that the powers under the Treaty which are not to be exerciseable until that month has expired—even after that month has expired, "the powers of the Parliament and Government shall no longer extend." I admit that the powers shall no longer extend to that particular area, by virtue of the fact that this Dáil has decided to suspend the use of its powers over that particular area, and that "Ireland shall be known as the Irish Free State" if Clause 1 of the agreement of the Treaty is to have effect. Then Clause 1 undoubtedly sets out that in future and for official purposes at any rate—I stress that— Ireland shall be known between these two Governments as the Irish Free State, and there is nothing as I read, to alter that I think it should be contended that the country is still a unit, even though the powers of the Dáil are no longer exercised in that area, and that its authority is not being wielded in that area. It is a mistake to interpret this Treaty, in my opinion, as though the partition is to take place by virtue of the decision of the Northern Parliament, if they do decide that, when we have preliminarily agreed to delegate to a Parliament (which is established through an Act of a British Parliament) those powers of Government, and I contend that if we hold to that view we would have a much greater chance of maintaining the symbol of unity, which should not be lost entirely in this Assembly, and I would hope that if that view is asserted that any consequential phraseology which would arise from that reading would be maintained right throughout the Constitution.

I hope the Minister will reconsider his attitude on this matter, because the argument he puts forward about Ulster is surely based on some confusion of thought. It is an added argument for putting in the words "Irish people." When the Treaty was signed that Treaty dealt with the rights of Ulster, dealt specifically with Belfast Lough, and it was the signatories to that Treaty whose action was subsequently ratified by Dáil Eireann, who enabled East Ulster to be in the position in which it will be if it contracts out. That is an added argument, if one be necessary, for putting the word "Irish" in here:—"All powers of Government and all authority, legislative, executive and judicial are derived from the Irish people."

It seems to me that the proposer of the amendment was a very ambitious person. If I may make a suggestion which might be helpful: "That all powers of Government and all authority, legislative, executive and judicial as derived from the Irish people;" I wonder what the Government of the United States would say of their powers of Government in the light of this clause. All powers of government, and all authority, are not derived from the Irish people, and we are simply making fools of ourselves to insert such a clause in that phraseology in our Constitution. If it were framed in this way, "that all powers of government and all authority within Ireland are derived from the people."

I quite agree.

I do not know how far one amendment within another is possible, but the suggestion made by Deputy Milroy is very helpful, and I think may very reasonably be adopted. After all, when we state here that "all powers of government and all authority legislative, executive, and judicial, are derived from the people," it was never the intention in the minds of the drafters that we should be simply setting a book philosophy, a theory, in respect of any people. We were specifically stating, and the Government is specifically stating, a principle in respect of one country, and that country is Ireland. Consequently the words mean "all powers of government, etc.," are derived from the people. What people? From the Irish people, because we are dealing here with the Constitution of the Free State, and the Constitution of the Free State is the Constitution of the Irish people. Consequently all powers of Government can only be derived from the Irish people, and with the addition of the words Deputy Milroy has suggested—that all powers of government in Ireland, and all authority, legislative, executive, and judicial, are derived from the Irish people— would certainly meet the case, and I should hardly imagine it could be reasonably opposed by any part of this House. It is only stating a principle that is accepted on every hand.

I think that particular amendment might be accepted, in which case it will read: "All powers of Government within Ireland and all authority, legislative, executive and judicial, are derived from the Irish people, and the same shall be exercised in the Irish Free State/Saorstat Eireann through the organisations established by, or under, and in accord with this Constitution," except that I would warn Deputy Johnson against the danger of his conferring Dominion status on an indefinite portion of Ireland which may, or may not, come into Saorstat Eireann.

Does the Minister accept extra territorial authority in Ireland?

We will come to that later on.

Perhaps if we had the exact terms of the amendment, if we read it to the Dáil, it would be clearer in our discussion.

What I suggest is that, after the word "judicial" we put in the words "in Ireland."

In both cases?

That covers the whole case.

I suggest that "people of Ireland" is the better form than "the Irish people." If you think over it for a moment you will see my meaning.

The Clerk will read the amendment, as suggested by Deputy Milroy, and then we shall immediately consider the change suggested by Deputy Fitzgibbon, and we can see whether we shall say "Irish people" or "the people of Ireland."

CLERK of the DAIL:

Article 2 now reads: "All powers of Government and all authority, legislative, executive and judicial, within Ireland are derived from the Irish people, and the same shall be exercised in the Irish Free State/Saorstat Eireann through the organisations established by, or under, and in accord with, the Constitution."

Use "institutions" instead of "organisations."

The amendment now reads: "are derived from the Irish people."

Deputy de Roiste suggests "the people of Ireland."

I suggested "the people of Ireland.""The Irish people" is a far wider term than "the people of Ireland," because it includes people in other countries as well.

What does the mover of the Clause say to that?

Is cuma liom.

As between "the Irish people" and "the people of Ireland" it is not a question for dividing.

Is "the people of Ireland" accepted?

Agreed.

With regard to these two things—the insertion of the words "in Ireland"—the Clerk will now read the clause for you as it stands.

Leave out the phrase "the same." It is quite unnecessary, and the thing will read better without it.

It is only a verbal amendment. This is the clause as amended by agreement now. Do you delete the words "The same," as suggested?

It does not affect the meaning of the clause.

Not the least, in my view.

Very well; anything that is not wanted, do not put in.

CLERK of the DAIL:

Article 2 now reads:—"All powers of government, and all authority, legislative, executive, and judicial in Ireland are derived from the people of Ireland, and shall be exercised in the Irish Free State/Saorstat Eireann through the organisations established by or under, and in accord with, this Constitution."

Motion made and question put: "That the Clause, as amended, stand part of the Bill."

Carried.

ARTICLE 3.

—Here is Article 3 of the draft Constitution:—"Every person domiciled in the Irish Free State/Saorstat Eireann 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 so domiciled in the area of the jurisdiction of the Irish Free State/Saorstat Eireann for not less than seven years is a citizen of the Irish Free State/Saorstat Eireann, and shall within the limits of the Irish Free State/Saorstat Eireann enjoy the privileges and be subject to the obligations of such citizenship, provided that any such person, being a citizen of another State, may elect not to accept the citizenship hereby conferred; and the conditions governing the future acquisition and termination of citizenship in the Irish Free State/Saorstat Eireann shall be determined by law. Men and women have equal rights as citizens." That is the Article as it stands, and an amendment will be moved to insert the word "political" after the word "equal" and before the word "rights" in the last line, and to delete the words "as citizens" after the word "rights" in the last line of this clause. The mover will explain to the Dáil the meaning of the amendment. This clause is an agreed clause, and we consider that, if altered, it would reopen certain proposed amendments on the other side which were very objectionable, and which were dropped on the basis of this agreed text.

May I point out to the Minister that that is not named in the letter to me as an agreed clause?

Mr. O'HIGGINS:

No, it was not named.

I propose as an amendment to substitute the words "ordinarily resident" for the words "so domiciled" after the words "who has been," and before the words "in the area." I put that down not with any view to pressing it to a division, but to draw the attention of the Ministers and their law advisers to it. That matter would seem to me to be very intricate, and it seems to me to require more consideration than it has got. If the test of citizenship is to be "domicile" you are opening up a large vista before the lawyers. You are opening up rich harvests to them. I do not suppose there is any word that has given rise to more law than the word "domicile." If possible, I should like to get away from that. I think the clause ought to deal specifically with the position of wives and minors instead of leaving it to be determined by some legal abstraction, and, personally, I should like to see it provide for a register of Irish citizens, and provide for the creation of simple machinery by which the right of citizenship may be determined, and by which, for instance, a man may ascertain whether or not he is deemed domiciled here or in ordinary residence here, whichever term is adopted. I do not know if members generally realise that if you adopt "domicile" as your test you are adopting a test which would allow people to become Irish citizens who have not been here, not only for the last seven years, but for forty years—people who say they have the intention of returning some day, people who have gone away with the intention of coming back to die. Again, you have the case of persons leaving this country a month or two ago, or a year or two ago, out of disgust with the political success achieved by the Irish people. If those people go abroad, and for reasons of health, or because they are rolling stones do not acquire a fixed abode, gentlemen determined to settle somewhere else, they remain Irish citizens if you adopt "domicile" as your test. In fact, the word is one which has given rise to so much litigation, that I should like something clearer to be put down here. I do not attach much importance to the words "ordinarily resident" as a substitute, but, I think, "ordinarily resident" would be a better element of definition. With the other amendments proposed I may as well deal now. One is to insert after the word "may," and before the word "elect," the words "within a time and in manner to be prescribed by the Oireachtas." That is to say, if you are going to confer upon people who belong to other States the right to become Irish citizens, you should provide here very precisely a further proposal for rules to be made by which we should know definitely, a year from now whether such people have opted to become Irish citizens. If Members are interested in the subject, I would give them an opportunity to impress upon the Government the need to have this matter reconsidered before we put it into the final Bill.

I would not like to support the Deputy who suggested "ordinarily resident" in the first case, but I would in the second place where it occurs, and I would respectfully recommend it to the consideration of the Government. A Deputy said that if you used the word "domicile" in the first case you would allow people who had been absent for five or ten or twenty years to return to this country. I do suggest that this Dáil ought not to deprive of their Irish citizenship men who leave this country to work in their professions in other countries, never having intended to abandon their status as Irish citizens. There is no country in the world, except, perhaps, the one across, where they send out so many people to earn their fortunes—people who would like nothing less than to be deprived of their right to call themselves Irish people, and who come back here to spend their declining years. I have known dozens of them myself. People who went into the Indian Civil Service and other Services, who became doctors, civil engineers, and one thing or another, in different spheres, and who come back—there are plenty of them living here now—having come back after spending their working days abroad; they come back here now, and whose children are possibly going to do the same thing after them. If you leave "domicile" in the first place it preserves the rights of these men. In the second place if the words "ordinarily resident" could be substituted. Heaven forbid that I should try to inflict a lecture on the Dáil on the word "domicile." There has been a great deal of litigation but it is not over the meaning of the word so much as over the facts. I do think when this clause was drafted the over-lapping escaped the notice of the draftsmen. If you use the word "domicile" the clause reads: "or who has not been so domiciled in the area of the jurisdiction of the Irish Free State for not less than 7 years,"—that governs the moment when the Constitution passes. I think there is over-lapping that did escape notice. I think it was the intention of the framers to imply that any person who is living here for not less than seven complete years before this Constitution passed this Dáil was entitled to Irish citizenship, if he elected to take it. I do not think they ever intended to deprive Irish people who happen to be absent at the moment the Constitution passed from their right to call themselves Irish citizens, and therefore I second the second amendment which the Deputy for Co. Dublin has put on the list, and respectfully press upon the Government to accept the words "ordinarily resident" in the second place where "domicile" occurs. Possibly they may see their way to reconsider the matter and deal with it afterwards.

I accept the words "ordinarily resident" in the section instead of "so domiciled."

Before that is finally done may I make a few suggestions? I speak with some temerity in face of the learned remarks made on this subject on a point that may be germane to the subject. I wish to do so as having had something to do with the drafting of the original clause which has given rise to a great deal of discussion here. It also gave rise to many earnest discussions—and brought back to memory many discussions—at the Committee regarding the words "resident" and "domicile," and eventually the word "domicile" was accepted because it implied, whether the person had lived here or not lived here the intention of remaining, which was more a mark of citizenship than mere residence. I wonder if it would be altogethr wise for us to substitute the words "ordinarily resident" instead of "domicile" in the second instance for this reason, and the reason does not originate with myself, but originated in some of the earlier discussions, and was raised with great learning on that occasion. It is this— there might happen in Ireland, at the present moment, some person who had been resident here for the previous seven years, and actually I remember one or two definite cases of the kind were brought forward, people who had been resident here for the last seven years, ordinarily resident here, whose wives and children had been resident in other places, in other countries, and who, therefore, and I speak with correction in the presence of the lawyers, who would not be considered as being domiciled here although ordinarily resident here, and it was the intention of the Committee that such persons—their chief interest would be where their domicile was, and not where ordinarily resident, and by virtue of that fact and the habits of those persons having been referred to where they took occasion to return to their domicile, so that their chief interest was in other countries and not in this country, and, therefore, the right and exercise of citizenship should not be conferred. Under the circumstances I would urge the Dáil to consider the retention of the word "domicile," not only in the first instance, but in the other instance. Clearly, if persons go into the Indian Civil Service, and return after several years, the interests of these persons are in this country. Equally, if a man is resident here, and his home and family are in another country, his ordinary interest is in another country. The first person should be admitted to citizenship, but the second person should not be admitted to that citizenship, as such persons would consider other citizenship, very naturally, from their point of view a matter of pride. With regard to the latter amendment which comes under this section I am asking Mr. Gavan Duffy to insert in amendment 5(d) after the word “may,” and before the word “elect” the words “within a time and in manner to be prescribed by the “Oireachtas.” The objection to that is this. The Oireachtas may prescribe certain times and conditions, after which every person living here, and even domiciled here, would have citizenship conferred on that person, but the imposing of citizenship on that person might impose on that person a very great wrong. I believe it to be the law in the United States that if it can be proved in respect of anyone that he is a citizen of some other State, he is excluded from citizenship of his own State, and, therefore, to impose citizenship upon a person who does not want to accept it would it be like thrusting a favour on those reluctant to receive it.

I think if you considered (a), (b) and (c), and get these finished, and then take (d), it would be the most expeditious procedure.

I take it that (b) and (c) may be regarded as accepted; (a) will not be accepted.

Does Deputy Duffy press (a)?

I am satisfied at the moment to leave the thing as it is I want to see the matter further considered before it comes on again. For instance, on the question of dependents are you going to leave that to a general theory of law?

As the proposition has been agreed upon, I would suggest not accepting the words "ordinarily resident" in the fourth line and in the first line as put forward by Deputy Fitzgibbon.

(b) and (c) have been accepted by the Government, and as I take it that the Dáil accepts them, they will be inserted in the Clause; (a) has not been accepted.

May (c) come up on a future reading?

This is an important matter. In the fourth and fifth lines the words:—"So domiciled" have been changed to "ordinarily resident." Does the fact that that change has been accepted preclude further the consideration of it?

No, that question was put by Deputy Magennis and answered that it does not.

With regard to (d) we do not feel at all disposed to accept that particular amendment, because if you accept the time and manner in which a person will be elected and not accept the word citizenship, there is a suggestion that if there is a failure to elect within the manner prescribed that you are going to thrust your citizenship on him. We want to safeguard the citizenship of this country as a privilege rather than something inflicted upon a person.

I would agree with that if it were proposed to strike out the words "a person being a citizen of another State may elect not to accept, etc." That is a phrase which gives him an option. If he does not exercise his option he is outside. I think these things require careful consideration.

There should be some reference to naturalisation in the clause.

Mr. Darrell Figgis has already spoken three times.

Not on this question.

Yes. The Clerk will read the Clause with the insertion of (b) and (c).

Article, as amended, read and agreed to.

There is a little mistake there. It ought to read:—

"Whose parents (or either of them) were born."

Is it proposed to leave over (d) for further consideration?

I do not want to propose it now if it is objected to.

Very well. Withdrawn.

May I ask if there is any objection to (e)?

I move an amendment to Article 3, that the words "And shall within the limits of the Irish Free State/Saorstat Eireann enjoy the privileges and be subject to the obligations of such citizenship" be deleted. My reason is it seems to be redundant, because a citizen by virtue of the fact must enjoy all the privileges and be subject to the obligations consequent upon such citizenship. It is rather complicating what should be a simple matter. I have no other reason in moving the amendment.

Shall I put the amendment?

I do not think we can accept that. The reasons are not sufficient.

Mr. Johnson mentioned redundancy. Did he state in what clause there is redundancy?

Every person who fulfils certain conditions is a citizen. It seems to me that a person who is a citizen enjoys the privileges and undertakes the responsibilities of citizenship.

We have in this case certain persons who have not got the same rights, or rather claims, to citizenship, as those who were born and reared here all their lives. We are bringing in these people—that is, people having seven years' residence, or people whose parents were Irish—and we are giving them certain privileges laid down, and we are asking from them also the obligation of citizenship. I think, having regard to the advantage those people get who have got only seven years' residence, that some mention of their obligations ought to be made. That is the only reason I see for it, and I do not think it ought to be excluded.

I will not press the amendment.

There are reasons which make us inclined to hang on to the text as it stands. It turns on discussions we had, and this thing was an agreed Clause. In consideration of the actual text as it stands here, we get certain objectionable things, such as the British Naturalisation Act, and so on, omitted from the Clause.

The amendment is therefore withdrawn, I think.

I will not press it.

I move an amendment to Article 3. This and the others are put forward with the privilege of the Ministry. This particular amendment is in the form of a verbal amendment to remove ambiguity as it stands. It refers only to the last sentence of Article 3: "Men and women have equal rights as citizens." The intention of that portion of the Article was to give men and women equal political rights, and the amendment provides that the word "political" should be inserted after the word "equal." The sentence will then read "Men and women have equal political rights." I think that is much clearer than the text as it stands, and will commend itself to the Dáil.

This is a very serious change, and we think we ought to hear some reason for it. While it professes to give equality to women with men, it takes away from them a great deal of the rights that are ordinarily regarded as attaching to citizenship. I take it "political" means they have the right to vote and stand as candidates for constituencies, but beyond that they have no other rights. This amendment, it seems to me, ought to be justified.

This Clause as it stands in the text might almost be regarded as redundant. It might have been stated, in view of the attitude we took up, we would not have regarded it as necessary to put in anything at all. It is not with a view of taking away any rights that women have, or that members of this Dáil think they should have, as citizens, but the reason it was inserted was this: there was a fear that lawyers might construe it in such a way as to cause considerable difficulties later on. For instance, there are certain acts or offences for which women are not prosecuted, and for which men are prosecuted, and vice versa, and there are some circumstances in which it would not be thought desirable that women and men should be treated in precisely the same way. Members of the Dáil, I am sure, know that there are such cases; while everybody here desires that women and men should have every political right, they would not say that in every case certain acts should be regarded in the same way in the law when committed by women as when committed by men. It is for the purpose of avoiding complications of such a nature arising that we change the word "citizens" to "political rights"—not to narrow the Clause or reading of the third Article from the word "citizens," but out of fear that the word "citizens" might be construed by lawyers to tie the hands of the Legislature and the Judiciary later on in a way we might not foresee at the moment.

The suggestion to put in the words "political rights" indicates a limitation of the intentions of the mover. I think it would be a retrograde step to alter this sentence by the amendment. Some of us have thought very highly of this particular part of the clause, and regret very much that it should be limited to "political rights." There are economic rights which men enjoy, and we at least would like women to enjoy the same economic rights, and inasmuch as you are in the Constitution giving equal political rights in that constitution, and have as a matter of fact in practice in the last two years conceded women equal rights, politically and socially, to a great extent, I think it would be a great danger, and would reflect badly upon the Dáil, if you insert in the Constitution anything limiting that equality to the phrase "political rights." If the amendment is pressed I think we would have to propose a further amendment to include economic rights and social rights also, and I think there would have to be a differentiation made in the law. I think it very desirable these words already in the clause should be retained.

It is just because we are afraid that our hands might be tied later, when such a differentiation might be necessary, it is felt that the phrase is one which it would be perhaps unwise to put in just as it stands. As a matter of fact the subject matter of the phrase as it stands in the text is contained earlier in the clause where it states "every person domiciled shall be a citizen, and shall be subject to the privileges and obligations of citizenship." I think it was almost unnecessary in the first instance, and it might have been suggested to remove it entirely, but that might be also understood in the way in which these changes are understood.

There have been suggestions and questions in the English Courts as to whether a woman was a person or not. We should prevent the possibility of having any such misunderstanding.

Mr. O'HIGGINS:

We discovered that matter beyond all doubt in the last Dáil. This particular change is not meant to deprive women of any rights, but to deprive men of certain rights which they should not have this amendment is sought to be inserted. We want to prevent a man who happens to stand in a court charged with a felony from pleading that he committed the act under the duress of his wife. There are then other acts and penalties for offences which might be suffered by women were the words allowed to stand as they are; therefore, we put in the words of the amendment.

I would rather like to add the words "and responsibilities."

I suggest that the situation, as described by the Minister for Local Government, could easily be met, if the words that were to be deleted, in Deputy Johnson's statement, could be transferred to this clause. The clause would then read: "men and women shall enjoy the privileges, and be subject to the obligations of such citizenship under conditions to be discerned by law." There is no difficulty that the Minister has raised that could not be covered by that, and it would leave no sense of grievance among the women citizens. I think at a moment's consideration it will be seen that what I suggest covers the whole ground.

I would like to urge that the mover of this amendment does not press it. I think it would have an unfortunate effect if we were to change the words that have been brought in here. I think it was quite clearly intended by the original drafters of the sentence to include, not merely the individual, but also the economic and social rights, to which reference has been made. With regard to the arguments brought forward by the Minister for Local Government, and also the Minister for Home Affairs, as to the legal effect of this subsequently, whether the rights have a different relation before the law, I would like to say that I think that is met in the form of wording adopted in the sentence, because the sentence does say that men and women have equal rights as citizens, with the same rights as citizens.

I should like to suggest that the amendment be not pressed by the Ministry. The same arguments against the sentence as it stands have been advanced by two of the Ministers. I submit those arguments can very fairly be met by what will be prescribed in law. As it stands, the amendment would mean a narrowing of the effect wanted to be produced by the sentence in the Article. I submit that the points raised by the Minister for Local Government and the Minister for Home Affairs can be met with the words "whereby legally prescribed."

May I say one word in support of the Minister for Local Government? I think this Dáil does not appreciate that there are many cases in which women possess privileges at present. The effect of the clause, without the amendment suggested, would be to confer these privileges on men until the law was altered. You were putting it in the Constitution. It is easy to alter the law, but it is very, very, hard to alter the Constitution. I think there are, particularly living in this country, some women at any rate who have obtained decrees of separation from their husbands—I do not say divorces. It would come rather as a shock upon them to find that they may be made to provide alimony for the husbands they had sent away. I only give that as one instance. There are many other cases in law in which women do possess, at present, privileges. I am not for denying them for a moment, but I do not think privileges ought to be rashly conferred on men without consideration. If the law is wrong, you can alter it, but if you make a slip in the Constitution it will be hard to get it composed. Therefore, I suggest that you confine it to political rights for the present. Later you can make the law conform to our ideas of justice, whatever they may be.

That is what I was going to say. The main point I had in mind was that there was no exact limitation here. You were not depriving them of anything. You were simply asserting that you have not yet got the machinery for showing what your liability was as to the precise thing that was done. Take, for instance, the Inland Revenue and Customs Department, which we are taking up now. At present the man must discover from his wife—it may be in some instances a difficult job—what income she has got, and he is responsible for whatever statement he puts in. She would be entitled to deny that particular information if this clause stood as at present, and there should be two assessments. It would lead to endless bother. The position is that we would continually have to alter the law, whereas if you leave the women to talk over their grievances, you will not be long in hearing what they are. You can then take steps to remedy them. I do not think there is any great grievance here that cannot be altered. You are not putting a full stop in this; you are simply making the way clear to regularise it by law.

I submit Deputy Mac Giobuin's statement is really an argument in favour of leaving the sentence in the Article as it stands. I think we will all agree it may be a matter of great difficulty and length of time to change a clause or sentence in the Constitution, but that it is not so difficult to change the law. I submit the whole thing is a matter really of law, and not of Constitution. Presumably we shall be altering the laws to fit in with the new conditions that are prevailing in the country. For that very reason—it is not likely in these things that there would be a wholesale change in the Clauses or Articles of the Constitution— I submit you should stick to the Article as it stands, or that part of the Article as it stands, and leave in the new codification of the law these other points to be looked after. I submit we should not limit or narrow the machinery; it is quite narrow enough as it is.

There is one suggestion I would like to make. We have the Draft Constitution before us since the morning of the 16th of June. This particular clause is one that we have been considering. We get the amendment now. We have not been able, perhaps, to gather the full import of it. Perhaps the amendment might be brought up at a later stage; then we would have some time to consider it.

If the matter is ever to be considered, I think the consideration here is that we are here to assert the fundamental equality of women and men. We have the fundamental rights as a heading to this thing. If you confine it to political rights you would be laying yourself open to great misapprehension. If you speak of men and women having equal rights "of citizenship" instead of "as citizens," I think you would get over the difficulty suggested by Mr. Fitzgibbon, and at the same time express what we all want to express—"fundamental equality."

In reference to Deputy O'Shannon's point I would refer him to Clause 64, which is as follows:—

"The judicial power of the High Court shall extend to the question of the validity of any law having regard to the provisions of the Constitution. In all cases in which such matters shall come into question, the High Court alone shall exercise original jurisdiction."

Now, this Constitution will be law, and it furthermore will govern other law, so that if this extends further than we intended it to do it prevents making a differentiation later.

That is right, and that is why we should use the phrase "under conditions governed by law."

Is the amendment proposed by Deputy Duggan being pressed?

Yes. It is pressed with the undertaking that if there is sufficient ground put up later on it will be open to reconsideration, but at the moment we feel a stronger case has been made in the change than against it, and we wish to have the amendment put.

CLERK of the DAIL:

The original sentence was

"Men and women have equal rights as citizens,"

and the amendment is:

"Men and women have equal political rights."

Amendment put and carried by 35 votes to 17, the voting being as follows:—

Tá.

Níl.

Liam T. Mac Cosgair.Donchadh Ó Gúaire.Uaitear Mac Cúmhaill.Seán Ó Maolruaidh.Micheál Ó hAonghusa.Domhnall Ó Móchain.Seán Ó hAodha.Liam de Roiste.Seán Ó Ruanaidh.Ailfrid Ó Broin.Seán Mac Garaidh.Pilib Mac Cosgair.Micheál de Staineas.Seosamh Mag Craith.Domhnall Mac Carthaigh.Maolmhuire Mac Eochadha.Earnán Altun.Sir Séamus Craig.Gearóid Mac Giobuin.Liam Thrift.Pádraic Ó Máille.Seosamh Ó Faoileachain.Seoirse Mac Niocaill.Piaras Beaslaí.Séamus Ó Cruadhlaoich.Criostóir Ó Broin.Risteard Mac Liam.Caoimhghin Ó hUigín.Séamus Ó Dóláin.Risteard Ó hAodha.Proinsias Mag Aonghusa.Éamon Ó Dúgáin.Earnan de Blaghd.Uinseann de Faoite.Micheál Ó Dubhghaill.

Pádraig Ó Gamhna.Tomás de Nógla.Riobard Ó Deaghaidh.Darghal Figes.Tomás Mac Eóin.Seoirse Ghabhain Ui Dhubhthaigh.Liam Ó Briain.Eóin Mac Neill.Liam Mag Aonghusa.Tomás Ó Conaill.Aodh Ó Culachain.Sean Ó Laidhin.Cathal Ó Seanain.Seán Buitléir.Domhnall Ó Muirgheasa.Risteard Mac Fheorais.Domhnall Ó Ceallachain.

Amendment carried.

As the amendment has now become a substantive motion, I should like to know if I am in order in moving an amendment to it, because that is something that has not been foreseen by the Standing Orders.

It is not a substantive motion. It has become part of the clause.

Well, could I move another amendment? If I were in order I should like to move that the words "equal political rights" be deleted, and that there be inserted instead thereof the words "rights of equal citizenship," so that the sentence would read "men and women will have equal rights of citizenship."

That had better come up at a later stage when the clause will be reconsidered. There is already one other matter to be reconsidered upon the clause. Perhaps it would be better if it came up then.

I take your advice, Mr. Chairman, and I would like to know when this opportunity might reasonably arise. It is a very important matter, and I believe the change we have made, without some such change as I suggest, would have a very unfortunate effect.

It can come up on the next Reading.

Perhaps if we had an undertaking from the Ministry that this would be reconsidered and reformulated, it would help to allay public feeling.

You do not need any guarantee like that, because it comes up again in another week or so. Surely, we ought to get on with the business.

The Ministry considers such an assurance unnecessary.

It is to guard against public opinion.

We know all about public opinion as well as anybody else.

There is a suggestion that I desire to throw out, and that is with regard to making a separate clause of these words which it, has been decided to add, instead of having them tacked on at the tail of Clause 3.

Is there anyone denying to women their rights? One would imagine that we were the only custodians of the rights of women. Women's rights were secured before Deputies who now show so much concern for them came into public life, and they will be safe when they go out of public life.

The President's speech is rather irrelevant to the question of the numbering of the clause. The amendment proposed is that the clause be divided into two clauses. Can we dispose of that immediately by consent?

The reasons given do not seem sufficient to us to alter the existing arrangement. But there does not seem any particular objection to doing it if there should be strong reason for doing so. We have heard no such reason so far, and we prefer the Order as it stands.

I support Deputy Gavan Duffy's motion that these words should form a separate clause. It is of course quite true that many members of the Dáil have been supporters of the equality in citizenship of men and women. That is not a particular reason why it should not be laid down in a separate clause in the Constitution. I think it is an important matter when we are at the beginning of a new era, and when we are preparing a Constitution—and I am still in doubt if it is a Constitution or not—that this should be done.

Under the duress of long speeches we will accept the proposal.

Before I finish—and this is not a long speech— I would like to make another plea in reference to what Ministers have said from time to time and in reference to what has been said by the President, and it is this, that in all these matters we should get rid of personalities.

I hope you will do the same on your side.

The amendment was agreed to.

Now we will, for the moment, make the new Clause—which stands "Men and women have equal political rights"—Clause 3(a) so as not to interfere with the further discussion of Articles by number on this Reading.

What is the position now?

The motion now is that this Third Clause, as amended, stands part of the Bill.

I suggest that the Clause, which is now two Clauses, should be put separately.

Motion made and question put: "That Article 3 stand part of the Bill."

Carried.

The next question is that Article 3(a), “Men and women have equal political rights as citizens,” be added to the Bill.

Put and agreed to.

ARTICLE 4.

Article 4 reads:—"The national language of the Irish Free State/Saorstát Eireann is the Irish language, but the English language shall be equally recognised as an official language. Nothing in this Article shall prevent special provisions being made by the Parliament/ Oireachtas for districts or areas in which only one language is in use." We accept the amendment of Deputy Corish to put in the word "general" before the word "use" in the last line, and so make it read, "in general use."

That is all right.

Motion made and question put: "That Article 4 stand part of the Bill." Carried.
ARTICLE 5.

Article 5 reads:—"No title of honour in respect of any services rendered in or in relation to the Irish Free State/Saorstát Eireann may be conferred on any citizen of the Irish Free State/Saorstát Eireann, except with the approval or upon the advice of the Executive Council of the State." I formally move that this stand part of the Bill.

There are two amendments both exactly the same. Would it be in order if I tossed with Deputy O'Brien as to which should be taken?

I give way to Deputy Figgis.

I move "That all the words after any citizen of the Irish Free State/Saorstát Eireann be omitted." I would like to see this matter made a test question in this Dáil, because, in view of a great deal that has happened lately, I think it has become a very proper question whether, in the future, titles of this kind should be conferred, or should not be conferred, as a general principle. Consequently, believing myself that they should not be-conferred under any circumstances, I move that the words after Saorstát Eireann, in the third line, should be eliminated.

The effect of this amendment could be gained equally by the Parliament instructing the Executive not to recommend or endorse any suggestion of that kind; but it is quite another thing to attempt in the Constitution definitely to limit or shear what is regarded as one of the few remaining prerogatives of the Crown. And any possibility of a repetition of 1800 is, I think, sufficiently guarded against in that Article, where it is stated "that no title of honour in respect of any services rendered in or in relation to the Irish Free State/Saorstát Eireann may be conferred on any citizen of the Irish Free State/Saorstát Eireann except with the approval or upon the advice of the Executive Council of the State." The point that Deputy Figgis raises, and probably Deputy O'Brien would have raised on the amendment which stands in his name, could be sufficiently met by each Parliament making a general instruction to the Executive that it ought not to recommend any titles or honours.

I support the amendment as moved by Deputy Figgis, and I think it is very essential that it should be adopted, notwithstanding what the Minister for Home Affairs has said. The Minister stated this was one of the few prerogatives left to the Crown. The Article as put before us limits the granting of such titles to those granted with the consent of the Ministry here in Ireland. We are not concerned with the prerogative of the Crown, but with what action may or may not be taken by the Ministry at home. If this country and this Dáil was left to itself, I take it we would frame a Republican Constitution. This Clause is essentially Republican, and if we cannot have a Republic, as we would like, let us at least have our Constitution as Republican as we can have it. This affects what would be done in Ireland by an Irish Ministry, and, while there may be no general disposition to grant title or honours, it is well to guard against any possibilities. We might wake up some day to find a Lord Blythe, Baron O'Higgins, and Viscount Cosgrave. It is well to guard against these things.

I must not have made myself sufficiently clear to set down definitely that no title or honour may be conferred on any citizen of the Irish Free State, and leave it at that, as a challenge, a provocative thing, and beyond doubt as an attempt to limit a prerogative which the Crown undoubtedly claims for itself. But you get the same object in a less brusque way, and in a less provocative way, when you say that no such title or honour may be conferred except with the approval or consent of the Executive Council of the State, and let the Parliament then simply give its instructions to the Executive Council to give no titles or honours. If you look carefully into that you will find we have not our eyes on any jobs or titles.

I think it would meet the point raised by the Minister if you omit the word "except."

To omit the word "except" would be exceedingly dangerous.

Agree on that as a compromise.

It would be worse than ever then.

That would leave the road free for the conferring of such honours.

That would not do.

I really think if the Clause is let stand it is open to each Parliament to give its instructions on the point, and I do not foresee any day coming when the Parliament will fail to give such instructions to the Executive.

I would suggest that the amendment brought forward by Deputy Figgis has in view exclusively political titles of honour. We are all at one with the Minister for Home Affairs in thinking that the nationality will have sufficient vitality to support a Ministry at any future period against becoming an agent of corruption in the way that Deputy O'Brien fears. A title of honour includes a great many more things than these social distinctions referred to as Baronetcies and Viscountcies, and the rest. Supposing the Royal Society in England wish to confer a title of Fellow of the Royal Society upon an Irishman for some distinguished contribution to Science or Research, would not Deputy Figgis be quite willing to allow the privilege to a Minister of that day to consent to have that title conferred? I would support the Minister for Home Affairs on this occasion because the phrase "Title of Honour" is so much wider than what is contemplated by the mover of the amendment.

That is so. The last Clause beginning with "Except" is definitely intended to defend the conferring of foreign distinctions.

Does that really mean that if the Article remains in its present form, that Deputy Magennis may not receive those learned titles, for which he is so eminently qualified, from Universities and other places, except with the approval and upon the advice of the Executive Council of the State? That is the same meaning of this argument at the present moment, and is that the exact meaning of putting in the words "Title of Honour"? If so, we need to reconsider the words "Title of Honour." I understand it definitely to mean what is sometimes referred to as a honorific title, and that is something which deals specifically with a social caste.

The amendment, I take it, has the definite intention that in this country there shall be no honour conferred by the Dáil upon a person which will select and raise him above his fellows by virtue of the power of some Governmental authority. We know, as a matter of practice, that in every country it is not the people who have done honourable things that get titles of honour, and that is why we want to prevent all this at the commencement of our administration.

I suggest that we have gone the very best way of preventing it by the wording of this Article. You cannot set down, I submit, having regard to the exact position under the Treaty statement, a prohibition on the British King from conferring honours in this country, but they have conceded that they will not confer except upon the advice and with the consent of the Executive Council, which in practice can be made equivalent to a complete prohibition, and I submit that that clause is most valuable, and should be allowed to stand.

I would like to point out, sir, that the substance of what is implied in this amendment here has been adopted elsewhere. The Ministry are aware that there is even a Royal Order in Council in Canada by which it has been decreed that the King shall not impose any fresh titles on that other coequal member of the Commonwealth. If it were adopted here it would be simply doing what they did in fact.

The first Parliament can pass a law directing the Executive not to do these things—not to recommend or approve of them; but in this Constitution, which has to be registered and has to go through the British Parliament, I suggest that you cannot reasonably expect to set down a point-blank prohibition, and that you will get all that you want; and that the suggestion that this should be changed simply means trailing your coat over the ground looking for trouble.

If it is the wish of the Minister to conciliate Parliament, I submit we should leave it to the British Parliament to insert that; we should not voluntarily put in that if we think it should not be there. If the British Parliament insists afterwards, it is a matter for them.

I must say the Deputy has a queer idea of doing things, if that is his suggestion.

It struck me in connection with this general discussion somehow or other that the idea in some Deputies' minds in regard to the Executive Council is scarcely an idea that ought to prevail in an assembly like this. The Assembly of the Dáil is unquestionably a Government. The Executive Council carries out the orders and wishes of the general body of the Dáil. It is part of the Dáil and the sense of the Dáil directs the Executive Council in whatever it does. Do not think of the Executive Council as if it were an institution outside eternally declaring war on the liberties of the Dáil. I think with the safeguard you have got, with the democratic feeling and sense that runs through this Constitution, you have every safeguard that can possibly be given in this article; and having regard to the circumstances of the case in this article, I certainly recommend the Dáil to accept it.

I am the mover of the amendment, and, so far as I am concerned, I think it is much better not to delete this if it is going to be inserted later. I think the course of action suggested by the Minister for Home Affairs might help us along considerably if we were to pass it in the form of words as it stands here, and let Deputy O'Brien or anybody else bring forward a proposal to make it a law for the future. I strongly disagree with Deputy O'Connell's suggestion that it would be better that provision should come from the English Parliament rather than from ourselves. Even if it be undesirable it is much better that we ought to do it for ourselves than that it should be done for us by somebody else.

Are you withdrawing the amendment?

I am quite prepared not to press it.

Motion made and question put:
"That Article 5 stand part of the Bill."
Carried.
ARTICLE 6.

Article 6 reads:—

"The liberty of the person is inviolable, and no person shall be deprived of his liberty except in accordance with law. Upon complaint made by or on behalf of any person that he is being unlawfully detained, the High Court/Ard Chuirt, and any and every judge thereof shall forthwith enquire into the same, and may make an order requiring the person in whose custody such person shall be detained to produce the body of the person so detained before such Court or Judge without delay, and to certify in writing as to the cause of the detention, and such Court or Judge shall thereupon order the release of such person unless satisfied that he is being detained in accordance with the law."

That is what is known as Habeas Corpus.

There is a new Article 5(a). It reads:—

"No privilege shall be granted to any citizen in virtue of his or her parentage or descent."

This amendment is perhaps a natural corollary to the other one in my name and the one in the name of Deputy Figgis. It covers pretty much the ground we have been discussing, and I formally move that the amendment be embodied in the clause.

I beg to second that.

I do not think that ought to be pressed. In effect it would amount to this, that should a citizen render very useful service to the State and leave behind an estate insufficient to provide for his family, the children of his family, or anything of that sort, I think that Article would absolutely prohibit you from making any provision in a case like that, and I do not think that was the intention of the Deputy when he put it down.

It was a question of title or of privileges, but not of the kind you mention.

Parentage would be a privilege, and it would be granted by reason of the parentage. I think if it were put it would absolutely prohibit the Dáil from considering such a matter and I am sure that was not the intention.

Leave it over for the present.

Amendment withdrawn.

Article 6, which I read, is simply a provision to enable Habeas Corpus proceedings to be taken in the case of a person being detained otherwise than in accordance with law. Mr. Duggan's amendment would be equivalent, you could say, to giving power to suspend Habeas Corpus in time of war or rebellion. No doubt he will speak as to the necessity for that. And it should be obvious to people that the State must forge its weapon by which it can defend itself in times of crises and emergencies. There can be, I am sure, very little objection to the Article as it stands. Objections may be to the amendment, so I will not delay.

I beg to move this amendment to Article 6:—"To insert the words `in time of peace' after the word `liberty' and before the word `except' in the second line." The Article would then read:—"The liberty of the person is inviolable, and no person shall be deprived of his liberty in time of peace except in accordance with law. Upon complaint made by or on behalf of any person that he is being unlawfully detained, the High Court/Ard Cuirt, and any and every Judge thereof, shall forthwith enquire into the same, and make an order requiring the person in whose custody such person shall be detained to produce the body of the person so detained before such Court or Judge without delay, and to certify in writing as to the cause of the detention, and such Court or Judge shall thereupon order the release of such person unless satisfied that he is being detained in accordance with law." In the future the Government of the day may find it necessary, in time of national emergency, in case of rebellion or something of that kind, to deprive persons of their liberty for the protection of the State, and it is to provide for such emergency as that that the amendment is proposed, so that the Government of the day would not have its hands tied in such a way as to compel it to have people at large who might be engaged in certain operations directed against the State and people.

I would ask the mover of this not to press it, for the very simple reason that the liberty that he requires for the Ministry in any future time, and also at the present time, is well provided for in the actual wording of the Article as it reads, and that the addition that he suggests to that wording is not necessary. The wording says: "The liberty of the person is inviolable, and no person shall be deprived of his liberty except in accordance with law." Consequently the law from time to time may change, and it is left open during the time of war and in special stress of circumstances so to vary that law that the liberty may be impeached. The Article as it stands protects exactly that liberty of Government which Deputy Duggan was so anxious to ensure, and therefore I suggest to him that what he is anxious to ensure is already ensured, and that what he intends to achieve has already been achieved, and that his amendment is unnecessary.

One thing escaped the attention of the Minister—that the liberty of the person is inviolable. The repetition of the word "person" would imply that an alien enemy would be guaranteed this security. The liberty of the person is inviolable—it should read: "that no citizen of the Free State be deprived of liberty." You are really protecting the citizens of the Free State, not everyone at large. In other words the liberty of the person is a technical term in law, whereas "persons" is an ordinary term.

Might I point out, in answer to Deputy Figgis, that emergencies such as are contemplated arise suddenly in a Constitution. There is sometimes delay in passing necessary laws to deal with persons who might be engaged in operations that would entail danger to the State. Meanwhile those persons might be at large and be of grave injury to the State. It is to cover emergencies of that kind that the amendment is proposed.

The great danger is that the people who are to resolve, after all, whether there is an emergency, are the people who at the moment are the Executive power, and such clauses as this are intended to protect the citizen against persons who wield Executive power. And a reactionary Executive at any time might well say that any local ebullitions, such as a breach of the peace, are rebellions movements, are revolutionary movements. These might be made a pretext for dealing with the liberty of the person.

The Courts would have to decide that.

Exactly; and we know what courts are if they get a lead from the Executive! And we desire—and the Dáil generally desires —that the Constitution should be framed in such a way as to protect the liberty of the individual. The law in these matters can be made rigid enough to cover all cases that are necessary. There is great danger as has been shown in every country—that in time of peace any legal movement, any strike, for instance, is construed into being a revolutionary movement, although it might have no sense of that kind about it, and, I think, that the clause as it stands is a good one and quite satisfactory without the amend ment that is proposed.

The idea of the amendment is to preserve the law exactly as it stands at the present moment. It is not desirable that we should, in ordinary times, have very rigid laws that would suit emergencies, such as the giving of certain powers. It is desirable that, in ordinary times, the law should be as little restricted as possible, and should be as liberal as possible. It is desirable that the law should leave the hands of the Executive free when a state of war exists. Whether or not there is a state of war will be a matter for the Courts. At present, if the courts are satisfied that a state of war does exist, they have discretion to refuse writs of Habeas Corpus. If this were passed as it stands there is danger that it might be read that they had not that liberty. No; there will be different views in the Dáil in the present situation, but, I think, the majority of the Dáil will agree that it would not be desirable, in the state of affairs that we find ourselves at the present time, that the powers of the Executive should be less than they are, or that the Executive should be restricted more than it is. The whole life of the State is being assailed. Nobody wants unduly to restrict the liberty of the individual, but, on the other hand, we must not so tie the hands of the Executive that the State may be destroyed, because the hands of the Executive are tied—and unnecessarily tied. And, I think the present state of things, on the whole, will be pronounced satisfactory. There is another thing in it, and that is that we must not look too much, and not be too much guided by what we thought of things in the past, because we are now—owing to the setting up of an Irish Government—facing a new situation entirely.

We have come to the consideration of a matter that is of the very first importance. It has been my duty to go into a good many Constitutions, and the Article as it stands here is more or less the substance of the Constitutional Law in the matter as it is adopted in every other Constitution without any such addition of words as is now projected. The whole question of fundamental liberty is at issue, and I do urge that this being a Government amendment can be very easily carried by the Government if they care to press it, because they hold the majority in this Dáil and they could get the Whips to put it through. But they would be thereby rendering nugatory the struggle for freedom not only in this country, but in other countries, because this question of Habeas Corpus has been adopted in all countries as one of the fundamental rights of the citizens, and such definitions as "times of peace" and "times of war" have never before been introduced into a Constitution. The matter could be met by a sufficient elasticity in the law. The conditions of the times, peace and war, can be set out in the general body of the law, and they can be met very easily and still keep within the provision of Article 6, and I suggest to the Government to let Article 6 stand as it is, passing legislation to meet these special contingencies hereafter either in an anticipatory law or otherwise, but not to change Article 6, for the change which is suggested would make our Constitution appear, when compared with other Constitutions, not so free in this important matter as other Constitutions are.

If this were adopted there would be an interval after the Constitution became law, and before a new law was passed, where on this thing the Executive may find itself without the necessary powers.

I ask this for information rather than in an argumentative sense: is not the fact of introducing these words "in times of peace" to deprive innocent citizens in times of war of the protection of Habeas Corpus which they would otherwise enjoy?

No, the situation remains exactly as it is. At present in times of war the innocent citizen has not the protection of Habeas Corpus, and we think in times of war it should not be given.

I appreciate the argument brought forward by the Minister for Local Government, and I think it would be easily met by passing a law that would come into law with the Constitution, which would meet his case fully. I do urge that with all the emphasis at my command, not to introduce into our Constitution what has been assured as an issue of fundamental liberty in all countries and all Constitutions. Do not let us in this essential matter, do not let us change or vary what was hitherto, rightly or wrongly, one of the advances of human progress.

AN LEAS CEANN COMHAIRLE:

Tá an leas run anois os comhair an tighe.

The CLERK of the DAIL

then read Article 6. "The liberty of the person is inviolable, and no person shall be deprived of his liberty except in accordance with law. Upon complaint made by or on behalf of any person that he is being unlawfully detained, the High Court/Ard Chuirt and any and every Judge thereof shall forthwith enquire into the same and may make an order requiring the person in whose custody such person shall be detained to produce the body of the person so detained before such Court or Judge without delay and to certify in writing as to the cause of the detention and such Court or Judge shall thereupon order the release of such person unless satisfied that he is being detained in accordance with the law."

If the discussion is not closed I would like to say a few words. The position taken up in this case is one which affects not the liberty of individuals, but the liberty of the nation. If we were satisfied the safety of the nation—and that safety is vital—and the safety of the whole fabric of the nation was not in danger we would not ask for the inclusion of these terms. It is because evidence cannot be produced, perhaps which would justify the Court, or be looked upon as evidence sufficient to justify the Court in arresting people, and which cannot be produced by reason of the non-acceptance of information, and because of causes over which we have no control. The rich are enabled to buy off evidence. I am positively convinced that has been done in some cases that came before us, and that people who have revolvers or other implements and resources at their disposal are in a position to prevent other evidence being brought forward. The evidence is there, and we have not arrested, so far as my information has gone, one single person without satisfactory and sufficient evidence being before us of the absolute guilt or complicity in some way or another of every person we have in our hands. At the moment, supposing we pass this Constitution immediately, and that we are asked by these people to bring them before the Court, five thousand or six thousand of them, why we would require at least ten times the number of lawyers we have available to produce this evidence. I think I need not inform the Dáil that in some cases that have appeared in the Courts, lawyers have disgraced what is an honourable profession by the action they have taken—lawyers that are not themselves free from very serious complaint on the national side, posturing as Republican lawyers, and so forth. That is the condition of affairs, and it is by no means the intention, nor could it be defended, that action such as has been suggested here were to be taken in ordinary industrial disputes. No Government could stand by that.

They could.

In ordinary times they would not and could not.

It has happened in the United States.

We are not in the United States here. We are a highly civilised country; although at the moment, perhaps, the slight is against us. I am perfectly sure, and those interested in the liberty of the subject here can rest assured, that there is no violation of the liberty of the subject; but we certainly will interfere with the licence of the subject. There are obligations of citizenship, and they must take up these obligations with their claim to liberty. There is evidence, and it is unnecessary to enter into the actual details of some of the cases that have come before us, and it is because of the absolute necessity of this that we have put down this amendment.

It is really not reasonable to argue cases for the Constitution of the future out of the present temporary circumstances. And, despite the democratic view the present Ministry may hold, it is a fact known by experience in most countries that, unless there is a restraint on the Executive in times of difficulty—in times of local temporary uprisings—advantage is taken by the Executive, by Kings, by Judges and Generals, of the absence of any provision of the kind. that appeared in the original state to violate the liberty of the subject. I believe it is quite feasible and quite simple for the Dáil to pass legislation to meet the emergency, if you require it, but do not allow the Constitution to be spoiled by putting in a clause which is going to throw us back to a period of 70, 80, or 90 years ago, but develop in civic life and common freedom.

I wonder if the mover of the Amendment "in times of peace" has not a sufficient safeguard, as there may be a danger that simple local commotion or industrial disturbances would be regarded as times of peace in that particular area. I would suggest perhaps better words, "except in time of war or rebellion." They are certainly something better than "in time of peace."

Rebellion, I suggest, would be too wide, as you would have different judges taking different views.

Armed rebellion?

Yes. Armed rebellion.

Even in England there are certain rules of procedure for governing such cases.

I think the amendment is unnecessary; in time of war, dealing with people fighting against you, this clause would not prevent the taking of action. What would be deplorable was that the Irish people who have given themselves out to the world as lovers of liberty should put into their Constitution a qualification of liberty such as suggested. The difficulty raised by the President can easily be met. The Minister of Defence told us the other day that we should legalise the position of those arrested on suspicion. That can be done before this Constitution comes into effect. Such a Bill could be very easily passed. The main objection raised by the President to the clause as it stands would go. It is most important, and it would be a pity that the Irish people should not write themselves down as in favour of this.

I suggest that the mover of the amendment should defer further consideration as it is perfectly obvious that the main reason for bringing this amendment up is the present condition of affairs. If that is the case what the Ministry have to do is to bring forward something that can be put into special law to deal with the present circumstances. Do not let the law necessary for dealing with the present circumstances run through the whole clause and the whole structure of this Bill. Do not let us do anything, as the Minister told us the other day, to stress unduly the present conditions in the drafting of this Bill.

I am entirely with the President, but if we are making any change it will make a serious change in the position of this country in international affairs. I am entirely with the President in the measures to be taken at the present moment for the retention of persons taken as prisoners. Do not let us legislate by means of fundamental law for future constitutions and thus deprive one of the fundamental rights of every citizen.

There is a good deal more sought to be read into the amendment than can possibly be read into it. If this Clause was not in the amendment at all you could not argue nearly so much about the effect of this amendment as has been argued.

Is the suggested amendment accepted?

I accept the amendment, that "the liberty of the person is inviolable save in time of war or armed rebellion." No person shall be deprived of his liberty except in accordance with the law.

The amendment was put and agreed to.

In Article 6 is an alteration of a word suggested by Deputy Magennis, that is, that the word "person" should be changed to "citizen" in the first line.

I accept that.

Motion made and question put: "That Article 6 stand part of the Bill."

Carried.

ARTICLE 7.

Article 7 reads:—"The dwelling of each citizen is inviolable and shall not be forcibly entered except in accordance with law." There is no amendment on the paper with reference to this Article.

Article agreed to.

ARTICLE 8.

Article 8 says:—

"Freedom of conscience and the free profession and practice of religion are inviolable rights of every citizen, and no law may be made either directly or indirectly to endow any religion, or prohibit or restrict the free exercise thereof or give any preference, or impose any disability on account of religious belief or religious status, or affect prejudicially the right of any child to attend a school receiving public money without attending the religious instruction at the school, or make any discrimination as respects State aid between schools under the management of different religious denominations, or divert from any religious denomination or any educational institution any of its property except for the purpose of roads, railways, lighting, water, or drainage works or other works of public utility, and on payment of compensation."

Article 8 is practically a repetition of a Clause of the Treaty. Mr. Duggan will move an amendment. It is simply a slight change in the wording to meet a particular point of view which we did not expect.

I beg to move an Amendment to Article 8. It is to delete the words "are inviolable rights of every citizen" after "religion" in the second line and substitute the words "are granted to every citizen subject to public order and morality." The Article would then read: "Freedom of conscience and the free profession and practice of religion are guaranteed to every citizen subject to public order and morality, etc." There are some criticisms directed against this Article by those who regard it as intended to enunciate moral rather than Constitutional principles. What we have in mind is to guard against the possibility of people asserting the right to carry on as portion of their rights ceremonial certain illegal practices, such, for instance, as Mormonism and things of that sort. It is for this reason the Amendment is brought forward.

Has the Minister for Home Affairs accepted Mr. Duggan's Amendment?

There is a slight awkwardness in the wording. I would suggest that according to the wording it would appear that it is the citizen that is subject to morality and order whereas it is the guarantee that is subject. I suggest it should be made "subject to public order and morality guaranteed to every citizen."

I accept that. It will meet the case.

Is the word "or" or "and"?

Motion made and question put: "That Article 8 stand part of the Bill." Carried.
ARTICLE 9.

I move Article 9, which is as follows:—

"The right of free expression of opinion as well as the right to assemble peaceably and without arms and to form Associations, or Unions, is guaranteed for purposes not opposed to public morality. Laws regulating the manner in which the right of forming Associations, and the right of free assembly may be exercised, shall contain no political, religious, or class distinction."

I move that that Article stand part of the Bill.

Motion agreed to.
ARTICLE 10.

Mr. O'HIGGINS:

I move that Article 10:

"All citizens of the Irish Free State/Saorstat Eireann have the right to free elementary education,"

be part of the Bill

I move the Amendment standing in my name, in the paper, that Article 10 be deleted and the following substituted:—

"The right of the children to food, clothing, shelter and education, sufficient for their proper physical welfare and training as citizens of Saorstat Eireann is guaranteed.

"It is the duty of all citizens to ensure that their children and wards receive adequate education. To this end provision shall be made by the State for the free education of the young up to an age to be prescribed by law. School attendance shall be compulsory. Provision shall be made by the State, so that secondary and higher educational institutions shall be readily accessible in the case of persons with small means.

"All schools and educational establishments, public and private, shall be controlled by the State, within limits to be determined by law.

"All schools and educational establishments shall aim at inculcating moral character, religious tolerance, and personal and vocational efficiency, and the teaching given therein shall be imbued with the spirit of Irish nationality and international goodwill. The duties of citizenship shall be a subject of instruction in all schools in order to fit the pupil for his responsibilities as a citizen."

I consider this Article as it stands altogether too meagre; it is not sufficient, in our opinion, for the Nation to state that the children of the Free State should be granted elementary education. The children are the hope of the future and they have the right to the fullest measure of support and protection which the State can give them, and I therefore suggest that the rights of children to food, clothing and shelter should also be granted to them as well as the right to education. That is set out in the first paragraph of my Amendment. I need not enlarge at any length on the second paragraph. While, of course, it is the duty of parents to educate their children and those under their care of all citizens, I propose that the provision whereby they are enabled to do so should be put on the State. I was rather tempted to put down here the last sentence in the last paragraph, "that secondary education should be free," but I prefer for the present to leave it read "provision shall be made by the State, so that secondary and higher educational institutions shall be readily accessible in the case of persons with small means." I attach a good deal of importance to the third paragraph, that education, public and private, shall be controlled by the State, within limits to be determined by law. It is right that the children should be protected from exploitation either by private or otherwise interested persons, and it should not be within the power of any person to set up a school in which education is purported to be given without giving any right to the State to say what is the nature of that education. You could conceivably have a case in which a person might set up a school and teach what might be regarded as pernicious doctrines, and the State should have the right to say whether that should be allowed or not, and that is all that is intended within the meaning of the paragraph. I think there is hardly any necessity for me to dwell on the last paragraph of the Amendment. I propose the Amendment.

The Amendment proposed by Deputy O'Connell is not accepted. We are dealing here with "fundamental rights." In a Constitution of this kind, I submit the "fundamental rights" should be simply and boldly set out, and that that is all that is necessary to set out in the Constitution. It is not necessary to set out in full detail all the most modern and up-to-date amplifications of those rights. A certain amount can be safely left to legislation hereafter. We consider we have set out in this particular Clause the minimum, and also the maximum, that it is proper to embody in the Constitution.

Perhaps the Minister would accept a slight amendment. Instead of suggesting "all citizens have the right to free elementary education," make this run in parallel lines to the preceding Clause, "the right to free elementary education is guaranteed." It is in no way different from the original; it is merely a question of symmetry of language. There is one point in the Amendment proposed by Deputy O'Connell which it would be my duty to oppose as strenuously as possible. That is the proposition to bring the Universities under the control of the State. Nothing more reactionary could be proposed than that. There is no University in the world, and certainly none that I am aware of, except in the Six Counties, in regard to which this has ever been proposed. Unless the Universities are autonomous, education perishes. The proposal, if passed, would amount to the destruction of the vivifying influence of Universities in the national life of the entire community. I confine myself entirely to that, as the Minister has objected to the Clause in toto.

May I say with reference to the objection of Deputy Magennis, that that was not the intention; it is not the intention, and I do not see how it could be read into "within the limits to be determined by law." The University is set up under Statute, and I agree thoroughly with the Deputy that Universities should be autonomous, but I maintain that that is covered entirely by the words "within the limits to be determined by law." With regard to the objection by the Minister for Home Affairs, I maintain that these are fundamental rights, which are set out in the first paragraph, and which are not provided for in any other portion of the Constitution. These are fundamental rights, and that is why it is suggested they should be put into the Constitution.

Is this an Education Bill or a Clause in the Constitution?

I understand it is a Clause in the Constitution.

The Deputy who has just asked the question: Is this an Education Bill? evidently did not read Article 10 of the Draft Constitution that is before him. There is just as much an Education Bill in that Article as there is in the proposed amendment. And that point about being "fundamental rights" must be weighed by the Ministers, because there is a question in our mind as to whether that should be maintained or not. I would point out it surely is as right for this Dáil to amplify what are the rights of children in the Constitution as to leave the bald statement that elementary education is the right which is guaranteed. We have heard a good deal, in discussing this Constitution, of the conditions under which we are considering it, and we are not allowed, we all recognise, to evolve out of this a Republican Constitution, because of certain circumstances, but there are limits and, beyond those limits, we are allowed to evolve as near a Republican Constitution as possible, and without those particular limits we are allowed to embody in our Constitution what was embodied in the Republican Constitution of 1918. I want to remind those Members, who were Members of the Dáil, in what was closest to a Constitution of anything they had, that they declared "it shall be the first duty of the Government of the Republic to make provision for the physical, mental and spiritual well-being of the children, to secure that no child shall suffer hunger or cold from lack of food, clothing or shelter, but that all shall be provided with means and facilities requisite for their proper education and training as citizens of a Free and Gaelic Ireland." This Clause that is proposed puts into more precise terms that Clause of the Democratic Programme. The Republican Constitution is as near as you can get to it, and I am certain— because I have it here—that the Minister for Home Affairs voted for it, and he did right in doing so. It is a very valuable provision, and it ought to be embodied in this particular Constitution in such phraseology as may be decided on. If this particular phraseology is not correct, then it may be altered, but I do contend that the ideas embodied in that particular clause of the "Democratic Programme" ought to be embodied in the Constitution we are now setting up. I think, as far as it is possible, it is pretty well contained, so far as the education goes, in the Amendment that is now submitted. It is not an extravagant Amendment; it is an Amendment that all educationists, I think, would approve, and I would appeal to the House to agree to it, and have it as a monument to the work of this Dáil.

I am not an educationist, nor do I know a great deal about the different Constitutions of the world, but it seems obvious to me that this is not a matter for a Constitution, but a matter for legislation—emphatically so. There are, as far as I can diagnose this Amendment, three distinct subjects mooted in it, (1) provision for food, clothing, shelter and education sufficient for their proper physical welfare and training, (2) to make more accessible to people of small means secondary and higher educational institutions, (3) control by the State of educational establishments. I suggest if there are any subjects that could be legitimate subjects of legislation it is those, because the ways and means of dealing with them must be dealt with before they can be taken up. Take the first clause, if that was brought forward as a Bill, and it could be shown to be a practical measure, I should certainly give it my strongest support. I think it is one of the first things that the Parliament of this Nation will have to see to. It is not securing it by merely entering it in the Constitution before you have thought out the ways and means of providing for it. I think a much more effective way of achieving what is intended in each of these three proposals, is by the introduction of legislation that deals specifically with them rather than burying it in the depths of the Constitution. I am not arguing against the propriety of the proposals contained in these, but I am arguing that it is not the time to press for them, nor is the Constitution the effective place to have them made articulate.

I think it would be pretty well agreed that the Amendment as drafted would not be a proper one to put into the Constitution. Whether anything more suitable can be prepared and proposed at a later stage I do not know. I do not know whether the last Clause would find its place even in a law—let alone in the Constitution—perhaps even in a newspaper article.

It found its place in the Republican Constitution at any rate.

It is the most unsuitable part of the Amendment, but the whole Amendment, I think, is drafted in such a way as to lead to the maximum of confusion if it were to be adopted. I think that no argument would be required to suggest to the Dáil that it should not be accepted at any rate in the form in which it stands.

We in Ireland are not only "first flower of the earth and first gem of the sea," but I think we are the salt of the earth as well, so much so that it is not necessary for us to put into our Constitution fundamental things like this although it seems necessary to put in certain other things. Now the selected Constitutions of the world were handed around to us the other day, in a volume. Not many of us have had the time to go through them, but casually looking through them you will find the recent Constitutions such as the German Constitution and the Polish Constitution provide for this; and there is great similarity in many ways and in many things between the Irish and the Polish people. Even the Mexican Constitution and Mexican politics provide for many things which seem to be tabooed in an Irish Constitution. Deputies upon other Benches have all, or nearly all, held out to the people that one of the first matters and one of the most essential things necessary in Ireland was Education, and that the whole root of things in Ireland is Education, and here in the document that is to be the framework of the whole future legislation of the country the very people who are to be the citizens of the future State —the children who are the foundation of the State and the foundation of the family—the position of the children, of the family, of the education, and every provision for the children is to be neglected in the fundamental legislation of the country. It is to be left to future legislation. Everything, of course, can be left to future legislation. There is no Clause in this draft Constitution which might not properly be the subject of legislation in the future, and the fact that this Amendment contains 20 or 30 lines instead of 2 or 3 lines as in the original Clause, does not necessarily make it a Bill. I think it is a shame, and I think it will be a shame if the only provision made by Teachtai for the children and for the education of the people of Ireland on education is to be made in two lines of the Constitution, and certainly those for whom we speak expect of an Irish legislature that shall not merely give the right to free elementary education without going into the distant future. I support the Amendment.

I wonder would an Amendment to this effect be acceptable: "That the State shall provide for the free education of the young up to an age to be prescribed by law; that school attendance shall be compulsory," and then if we take education in its broad sense I think we must agree that it will be physical, mental and moral training of the young. At least I think education, to be complete, must include these three things, namely, physical education, mental or intellectual training and moral education of the young. I wonder would Deputy O'Connell see his way to accept that.

I am glad of the tone of the general discussion upon this Amendment. I might say, in answer to Deputy Milroy, his argument would equally apply to the Article in the Constitution. (Mr. Milroy: "No, no.") Even with the two or three lines which gives the right of free elementary education you will have legislation or you will have to provide the ways and means for giving that free elementary education. In answer to Deputy Whelehan and also to an argument suggested by the Minister for Local Government, I would say, and it must be remembered, that the time for drafting these Amendments was extremely limited and we had not very much time to think of a special form of wording. I would also say what Deputy O'Shannon said, that most of what is container in my Amendment will be found in all new Constitutions drafted in the past few years. If I understand the suggestion contained in what the Minister for Local Government said, we will have an opportunity of bringing this forward again perhaps in a different way and after consultation with Deputy Whelehan and Deputy Magennis, and in these circumstances I am prepared to withdraw the Amendment.

I suppose it would come on at the next stage of this Bill.

Amendment is withdrawn on the understanding that it will be re-introduced in a different form next stage. I will now put the question, "That Article 10 stand part of the Bill."

Motion made and question put: "That Article 10 stand part of the Bill."

Carried.

ARTICLE 11.

I beg to move that Clause 11, as follows, stand part of the Bill:—

"The rights of the State in and to natural resources the use of which is of national importance shall not be alienated. Their exploitation by private individuals or associations shall be permitted only under State supervision and in accordance with the Conditions and Regulations approved by Legislation."

I move as an Amendment that this Article be omitted and that the following be substituted in its place.

"(a) All estates and interests in the lands, waters, and natural resources of Ireland heretofore claimed to be vested in the King or Crown of Great Britain are reserved to and vested in the Free State/Saorstát Eireann. The air of Ireland and all forms of potential energy and forces of nature which are unknown or not usable because of lack of scientific or technical knowledge are also reserved to and vested in the Free State/ Saorstát Eireann: Provided that the Oireachtas may make provisions for rewarding any person making a scientific or technical discovery of general public utility.

"(b) All estates and interests in the lands, waters, and natural resources of Ireland formerly claimed to be vested in the King or Crown of Great Britain but alienated prior to the adoption of this Constitution to individuals or corporations, which at the date of adoption hereof were not developed or were not the subject of a mineral or development lease, and all wealth below the surface of the soil which was unknown or undeveloped at the date hereof, may be acquired by the Free State/Saorstát Eireann acting on behalf of the people in such manner and on such basis of compensation as may be prescribed by law: Provided that in awarding compensation therefor account shall not be taken of the value accruing after the date of the adoption of this Constitution from any cause other than the industry of the individuals or corporations from whom they were acquired, or their predecessors in title.”

There are just two matters that I would like to draw attention to in that connection, and one is, I think it is a matter of very great importance that we should protect at this moment of all moments the air of this country, which has suddenly, owing to discoveries of the last few years, acquired an importance of very considerable moment. I know there are certain contracts, that there are certain titles, that do grant a tenure of land, and I believe that they read in the wording of the title "ad que coelam," but owing to the circumstances that it has not been very easy in the past to make out easements in the air, no such easements have hitherto been made out; but we are now faced with the possibility that such easements will be made out in the near future, and will be claimed, and we do not know whether that claim will extend, and how far it may hinder the unification of Irish air by Irish energy. If I may just briefly make one reference in that connection. I remember some years ago—not very long ago—in connection with certain national work, being in a coal mine in South Wales, and having my attention drawn to just a little strip of a corner from one causeway to another, a passage from one gallery to another, across just a little strip of the subway that did not extend to more than 6 or 7 ft. all told. The Manager informed us that he had to pay £180 odd a year for what was known as wayleave across the small strip, simply because a certain person so many hundred feet up happened to possess the exact piece of land that happened to be above this little piece. That down below in an Irish mine would practically mean the uneconomic working of the mine. We are not dealing so much with that at the present moment. I am now referring to what might happen the other way, if there are these easements going to be considered. And the matter is receiving very careful attention in all countries where it is contemplated that the State should make out a claim for the absolute possession of all air, and which I think would have to be done by a Constitutional provision by this State at the present moment. These Articles were drafted under other circumstances with some care, and I think they should be part of the Constitution, and I move them to that effect.

I may be able to save a little time in this matter. We are not absolutely satisfied with Article 11 as it stands, and we would like an opportunity of reviewing it and bringing it up in an amended form later, in a form which possibly Would meet Deputy Figgis's views. I could not hold out hope that the amended form would meet the point of view embodied in the Amendment of Deputy O'Brien, or the new Article of Deputy Johnson. So if they wish to proceed with their particular Amendments, it had better be done now. If Deputy Figgis held over his, we might meet him in our new Article.

I am very well satisfied.

Deputy Figgis' Amendment is withdrawn.

It would be extremely difficult to move an Amendment of this kind to the Clause as it stands, if the Clause as it stands is to be amended. If it is agreed that the Amendment could come up at a later stage, we had better withdraw it.

There is nothing to prevent it coming up.

There is one point about that. There will be much more opportunity for discussion now than at a later stage, and if Deputies wish their amendments not only to be voted on, but to be discussed, it is a wise course to move them now.

In that case it may be well to have it discussed. The Amendment which we have put down may be said to cover no more ground than the Clause as it stands, but we prefer the wording as being more explicit and more definitely laying down that the soil and natural resources are vested in the Irish people, and that those who may possess portions of the soil or have the right to exploit these mineral resources, shall do so on definite terms laid down by the Nation. And anyone who fails to use these resources, or misuses them in a manner that may be considered to oppose the welfare of the people as a whole, in these circumstances the State may step in and prevent that kind of thing. We hold these resources are to be looked upon as the estate of the Nation, and that the interests of the Nation as a whole must be served in the exploitation. Under the conditions that prevail in the world to-day a person who is in possession of any part of land, or the instrument of production, is held to be entitled to exploit this just as it may serve his private welfare, and to withhold those things from the service of mankind in general. If, say, the owner of land finds that, according to the condition of the market, it is not desirable from his personal standpoint that that land should be cultivated, it goes out of cultivation. We hold, on the other hand, that these things are essential to the welfare, happiness and prosperity of the people as a whole, and that the Legislature and State generally should prescribe the conditions under which these things should be held and exploited, and that ownership is to be read in a limited sense as the right to exploit those things under such conditions for a limited period, and if those are not fulfilled the State has a right to resume possession and prescribe the conditions under which the land and mineral resources should be exploited. I therefore move the amendment.

Well, I have not very much to say upon it except that we prefer Article 11 as it stands, although we are not perfectly satisfied with Article 11 and we intend to consider it. There is much in this amendment of Deputy O'Brien calculated to frighten timid people, and while some of us personally may not shy iat a word, it would certainly be a very unwise thing to embody in a Constitution at the embarking of a new State, where you must depend on the goodwill and hard work of all sections to make a success of that State, to embody in the Constitution what certainly looks very much like a Communistic doctrine.

The democratic programme of 1918.

That is not a Constitution.

It is the nearest you can get to it.

There are people in this country who thought that they lived and moved and had their being and had their property by grace of powers elsewhere than in this country, and who were genuinely dismayed at the withdrawal of those powers; and while it is wrong, perhaps, to take them over-seriously, it would be equally wrong by any act of ours to add to those fears of theirs. It is in that spirit, and in that spirit only, that the Government, so far as they are concerned, would definitely refuse to embody in the Constitution any amendment such as that proposed by Deputy O'Brien.

One would like to know, except for the fact that the Minister has practically offered to withdraw Article 11, what are the rights of the State in and to the natural resources which are said to exist in this clause? As it stands I think it really means nothing unless you define those rights, and the amendment proposed is an attempt to define those rights. And, again, I would say that it is recasting a little more precisely what was, as a matter of fact, laid down in the Declaration of January, 1919, of Dáil Eireann, and I think it is commonly accepted doctrine that the over-lordship of the State is definite and clear, and that property that is held is held in trust for the public welfare. If that trust is not fulfilled, the State has an over-riding authority. The second part of this amendment defines that it is a duty of the trustee, the landowner, to utilise his land to the full, and that, when by virtue of public activities, values in land increase—not accruing from any expenditure of capital or labour—then that increase shall be absorbed and used by the community for the common good. That is a doctrine which I do not think anyone in his private capacity will denounce or deny. It is generally accepted, and I submit it would be well to have it embodied in our Constitution at the beginning.

About Article 11 as it stands, one of the matters that the Government is dissatisfied with in the clause is the word "alienated." We had in mind by that "permanently alienated." We had meant by that to provide that the air to which Mr. Figgis referred, or the water-power resources of the country should not be given over entirely to private owners for exploitation, but we find that alienation legally might have a much stronger meaning than we thought, that it might provide even that leasing, for instance, is alienation, and that the clause in so far as it might be operative and used for testing the validity of the law, might compel the State actually to work the resources itself, which, of course, we would not want to tie ourselves to. That is one of the immediate causes for reconsidering this clause. The object of the clause is pretty well that of Mr. Figgis' amendment, though there are a couple of points in his amendment that we cannot actually accept. The objection to this other clause, amongst other things, is that it is not a foundation of law. It is purely declaratory; for instance, in Clause 11 as it stands, it does in a certain way limit the right of the Parliament and the Legislature to make laws, and of the Executive to do acts. It provides a direction and framework, defective as it may be. On the other hand, this is a theoretical declaration which carries us nowhere in itself, which might not be, and need not be, implemented in any way. It is a theoretical declaration to which many people might take exception, which would be misunderstood by many people, and which would cause alarm. Its inclusion would in itself form, I think, even if it were not objected to, one of the sort of things which we should not have in the Constitution. I admit that in the draft there are other things like it which have succeeded in getting in, and which may remain in, but, in my view, with a view to preventing this Constitution being used afterwards in the hands of lawyers for a purpose for which we do not intend it to be used, we should keep down as closely as we can to things that give a definite direction to the legislature, that impose a definite restriction upon the legislature, or that in some way set up a framework or machinery of Government. This, if it were passed, would be somewhat in the nature of a pious resolution to which a great number of people would object, because, although it might not, in effect, have all the meaning, or carry the threats which they would think it might carry, they would be reasonably entitled to object to its going into the Constitution, when it was not necessary for any purpose of the Constitution for making any change in what would be done by the legislature or by the Government.

The Sinn Fein programme that was read by Deputy Johnson was intended to be a programme of legislation and not to be embodied in the Constitution. It might be taken that in social matters the Constitution registers the advance made by democracy in winning and consolidating the rights of the individual, the rights of the many against the few. It registers the advance made as far as the present time. It is correct in doing that, but it would not be right for members here to visualise what the legislative advance of the next fifty years would be, and attempt to anticipate the future legislation by recording in the Constitution the aims of the pioneers of to-day. All those matters are matters which should be debated, and are matters on which the people hold widely different opinions. They are matters on which the public mind is not yet settled properly, and they are not yet ripe for inclusion in the Constitution.

It is quite evident from the last two speeches that there is a very different conception of the purpose of a Constitution in the minds of Ministers and in the minds of those of us who are sitting here. As a matter of practice, as a matter of precedent, we find that Constitutions are usually made at a time when the public mind is flexible and after a leap forward, and it is with the desire that the opinions of the best minds of the best period shall be fixed that Constitutions are made. It is quite evident in the minds of Ministers and their supporters that we should be as limited, as conservative as possible, and do nothing that would suggest that there has been a revolution, but rather to accept the position which we have arrived at through English legislation with just some little change in the political arrangement of the country and stand at that and not move forward. Now that is the difference and the complaint. I think it is a pity that we are not intending to embody in the Constitution the best thoughts of the best period in Irish history.

I am now going to put the amendment.

On a point of order, what is going to be an amendment if the Article itself is to be re-drafted?

If this Amendment is to come back it will come back as part of the re-drafted Constitution.

Amendment read as follows:—

"That Article 11 be deleted, and the following substituted:—The ownership of lands and waters comprised within the limits of Saorstát Eireann is vested originally in the Nation, which has had and has the right to transmit title therein to private persons, thereby constituting private property. Private property may be expropriated for reasons of public utility in the manner and upon the terms prescribed by law. The Saorstat shall have at all times the right to impose on private property such limitations as the public interest may demand, as well as the right to regulate the development of natural resources, in order to conserve them and equitably to distribute the national wealth.

The cultivation and full utilisation of the land is a duty the landowner owes to the community. Increment in the value of landed property not accruing from any expenditure of labour and capital upon the land shall be devoted to the uses of the community."

Amendment put to a division and declared lost, the voting being 14 for and 34 against:—

Tá.

Níl.

Pádraig Ó Gamhna.Tomás de Nógla.Riobard Ó Deaghaidh.Liam de Roiste.Tomás Mac Eóin.Liam Ó Briain.Tomás Ó Conaill.Aodh Ó Cúlacháin.Seán Ó Laidhin.Cathal Ó Seanain.Seán Buitléir.Domhnall Ó Muirgheasa.Risteard Mac Fheorais.Domhnall Ó Ceallacháin.

Liam T. Mac Cosgair.Donchadh Ó Guaire.Uaitear Mac Cúmhaill.Seán Ó Maolruaidh.Micheál Ó hAonghusa.Domhnall Ó Móchain.Seán Ó hAodha.Peadar Mac a' Bhaird.Seoirse Ghabhain Ui Dhubhthaigh.Micheal de Duram.Ailfrid Ó Broin.Seán Mac Garaidh.Pilib Mac Cosgair.Domhnall Mac Cartaigh.Earnán Altun.Gearóid Mac Giobuin.Liam Thrift.Eóin Mac Néill.Pádraic Ó Maille.Seosamh Ó Faoileachain.Seoirse Mac Niocaill.Piaras Béaslaí.Criostóir Ó Broin.Risteard Mac Liam.Caoimhghin Ó hUigín.Séamus Ó Dolain.Risteard Ó hAodha.Proinsias Mag Aonghusa.Éamon Ó Dugain.Séamus Ó Murchadha.Liam Mac Sioghaird.Earnan de Blaghd.Uinseann de Faoite.Micheál Ó Dúbhghaill.

Motion made and question put: "That Article 11 stand part of the Bill." Carried.

The Dáil automatically adjourns until 3 o'clock to morrow, according to the Standing Orders.

The Dáil adjourned at 7.35 p.m.