Dáil Éireann debate -
Wednesday, 11 Oct 1922

Vol. 1 No. 21

THE DÁIL IN COMMITTEE. - PREAMBLE TO CONSTITUTION.

Mr. KEVIN O'HIGGINS

The Preamble of the Bill as it stands reads as follows:—"Dáil Eireann sitting as a constituent Assembly in this Provisional Parliament acknowledging that all lawful authority comes from God to the people and in the confidence that we shall thus restore our National life and unity, hereby proclaims the establishment of Saorstát Eireann and in the exercise of our undoubted right, decrees and enacts as follows:—

"1. The Constitution set forth in the first schedule hereto shall be the Constitution of Saorstát Eireann.

"2. These presents shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the second schedule hereto annexed (hereinafter referred to as ‘the Scheduled Treaty') which are hereby given the force of law, and if any provision of this Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy be absolutely void and inoperative and the Parliament and the Executive Council of the Irish Free State shall respectively pass such further legislation and do all such other things as may be necessary to implement the Scheduled Treaty."

Mr. T. JOHNSON

On a point of order, there is a resolution down in my name which was submitted prior to the beginning of this discussion, and it sought to omit the preamble in the draft and to substitute other wording. The draft at that time was a draft of the Constitution that had been circulated, and a preamble that was proposed and referred to in my resolution was the preamble that had then been printed, not as part of the Bill. The proposition that I made does not refer to the deletion of any of these clauses of the Bill, but was intended to be inserted as a preamble to the Constitution. On the earlier discussion I agreed to withdraw it because there was a certain suggestion that parts of it would be dealt with in the clauses, and that other clauses would be altered to such an extent as would meet the claims made in the proposition. What I would like to know is, when will it be possible to discuss the insertion of the preamble to the Constitution as distinct from the two clauses of the Bill?

AN CEANN COMHAIRLE

That is to say, a preamble after the words "Constitution of Saorstát Eireann," and before Section 1, if the title remains.

Mr. T. JOHNSON

That is so.

AN CEANN COMHAIRLE

It can be taken immediately at the beginning of the fourth reading, if you do not want to take it now.

Mr. T. JOHNSON

I would prefer to postpone it, because the new version of Clause 11 may meet points I wish to raise in the first part of this Constitution.

Mr. KEVIN O'HIGGINS

Well, taking the first part of that preamble, "Dáil Eireann, sitting as a Constituent Assembly in this Provisional Parliament, acknowledging that all lawful authority comes from God to the people, and in the confidence that we shall thus restore our National life and unity, hereby proclaims the establishment of Saorstát Eireann, and in the exercise of our undoubted right decrees and enacts as follows"; it seems to me that that part of the preamble strikes just the proper note in introducing a Constitution of this kind. There is not the absolute blast of triumph about it that there would be if we were introducing a Constitution that a great many here, and a great many through the country, would wish to introduce. But there is simply a note of quiet confidence that the thing which we are now doing is for the betterment and for the ultimate welfare of the people, and the hope that it is for the ultimate realisation of the people's aspirations. There are amendments on the Paper which it would be out of order to discuss until they are moved. But we feel, having compared this thing that stands in the draft with these amendments, that we are not at all tempted to alter the preamble to the Bill. I move this preamble as it stands, and the discussion can then turn on the proposed amendment.

AN CEANN COMHAIRLE

The amendment standing in Deputy Johnson's name is withdrawn, and can come up on the next reading.

The following amendment stood in the name of Liam de Roiste:—

To substitute the following as Preamble:—"Dáil Eireann, sitting as a Constituent Assembly, acknowledging that all lawful authority comes from God to the people, and that the Irish people, as a Nation, possess an inalienable right to sovereignty and to the full and free exercise of that sovereignty; yet, in the confidence that we shall thus restore our National life and unity and give to the people a State organisation for the expression of their National aspirations, and in discharge of our trust to the living Irish people, hereby proclaims the establishment of Saorstát Eireann, and, in the exercise of our undoubted right, decrees and enacts as follows."

LIAM de ROISTE

So much has been said already on the last clause with regard to the interpretation of this Constitution, that I feel it is practically useless to try and insert this amendment in the preamble. I feel that it will not be accepted by the Ministry on the usual ground on which they have resisted other amendments to certain Articles of the Constitution. The idea which I wished to express in this amendment was the idea of the statement of position. It is not part of the Constitution. It is part of the introduction of the Bill. Therefore, in my view—I do not know whether it is right or wrong—it is simply a matter for this Assembly. Now, I do think that the statement of position would be essential in this matter. We all admit that all Treaties and Constitutions are subject to change, sometimes violently, sometimes slowly, but still the acceptance of the Treaty, and the acceptance of the Constitution here, will give direction to Irish history in the future. I think, and I think very strongly, that somewhere or other in the enactment of this Constitution, and, perhaps better in this preamble than anywhere else, a certain statement of the National position should be made. Now, in the draft preamble, as submitted by the Ministry, and explained by the Minister for Home Affairs, there is a certain acknowledgment of the source of all lawful authority; there is a certain hope expressed, and then the proclamation and the decreeing of the Constitution. Now, my amendment is directed to state what is the claim that we of the Sinn Fein movement, at all events, have stood by during the recent period of Irish history, and what has been the claim of all Irish Nationalists, more particularly, since the Act of Union—that this is a Nation, and that it has all the rights of a Nation, the right of sovereignty, and the full and free exercise of that sovereignty. Perhaps it is a peculiar view, but it is one of the views that has governed my action in voting against the Ministry and certain of the Articles of the Constitution. What has been done by this Treaty and Constitution and by these different proclamations of His Majesty the King, and the act of the British Parliament in accepting the Treaty, is the renunciation of the Act of Union. Consequently if the Act of Union is being abrogated by the British Parliament, and Government, as we hold it is, Ireland reverts to the pre-union period, and that pre-union period, I hold, was not a period of a Dominion, or a Colony of England, but a period when Ireland was an independent Kingdom. Consequently many of the arguments I heard put forward here by Deputies with regard to accepting the British King, have had no influence on me on account of the view I take. We are accepting the King in this Constitution, not because he is the British King, but because he is Head of the Irish State. Some Deputy referred to the Dominions having secured the position of Ministerial Republics; to my mind, what they have secured is the position of separate Kingdoms. The same monarch is the head of all the various States, notwithstanding which they are separate Kingdoms, and the view I am taking is that Ireland is resuming the position it had in pre-union days. Now, in that position it was recognised by the British Parliament and Government around 1782, the period that has been looked on as that of Grattan's Parliament, that Ireland was a separate and independent Kingdom, possessing the rights of sovereignty and free exercise of sovereignty. I do not think that at the present time particularly, when we are enacting this instrument here, that it is essential and very desirable and that it is a practical question as governing the interpretation of this whole Constitution and every article in it that deals with our relations with the British, that we should have something which preserves that position and that interpretation. I do not see anything inimical to England in our putting this in, even if it could be held by the Ministry or by those negotiating on our behalf that the British Ministers may object to this. An assertion of our rights to the full exercise of sovereignty is not necessarily a declaration of war, as in the case of individual personal rights. Individual rights are very frequently to be held in abeyance or abrogated because they might clash with the rights of others. The same thing applies here in accepting the Treaty, or even the Constitution. The Irish Nation at the present time has in a sense, as I view it, left in abeyance certain rights which it had. Now, I also wish to have it noted that the reason given for the acceptance by this Assembly of such a from of Constitution from the Ministerial benches, as well as from the general body of members and those who have opposed the Ministry—in many respects the statement has been made that we accepted this form of Constitution, not because most of us liked it, not because it is a form of Constitution that we would enact in other circumstances, but as an alternative to a declaration of war on England. In that sense we accept it under duress—the duress of circumstances which we all here recognised. Now, the explanation in the enactment of that Constitution—an explanation as to why such a form of Constitution was accepted—was, at all events in my view, very necessary, not alone at the present time, but for some time in the future, when other people will be interpreting this Constitution and its various Articles. Consequently I suggest as part of the amendment, "in discharge of our trust to the living Irish people." The arguments of those opposed to the Treaty have frequently been addressed to what the dead would think or what unborn generations would think of those who accept this Constitution now. We cannot say what the dead would think, and we cannot say what unborn generations would think, but we can say what the present living generation of Irishmen think. It is because they sent us here to enact the Constitution and make a present peace with England, it is because we have that trust of the living Irish people, that we accept the Treaty. And I think that the explanation in the preamble would be very desirable not alone for the people at the present time, but for all future people who may be interpreting this Constitution. We cannot say what the future will do or think, but at all events, in enacting this Constitution we should, I think, make the declaration which I have suggested, so that those who are interpreting it in the future will say at least, "We did not bind their hands in accepting the Treaty or Constitution."

Mr. KEVIN O'HIGGINS

Ever since the Treaty debate started last December we came up against a class of people who think that nothing is true until you have written it with ink on paper. And some of us know that that is not a fact, and that in fact the writing of a thing with ink on paper does not make it one degree truer than before it was so written. There is, in the Constitution, this Article which says that: "All authority, legislative, executive and judicial, is derived from the people of Ireland." If that is not a complete acknowledgment of the sovereignty of the people of Ireland, I do not know what form such an acknowledgment could take. England knows as well as we know, the world knows as well as England or we know, that this Treaty is not simply the hearts' desire of the Irish people; that it is a compromise arrived at by negotiations after four or five grim years of struggle, and in that respect it is pretty much like every Treaty that was ever made. And the Treaty does not embody the summum bonum of the Irish people. The Irish people agreed to it, after a certain amount of duress if you will, but we must remember that neither does it reflect the hearts' desire of British Ministers, and that they also agreed to it under a certain amount of duress. That perhaps is getting away to some extent from the preamble. But the case that Deputy de Roiste made for his amendment is, that it was urgent to have stated the national position with regard to this Treaty—well, there is in the Constitution as complete an acknowledgment of the sovereignty of the Irish people as one could possibly hope for. And, granting that the Irish people are sovereign, and granting that under stress of hard facts and grim circumstances they agreed to limitations or restrictions of that sovereignty, then we must assume at any time what the sovereign Irish people gave the sovereign Irish people can take away. They will, I trust, in considering the matter weigh the pros and cons very carefully; they will, I trust, before taking any action consider whether they are both able and willing to take the consequences of such action. But the fact of their sovereignty, the fact of their right to put that Constitution and that Treaty in the fire any day they so wish is undeniable, so undeniable that a leading Unionist paper, an English Unionist paper, referred to the statement which I made here some time ago to that effect as a truism. But Deputy de Roiste is anxious to have it down in print lest we forget, or lest the British people forget, or lest the world forget. We are open to reconsider that particular preamble that is here in the draft. But we will not simply accept as it stands the amendment put up by Deputy De Roiste. But we would like to point out that the fact of the sovereignty of the Irish people does not become any more a fact when we write it down with ink on paper. But that is at times inexpedient and we are not afraid of the word to trail our coat, and that there is even as much virtue in the thing that is left unsaid and unwritten as in the thing that is said and written.

Professor WILLIAM MAGENNIS

The Minister for Home Affairs so rarely agrees with me that I cannot refrain from expressing the hearty satisfaction I feel in hearing him echoing almost verbatim the words that I used in a previous debate. From the beginning of the discussion on this draft Constitution to the present hour I believe I can claim that I have steadfastly, even strenuously, upheld the virtues and advantages of the Treaty. In fact a distinguished stranger who listened to our debates told me that in dwelling upon the multitudinous advantages it confers upon Ireland I had out-governmented the Government itself. Now I was delighted to hear that the Ministry are willing to reconsider the Preamble. I agree that the present amendment would not be an improvement upon it, but that is not to agree that it does not very much demand alterations and serious improvements. It is, of course, a truism to say that to write down in black and white a claim does not add any greater validity to the claim if it is already valid or confer any element of validity on it if it is invalid. But there are occasions and circumstances in which it is well to write things down and have them put on record, and that is particularly so in Treaties and in documents like this Constitution which are to implement the Treaty, we are told. The whole purpose of this Constitution is to provide the machinery for the carrying out of something already provided in general terms in the Treaty. And the curious impression seems to prevail here that any attempt that we may make, as independent Members, to extract what, in mining language, I might call the last ounce out of the Treaty is in some way indicative of hostility not only to our Ministers, but to the British people. But that is to forget the whole history of the recent development of the other members of the Union of Free Nations called the British Common wealth. Year after year they have extended their demands and have had them conceded, and that without the slightest breach in the terms of good-feeling between them and their Mother Country. Now, all that we seek to secure in the amendments to this preamble is that it shall not be hereafterwards imputed that something was let go by default; that there shall not be put such interpretation on this preamble as to make it appear we waived certain claims and rights that otherwise we might be entitled to make. You will notice that the preamble says, "and if any provision in this Constitution, or of any amendment thereof, or of any law made thereunder, is in any respect repugnant to any of the provisions of the scheduled Treaty." Now, is it not obvious that there is here contemplated at least the bare possibility of something being enacted either in this Constitution or afterwards as a piece of legislation which might be held to be repugnant to the Treaty and that will have to be decided before some tribunal. We have already debated the question of what tribunal sufficiently, and I will not be guilty of disorder by repeating these arguments, but I draw attention to the fact that it must be discussed before some tribunal and adjudicated upon before some tribunal; whereupon the question still arises: What is in the Treaty proposal? Now, in the Treaty you have the words referred to by Deputy Johnson some days ago that the status of Ireland "shall be” so and so, and that in regard to the Crown and the Imperial Parliament the position of Ireland “shall be” so and so. The ordinary reader interprets “shall be” as referring to the future, but the man accustomed to consideration of legal documents will see that “shall” will carry us no further than an emphatic declaration that the thing is here by made so, and will not cover the possible misinterpretation with regard to the status of Ireland as measured by the phrase “according to the law, practice and Constitutional usage of Canada.” We had that also in a debate quite recently. Is it to be the standing of the various Dominions on December 6th, 1921, or is Ireland to enjoy whatever Constitutional growth may accrue to those Dominions hereafter? If Ireland is to enjoy whatever of development is to come to the other States of the union of free nations, then when the tribunal I contemplate comes to consider certain impeachments of laws or portions of laws as going outside the Treaty it would be possible for those who represent Ireland before such tribunal to point out that, while indeed this piece of legislation may not be in accordance with the Treaty as scheduled, still in a liberal interpretation it is in accordance with later expansion in the nature of an unwritten Constitution. Now, what I wish to have introduced into the Preamble are some words that will safeguard us from England in that respect. I want an explicit declaration by a proviso something after this fashion: “provided always that in determining any question as to such repugnancy the Treaty shall be construed as conferring on Saorstát Eireann the right to possess and enjoy whatever advantage by way of status or Constitutional privilege any of the free nations comprising the British Commonwealth may hereafter acquire, whether by Treaty, law, practice, or usage. Now, as I conceive it, there is nothing in that inconsistent with the Treaty. It is our Irish interpretation of these words in the Treaty, “according to the law, practice, and Constitutional usage of Canada.” If that is extending unduly the concession as the British would view it made to Ireland in the Treaty it can be so stated by the British. It is a thing that can be very easily decided for us without any great loss of time. If, on the other hand, as I am quite confident, no objection would be made to it by the British Government, that it would be accepted as the explicit declaration of what is intended by the phrase I have quoted from the Treaty, then we have so much to the good. Those who are anti-Treaty outside the Dáil, those who still view these things in a state of unstable equilibrium as to whether the Treaty is what we say it is, or that it is the infamous thing its opponents declare it to be, will have thus much to persuade them; the fact that while the Ministerial Republics keep on growing—as they will grow—that Ireland grows with them. We white, and that record here in black and white is not a mere empty statement of words that are meaningless sounds. It is really a declaration of right, and I am quite confident it is a declaration of right that will not be challenged on the other side of the Channel.

Mr. ERNEST BLYTHE

This particular part of the Bill is the literary part, and I suppose an infinite number of amendments might be proposed, and amendments might possibly be proposed that might better the Preamble as it stands. I take it that the first part, at any rate, of the Preamble will not be passed by the British and that the Dáil is free to consider the thing as portion of this Bill that will be passed only in this Dáil, but anything in the nature of the amendment proposed by Deputy De Roiste is to my mind altogether objectionable, as the amendment is carefully drawn to constitute an apology. For my part I do not think that this is a Constitution which requires to be introduced with an apology. This Constitution, in my reading of it, is an interpretation of the Treaty, and, to my mind the Treaty is not a matter requiring apology. I regard the securing of the Treaty as a victory. We did not, under the Treaty, get the unconditional surrender of the British, but, to my mind, we got from them a surrender. Although the cracked-brained and the stupid have made a great "to-do" about the things we did not succeed in getting, what we did get constituted the gaining of a definite victory. The Treaty requires no apology in my opinion. The Constitution is a fair interpretation of the Treaty, and although we did not get in the Constitution any more than in the Treaty, everything we set out to get, the Constitution is an interpretation of a thing that was, in itself, a victory, and, to my mind, the Constitution should not be introduced with any type of apology. Perhaps we could not go into the very high poetic language we might have gone into if we had got an absolute victory. At any rate, if we are to make any sort of a change, we should not, at all, make a change along the lines indicated in this amendment proposed by Deputy De Roiste. I was not able to follow too well the speech of Deputy Magennis. I do not see anywhere in type the amendment he suggested, but, as he read it out, I am not sure it would be accepted on the other side, and I am not sure, without some opportunity of seeing it in print, and studying it, whether it is an amendment that it would be desirable to accept, even if it would be accepted on the other side. It would be necessary to have it before us. There have been various amendments proposed here for the purpose of not only approximating the position of Ireland to a Dominion status, but of absolutely and permanently identifying the status of Ireland with Dominion status. Those are not the sort of amendments which, to my mind, serve any good national purpose. If we had Deputy Magennis's suggestion in print, we could see it, but I belive myself it would not be acceptable. If we specifically ask the British to commit themselves further than they are committed, they might rightly decline to be so committed. If it does not—and I belive it would not commit them any further—there is no advantage in it. But if they hold it commit them, they might rightly decline, while, from my point of view, I do not belive it would carry us any further.

Professor MAGENNIS

May I say, by way of apology, I quite accept what the Minister has just said as to his not having my amendment before him in writing. I regret he has not had it. I merely evolved it a few moments ago, but I can submit it to him for the Third Reading. The real reason, I have tried to explain, was to have what we understand by the Treaty set out explicitly. If the other parties to the Treaty declare it to be contrary to the Treaty, well, then, there is so much out of the way; just as at the present time there is a considerable advantage to us in discussing the draft Constitution when we know it has already undergone a revision and been accepted in its revised form by the other parties to the Treaty. There is really nothing in what we have proposed that is novel. There is certainly nothing in it that is hostile to anything the Ministry has put forward, for it will be in the recollection of this Dáil that when we were adopting Article 50 (a) the Minister for Home Affairs declared most positively and unmistakably that the meaning of the words, "shall be the law, practice, and constitutional usage of Canada" was a reference to growth and development, whereupon I asked him would he put that as a recital in the preamble. He said no. Consequently, all the Irish people have as an assurance of their constitutional position is the obiter dictum of the Minister for Home Affairs. If the Minister applies his own dictum why not put it up to the British Government to accept or reject? Why make this declaration for the Dáil that our interpretation of the position of the Treaty is so and so, but we must not say it? It is either prudence carried to the verge of timidity, or something that might more commonly be described as utter inconsistency.

Mr. SEAN MILROY

There is one aspect of this that I think you have overlooked. There is a certain amount of safeguard in this—the reference to the provisions that might be repugnant.

Mr. DARRELL FIGGIS

On a point of order—I do not want to interrupt Deputy Milroy—but I should like to know are we discussing 1 or 2, or are we discussing only 1?

AN CEANN COMHAIRLE

They have both been moved, but we are really discussing 8 and the further amendment in Deputy de Roiste's name.

Mr. MILROY

I am in order, of course, in discussing what it is proposed to delete. What I want to say is this: Let us not lose sight of the fact that this Constitution is going before the British Parliament. It is going before a much more hostile Assembly than this present Assembly, and they might possibly make amendments to the Constitution which may be repugnant to the Treaty. Therefore, if such be the case, according to this preamble they will be null and void, and I think it is necessary that we should have some protection and some safeguard in the Constitution which will prevent the British Legislature making amendments which are violating the Treaty that has been entered into. I think it is essential to have something that will safeguard us against trespass and encroachment of people in the British Legislature who are hostile to our national aspirations, and to ensure that not one iota of the Treaty shall be filched from us by their operations.

LIAM de ROISTE

If it is intended to redraft the Preamble I presume it will come forward again for discussion. As the proposer of the amendment, I do not accept the view of the Minister of Local Government that there is any apology being made in declaring that the Irish Nation has the right to sovereignty and has the right to the free exercise of that sovereignty. I think that is not an apology. The other portion of my amendment, that it is "in discharge of our trust to the living Irish people we enact this Constitution"—if it is looked upon as an apology the apology is made because this interpretation of the Treaty, which is in the Constitution we are debating, is not a free interpretation by this Assembly. That is admitted by the Ministry itself. It is not a free interpretation. It is an interpretation which in many of the clauses is in the sense the duress of circumstances which we are accepting, and which I am prepared to accept also —as forced upon us by British Ministers. As to whether it is wise to make those remarks or not—I do not see any unwisdom at all in declaring the position quite honestly as we see it, and I do not think Ministers of any country would be so outrageously unreasonable as to make war on another country because we honestly state what our view or our interpretation of the Treaty entered into with them is. I do not yet know the particular basis upon which the Ministry is resisting the insertion of these words in the preamble. With regard to the point raised by Deputy Milroy, I asked for information, I think, at the beginning: does this preamble go forward as a part of the Constitution or as a separate thing? To my mind, it is quite separate, because surely nobody expects the British Parliament to pass a Constitution making a statement, like the statement in the preamble of the Bill, as drafted by the Ministry, and I, certainly do not anyway expect the statement which I propose in my amendment to go forward to the British Parliament. I take it the preamble is a separate thing, and that the Constitution will go forward separately to the British. The preamble is simply our own statement made here, and it has nothing to do with the Act, which will enact the Constitution from the British point of view.

Mr. GAVAN DUFFY

The preamble is a denial of our sovereignty, and is about as bad as it could be, and therefore I do not think we should touch a line of it, as it is a fitting introduction to the emaciated Constitution which is coming out of the Third Reading.

MINISTER for AGRICULTURE (Mr. P. Hogan)

I am definitely against Professor Magennis' amendment to the preamble.

AN CEANN COMHAIRLE

It is not before the Dáil.

Mr. HOGAN

We have been discussing it for the last half-hour.

AN CEANN COMHAIRLE

No.

Mr. HOGAN

We need not discuss it then. I think it is a pity that fifty odd men should be wasting their time discussing Deputy De Roiste's amendment. I was present, unfortunately, at all the debates in the Dáil last January, and I got tired listening to everyone getting up, saying what a magnificent Republican he was, and how it pained his heart to have to take the Treaty, and how he remained awake at night thinking about it, but that he would take it all the same. It reminds me of children crying after sugarstick they lost. We took this Treaty. We know its limitations, and there is no occasion to be going about day after day, exposing our robes. We took the Treaty. We know now exactly what it is, and in the name of commonsense let us take that for granted, and let us not be always making a song about it. What we put in the Preamble does not matter twopence. The Treaty matters. The rights we get under the Treaty matter. These rights are in the Constitution, no more and no less, and if we could not put more in the Constitution it is the fault, so far as it is a fault, of the men, including Deputy Gavan Duffy, who signed the Treaty, and it is merely unworthy of the Nation or the people who represent the Nation, to be crying about what we lost and what we did not get. Preambles, after all, are a matter of taste, and I think there is a French proverb that "you cannot argue about taste." I prefer our Preamble. I do not like the whinge that is in Deputy de Roiste's Preamble, and naturally as I prefer, from a literary sense, the pious aspirations that are in our own Preamble, I am going to vote for it and am going to ask the rest of you to vote for it.

Amendment put and lost.