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Dáil Éireann debate -
Wednesday, 18 Oct 1922

Vol. 1 No. 23

CONSTITUTION OF SAORSTAT EIREANN BILL.

Mr. DARRELL FIGGIS

On a question of order Sir, inasmuch as this is the first Bill——

AN CEANN COMHAIRLE

No matter can be raised until the motion is before the Dáil.

Mr. DARRELL FIGGIS

I am asking you on a point of order on a matter of procedure before this amendment comes up. It is germane to the matter being put forward, inasmuch as it is the first Bill we have in this Dáil. It has reached the fourth stage—the words "fourth stage" are not altogether familiar to all of us. I would like to know exactly from you what is the procedure that is going to be adopted in respect of it. I see a number of amendments here. I would like to know whether it is going to be a full debate or an extended version of the Committee stage.

AN CEANN COMHAIRLE

When the Bill is presented in the fourth stage the Standing Orders say "When a Bill has been returned from a Special Committee or from the Dáil sitting in Committee a motion shall be given to receive the Bill for final consideration. In the fourth stage amendments may be moved including amendments by the proposers of the Bill. These amendments shall be taken in the order of the Clauses to which they refer."

Mr. DARRELL FIGGIS

Do we start on the amendments, or discuss the Report Stage first?

AN CEANN COMHAIRLE

Clearly we start on the motion. We take the amendments seriatim as amendments to the motion that the Bill be received for final consideration.

Mr. KEVIN O'HIGGINS

To put the discussion of the amendments in order I formally move that the Bill be received for final consideration. You will find on the Agenda very many amendments standing in my name which were the result of our deliberations arising out of the Committee stage. I do not propose to delay the Dáil. We will work formally and steadily through the amendments, and merely ask in view of the conditions here, and in view of the political conditions in England that speakers will not be diffuse, but that having put their particular points they would have sufficient faith in the ability of the Dáil to appreciate and digest them without very much elaboration.

Mr. ERNEST BLYTHE

I second the motion.

Mr. JOHNSON

At the first reading it will be remembered I moved a motion for an amendment to insert a certain clause as the Preamble, or, in place of the Preamble that was then printed. When we received the Order Paper, and saw the exact form in which the Bill was to be presented to the Dáil, it was apparent that the form in which I had moved the amendment was not quite applicable to the new form in which the Bill was presented, and after some discussion I withdrew the proposal with the promise that I would bring it forward in another form later. Certain changes have been made in one of the clauses of the Constitution, and certain assurances or statements have been made by Ministers touching another clause of the amendment which I proposed, which made it unnecessary, I think, for me to move these particular portions of the Preamble which I first gave notice of. But I am moving the amendment which now appears in my name, to be placed not in the Preamble of the Schedule, i.e., the Constitution, but in the first paragraph of the Bill itself. If this amendment were accepted the paragraph would read as follows:—

"Dáil Eireann sitting as a Constituent Assembly in this Provisional Parliament acknowledging that all lawful authority comes from God to the people, hereby declares that: the right of the people of Ireland to the ownership of Ireland is indefeasible; that the Nation's sovereignty extends not only to all the men and women of the Nation, but to all its material possessions; the Nation's soil and all its resources, all the wealth and all the wealth-producing processes within the Nation: `In the exercise of our undoubted right and in the confidence that we shall thus restore our National life and unity, Dáil Eireann hereby proclaims the establishment of Saorstát Eireann and decrees and enacts as follows.' " I ask permission to delete the word "hereby." The amendment asks the Dáil to make formal declaration without any challenging intention, but to put on record in this Bill certain phraseology which will make it clear to future generations that this was not a formal renunciation of the claims that Ireland has made in the past of sovereignty— the sovereignty of the nation. I think that the amendment as suggested conforms absolutely with every declaration that has been made by Ministers. It asserts that Ireland, a united Ireland, is under the control of the people of Ireland, and it guards against the possibility of its being said that Ireland has renounced certain rights which have been claimed from time immemorial. It would ensure that Ireland did not give away the right to ultimate control, when she so desired, of certain ports which have been conceded to the guardianship of another. It also asserts that no act of this Dáil is consenting to the possible handing over of the material resources of the nation to any foreign capitalistic or other corporations or institutions. It asserts in the front of this Bill what every person believes; and I think it is desirable that that should be done, to prevent the possibility of its being declared that in the passing of this Constitution the rights that Ireland has claimed were to any degree renounced. If this were inserted, then I take it that the meaning of this Act would be that the claim that Ireland has made in the past she still makes, but in the exercise of the right of the people of Ireland, an engagement has been entered into to enable the country to carry on satisfactorily, in view of the compulsion of circumstances, by agreement with another country, in regard to certain rights which for the moment are relinquished I do not think that any charge can be made against this clause; that there is an apology for the Treaty contained in it. It would simply be a formal declaration in the first Act of this Parliament of the position that all Irishmen who have taken part in the recent struggle, and all Irishmen, I think, who have taken part in any national struggle, have maintained. I believe that it is a very desirable thing, in view of the whole history of Ireland's agitation, that some declaration of this kind should appear in the opening paragraph of the first Act of this Dáil. I beg to move this amendment to the Preamble.

Mr. J. LYONS

I formally second the amendment.

Mr. KEVIN O'HIGGINS

I have an amendment which I think meets the purpose of that amendment, and which if I may say so, meets the purpose better. The amendment is: "To delete Article 12 and to substitute `all the lands and waters, mines and minerals, within the territory of the Irish Free State hitherto vested in the State, or any Department thereof, or held for the public use or benefit, and also all the natural resources of the same territory (including the air and all forms of potential energy), and also all royalties arising within that territory shall, from and after the date of the coming into operation of this Constitution, belong to the Irish Free State, subject to any Trusts, Grants, Leases or concessions then existing in respect thereof, or any valid private interest therein, and shall be controlled and administered by the Parliament, in accordance with such regulations and provisions as shall be from time to time approved by legislation, but the same shall not, nor shall any part thereof, be alienated, but may in the public interests be from time to time granted by way of lease or licence to work under the authority and subject to the control of the Parliament. Provided that no such lease or licence may be made for a term exceeding ninetynine years, beginning from the date thereof, and no such lease or licence may be renewable by the terms thereof." That amendment meets, in my view, at any rate, all that Deputy Johnson claims for his particular amendment, and has the advantage in the Constitution what we consider an advantage over the other amendment that it is not poetry, but very explicit and very carefully worded prose. We prefer the amendment that stands on the paper and we would ask the Dáil to accept it.

Amendment put and negatived.

Mr. KEVIN O'HIGGINS

I wish to move Amendment No. 2, as follows:—

"Page 1, line 12—To delete the words `we shall thus restore,' and in lieu thereof in line 12, after the word `unity,' and before the word `hereby' insert the words `shall thus be restored.' "

The Article would then read:—"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 our national life and unity shall thus be restored." The purpose of this Article is to clear up a slight confusion that existed with regard to the first and third person—a mere matter of grammar. I think the amendment might be agreed to.

Professor MAGENNIS

What does it mean?

Mr. KEVIN O'HIGGINS

That instead of having "that we shall thus restore our national life and unity," we should have "that in the confidence that our national life and unity shall thus be restored." It is simply a slight confusion between the first and third person.

Professor MAGENNIS

It is the word "thus" is the difficulty.

AN CEANN COMHAIRLE

Is the amendment seconded?

MINISTER for FOREIGN AFFAIRS (Mr. Desmond Fitzgerald)

I second the amendment.

Professor MAGENNIS

What does "thus" mean?

Mr. KEVIN O'HIGGINS

"Thus" refers to the establishment of Saorstát Eireann.

Professor MAGENNIS

I think it refers to "that all lawful authority comes from God to the people," or possibly Dáil Eireann sitting as the Constituent Assembly.

Mr. KEVIN O'HIGGINS

If that objection exists now, it existed in the same degree to the Article as it stands.

Mr. THOMAS JOHNSON

Would the reading "thereby be restored" be not better?

Mr. KEVIN O'HIGGINS

"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 our national life and unity shall thus be restored, hereby proclaims."

Professor MAGENNIS

If I might suggest, leave out "and" and "thus." It does not require these words—"acknowledging that all lawful authority comes from God to the people, in the confidence that national life and unity shall be restored, hereby proclaims"——

Mr. DARRELL FIGGIS

We are talking about a matter of words, and I would like to suggest to the Minister for Home Affairs that I do not think he has succeeded in the purpose he intended. He intended to remove the difference between the third and the first person, and he retains the word "our"—he retains the first person still. Therefore, I suggest that, instead of the word "our" it should be "the national life."

Professor MAGENNIS

There is an amendment to delete "our" lower down. He has foreseen that.

Mr. KEVIN O'HIGGINS

I would suggest that, instead of "our," we would insert "in the confidence that Ireland's national life and unity shall thus be restored, hereby proclaims." The "thus," I think, obviously refers to the establishment of Saorstat Eireann. Certainly my mind is not sufficiently fine to see any difficulty in the "thus."

Professor MAGENNIS

I do not wish to make a speech about the matter. Otherwise I think I could make it clear.

Mr. O'HIGGINS

I have moved an amendment.

AN CEANN COMHAIRLE

There is an emendation of the amendment standing in your own name—to put "Ireland's" for "our"—"in the confidence that Ireland's national life and unity shall thus be restored, hereby proclaims." Is the amendment agreed to?

Amendment adopted.

Mr. O'HIGGINS

The next amendment is:—"Page 1, line 14,"—to delete the word "our"—"and in the exercise of our undoubted right. decrees and enacts as follows"—to leave out the word "our."

Mr. DESMOND FITZGERALD

I second the amendment.

AN CEANN COMHAIRLE

The amendment is consequential upon the amendment already agreed to. I take it that it is agreed to.

Agreed.

The CLERK of the DAIL

read the Article in its amended form:—

"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 Ireland's national life and unity shall thus be restored, hereby proclaims the establishment of Saorstát Eireann and, in the exercise of undoubted right, decrees and enacts as follows":

Mr. O'HIGGINS

I beg to move amendment 4.—"Paragraph 1, page 1, line 16.—After `Saorstát Eireann' to insert `The Irish Free State.' " As that is the first mention of Saorstát Eireann, it is well, in an explanatory and definite way that the English title— that is the title in the Treaty—be inserted. Afterward Saorstát Eireann can be referred to without the explicit mention of the English title.

Amendment agreed to.

Mr. O'HIGGINS

I beg to move Amendment 5—Paragraph 2, page 2, line 1, to delete the words "these presents" and in lieu thereof to insert the words "the said Constitution." As it will be part of the enacting Bill it is suggested that instead of the words "these presents" you insert the words "the said Constitution" on page 2, line 1, "said Constitution shall be construed," this being part of the Act and not part of the Constitution. The next Amendment (No. 6) is consequential—Page 2, line 5, to delete the word "this" and in lieu thereof to insert the words "the said."

Mr. D. FITZGERALD

I second the amendment.

Amendments agreed to.

Mr. O'HIGGINS

I move Amendment 7, on page 2, immediately after line 12— To insert new section as follows:—

"(3) This Act may be cited for all purposes as the Constitution of Saorstát Eireann Act, 1922."

Mr. DARRELL FIGGIS

Before the Minister moves that Amendment I suggest that there is another consequential Amendment, and it should be Parliament and Executive Council of "Saorstát Eireann" instead of "Irish Free State."

AN CEANN COMHAIRLE

The Bill will be printed in the Fifth Stage, when the Irish title will be inserted in every case. That is a thing we have agreed to do. It was suggested, I think, by Deputy Gavan Duffy on a previous occasion. Would not that meet the case?

Amendment agreed to.

Mr. KEVIN O'HIGGINS

I move Amendment 8—on page 2, line 16, to delete "Section 1—Fundamental Rights" and all these headings or sub-headings throughout the Constitution will be deleted and the Articles will simply run consecutively.

Mr. DESMOND FITZGERALD

I second the Amendment.

Mr. DARRELL FIGGIS

I urged that, and I would like to suggest to the Minister that while I think it is the right course to adopt for the legal form I think it would be a good thing in subsequent publication of it that the Section titles may come in without becoming the legal form, as explanatory to the document

AN CEANN COMHAIRLE

It is the legal document we are considering here.

Mr. DARRELL FIGGIS

I was suggesting that as amplification of it.

AN CEANN COMHAIRLE

I take it that if the Amendment on the paper was first agreed to, the other Amendments, or ones of similar import, will be agreed to without discussion.

Mr. THOMAS JOHNSON

I suggest there is a good deal to be said for keeping this particular title in the Bill, whatever might be said about the subsequent titles. There is something to be said for keeping this title, "Fundamental rights," so far as it reads now. I do not know how it can be done without unbalancing the whole Bill. But if the Minister could see his way to do it in an amendment I would urge him to do it.

Professor WM. MAGENNIS

I suggested before, and may I briefly repeat the substance of it, that if we had as part of the Preamble a recital to the effect that a Treaty has been entered into between Great Britain and the Irish people, that under that Treaty Ireland takes such and such a place, reciting the words of the Treaty, it would be possible, then, to take what is Article 1—"Fundamental Rights"—up into the Preamble as a recital, and I think it is to get over this difficulty that the present alteration is being suggested. It is not a "fundamental right" in any proper sense of the word that the Irish Free State should be a coequal member of the Community of Nations, and the awkwardness of asserting that it is can be easily got over, as I suggest, by the machinery of recitals. Then everything that follows after that statement is in the nature of a "fundamental right."

Mr. GERALD FITZGIBBON

I think the objection moved by the Minister is in consequence of an objection that was moved by somebody or other that the Statute, when it became a Statute, might be misconstrued by reference to the headlines of particular sections, and it was feared that because some particular section was headed "Financial Control" or "Fundamental Rights," as the case may be, the Courts might import some misconstruction from the headline. It is of immense convenience to have a long Constitution of this kind, particularly a Statute that does create a Constitution, divided into convenient sub-heads for the purpose of reference and otherwise; and I rather think the very Deputy who supported this amendment, and who advocated it at an earlier stage, is now asking that in future reprints of this Statute these sub-heads should be continued. I wonder if the Ministry would consider the advisability of putting in at the end of this Constitution that the headings shall not be used for the purpose of construing the Statute. I have seen such a provision in other long Statutes which do contain sub-heads. I do not think there is anything irregular in doing that. It would enable this Statute, when it comes to be circulated and used by the public hereafter, to be sub-divided, as it has been throughout these debates, without incurring the risk which Deputy Figgis and Deputy Duffy referred to at earlier stages—the risk of having the enactment itself misconstrued by a reference to a sub-head. I do not press the point; possibly it has been considered and rejected. If it has not been considered, I think it is well worthy of consideration.

Mr. G. GAVAN DUFFY

I desire to support the suggestion that the title be not left out. If it is done I think "Fundamental Rights" ought to go above Article 2 and not Article 1.

Mr. DARRELL FIGGIS

On a matter of explanation, when I referred to this, it was not to urge so much the removal of the Section titles, as to indicate the fear that might arise in the construction. I think the suggestion made is the better one.

Mr. KEVIN O'HIGGINS

I adhere to the amendment. I have in a series of amendments to remove these sectional headings. These amendments were moved largely because of the scope that is given for talk, if they stay in—talk here and perhaps elsewhere. They do not fulfil any vital function. If they are to remain as part of the Constitution, they will need to be carefully discussed and perhaps it will be necessary to go into Committee first of all to decide exactly what the sub-headings would be, and where they would be put. The object of moving to leave them out was simply because they are not necessary, and as Deputy Figgis has said, in later stages, when the Constitution is being published, these explanatory sub-headings can be put in anywhere we wish.

Amendment carried.

Professor MAGENNIS

The amendment in my name reads: "Article 3.—To introduce after the opening words `Every person' the words `without distinction of sex.' " The first line will then read "Every person without distinction of sex, domiciled," etc. In the original draft, it will be remembered, this clause ended with the words "men and women have equal rights as citizens." That, I take it, was in the nature of a definition, because as you are all aware, there are contexts in Statutes, on which Courts have been bound to hold that the proper interpretation was that "person" meant a man. Now if we have no indication here that leaves it beyond all doubt that "person" means both man and woman we shall have a number of anomalous positions created in the later Articles. For example, "the dwelling of each citizen is inviolable." Is a woman a citizen and is her dwelling inviolable? "All citizens of the Irish Free State have a right to free elementary education." Has a girl or woman the right to free elementary education? It is simply by way of definition that I propose you add those words. They add nothing, I think, in substance, because, I take it, the original draft represented the mind of the Ministry on the matter and so this will be acceptable.

Mr. THOMAS JOHNSON

I beg to second this amendment. I had the same amendment on the paper, and I use the same arguments that Deputy Magennis has used, reinforcing them by referring to quite a number of subsequent articles, where the need would arise of making sure that citizens include women as well as men. The very fact that in the last reading there was a removal of the last sentence of the last clause to form a new article, and an alteration in the phraseology, makes it essential that there should be a formal definition that every person who has become a citizen includes women as well as men. I think it will be recognised that this is merely a formal matter, but it is rather important that it should be defined in the opening sentence.

As far as I am concerned I would be prepared to accept this particular amendment, but I want to make it clear that in doing so, I do not accept some of the implications that have been put up in connection with the case that has been made for women having equal rights of citizenship. I think that was the original term that was knocked out. That has implications which, I explained at the Committee stage, and which, as far as I am concerned, I am not prepared to accept. I am not prepared to accept the proposition that if having once passed a single clause with regard to this matter in the Constitution that we have to set about searching the archives of Acts of Parliament, decrees and soforth, and to regulate the position according to what is found there. The interpretation we had was that no disability would be suffered by women as against men. We certainly had not in our minds the change of the Income Tax laws or other matters, such as a man's responsibility for the upkeep of his wife and children, and so on. Neither had we in our minds laws anticipatory of marriage settlements or anything like that. That is the position. We will agree to accept alterations so far as the ordinary acceptance of equal political rights, and rights of citizenship are concerned, but not of a position which will put us into a difficulty to pass certain laws to regulate this whole procedure. We are not accepting that, but on the lines of citizenship—that is, to make them citizens, as intended—I am prepared to accept that and nothing more.

Amendment put and declared carried.

Mr. JOHNSON

This is rather an important amendment I am about to propose, and I think it will be acceptable. In Article 3, about the middle of the Article as originally drafted, and as passed on the last Reading, we come across these words "And who have been ordinarily resident in the area of the jurisdiction of the Irish Free State." My suggestion is that we should use that same descriptive phrase, "in the area of the jurisdiction," in the first part of this Article and in two or three subsequent Articles, and my reason for asking that to be done is as follows: I believe it is accepted that, following the Treaty, Ireland is Saorstát Eireann. The whole of Ireland constitutes the Irish Free State under the Treaty, but in certain circumstances Dáil Eireann is prepared to forego its jurisdiction over a part of that geographical area. If we use this phrase, "the area of the jurisdiction," it does retain the sense of geographical unity; but with the relinquishment in present circumstances, and until new circumstances arise, perhaps by agreement, of the legal authority over part of that geographical area. If that is the position—I think Ministers have accepted that view—then we ought to insert the phrase in other parts of this particular Article, and in one other Article later on, as we have done in the middle of the Article. We have used the phrase "The area of the jurisdiction of the Irish Free State," which implies that it is that part of the Irish Free State over which Dáil Eireann or the Oireachtas will exercise the authority, but it retains the possibility that that area of jurisdiction may be increased eventually to cover the whole of the country, Ireland, the Irish Free State. It may seem to be a nice legal point or a matter of phraseology, but I think it is important. I think it ought to be acceptable, and it will not destroy the harmony of the Bill in any way, because, as a matter of fact, it is using the same phrase in other parts that has been used in one part. I beg to move the amendment.

Mr. T.J. O'CONNELL

I beg to second the amendment.

Mr. K. O'HIGGINS

We are inclined to accept that amendment, subject to the right to knock it out on the next Reading if, on consideration, we find it necessary to do so.

Mr. DARRELL FIGGIS

I would like to indicate to the Minister for Home Affairs and to the Ministry generally that there is an amendment of mine dealing with extra territorial jurisdiction—a matter of some importance that should be considered in connection with this. Presumably the area of jurisdiction would include, for instance, all persons who had been born on a ship, and that were not exactly within the geographical limits of this country.

Mr. T. JOHNSON

They deserve it if they were born on ships.

Amendment agreed to.

Mr. K. O'HIGGINS

I now move: "Article 3.—Page 2, line 30, between the word `or' and the words `whose parents,' to insert the words `either of '; to delete `(or either of them) were,' and in lieu thereof to insert the word `was.' " This amendment proposes getting back to the original position of this Article. Deputy Gavan Duffy, who succeeded in carrying the amendment, used frightfully bad grammar, and we want to get back to the proper thing. As it stands it says, "Every person domiciled in the Irish Free State/Saorstát Eireann at the time of the coming into operation of this Constitution, who was born in Ireland or whose parents (or either of them) were born in Ireland." It should be "either of them was born," if we put it in that way at all. We think the safest thing is to get back to the original conditions of that Article, when it would read, "Either of whose parents was born in Ireland."

Mr. BLYTHE

I second the amendment.

Mr. GAVAN DUFFY

The Article as it stands is modelled upon the best classical authors of the English language. The amendment I am afraid shows that Ministerial education must have been sadly neglected.

AN CEANN COMHAIRLE

There are some people in the Dáil personally responsible.

Amendment put and agreed to.
Motion made and question put "That Article 3, as amended as follows, be added to the Bill:—
"Every person without distinction of sex domiciled in the area under the jurisdiction of the Irish Free State/Saorstát 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 ordinarily resident in the area of the jurisdiction of the Irish Free State/Saorstát Eireann for not less than seven years is a citizen of the Irish Free State/Saorstát Eireann and shall within the limits of the area of the jurisdiction of the Irish Free State/ Saorstát 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 area of the jurisdiction of the Irish Free State/Saorstát Eireann shall be determined by law."

AN CEANN COMHAIRLE

The word "area" ought not be there.

Mr. GAVAN DUFFY

I suppose it would be open to the Dáil to remove the solecism as to "either of whose parents" on the next reading.

Professor MAGENNIS

I beg to move to delete Article 4 which reads:—

"Men and women have equal political rights," and to insert the following Article:—

"Men and women are guaranteed equal rights of citizenship; and unless otherwise debarred by law, shall be eligible, without distinction, for public office and employment according to their abilities and attainments."

The original Article which I move to delete limits the rights of women citizens to political rights, and I daresay the principle of law would then apply expressio unius exclusio alterius. That they could have no other than political rights is a necessary implication or declaration of the Constitution that they have political rights. Now what is proposed here—“Men and women are guaranteed equal rights of citizenship”—has been spoken against in some measure by anticipation by the President just now. A number of highly educated and notable Irishwomen supporters of the Treaty, and residents in this city have circularised Deputies with this circular and they have provided us very definitely with citations from the recent Constitutions of the States of Europe, in regard to this question of the relationship of women to the State. The Constitution of Poland, Article 96, says:—

"All Citizens are equal before the law. Public employment is open in the same degree to all under conditions prescribed by law."

Article 7 of the Austrian Constitution says:—

"All Citizens of the Federation shall be equal before the law. Privileges of birth, sex, position, class and religion are abolished."

The new Constitution of Germany, Article 109, states:—

"All Germans are equal before the law. Men and women have fundamentally the same civic rights and duties."

And Article 128 says:—

"All Citizens of the State without distinction are eligible for public offices as provided by law in accordance with their qualifications and abilities. All exceptional provisions against women officials are annulled."

Article 106 of the Czecho-Slovakia Constitution reads:—

"Privileges of sex, birth, or occupation shall not be recognised."

And the Article from the Bavarian Constitution, dealing with the same subject says:—

"Every Member of the Bavarian State who has completed 20 years is a Citizen of the State without distinction of birth, sex, creed, or occupation."

There is a notable distinction between the claims set out in these Articles I have just read and what is actually claimed in my amendment. We are all aware that the phrase "equal before the law" is susceptible of many interpretations. As an ordinary conventional formula it is by way of indicating what is indicated here, what I read from the German Constitution, that "men and women have fundamentally the same civic rights and duties," and that is why when reading the Article from the German Constitution I emphasised the word "fundamental." To guarantee to women equal rights of citizenship with men is not guaranteeing to women the right to do or to have the same things as men. Unfortunately the exigency of the time does not allow me to argue all these points and therefore I appear in the unhappy position of stating these truths dogmatically Now we do not allege that men and women are equal. I have no intention of drawing this House into a discussion as to the alleged equality of men with women or the alleged equality of women with men, These are highly disputable points and fortunately are irrelevant to the present issue. I dare say that most of us will agree that as regards that very supreme service which Woman renders to the State that of itself is an incident which will have the effect of imposing a heavy handicap upon her in her competition with men. If all the barriers which could be removed by law were to be removed there would still remain this great barrier that a woman is a woman and not a man. I therefore do not take up the foolish position of thinking that by any draftsmanship, or any amendment to the Constitution, that we could remove the irremovable. But within the limits of Nature, and in view of what women are capable of, and have shown themselves capable of, and in view also of some of the things in which men have displayed their lamentable incapacity, it is merely proposed that this amendment should provide Equality of Opportunity. Equality of opportunity is the great demand of Democracy. Not that men shall be put into one selfsame category by an artificial declaration. Men are bound to be unequal. It is purely artificial and arbitrary to declare that they are not. But at the same time what is demanded in the name of Democracy for every individual is equality of opportunity. Now as regards the second part of this claim the words are taken largely from the declaration in the German Constitution that all citizens, without distinction, of the State are eligible for public office as provided by law. The amendment here is "that unless otherwise debarred by law," etc. I have two things in mind, in the second portion of the amendment; one is, I look forward to the setting up of a National Civil Service, which would be controlled by an Irish Civil Service Commission, and under the regulations to be made by that Commission we should get rid of the jobbing and political lobbying and all these other things, which have unfortunately, as history shows, marred the progress of young democratic States. But I have also in view that it may be necessary at the same time to deprive offenders against the Constitution or against the State or against the laws of citizenship, and room is left in the wording of this Constitution for legislation to that effect. It might be held afterwards that it was contrary to the Constitution to prohibit A B or C D from holding office in the Free State. Because it was declared that all were to have equal rights and the consequence of equality. So the provision "that unless otherwise debarred by law, shall be eligible" leaves room for a variety of things in point of law. Now, on the first occasion that this question was before us, and just a few minutes ago, our attention was drawn to certain inequalities at present existing. Now, many of these, are in the nature of privileges for women, or at least, are so described by a misuse of language. Some of these privileges are really insulting and offensive to women—I refer now to some of the institutions under the CRIMINAL LAW AMENDMENT ACT—some others of them involve an inherent injustice, and right-minded women would not ask for a continuance of such privileges. For example, —a wealthy wife, separated by her own fault from her husband, is not chargeable for the maintenance of her children, where the father is unable to provide suitably for them. There is another type of "privilege"—it is in the realm of chivalry, or of so much of chivalry as has survived in the modern world, and this would be enjoyed still, as being part of the flower of civilization, no matter what the law is made. I do agree with the President—I generally do agree with the President—it would not be advisable to put into the Constitution a declaration of something which would have the effect of sweeping away a whole lot of existing laws. Afterwards, these laws will have to be dealt with in their own time. There is an article later in the Constitution providing for the continuance of the present system, at least until such time as provision shall be made for changing them. And the original Article—or rather the Article which I am moving to delete—has itself been guilty of this very fault, which I am anxious to avoid, because, by limiting the rights of women to political rights— it has, in effect, repealed a Statute recently passed, known as "The Sex Disqualification Removal Act." Therefore, I am quite willing to echo the criticism of anyone who reprehends an operation of this type, by a phrase and formula in an Article of the Constitution of either doing away with existing legislation, without more ado or introducing new and perhaps important legislation. Whether the words convey exactly what I desire, the intention is to provide equality of opportunity for women as well as men. It is not demanded that certain offices should be reserved for women, and commonsense, of course, will operate, irrespective of laws and there will be always employments in which women will be given preference. No one, for instance, would dream of appointing a man to be a warder in a woman's prison. There are cases like that, quite a number of them, which might safely be left to ordinary common sense. There are employments too which, I dare say, would be better fitted for women, and there are other employments more suited to men. These employments should be open to them according to their ability and attainments. So there is merely a principle asserted that they should be equal as regards the fundamentals of citizenship. That leaves room for a great deal of legislation—that they should be equally eligible for public service, such as for service on jury and employment such as in the Civil Service, and according to what they are able to accomplish in the way of satisfying certain tests to which they may be submitted.

Mr. P. GAFFNEY

I second the amendment.

Mr. T. O'DONNELL

I wish to speak in opposition to this amendment. I would not like to see us tied to it in the Constitution, without any details which may be brought forward later in a Bill in this Dáil. It is not an objection that I have to women having equal rights with men. I know it is said that women should stay at home. Women have no right in a home where they should have a right. If there is any Bill brought in later to give women full rights with regard to their duties and administration, I would support anything that is brought forward, but I have an objection to supporting it in this Constitution.

Mr. GAVAN DUFFY

I support as much of this amendment as obviously asserts the right of women. I disapprove of so much of it as takes away that right from them. The Deputy who spoke last may be assured that if his objection to the clause is that he will not be entitled to give his seat up to a lady in future in a 'bus, that objection is not well founded. That was the objection raised by Ministers on the last occasion. As the proud inventor of the phrase "citizenship" as a substitute for "as citizens," I am very glad that Deputy Magennis proposes that that phrase should be used, but he goes on to say that, unless otherwise debarred by law, women shall be eligible for certain things. By putting in the phrase "unless otherwise debarred by law" he takes all the virtue out of the rest of the sentence. There is no use in providing in the Constitution that women shall be eligible for certain things, if. in the same breath, you provide that the law may take that away from them. He provides that women shall be eligible for certain offices, and by the very fact of making that provision we will be told hereafter that they are not eligible for other offices. He starts by an assertion of equal citizenship and then he goes on and specifies equality in certain respects, thereby implying there is inequality in other respects. I suggest he ought to stop at the word "citizenship" and say "Men and women are granted equal rights of citizenship." By so doing he gets all he wants. The rest is either redundant or contradictory, and I hope he will see his way to leaving it out. As to the objection raised to the words "of citizenship," if Ministers still persist in objecting to these words, I hope they will be able to tell us quite plainly and clearly what are the provisions of the law which they consider to be injuriously affected by this amendment. We were told the last time, if we passed the phrase in which the wording then was "equal rights as citizens," women might claim certain things to which they are not entitled under the present law. I do not think that can apply to any restriction of their rights under the laws relating to husband and wife. I should be very glad to hear of any specific case in which it is said that the law will be altered in an undesirable manner by the passage of this amendment, because, I would ask the Dáil to observe that it is not enough to say "We do not like to use the words `as citizens' or `of citizenship ' " without knowing what they mean. If these words are objected to, surely we are entitled to something quite definite as to the objection. Let us know exactly what are the additional rights it is suggested we are conferring on women and which ought not to be conferred on them.

Mr. KEVIN O'HIGGINS

To trace the Government's attitude on this matter involves some little history. Article 3, as originally drafted, contains as its last sentence "Men and women shall have equal rights as citizens." Now we do not think that that Article or that sentence as it stood was dangerous. We do not think that it conveyed anything more than that they would have equal political rights; but presently criticism reached us on that particular clause, asking did we propose to repeal by a couple of words in the Constitution what a very considerable body of law had recognised—a distinction between the sexes which provides for certain obvious inequalities that have always existed and, despite what anyone may say to the contrary, do still exist. Now it is understandable that, while having a very definite view in our own minds that these words would not repeal these laws, we were yet anxious to avoid raising what might bid fair to be a very angry controversy, and so we changed the Constitution slightly and inserted as a new Article. "Men and women have equal political rights"; for we did not wish to have it in doubt for a moment that we had any intention of repealing in the Constitution such very important laws as the following existing laws—as to the guardianship of children, the existing law with reference to marital coercion and crime. That is a matter in which women have a certain privilege. They are entitled to go into Court and say they committed a crime under duress of their husbands; husbands, unfortunately, are not entitled to go into Court and say they committed a crime under the duress of their wives. The existing rule of the Civil Service under which women on marriage are required to retire on gratuity; the existing provision in regard to married women's settlements—that is a protection for women and a very valuable protection without which I venture to say many women and their children would have found themselves in a serious position, because a second husband would have otherwise disposed of the marriage settlement; the existing position under income tax laws, by which the husband makes a set of deductions for the family—children and wife—and so on. It is suggested that the wife should be able to make a like set of deductions. The existing position of the law under the Criminal Law Amendment Act, the existing difference in relation to the Divorce Laws, and so on. Now if there is a case against these laws, or any one of them, that case should be considered on its merits. It should be carefully discussed and seriously deliberated and voted on, and taken on its merits alone. It was very quickly realised that the words in the Constitution originally were taken by certain ladies in this city to mean the repeal of these enactments. It would have raised a very angry controversy hereafter when it would be discovered that that was not the intention of the Government. To avoid that bitter and angry controversy the Government inserted amendments in the Constitution emphasising that it was equal political rights were intended. Equal rights of citizenship is one thing; identical rights of citizenship is quite another thing.

Prof. MAGENNIS

I have said so.

Mr. KEVIN O'HIGGINS

I am glad that the Dáil appreciates that fact. However, it is well that you should know that in the minds of certain ladies who called to the Government Offices to discuss this matter of equal rights as citizens, what was in the Constitution originally was read as meaning identical rights as citizens, and it was seriously contended by them that that should remain in the Constitution, and that it would, in effect, repeal all those enactments which I have set out. Deputy Magennis said that there was no danger of that, because an Article later on in the Constitution provides that all existing laws shall continue until repealed. I had the curiosity to turn to the Article in question and to read—"Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Parliament." It would be very little use to us hereafter if we had left the Constitution in this matter as it originally stood—to quote Article 72, because those ladies would say that, "subject to this Constitution and to the extent to which they are not inconsistent therewith," and they would say that those particular laws are inconsistent with your Article 3 and therefore they do not continue in force. It is as well that we should clear our minds on this matter and it is better, seeing the trouble ahead to avoid it by having definite, clear expression of the thing now, than simply to be peddling with it hereafter. Do we want to repeal these enactments and do we want the great body of the people in this country to believe that they are repealed? As I have said it is understandable that the Government would think, would even know, that these enactments were not repealed and yet may wish to obviate any controversy as to whether they were or not. It was made quite sufficiently clear that certain people would take the view that these enactments were repealed if we left the Constitution as it was. Certainly all these matters should go and would go if you had left the Constitution as it stood originally. Recognising the fact that there is coming into existence a certain type of woman, an extremely able woman, an extremely strong-minded woman, a woman of highly developed public spirit and civic sense, recognising all that, we have to remember that there are still alive a great many women of a very, very different type, who certainly need the protection of these enactments and who certainly must not be deprived of that protection; a less independent woman whose civic outlook or, as some would say, lack of outlook, is excused as having its origin in early Victorian education, and there are some of these women left. They do not obtrude themselves perhaps, but we must realise that they are left and that a great many of these laws provide very necessary protection for them. We have no intention of repealing these laws in a hasty, ill-considered way, or to put it in the minds of citizens of this country that these laws have been repealed by a couple of loose words in the Constitution. Some time ago at the Catholic Truth Society I unfortunately ran up against a new type—able, strong-minded ladies of highly developed public spirit, and it pained me to see that on that occasion they only got equal rights and that their removal was not carried out with any more ceremony or consideration than a man's removal would be carried out in the same circumstances. That of course is irrelevant.

Mr. THOMAS JOHNSON

As I have an amendment on this subject to follow, and to save the time of the Dáil, I think it might be well that I should intervene in this discussion and use the arguments that I would on my own amendment, and thereby save repetition. I feel that after hearing the Minister in charge of the Bill, and realising that the Ministerial purpose, as expressed by him, is pretty much the purpose of those who have put forward these Amendments, it makes me feel a little bit ashamed of the ability of the legal people of the country, to find that they were not able to advance some form of words which would cover what the Ministers themselves desire, and what we desire, without limiting very considerably, as they have done, the liberties granted in the preceding clause. The use of this word "political" undoubtedly limits very many of the liberties that are assured in the Amendment that we have just passed. I think that the Minister said that equality did not mean identity. That is the key of this whole question and it removes the basis of the opposition to the proposals that are made in the Amendments of Deputy Magennis and myself. Nobody suggests that there should be no differentiation. I refer as an example of this matter to Article 1 of the Constitution: "The Irish Free State is a co-equal member of the community of Nations forming the British Commonwealth of Nations." We ask you to insert a clause somewhat analogous to that. "The women of Ireland are co-equal Members with the men of Ireland in this Community of persons called the Irish Free State." Now, there is no suggestion that the Irish Free State is identical with, that its powers, its force, its laws, and its conditions are the same as the powers, laws, and conditions in England, Australia, Canada or South Africa. But what is contended is that as citizens, the protection of the State and the right of the citizen in the State should be not identical but equal, not necessarily undifferentiated. The idea of equality in the family is apparent; children are considered equal, but there is no suggestion that they are all identical. They have a claim upon the parents for equality of treatment, but that does not suggest that the parents must treat them always identically, or without differentiation, and that is the claim that is put forward by the movers of the Amendments. I, for one, hoped that the Ministry would have been able to find legal advice and draftsmanship which would cover that particular reading in a way that would save them from a difficulty they seem to anticipate. If it is not possible to accept either of these Amendments, and as Deputy Magennis has pointed out, it has been possible in several European Countries where in recent Constitutions they have embodied this idea, while they have differentiation there is no suggestion that the laws are identical—but if it is not possible for Ministers to agree to either of these Amendments, I would urgently ask them to delete this Clause 4. It is very much better to delete it entirely if you cannot amend it, because it is an absolute limiting of the rights of women in the country to have a clause which says they shall have equal political rights. We are already assured that citizens shall have citizenship irrespective of sex. There is no necessity then to put in a clause which says they shall have equal political rights, which implies a denial to them of rights which are not political, but which are social. I would strongly urge that if you cannot find a way to meet the arguments of the mover of this Amendment or the following Amendment, that is in my name, that you would delete entirely Article 4 and leave the position as it stands in Article 3.

Professor MAGENNIS

I wish to say I accept the amendment of Deputy Gavan Duffy. I am willing to leave out all words in the Clause after "Men and women shall have equal rights of citizenship." That I think will clear the air considerably. I wish also to say that I agree with the general tenor of the speech of the Minister in charge of the Bill, because as Deputy Johnson has just pointed out—he put into epigrammatic phrase what I had stated more diffusely—the claim was not for the same things exactly. Equality of right is not identity of right. It is obvious that the Ministry are pleading duress in this case, and the duress of women. It is a very extraordinary thing that on the first occasion that this was before us, and on the present occasion, it was regarded as a humorous thing to say that men were not at liberty to plead the duress of women, but the Minister for Home Affairs has told us that the reason why he took away legal rights, civic rights, and every right except political right from women by this express provision is because certain women came on a deputation to the Ministry and made it so clear that they were going to interpret the clause "equal right as citizens" to sweep away the whole lot of existing legislation that the phrase was altered.

Mr. BLYTHE

Is the Deputy closing the discussion on his amendment?

AN CEANN COMHAIRLE

The Deputy began to say that he would accept the amendment, but he went on to make a speech. I understood that he was closing.

Professor MAGENNIS

I understood I was.

AN CEANN COMHAIRLE

I want to make it quite clear that a Deputy is not entitled to reply on an amendment on which he has spoken. But in this particular case, as it is a matter of great importance, and as Deputy Magennis was rather brief in opening, I will let Deputy Magennis say something.

Professor MAGENNIS

The mover of the amendment has no right to reply!

AN CEANN COMHAIRLE

I do not think so.

Professor MAGENNIS

I am glad to know that, but I am entitled to intervene to say that I accept that amendment and propose only the first clause.

Mr. BLYTHE

With reference to Deputy Johnson's speech, for my part, I do not think that Article 4, as it stands, when it is read in its context, as part of this whole Constitution, can be held to have any limiting effect. That is especially so when we take into account the presence in the Constitution of the words which were inserted in his motion this morning in Article 3. In any case, for my part, I hold that the suggestion he put forward of withdrawing it has much to recommend it, not only as that particular Article or phrase now stands, but also as it was. I know there is some body of opinion amongst women, who are interested in the matter, believing that the position is really much stronger from the women's point of view to have nothing said at all about it, that it should be taken for granted, as clearly it can be taken for granted, from the Constitution, that fundamental and general equality is the intention and is conferred without any specific clause.

Mr. O'HIGGINS

We are prepared to leave out Article 4, if it is felt that the express mention of political right in any way limits or abolishes the other rights. I think Deputy Magennis spoke of expressio unius as exclusio alterius. Well we are prepared to leave out expressio unius and simply leave it that the political rights are rather obvious, inasmuch as women have the vote and have the right to be elected here, and so on, and need no stressing. Further, the other rights seem obvious too, and the only restrictions or qualifications are such restrictions and qualifications as are contained in existing law. If there is a case against these, or any of them, let that case be brought up here and let these things be repealed on their merits, but do not let this repeal, or seem to repeal these laws by a couple of words in the Constitution. To leave out Article 4 seems to me an eminently sensible suggestion. It is a suggestion we are prepared to accept.

Professor MAGENNIS

Would the Minister agree to leave it out if I still pressed my amendment?

Mr. DARRELL FIGGIS

May I suggest, in supporting the suggestion that Article 4 should be excluded, that the amendment, even in its altered form, proposed by Deputy Magennis, be not pressed, because the Deputy's amendment has already been accepted and is already embodied in the Constitution. I do not wish to repeat the old Latin tag that has been quoted two or three times, but the use of the words political rights does seem to exclude the civil rights and such other rights of equality though not of identity. Therefore Article 4 should go and if Article 4 went, what is the amendment that is immediately before us in its altered form? "Men and women are guaranteed equal rights of citizenship." That is established in Article 3 exactly as we have now passed it—"every person without distinction of sex domiciled in the area of the jurisdiction of the Irish Free State is a citizen." That is exactly what he means to include in his words "men and women are guaranteed equal rights of citizenship."

Professor MAGENNIS

I suggest that you read on.

Mr. DARRELL FIGGIS

I will read on, and I think the more you read the more emphasis you get—"and shall within the limits of the Irish Free State enjoy the privileges and be subject to the obligations of such citizenship."

Professor MAGENNIS

Subject to the obligations, but enjoy the "privileges," not rights.

Mr. DARRELL FIGGIS

I see the important distinction, but I see no important difference.

AN CEANN COMHAIRLE

The exact matter before the Dáil is the amendment moved by Deputy William Magennis in these terms—"men and women are guaranteed equal rights of citizenship."

Do I take it that if the amendment be beaten the Deputy wants the Article withdrawn?

Professor MAGENNIS

Yes.

I am not in the position of a man who has the disability of a strong-minded wife, so that it does not matter what I say on this. Some members may be in that unfortunate position, and it is right, that they get the protection of the House in a matter of that kind.

Amendment put, and lost.

Professor MAGENNIS

Division, please?

AN CEANN COMHAIRLE

The amendment was declared lost before the division was called for, so there cannot be a division.

Mr. DARRELL FIGGIS

Would I be in order to move, now that we have finished with that, the deletion of Article 4?

Mr. T. JOHNSON

I was going to ask permission to move that instead of my amendment.

AN CEANN COMHAIRLE

It would be simpler if the amendment in Deputy Johnson's name was withdrawn, and the Minister moved the deletion of the Article.

Mr. JOHNSON

I beg to withdraw in view of the discussion.

Mr. KEVIN O'HIGGINS

Lest the expression, political rights be read there to mean abolition of all rights of citizenship to women I move the deletion of the Article.

Professor MAGENNIS

I second that.

Professor MacNEILL

I should like to say briefly in supporting it, that I have not been able to follow the various statements made by highly respectable members of this Dáil with regard to the meaning of political rights. My belief is that this Constitution is, from beginning to end, a political document. Everything contemplated in it is a political right, or something connected with political rights, and political rights cover what is called civil rights, or what is called social rights, or if it does not, the clause in the Constitution which would create anything beyond political would lead us far further than we intended to go, or that any Constitution properly should go. I believe the term "political rights," as it stood in this, covered the whole ground of right—public right, private right—that could possibly come under the scope of a Constitution.

Article 4 was by agreement deleted.

AN CEANN COMHAIRLE

Amendment 14.

Professor MAGENNIS

The next amendment is to substitute for Article 6 the following:—"No title of nobility, nor any title indicative of, and conferring rank, precedence, or other such public privilege, may be conferred on a citizen of the Irish Free State/Saorstát Eireann." The purpose I had in view in this amendment was to meet the situation created by the vote a few evenings ago, by which we set up a Governor-General for Ireland and arranged to make the maintenance of his state and office chargeable on the Free State Funds. If we are to have a Governor-General with a mock Court, and if we are to have all the appendages of semi-royalty, various levies and functions such as we are familiar with as Viceregal in recent years, then I think it is very necessary for the protection of the purity of political life, that it shall not be within the power of the Governor-General to confer titles of nobility, or Knighthoods or Baronetcies or things of that sort, that give social precedence or set up a distinction of caste. It is all very well to express our faith in the robust vitality of the National spirit. These things are notoriously fragile, and as was remarked in one of Bacon's Essays in matters of this sort, "the first and best thing is not to will, and the second not to can." If one is not able to resist the temptation then it is better that the temptation be taken away. Consequently it will not harm the virile Republican or the virile Democrat if this thing is beyond the power of the Governor-General, and it will greatly assist the weaker brethren if it is not in the power of an official of this type to seduce them, or tempt them by the proffer of social distinctions of this sort. I will not say any more on the matter.

Mr. P. GAFFNEY

I second the amendment.

Mr. KEVIN O'HIGGINS

In the Committee stage we dealt rather fully with this Article. It is one of the Articles in the Constitution that we consider most safeguards the Irish position. and it renders any repetition of the Act of Union proceedings absolutely out of the question. "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." Taking first "in respect of any services rendered in or in relation to the Irish Free State" those words have the practical effect of what Deputy Magennis desires to achieve by his amendment, that a title cannot be conferred on any citizen in respect of services rendered in Saorstát Eireann, or in relation to Saorstát Eireann. To attempt to go further would be to say that the British Government and King could not reward, say, a great General or a great Admiral if he happened to be a citizen of Saorstát Eireann; that the people who go out from here and make a name for themselves, whether it be in the Army or Navy or in Art, or in any other phase of life, could not be rewarded or receive distinctions. Of course, taking that line you come crop up against the question of the King's prerogative as the fountain of honour. You secure as much more tactfully by the Article as it stands. If there are titles conferred here in future, they must be conferred on the advice of the Executive Council, and it is in the power of the Parliament if it does not wish those titles conferred to order the Executive Council that it shall not advise the conferring of any titles. But this is not the Parliament of Saorstát Eireann; this is a Provisional Parliament, which must not stretch out its arm beyond the transitional period, or attempt to limit the sovereignty of future Parliaments. The first Parliament of Saorstát Eireann, the second, and the third can give that instruction to the Executive Council, that its policy should be that titles would not be conferred on Irish citizens. The position is amply safeguarded by the existing clause in the Constitution, which 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 upon any citizen of the Irish Free State/Saorstát Eireann, except with the approval or upon the advice of the Executive Council of the Irish Free State." We stand on that and we do not accept any amendment. It is an agreed clause arrived at after a considerable amount of arguing and negotiation. We consider it perfect, as it stands, from the Irish point of view.

Amendment put and lost.

Mr. WILLIAM O'BRIEN

As the last amendment has not been carried I think this Amendment standing in my name would be a useful addition to the Clause in the Bill: "Article 6—To add the following: `No hereditary title may be conferred.' " Whatever case could be put forward for conferring a title upon a person for some work that he performed, or was alleged to have performed, there can be still less said for handing down a title from father to son. I therefore move the Amendment.

Mr. H. COLOHAN

I second the Amendment.

Mr. KEVIN O'HIGGINS

I cannot understand the persistence about this Article. It is within the power of the next Parliament, or of this Parliament, when and if it becomes the first Parliament of Saorstát Eireann, to say to the Executive Council that no hereditary title may be conferred on a citizen of the Irish Free State. That is one thing perfectly understandable; but to attempt to lay down in the Constitution more than that these things cannot be conferred except on the advice of the Executive Council is a direct and needless challenge to the King's prerogative. It is equivalent to saying the King cannot confer a Baronetcy or a Peerage on an Irish citizen, whereas we know if you take that line you come very definitely in conflict with the point of view which you avoid quite skillfully and satisfactorily by the Article as it stands. And so it is agreed that they shall not confer titles except on the advice of the Executive Council and of Parliament. Parliament can warn the Executive Council that it must not advise the conferring of any title. There is somewhere a lurking fear that 1800 is going to repeat itself, and that this Parliament will be sold for titles. I do not think that is at all on the mat.

Professor W. MAGENNIS

As regards this question of the Royal prerogative, it is always possible by statute to surrender, or to have surrendered, so much of the Royal prerogative. There is precedent for that. Merely to tell us this is the Royal prerogative, and leave us to understand by that it cannot be touched and cannot be minimised, and cannot be subtracted from, is to ignore the whole current not merely of English history, but of Dominion history. It is quite possible, so long as the statute mentions it, that the prerogative be so far surrendered—unless it is mentioned it is not surrendered. There is a point about Deputy O'Brien's amendment which I think the Minister has overlooked, and though I am loath to obtrude so much on the Dáil, I just want to draw attention to it. It is this: Granted an Irishman may in some of the Dominions, say, under Great Britain itself, render distinguished service to the Empire and be rewarded, I say it is eminently reasonable to leave room for the granting of a title, though I should wish that Irish citizens would refuse those honours. But for the title to be made hereditary involves this, that generations after this distinguished servant has passed away, men domiciled here will be marked out from their fellow-men by the social distinction of this title. This tends to introduce an element which is most objectionable for the future democracy of the Free State. I suggest, with all respect, that the Minister has overlooked that.

Mr. THOMAS JOHNSON

The Minister has emphasised the fact that succeeding Parliaments may instruct the Executive Council not to advise the granting of titles. That is perfectly true. But I am just tempted to remind the Minister that when we suggested some weeks ago that succeeding Parliaments may make a Constitution, and that there was no necessity for laying down what succeeding Parliaments should do, or should be deprived of the liberty of doing, we were told that we must set forth certain fundamental laws which would restrict the rights of succeeding Parliaments unless by special permission of the supreme authority, the people, with the sanction of the people over the water. The argument now is that we can trust succeeding Parliaments; but there is quite a possibility that succeeding Parliaments may be made of different stuff; they may be of a different character altogether, and inasmuch as it is desirable to lay down certain other fundamental laws, the proposal is that we should lay down this as a fundamental law, which can only be altered by the vote of the people for alteration of the Constitution. It seems to me that part of the argument at any rate will not hold water in this case, inasmuch as it was not allowed to hold water. in the last case. The claim is made by Deputy Magennis that there is a very great distinction between the conferring of honours for the lifetime of the recipient and for the conferring of honours which may be handed down from father to son and mother to daughter, as it may be. That difference is so great as to require that there should be part of the fundamental law which would deprive any citizen of the opportunity of being the recipient of a hereditary title.

Mr. E. BLYTHE

It seems to me that no Parliament which may be freely elected in the future by the Irish people on the basis of adult suffrage is likely to favour the conferring of titles on members. If the Irish people change their minds and return such a Parliament that would agree to the conferring of titles, then the amendments proposed here have nothing behind them but a desire to save the Irish people from themselves. For my part, I do not think it necessary that we should save the Irish people from themselves.

Amendment put and lost.

Mr. K. O'HIGGINS

I should like to know if I might move this by permission. Notice of it was not given, but it may meet a certain point of view which finds expression in another amendment on the Paper. My suggestion is to take out the words "save in time of war or armed rebellion," in the second line of the Article, and to add to the Article thus amended, "Provided, however, that nothing in this Article contained shall be invoked to prohibit, control, or interfere with any act of the military forces of Saorstát Eireann during the existence of a state of war or armed rebellion." Deputy Johnson pointed out quite rightly to me that the Article as it stands might mean this extraordinary thing, that once a state of war or armed rebellion was in existence anyone could arrest anyone else, so that there would be no such thing as liberty of the person at all. The effect of the amendment now proposed is to limit it strictly to the military forces of Saorstát Eireann, and to confine it with regard to them strictly to the period during which a state of war or armed rebellion exists. The present position, as I understand it, is that the Judges are refusing to consider complaints from people about infringements on the liberty of their persons, on the grounds that there is in existence a state of war or armed rebellion, and that it is something outside the scope of their business to consider these things, but that at the moment that a state of war or armed rebellion ceases, then the right of the person which was submerged during that period is resurrected, and he has his full rights to proceed against anyone he thinks responsible for his wrongful arrest. This amendment we are proposing now emphasises that the right is set out in the Article; the other is merely inserted as a proviso at the end, "that during a period of war or armed rebellion" that Article must not be quoted against the military forces of Saorstát Eireann. When the period of war ends, all the rights of the citizen are resurrected, and he can proceed against anyone who has wronged him.

Mr. E. BLYTHE

I beg to second the amendment.

Professor WM. MAGENNIS

That is a very decided improvement. There is one aspect of the matter I should like to have cleared up. Whether a given state of the country is, or is not, a state of war, or armed insurrection, to use the legal phrase must be determined in some way. In later years here there was a marked tendency to decide the matter merely by an affidavit of the General Commanding the Troops. Now, in Article 69 of the draft Constitution, as it originally stood, the correct doctrine was laid down:—"Such jurisdiction with reference to Military Courts shall not be exercised in any area in which the Civil Courts are open or capable of being held." That is the famous decision of Coke, so the question of whether it is, or is not, a state of war is answered by the determination of whether or not the civil courts are open, or capable of being held. Now, on hearing the last clause read out I was not quite sure—I am open to correction about this—that a phrase might not have been incautiously used that would seem to give countenance to the idea that a state of war may be determined in some other fashion. I know that the Law Adviser to the Ministry would be in favour of the contention that the real test is—are the civil courts open or capable of being held? He argued that—I need not say with great ability—in a case quite recently. I merely put the question now for greater lucidity.

Mr. T. JOHNSON

I am glad to have the proposition of the Minister to amend this Article. I would like to raise the question whether or not the phraseology is quite safe, "provided, however, that nothing in this Article contained shall be invoked to prohibit, control or interfere with any act of the military forces of Saorstát Eireann during the existence of a state of war or armed rebellion." The military forces of Saorstát Eireann include all the officers and privates, and it might be held that this would allow any individual military man to take action, and to be justified according to that. I do not know but it seems to me that it will require some little amendment to speak of the lawfully authorised forces of the Government, or something of that kind, or something to indicate that they have been authorised by the civil authority to act. "Any authorised act of the military forces"— perhaps that would be sufficient.

Mr. DARRELL FIGGIS

I was going to make the same point and suggest the very same words. Obviously, there is no intention to confer the right on the military forces of the future to proceed with any act without holding them responsible. I am not quite clear about the wording of the whole sentence, "provided, however, that nothing in this Article contained shall be invoked to prohibit, control." I suppose the word "control" goes on then past the parenthesis, "control of the military force." I suggest the whole thing would read much clearer in this form: "Provided, however, that nothing in this Article contained shall be invoked to interfere with any authorised act by the military forces of Saorstát Eireann."

Mr. O'HIGGINS

"Control" there is a verb, and there should be a comma after "prohibit." It should read "to prohibit, control or interfere."

Mr. BLYTHE

The clause has reference, really, to the liberty of the person, and deals simply with the question of arrest and detention, and, consequently, nothing in it could, by any stretch of the imagination, be held to authorise or accord liberty to the military to do anything other than arrest and detain persons. Now, the clause as it stands provides a remedy for any person who holds himself to be illegally and improperly detained, and all that the proviso does is: it prevents such a person having recourse to that remedy during a time or state of war, or when armed rebellion exists. The Judge to whom application is made will, as at present, decide whether there be a state of war, or whether armed rebellion exists, and the evidence upon which he will decide what is the state of facts will be a matter for himself. The object of the proviso is to leave the law in this matter as it stands, and Article 72 says:—

"Subject to this Constitution and the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State/Saorstát Eireann at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Parliament/ Oireachtas."

Now, the proviso, as I said, will in no way alter the law as it stands at present, and is in no way drawn so as to constitute any danger that the liberty or the rights of the subject will be curtailed in any way that they are not curtailed in in time of war or armed rebellion at present.

Amendment put and carried.

Mr. DARRELL FIGGIS

Is the amendment now a substantive motion?

Mr. BLYTHE

No; the substantive motion is that the Bill be received.

Mr. DARRELL FIGGIS

I ask for your reading, A Chinn Chomhairle, and I will also ask now whether the Minister for Local Government (Mr. Blythe) is Chairman of this Dáil.

AN CEANN COMHAIRLE

He is not; but the substantive motion before the Dáil is that the Bill be received.

Mr. DARRELL FIGGIS

Is it possible on an amendment which has been adopted to move an amendment to that amendment?

AN CEANN COMHAIRLE

It is not; if it was there would be amendments without limit.

Motion made and question put: "That Article 7, as amended, be added to the Bill as follows:—

"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 Chúirt 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. Provided, however, that nothing in this Article contained shall be invoked to prohibit control or interfere with any act of the military forces of Saorstát Eireann during the existence of a state of war or armed rebellion."

Agreed.

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