Dáil Éireann debate -
Thursday, 1 Mar 1928

Vol. 22 No. 6

PRIVATE BUSINESS. - ISSUE OF WRIT—NORTH DUBLIN CONSTITUENCY.

PARLIAMENTARY SECRETARY to the PRESIDENT (Mr. Duggan)

I move:

"Go n-ordóidh an Ceann Comhairle do Chléireach na Dála a Rit do thabhairt amach chun ball do thogha chun an fholúntais atá i nDáilcheanntar Bhuirge Bhaile Atha Cliath Thuaidh, folúntas a thárla toisc nár toghadh ach seachtar in ionad ochtair chun an Dáilcheanntar san d'ionadú i nDáil Eireann ag an Toghachán Generálta a comóradh ar an 15adh lá de Mheán Fhomhair, 1927.

That the Ceann Comhairle direct the Clerk of the Dáil to issue his Writ for the election of a member to fill the vacancy which exists in the Borough Constituency of Dublin North, caused by the fact that only seven persons instead of eight were elected to represent that Constituency in Dáil Eireann at the General Election held on the 15th day of September, 1927."

The circumstances leading to the tabling of this motion are well known to Deputies, as they are well known to the general public, and it is scarcely necessary for me to take up the time of the House by referring to them. The fact is that since the General Election of the 15th September last the constituency of Dublin North, which is entitled to eight members in this House, has had only seven representatives. No person has claimed the eighth seat. No steps have been taken, either by petition in the courts or otherwise, to remove the anomaly that exists. That being so and the constituents of Dublin North being disfranchised to that extent, the Executive felt it incumbent on it to take legal advice with a view to removing the anomaly. The Executive has been advised that the seat is vacant and that the proper and legal step which should be taken in order to give the people of that constituency the representation which they are entitled to in this House, is that a writ should be moved and that the electorate should be put in a position that they should be enabled to elect a person who will fill that eighth seat. As I have said, the facts are well known, and so far as the law is concerned, I think it is very simple. At the last General Election for the borough constituency of Dublin North, it transpired, subsequent to the election, that one of the persons returned by the Returning Officer as elected to serve in the Dáil for the constituency, was, upon the date of election, a person who had been, on the 21st November, 1924, duly adjudicated bankrupt in the High Court of Justice in Bankruptcy of Saorstát Eireann, who had not since effected a settlement with his creditors through that Court or obtained his certificate of conformity, and was therefore an undischarged bankrupt. He was, therefore, within the terms of the provisions of Section 51, sub-section (2), paragraph (c) of the Electoral Act of 1923, a person disqualified from being elected or sitting as a member of the Dáil. The terms of that sub-section are:—

Each of the following persons shall be disqualified from being elected or sitting as a member of the Dáil, that is to say:—An undischarged bankrupt under an adjudication by a court of competent jurisdiction in Saorstát Eireann.

The gentleman involved was disqualified from being elected. He was, therefore, from the legal point of view, not elected. If every elector in the constituency had voted for him he could not have been elected, and therefore he was not elected. The seat is vacant and the Executive is advised that the proper method of dealing with the position which has arisen is that a Writ should be moved in this House, and that the House should accept the motion which is tabled, and therefore enable the electorate to fill the vacancy that has arisen in the circumstances which I have described.

Mr. DOLAN

I second.

Mr. DE VALERA

I move:—

To delete all the words after the word "That" and substitute therefor the following words:—

"inasmuch as eight candidates were duly declared to be elected by the Returning Officer of the Borough Constituency of Dublin North and the names of the eight candidates so elected were duly returned by the Returning Officer to the Clerk of the Dáil in accordance with Section 27, sub-section (1) of the Electoral Act, 1923, the motion for the issuance of a Writ for the election of a Member for the Borough Constituency of Dublin North be postponed until such time as a certificate of a competent Court is received by the Clerk of the Dáil declaring that in fact a vacancy does exist in the Borough Constituency of Dublin North."

From the time that I saw the motion of the Parliamentary Secretary on the Order Paper I began to wonder by what sleight of reasoning it was going to be urged, on behalf of the Executive, I take it, that only seven members were elected for the Borough Constituency of Dublin North. As evidence to the contrary, we had our ears when we heard the Clerk on the 11th of October declare that there were eight members elected for the Constituency of Dublin North. We have it on the official record what the Clerk said on that occasion. He reported that: "The following are the names of the persons returned to serve in the Dáil, together with the names of the Constituencies for which they have been elected." And then in the section dealing with the Constituency of Dublin Borough North we have the following names returned: Alfred Byrne, John Joseph Byrne, Mrs. Margaret Collins-O'Driscoll, Eamon Cooney. James Larkin, Patrick Leonard, Richard Mulcahy, Sean T. O'Kelly.

There are eight names there and they are returned by the Clerk as having been duly elected; and the Returning Officer, who is Sub-Sheriff of Dublin, is known to most of us. We think he is a competent officer and we believe that he did not return these members as having been duly elected without having very good reason to believe that they were duly elected. Lest there would be any doubt about it, we have further evidence here in the proceedings of the Dáil, as set out under the Orders of the Ceann Comhairle himself. In these proceedings we have the very same thing repeated. Once more it sets forth: "The following are the names of the persons returned to serve in the Dáil, together with the names of the constituencies for which they have been elected..." We find again on that return eight Deputies as having been elected.

If there was a duty on the part of the Executive to question the election of one of the candidates, I imagine that that would be the proper time to do it. If there was a vacancy because of the fact that one of those who were returned as elected was not in fact elected there was still no vacancy in reality, because there was another candidate up. If that other candidate who was returned as elected was not elected then the next person to him should have been elected. In any case, we are being asked here, on the simple statement of the Parliamentary Secretary, to decide this question and to say now that there is in fact a vacancy in Dublin North, and the only reason given as to why we should come to that conclusion is that one of the members who was returned as elected has not come to claim his seat. I do not know that any specific period is set down in law within which he has to claim his seat. We have no assurance that he may not come to-morrow or the day after. The fact that he could come to-morrow or the day after to claim his seat ends anything like the first reason anyhow given by the Parliamentary Secretary from having any weight with us. It enables us to conclude nothing. We are not going to conclude that there is a vacancy then because he did not turn up so far. The other ground that is being given is that he is in fact a bankrupt. I, for one, have no evidence that he is a bankrupt. I say no member in this House has any evidence on which he can come to the belief that he is a bankrupt. We have simply the statement made by the Parliamentary Secretary and I wonder would the Parliamentary Secretary get up before any Court and expect to get judgment on such a statement, a simple, unsupported statement of his own? I contend that we have no evidence in this case on which, as a Court, we could decide, and I do not think we should be asked to decide this question without being treated as any Court should be treated. And we are not a proper Court at all to decide it. In law we would be acting ultra vires in attempting to decide it. And even if we were not acting ultra vires in law, I believe this would be an improper Court to decide anything of the kind. A Court ought to be in the position in which it could judge, with judicial detachment, a case put before it. We do not pretend to be such a Court. We decide questions here on certain party lines.

Mr. FITZGERALD-KENNEY

Oh!

Mr. DE VALERA

Yes, we had your President yesterday, who was the gentleman, above all others, who strongly insisted on that.

The PRESIDENT

Will the Deputy quote me?

Mr. DE VALERA

I have not got the President's words, but the President protested yesterday against any exception being taken to putting on the Whips in certain cases and their body acting as a party.

Mr. FITZGERALD-KENNEY

Is that a judicial act?

Mr. DE VALERA

I did not hear the Minister for Justice.

AN CEANN COMHAIRLE

It is just as well.

Mr. CORRY

It was only a gramophone.

Mr. FITZGERALD-KENNEY

I think the gramophone is on the other side.

Mr. DE VALERA

My argument is that this is not the proper place to determine a question of this kind. This means a party vote, and I, for one, have not seen sufficient detachment, on the other side anyway, to make me believe that we would have a judgment on this matter on its merits. I think we ought not to put the members of the majority Party here to such a strain as to expect them to decide impartially in this case. I do not think that any of us ought to be asked to decide this question, because there is another place where it should be tried, and I hold, whatever chance there is for justice in such a place, that there is very little chance for getting justice here, considering the nature of the question. I hold, first of all, that we have no evidence on which, as a court, we should decide this case, and even if there were evidence we are not the proper court, because the judicial impartiality which ought to be in a court, which would win respect for its decision, cannot be found here in a matter of this kind. Why did not the Executive Council object to this when the Return was announced here?

Mr. DAVIN

Hear! hear!

Mr. DE VALERA

Why, if they were such guardians of the rights of the constituency, as they pretend now to be, did they not do it then? The reason, I suggest, is this: That then they would not have the extra vote that they hope to get now, that, if they did it then, they would in fact have to say who was the member elected if it was not Mr. Larkin. I presume Mr. Larkin is the member they refer to. They have not mentioned the name, but by a process of elimination I take it it is Mr. Larkin. The Parliamentary Secretary did not tell us whose name it was. I suggest that they then would have to say, if Mr. Larkin was not declared elected, that then, certainly, Mrs. Clarke should have been declared elected. What is Proportional Representation for? As the name indicates, it is to give proportional representation to the various sections of the community. And for what is this election suggested now? In order to defeat the whole purpose of Proportional Representation. They hope, by getting a by-election in this particular case, to get a seat that they were not entitled to by the votes at the last election. If we must assume, for instance, that the votes given for Mr. Larkin were to be lost, they want not merely the votes given to Mr. Larkin should be lost, but that the votes given to the next person should be lost, and they want to get the seat.

I hold, from the way in which they have introduced this motion here, that this is conclusive proof to us that the members on the opposite side, the majority here, are not impartial, and that they cannot be the proper judges in a case of this kind. Therefore I move the amendment in my name. The effect of this is that we do not take upon ourselves here to determine the question. Remember, that is the question. It might be regarded as ultra vires by the Electoral Act. Certain English statutes are held to continue here. By these statutes the English House of Commons has given away from itself in the past the right of considering these controverted elections and did it probably for the very same reason that I am suggesting here—that a Parliament consisting of parties, where party issues are at stake, and where party issues and party considerations are involved in whether a certain person is or is not a member, made it evident that the House of Commons was not the place to try a case of that kind, and that, therefore, the proper place to try this was in a court of law. We have repeatedly heard from the President how independent the courts are and how impartial they are. Very well, then, they certainly would be less impartial than I ever thought they were, if they could not be more impartial than this House could possibly be in cases of this kind. I therefore move my amendment.

Mr. T.J. O'CONNELL

I would like at first to ask your ruling as to whether the motion that is before us is in order. I want to raise a point of order in connection with it. As has been pointed out already, the only official information which we have with regard to the matter of this election has been what was communicated to the Dáil officially by the Clerk the first day the Dáil met. We have had no other official communication from you, sir. Hitherto, when vacancies arose, either as the result of the death of a Deputy or imprisonment, you officially informed the Dáil of the vacancy, and thereafter the Government or somebody in the House moved for a writ in the usual way. I hold that no vacancy does occur here until you officially inform the Dáil that there is a vacancy, and then will be the time to move for a writ. I ask your ruling on that point.

AN CEANN COMHAIRLE

I take it that Deputy O'Connell's point of order, when divorced from a certain amount of argument on the motion, is that the motion cannot be moved until an announcement has been made by the Ceann Comhairle that a particular person elected to serve in the Dáil has been disqualified. Is that so?

Mr. O'CONNELL

Yes.

AN CEANN COMHAIRLE

The procedure is as Deputy O'Connell has stated it in the case of disqualification, but this motion is a motion for the issue of a writ, not on the grounds of disqualification, as the Deputy will notice, but on the grounds that only seven, instead of eight, persons were elected. I am not concerned, as Ceann Comhairle, with whether or not the statement made on the motion can be sustained or will be adopted by the House. That is a question, of course, for argument. As far as I am concerned, the motion is in order, and as far as the point made by the Deputy is concerned, the Deputy is, I think, adverting to the procedure for disqualification of a member deemed to have been elected. The motion attacks the matter at an earlier stage.

Mr. CORISH

If he is recorded in the annals of the House as being a member——

Mr. McGILLIGAN

He was not.

Mr. CORISH

——surely somebody must say that he has ceased to be a member. If he is recorded as being duly elected a member, surely there should be some statement from the Chair that he has since been disqualified.

AN CEANN COMHAIRLE

I do not want to argue the merits of the motion on the point raised by the Deputy. What appears on the records of the House is a list of persons who have been returned by a Returning Officer to serve in the Dáil.

Mr. DAVIN

Duly elected.

Mr. McGILLIGAN

Returned to serve.

AN CEANN COMHAIRLE

I shall have to get a copy of the Imeachta before we can proceed. It states: "The following are the names of the persons returned to serve in the Dáil, together with the names of the constituencies for which they have been elected." This is the return of persons to serve in the Dáil. I am not concerned with any more than this. When a person has been duly elected, if he becomes disqualified as the Deputy has suggested, the court in that case communicates, according to practice, with the Chairman of the Dáil, who announces the fact to the House. In this case the writ is not being moved on the ground that the person mentioned is disqualified to sit. It is being moved on the ground that, legally, he was never elected, and the Ceann Comhairle is not in a position manifestly to give a decision on the point as to whether he was or was not legally elected, or as to whether he was, or was not, qualified to be elected. Therefore, I could not decide the point of order without deciding the further point the motion puts to the House to decide.

Captain REDMOND

If the Ceann Comhairle does consider that he is not in a position to decide whether a person was legally elected, is it his ruling that this House can consider it and decide it?

AN CEANN COMHAIRLE

The Deputy must not put me a point of order which is in the form of a question to which I must answer yes or no. I am not answering that question. If the Deputy puts me a point of order, I will answer it; but the Deputy must not presume to put me in the wrong by putting a point of order in the form of a question to which the answer must be yes or no.

Captain REDMOND

The Ceann Comhairle has said that his view is that he is not in a position to decide whether this person was duly elected. I am now asking him as Chairman of the Dáil whether he rules this House is in a position so to decide?

AN CEANN COMHAIRLE

I am not asked to rule that, and I am not ruling on that.

Mr. O'CONNELL

I respectfully submit if you rule this motion is in order and may go to this House for decision, that that is exactly what you will be ruling.

Mr. LITTLE

Does the Ceann Comhairle admit that an officer of this House has made a mistake in the original or not?

AN CEANN COMHAIRLE

Clearly, Deputies are now beginning to argue with the Ceann Comhairle that he is the person to decide in this matter. He is not. This is not a motion for the decision of a legal question; it is a motion for the issuance of a writ on the assumption that certain facts are as stated in the motion. It is a common form of motion—a motion on the assumption that certain facts are as stated. It is not a motion for the solution of a legal problem. If the Deputy asks me do I admit the officer of the House made a mistake, of course, I do not.

Mr. MacENTEE

Surely a motion of that description cannot be entertained unless the legal facts have been properly and duly ascertained. How can we consider a motion of that description unless you in proper form are informed of the facts? If there is a vacancy through death, presumably you will be made aware of it; if there is a vacancy arising out of a petition to disqualify a member, surely you have the writ of the court? Here you are asked to assume that a vacancy exists, whereas, contrary to that, the facts themselves, the proper assumptions that could be placed upon the facts, are that there is no vacancy. The names of eight people have been returned to serve in the Dáil. I ask you to rule on this point. If those eight names have been returned to you, is that not a proof that those eight people were duly elected? If the eight names have been returned to you as duly qualified to serve in the Dáil, is not that prima facie proof that these eight have been duly elected?

AN CEANN COMHAIRLE

Is this another point of order or another argument?

Mr. CORISH

I think it is a very important matter. In this motion this House is asked to accept the right of the Executive Council to decide whether there is a vacancy or not.

Mr. McGILLIGAN

No, the right of this House.

AN CEANN COMHAIRLE

Deputy MacEntee's point of order was simply in the same terms as the speech of Deputy de Valera on the amendment. It was quite a relevant speech. Deputy MacEntee's point of order was simply setting forth the same points. Deputies are perfectly entitled to discuss the amendment and the motion, but arguments for or against the amendment or the motion do not constitute points of order, and it is not for the Ceann Comhairle to decide, and it would be impossible for the Ceann Comhairle to answer, the alleged points of order that have been put to him without making his view upon the whole question clear. He could not do that without entering into the merits of the motion and the amendment. This House is not in a position, by motion, to settle a legal question, and when the House has passed this motion, if it does pass this motion, if there are any legal rights of any individual at stake, that individual will still have the legal rights he has now. Neither this motion nor any other motion can take away from any person's legal rights. The courts will not take cognisance of a motion of the Dáil unless in cases where they are coerced to do so by the Constitution or the ordinary law.

Mr. DE VALERA

May I make a reply to that?

AN CEANN COMHAIRLE

The Deputy is asking for a ruling and cannot make a reply.

Mr. DE VALERA

I asked you whether the courts could do so in fact. I say they cannot do so, because of the fact that the time for bringing an election petition is past and, clearly, an attempt to establish their right would be futile.

Mr. McGILLIGAN

It is their own fault.

Mr. DE VALERA

No.

Mr. McGILLIGAN

Yes, through their own negligence.

AN CEANN COMHAIRLE

If the individual in question has a legal right to be a member of this House at this moment, and at this date, he will have the same precise right after the motion is passed, if it is passed. In other words, the House is not being asked to interfere with that legal right.

Mr. DAVIN

If Deputy Larkin—I presume he is still Deputy Larkin——

Mr. McGILLIGAN

He never was.

Mr. DAVIN

If Mr. Larkin arrived at this House before a decision is taken on this motion would you allow him to take his seat, and, if not, why not, provided he agreed to comply with the terms of the Constitution?

Captain REDMOND

On a further point of order, you have stated that this motion is based on an assumption of fact. The point of order I want to put is this, namely, whether it would be in order to have placed upon the Order Paper a motion based on an assumption of fact?

AN CEANN COMHAIRLE

It would be quite in order.

Captain REDMOND

Upon an assumption of fact?

AN CEANN COMHAIRLE

We often have a motion that, in view of so and so, the Dáil ought to take such and such a course.

Captain REDMOND

I submit that the form of motion which you have stated is a question of opinion and not an assumption of fact. This motion sets down something, and is based on that assumption of fact. We have no evidence that that assumption is well founded in fact. Are we to debate the motion on mere assumption?

AN CEANN COMHAIRLE

One would imagine from these various points of order that I was asking the House to pass the motion. I am not doing any such thing. This motion is in order. Deputies read a motion, hear the debate, and vote on it. I am asked to rule the motion out of order on arguments which are against the motion. It is hard to distinguish points of order from arguments. Deputy Davin asked a question. He will recollect that it has been my constant practice, and, I hold, a sound practice, not to answer hypothetical questions, but if the situation which Deputy Davin visualises occurs I will certainly deal with it.

Mr. DAVIN

I am assuming that you have been elected to the position you occupy to protect the rights of persons returned to this Dáil, and you are the only person to decide the rights of such persons which have been challenged.

Mr. LITTLE

I submit that you, sir, have made a ruling that Mr. Larkin is a member of this House. The Clerk of this House declared that Mr. Larkin was one of the members of the House, and you declared that he made no mistake. Therefore, you have ruled that he is a member of this House.

Mr. CORRY

Has the Speaker ruled that this motion is in order?

AN CEANN COMHAIRLE

Yes.

Mr. CORRY

Will you then accept a motion from me to issue a writ for the President's seat?

Mr. O'CONNELL

Now that you, sir, have ruled that this motion is in order I want to say that although there have been many strange motions appearing on the Order Paper for the last four or five years this motion is to me the strangest and most extraordinary that ever appeared on it, because it asks us, as stated several times during the course of the discussion on questions of order, to accept on a mere statement of the Parliamentary Secretary that facts which have been put before us officially and formally are not facts and that what he states without evidence in support of it is in fact a fact. The only statement he made was that no one came to claim the seat in question.

Mr. DUGGAN

I said more than that.

Mr. O'CONNELL

That was the first and principal argument that emanated from the Parliamentary Secretary and it is the first time that it has been put forward for declaring a seat vacant. The real question at issue is whether there has been a valid election in this case. We are asked to decide that, and nobody knows better than the Parliamentary Secretary and Ministers that this is not the kind of court that ought to be asked to decide that. We are asked to declare the issue of a Writ for a new election. Therefore we are definitely asked to decide whether or not there is a vacancy. Somebody said that we were not asked to decide that. The terms of the motion definitely asks us to decide that a vacancy exists in North Dublin City. We have the whole machinery of the electoral law and we are the people who are asked to decide what is clearly and definitely a legal question. Most of us are lay members and we are asked to decide what is clearly a matter for the courts to decide. The machinery for an election, as ordinary persons understand it, provides for a Writ being first issued by the Clerk of the Dáil, then sent to the Sheriff or Sub-Sheriff, who holds an election and he, after the usual procedure has been gone through, declares that certain people are elected to serve in the Dáil. That has been done. The Sheriff has made that declaration, and that declaration has been announced to the Dáil. Until the courts have declared otherwise, I hold that the Returning Officer's certificate is conclusive evidence as to who has been elected to the Dáil. Deputy de Valera has said that this was to be decided by a Party vote. There I do not agree with him. I am not looking at this matter from any Party point of view whatever. We have no concern with the person elected. We are not in any way concerned with his interests. What we are concerned with are precedents which are set up in this Dáil.

Mr. DE VALERA

May I interrupt to make quite clear what I wanted to say, whether I said it or not? That is, I for one was not going to think members opposite who were bringing in this motion were going to deal with it impartially and without Party spirit entering in. I had not spoken of any other Party in this House. I hold that this question will be decided on Party lines by the Party opposite.

The PRESIDENT

Of course no question is decided by the Party opposite on Party lines.

Mr. T.J. O'CONNELL

I am afraid I must ask the protection of the Chair or I will be out of this thing.

AN CEANN COMHAIRLE

That is the second hare the Deputy has started.

Mr. O'CONNELL

The Dáil is being asked to decide what is in fact a matter that should be decided by the court. I will refuse to do that, and I will vote, and I will ask the members of my Party also to vote, against the motion.

Mr. McGILLIGAN

Take off your Whips.

Mr. O'CONNELL

There are no Whips in my Party. If we are to accept the statement, which has been made without proof of any kind furnished by the Parliamentary Secretary, that this particular individual was never qualified for election, then he was not qualified to be nominated.

Mr. FITZGERALD-KENNEY

That is not so.

Mr. O'CONNELL

Again, of course we have simply to accept statements made by people, even with legal knowledge, but I am not going to accept that as a final declaration of the law.

Mr. DUGGAN

I quoted from the Act.

Mr. FLINN

Obiter dicta.

Mr. O'CONNELL

They may be distinguished lawyers, but I am not going to accept as final their declaration of the law on a matter on which I am as much entitled to my opinion as they are. Let the courts decide. I hold if a person is not entitled to be elected he is not entitled to be nominated.

Mr. McGILLIGAN

That is terrible.

Mr. O'CONNELL

It may be, but if that is so you are not entitled to put it into the Act. If what I have stated is correct, then there is not only one, but eight vacancies in North Dublin. Surely if we are going to have the position adumbrated by the Parliamentary Secretary it opens up a vista of all sorts of abuses in elections hereafter. It would be quite easy to have people nominated and elected, and a vacancy declared later when it would be easy for the Party with the majority to have one of their representatives elected. It is not in any spirit of hostility to the Ministers or the Government I am opposing the motion. I ask them seriously to reconsider the matter. They tell us they have the best possible advice, but we have not heard anything further as to the nature of that advice. I think it is not in the interests of this Parliament that a precedent of this kind should be set up, whereby on the mere statement of a Parliamentary Secretary or anybody else who is as well entitled to move a motion of this kind as the Parliamentary Secretary, the Dáil would declare a seat vacant. That is a wrong precedent to set up, and I hope the House will not do so.

Mr. FITZGERALD-KENNEY

We have before us for discussion a substantive motion and an amendment to that motion. The amendment was moved by Deputy de Valera, and in the course of his speech he did not say one single word in favour of his amendment. He did not adduce one single argument in favour of it. He attacked the substantive proposition, but the amendment he left severely alone, and it appears to me he did so because he had never gone to the trouble to think out what was the meaning of his amendment, or how that amendment, if carried, was going to be put into active operation. Deputy de Valera's amendment, I take it, meant something, probably not something thought out, not something thought to a finish, but some vague idea floating through Deputy de Valera's mind. He uses the words "to be postponed." Postponed to what? Postponed until the decision of a court has been taken. Therefore, Deputy de Valera has visualised the possibility of a decision of the court upon this matter. Would Deputy de Valera inform the House, if he has worked out the rounded circle of his thoughts, what is to be the nature of these proceedings? What is the court?

Mr. DE VALERA

Shall I answer that now?

Mr. FITZGERALD-KENNEY

With pleasure.

Mr. DE VALERA

That is a matter for those who are bringing the motion to think out. If the Parliamentary Secretary is so convinced that there is a vacancy, and if he wants to prove it before this House, taking it as a court, let him go to the other court and move his motion there.

Mr. FITZGERALD-KENNEY

I am delighted at the intervention, because it shows the Deputy has not done what we have done. We have thought the matter out fully, and we have come to the conclusion that there is no form of action by which this matter can be decided in the courts. If the Deputy will inform the House what is the cause of action which he says can be tested, I am sure everyone will be greatly obliged to him. Will the Deputy inform the House who is to be the plaintiff, what is the court, and what does he mean precisely by the certificate of a court? I would like to know from him the form of procedure to be adopted. What is the endorsement on the writ to be? What sort of procedure is to be adopted, or has the Deputy ever thought of that at all. I venture to think not. Certainly we are advised that, as soon as the time for the bringing of an election petition had passed, then there was no way by which this matter could be tested in the Courts unless possibly the gentleman in question, Mr. Larkin, might have brought a declaration in the court, if he had a right and it had been refused, which it had never been. Mr. Larkin's rights, if he has any rights, are still open in the courts, but nobody can question now in the courts this particular issue which is before the House as to whether seven or eight people have been elected.

Mr. DE VALERA

You are late, too.

Mr. FITZGERALD-KENNEY

I heard a great deal that if a petition had been brought that a certain person who stood in the interests of Fianna Fáil would have been elected. That person did not bring a petition. No one brought a petition and the time has lapsed. Now, the question that the Dáil has to decide is whether the Dáil is going to sit as a full House or with one short. I entirely agree with Deputy O'Connell. I am in entire agreement with him in a good deal that he said in his speech: that this is a matter of precedent, that this is to decide the rights of this Chamber, and that these rights should not be lightly frittered away: that this Chamber, which is one of the principal members of the Oireachtas to which sovereign power has been given, must be very careful to safeguard its own rights and its own inherent privileges. Both Deputy de Valera and Deputy O'Connell said that the House was asked to decide this question upon the mere statement of the Parliamentary Secretary that the gentleman in question, Mr. James Larkin, had been declared a bankrupt. This motion has been upon the notice paper for a considerable period of time, and it was open to every Deputy who had any doubt about the question to investigate the bankruptcy files if he felt so inclined. If any Deputy was doubtful about the fact that Mr. Larkin at the time of his nomination— that is a matter with which I will deal in a moment, but it is not important— at the time at which the Returning Officer declared him elected for the city of Dublin, was in fact a bankrupt, if anyone had been doubtful about that he could have investigated the matter for himself and looked over the bankruptcy files. If there is any doubt in Deputy O'Connell's mind, or in the mind of Deputy de Valera, I have actually here in my own hand a declaration under the seal of the Court of Bankruptcy, which is by statute evidence everywhere, that on the 7th October, 1927, Mr. James Larkin was in fact a bankrupt.

Mr. LEMASS

Will the Minister give the House proof that the James Larkin referred to in the document is the same James Larkin who was elected for Dublin City North.

Mr. FITZGERALD-KENNEY

Have you any bona fide doubt about it?

Mr. LEMASS

Yes.

Mr. FITZGERALD-KENNEY

Here is the document.

Mr. LEMASS

Is his photograph on it?

Mr. FITZGERALD-KENNEY

Here is the document.

AN CEANN COMHAIRLE

Let us keep away from the second person. I wish we could talk in the third person.

Mr. LITTLE

Is the Minister aware that there were two James Larkins up at that election?

AN CEANN COMHAIRLE

The Deputy would be surprised if he knew all that the Minister is aware of.

Mr. O'CONNELL

And all that he is not aware of.

Mr. LITTLE

Is that an impartial statement?

AN CEANN COMHAIRLE

Quite impartial. The Minister should be allowed to proceed. When he concludes some other Deputy can get up and reply to him, but there is no use in proceeding in this fashion. I would prefer if the Minister did not ask so many questions, if I may say so.

Mr. FITZGERALD-KENNEY

I hope, a Chinn-Comhairle, I will not offend against your ruling again. I will ask no more questions, rhetorical or otherwise. I hold in my hand, however, at the moment a document under the seal of the Court of Bankruptcy in Ireland. showing that on the 7th October, 1927, this Larkin, James, who was a candidate for North City Dublin, was duly declared a bankrupt. Deputy O'Connell dealt with one question. He said that this Mr. James Larkin, who was seeking to be elected as a Deputy, should not have been nominated at all, or else that he was validly elected. That, at least, was as far as I could follow the Deputy's argument.

Mr. T. O'CONNELL

Might I explain again what I did say that if it transpires that he was not eligible for election that then he was not eligible for nomination at all.

Mr. FITZGERALD-KENNEY

I think that when the Deputy peruses the Electoral Act he will see that that conclusion does not follow. He will find that, I think, if he looks at Section 51, sub-sections (1) and (2), of the Act. The Deputy said that this might require a court to decide it, that it was a matter of law and that laymen should not be called upon to decide matters of law. Again I am in entire agreement with the Deputy. As far as possible, laymen should not be called upon to interpret the law, and even the lawmakers, like Deputy O'Connell, should not be called upon to interpret the law that they themselves have made.

Mr. O'CONNELL

I qualified what I said. I said "as far as possible."

Mr. FITZGERALD-KENNEY

I am not endeavouring to be in any way offensive to the Deputy.

Mr. O'CONNELL

I did not suggest that.

Mr. FITZGERALD-KENNEY

The Deputy was, as a matter of fact, a member of the House which passed this particular Act. Of that I do not say anything, but I do say this much: the Deputy has a competent knowledge of the English language, and a simpler sentence to interpret could not be put in a form of writing, whether it be a work of literature or an Act of the Oireachtas. I do not think that the Deputy, or any other Deputy, will have the slightest difficulty in interpreting Section 51 of the Act, which says:

Every citizen of Saorstát Eireann, without distinction of sex, who is of full age and is not subject to any of the disqualifications mentioned in this section, shall be eligible to be elected and subject to taking the Oath prescribed by the Constitution of Dáil Eireann to sit as a member of the Dáil.

Sub-section (2), which is the important sub-section, says:

Each of the following persons shall be disqualified from being elected or sitting as a member of the Dáil.

There are two things. There are certain categories of people who are prohibited from being elected or from sitting. They are two different things. They cannot be elected and they cannot sit. The first two categories I need not quote in the Section, but the third, sub-section (c), is the one which governs this case:

An undischarged bankrupt under adjudication by a court of competent jurisdiction in Saorstát Eireann.

Here you have a gentleman nominated, correctly nominated.

Mr. O'CONNELL

Correctly nominated?

Mr. FITZGERALD-KENNEY

Yes, because between nomination and election he might—the word here is "election"—have paid off his debts in full, and been discharged. That is a conceivable state of events. There was nothing to stop it. All he had to do was to pay his debts and therefore he could have been nominated correctly. There is nothing in the statute which says he shall not be nominated. It says he shall not be elected, but I do not think it requires any great knowledge of law, or anything except a simple knowledge of the ordinary usage of ordinary terms in the English language, to realise that when you say a man is incapable of being elected, it means that he simply cannot be elected, and that in consequence his election is void. He is a person incapable of being elected. From the point of view of the election law, he has practically no existence.

Mr. O'CONNELL

But he is nominated and gets votes, and takes them from other people.

Mr. FITZGERALD-KENNEY

No doubt he is nominated and gets votes, but he is incapable of being elected. The Deputy may think that the law should be that no undischarged bankrupt shall be nominated. That is not what is laid down. What is laid down is, that he shall not be elected and being ineligible to be elected it seems to me to be as clear as daylight—he who runs may read—that not being capable of being elected he could not be elected and he was not elected. What is the result? The result is that there are only seven persons now representing North Dublin City. A great point was made here of the fact that a return was made by the Returning Officer saying that eight people were returned. If Deputies read Section 27, sub-section (1) which is the very sub-section which Deputy de Valera alludes to in his amendment, they would find that the duty of the Returning Officer is to see, in the first place, that the nomination papers are valid, and secondly to count the votes. The Returning Officer counts the votes and sends to the Clerk the names of those persons who have received the maximum number of votes entitling them, if not otherwise disqualified—which is a matter he does not go into—to represent that particular constituency. He does not decide any question of validity except the question of the validity of individual ballot papers. He decides that and on that he is final until his decision is set aside on an election petition, but he decides nothing else. He simply counts the votes and he sends on the result of his count to the Clerk and the Clerk announces it to the Dáil.

As I said a short time ago I agree with Deputy O'Connell that this is a question of Parliamentary privilege, a question of the privilege, power and importance of this Chamber of which we are members. If we are powerless to regulate our own procedure, if we say that to the world, if we fling away our own authority and the dignity of this Chamber, if we say that this Chamber can decide nothing—this Chamber the most important Chamber in the State— this Chamber which for practical purposes exercises sovereign power in this State—if we who have been sent here as delegates by the people are to fling aside the powers which are inherent in this State, or are to decline the powers which are inherent in this assembly, if we are to say that we can do nothing, that we have no powers to decide as to whether there is or is not a vacancy in this House, if we are to have no control over the members of the House, if we are to have no control over the proceedings of this House, then we have done our best to reduce this Chamber and the Oireachtas to contempt. We have exactly the same power to declare that there is a vacancy in a Parliamentary constituency which we know in fact exists, as we have over other proceedings in this House. We have exactly the same power as we had to make Standing Orders for the rule and regulation of the proceedings in this House. Our powers are delegated to us by the people. They are inherent in us. The Oireachtas, except in so far as its powers are confined and limited by the Constitution, has sovereign power in this State, and Deputies, if they were to reject this motion upon the ground that it was ultra vires, would take away from the dignity of this assembly and they would destroy the heritage which they ought to bequeath to their successors on these benches.

Captain REDMOND

With the concluding portion of the Minister's speech I must say that I am not in agreement. If I may respectfully say so, the Minister seems to have got beyond his brief. The Minister has stated that we have the power in this House to decide whether there is a vacancy or not. With respect to him, that is not even what we are asked to do by the motion that he is asking us to pass. That motion assumes that there is a vacancy, and all his arguments have gone to support that assumption. We have never been asked, even by this motion, to decide the question as to whether there is a vacancy or not. With respect, I submit that the question as to whether there is a vacancy or not depends upon the existing law. Therefore, I think the Minister has perhaps overstepped the mark in that respect. What is his case? As far as I can gather, it is that this person was never eligible for election and that there was no election.

Mr. FITZGERALD-KENNEY

Of him.

Captain REDMOND

Of him. Now, the Minister made great play with the suggestion put forward by Deputy de Valera, that the question of the vacancy was one for the Courts. He asked what, I think, must really have been a rhetorical question. What court is now to decide whether there was a vacancy or not? Of course, when he asked this question, he knew as well as I do that the time has gone by to ask a court to decide that matter.

Dr. HENNESSY

He said so.

Captain REDMOND

He said so in reply to me.

Dr. HENNESSY

Not in reply to you.

Captain REDMOND

The question that I put to the Minister and the Government is this. If they are now anxious to take this exceptional and unusual course, why did they not take a petition during the period laid down for it and have it declared, in a proper way, by a legally-constituted tribunal, that there was a vacancy and that only seven and not eight people had been elected for the constituency of North Dublin. That is my point. I complain about what I may describe as the exceedingly irregular form of this procedure. It should not be adopted and followed hereafter. On the face of it, it looks extraordinary that the Government should come down to the House, long after the time has lapsed for taking proceedings in accordance with the ordinary law, and declare that a certain state of affairs exists which they should have had declared in a proper way, according to the existing law by a proper tribunal. Supposing that a vacancy does exist—that is the assumption that we are asked, as stated by the Ceann Comhairle, to pass this motion on. The names of the eight Deputies were read out by the Clerk as having been elected to serve in this House.

Mr. McGILLIGAN

As being returned.

Captain REDMOND

I stand corrected. As having been returned to serve in the Dáil, as elected for the constituency. Now, that being so, the only official cognisance that this House has got of the state of affairs is in the official records. Therefore, I submit that the onus of displacing these records rests entirely upon the Government, who seek to show that these eight were not duly elected. Have they discharged that onus? That is the question that we have to put ourselves this afternoon. As far as I understand Parliamentary procedure, the only evidence—I think this is largely a question of evidence and not of law—that this Dáil can take into consideration is the evidence brought before it through the proper channels and in the proper way. I should have considered that the proper manner to have adduced evidence of the identity as well as the bankruptcy of this Mr. James Larkin would have been through the Ceann Comhairle. I suggest that at least an order or certificate should have been produced by the Ceann Comhairle from the Bankruptcy Judge, and in that way have officially informed this House that this person was at the time of election a bankrupt. Then there would be no question—as there is not now a question—for us to decide as to whether there is a vacancy or not, because if that had been so Mr. James Larkin would never have been elected.

Mr. McGILLIGAN

Would the Deputy repeat that until I get his idea of the proper procedure. Did I understand him to say that a certificate from the High Court in Bankruptcy of Saorstát Eireann should have been sent to the Ceann Comhairle?

Captain REDMOND

Exactly.

Mr. McGILLIGAN

That is what was done.

Mr. T. O'CONNELL

Was it sent to the Ceann Comhairle?

Mr. McGILLIGAN

Yes.

Captain REDMOND

I was not aware of that. Does the Minister expect me to know that without being told? I was not aware of it.

Mr. McGILLIGAN

I am telling the Deputy for future guidance. He can base his argument on the fact that it was so sent.

Mr. T. O'CONNELL

The Minister for Justice did not tell us that. He had it in his hand.

Mr. McGILLIGAN

He had, and I have it now.

Captain REDMOND

But the only evidence I had at my disposal was a document produced by the Minister for Justice. It was not stated that it was sent to the Ceann Comhairle. Now we know, after I made the suggestion that that would have been the proper course to take, that that was the course taken. I wonder why we were not told that before. At any rate, it is well to know it. I am glad to know it, because I think that is acting in accordance with proper courtesy and respect to this House. I do not, for a moment, doubt the word of the Parliamentary Secretary or the Minister for Justice. But when communications are made to this House and are brought forward by way of official documents, they should be made through the Ceann Comhairle. I am glad in this instance they have been so made. Let me briefly state what I believe the question is for us to decide. I do not believe for a moment that we are asked to decide—with all respect to my learned friend, the Minister for Justice, I do not believe that we should have or would have the power to decide —whether or not there is a vacancy in any constituency in this country. We have the power to decide that if there is such a vacancy a Writ should be issued.

Mr. J.J. BYRNE

That is all we are asked to do.

Captain REDMOND

And Deputy Byrne has very kindly anticipated me by saying that that is all we are asked to do. The amendment in the name of Deputy de Valera suggests that this motion should be postponed until such time as the certificate of a competent court is received by the Clerk of the Dáil declaring that a vacancy does, in fact, exist. With the terms of that amendment I am not in agreement. I am in favour of the postponement of a motion such as this until a certificate of a competent court is received by either the Ceann Comhairle or the Clerk of the Dáil declaring, not that a vacancy does, in fact, exist, but that a state of affairs exists which, in law as at present in force in this country, means that a vacancy does exist. That is the position as far as I understand it. It might be well if Ministers would consider the possibility of an alteration of the law in respect of the position of the Under-Sheriff and similar officials. The Under-Sheriff was not responsible. He was not the proper judicial authority to say whether this person was eligible for election or not. I do not know whether or not it would be wise to make him so responsible. At any rate, the question is worth consideration and investigation.

My complaint is not so much that the law should take its course and that a person who was not eligible for election should be so regarded, but that those responsible for this motion did not take the steps they should and could have taken within the time laid down—that they did not lodge a petition and have a decision by the courts that seven, and not eight, members were returned for the constituency in question. I think it is regrettable that such a motion as this should have to be brought forward. It is a bad precedent. It is a matter that should be guarded against in the future. I, for one, distinctly blame the Government for not taking the ordinary course and lodging a petition within the time limited, instead of asking the House now to take a course which should be repugnant to it and which is not in the ordinary way of Parliamentary procedure.

Mr. T.J. O'CONNELL

There is one point I would like to have cleared up. Did I understand the Minister for Industry and Commerce to say that the certificate produced by the Minister for Justice a moment ago was sent officially to the Ceann Comhairle?

Mr. McGILLIGAN

I do not know whether or not the Deputy is emphasising the word "sent." The certificate was received in the office of the Ceann Comhairle from the Registrar of the High Court of Justice of Saorstát Eireann in Bankruptcy.

Mr. MacENTEE

Is there any reason why this certificate was not presented to the Dáil before this motion was taken?

Mr. T.J. O'CONNELL

I want to know how the certificate came into the possession of the Minister for Justice.

Mr. McGILLIGAN

I presume he got it from the other office, as I have now got it.

Mr. O'CONNELL

Are we to take it that the Ceann Comhairle took no action in the matter?

Mr. McGILLIGAN

I do not know what action the Ceann Comhairle took.

Mr. S.T. O'KELLY

Would you, A Leas-Chinn Comhairle, have any knowledge that such a document was received by the Ceann Comhairle? We cannot take the ipse dixit even of a Minister on a matter of this kind. This matter was debated for half an hour or so, and points of order were raised by different Deputies, and the Ceann Comhairle did not mention whether or not he had seen the certificate.

Mr. McGILLIGAN

Was he asked about it?

AN LEAS-CHEANN COMHAIRLE

Neither the Chair nor the Minister for Industry and Commerce is under cross-examination at the moment. I call upon Deputy Lemass.

Mr. LEMASS

Deputy Duggan, in moving the motion which stands in his name, and the Minister for Justice in supporting it, submitted certain arguments in favour of the motion and in favour of its passing by the Dáil. I submit that those arguments are of no importance. I submit that they do not matter one iota, that the important matter before the Dáil is not the arguments advanced in support of the motion, but the motion itself. The motion itself will be on the records of this House long after the arguments advanced in favour of it are forgotten. The motion itself will establish a precedent upon which this Executive or some succeeding Executive may take similar action in other cases in the future. I suggest—I believe it will be admitted as a fact—that the only reason why any arguments are being put forward in favour of this motion is because the Government Party has not a majority in the House, and in order to secure the passing of the motion the Government must convince a certain number of other Deputies of the wisdom of their proceeding. If they had a clear majority of the House, if they were independent of criticism from the Opposition Benches, they need advance no argument whatsoever. They could merely introduce the motion and steam-roll it through the Dáil, declaring a vacancy in the Borough Constituency of Dublin North. I submit that the motion, as it is worded, can be passed at any time in relation to any person and in relation to any constituency. Any Party with a cast-iron majority in this House could, by introducing and carrying a motion of that nature, disqualify any member they chose.

Mr. McGILLIGAN

He could go to the courts next day and get back.

Mr. O'CONNELL

He might not be able to afford it.

Mr. LEMASS

The point of the matter is this: that it might easily arise at a critical moment in the history of the country, at a critical division in this House, that a certain Deputy coming into the House could be excluded from entry because the Government, with a cast-iron majority, had passed such a motion.

Mr. McGILLIGAN

If they had a cast-iron majority, they need not do that.

AN LEAS-CHEANN COMHAIRLE

The Minister must allow Deputy Lemass to make his speech.

Mr. LEMASS

The motion states that only seven persons instead of eight were elected to represent this constituency in the General Election in September. As Deputy de Valera pointed out this House was officially informed by the Clerk, when it first assembled, that eight members were elected for that constituency. The fact that eight members were elected is recorded in the Official Report of the proceedings.

Mr. J.J. BYRNE

On a point of order, the Deputy is mistaken.

AN LEAS-CHEANN COMHAIRLE

That is not a point of order.

Mr. LEMASS

Everything was done in a manner which indicated that the Government knew quite well that eight persons had been elected. In the cloakroom of this House, where I hang my hat and coat, there is a peg next to mine inscribed "Mr. James Larkin," which indicates that he was expected to hang his hat there some time.

Not merely could this motion be passed in relation to any person, and in relation to any constituency, but I submit that there is nothing on the face of the motion which indicates that it has any relation to Mr. James Larkin at all. Mr. Larkin's name was not mentioned by the Deputy who proposed the motion. If that motion is passed to-day it is quite possible we will find to-morrow that Deputy J.J. Byrne will be disqualified. I think it would be too much to hope for that, but if the Government would give any indication that that is their intention, I think they would carry their motion unanimously. But although we can treat the matter humorously when Deputy Byrne's name is mentioned in relation to it, nevertheless the matter that the House must take into consideration is that if that motion is passed Deputy Seán T. O'Kelly, Deputy Alfred Byrne, or the Minister for Local Government might be stopped at the door of this House to-morrow by an usher and told that he could not enter because his seat has been declared vacant. The Ceann Comhairle, when that point of order was mentioned, stated that the passing of this motion would not deprive Mr. James Larkin of any rights which he now exercises; and if Mr. James Larkin is legally a member of this House, then it is quite conceivable that we will have nine members from Dublin City North sitting here in the immediate future.

I think that the case which has been put forward in support of this motion is one which is based purely and simply on expediency. Deputies over there know, or think they know, that Mr. Larkin should not have been elected, but the fact remains that Mr. Larkin was nominated, his nomination was accepted by the returning officer, he went before the people, and more than 7,000 people voted for him. All these people know as much about Mr. Larkin as the eight demi-gods who sit on the Front Bench opposite can claim to know, and if this House has any respect for its rights, and has any respect for its privileges, we suggest that the manner in which a case of this nature should be dealt with is that indicated in the amendment and not in the motion. The precedent which would be established by the motion is a dangerous one, and one which might possibly be availed of by some unscrupulous Executive in the future to disqualify an opponent for whose removal they were particularly anxious. It could be done. I think that any person with an ordinary knowledge of English who reads the motion, who forgets the arguments that were advanced in support of it, and who thinks of the motion alone, will have to admit that that is so, and certainly a future Ceann Comhairle would have difficulty in ruling such a motion out of order if it was introduced in relation even to a Deputy who had actually taken his seat in the House. In face of these circumstances I think that Deputies, and particularly independent Deputies, and Deputies who are in opposition, in view of their vulnerable position, should be the first to stand up, oppose this motion and reject it.

Mr. J.T. WOLFE

Mr. Larkin has had many advocates, at one time or another, but the last advocate he had, in the shape of Deputy Redmond, was perhaps the strangest advocate he ever had. So far driven was he to find a defence for him that he has told the House that he is not satisfied as to his identity, and because he is not satisfied as to his identity he is not prepared to vote for this motion. If ever there was a motion which has been side-tracked, or which it has been attempted to sidetrack, it is this one. The matter is really a simple one, unless we go out of our way to decide it. You have been told time and time again during this debate that eight members were elected, but it is as clear as there is a roof over us that only seven members were elected.

Mr. CASSIDY

On a point of order. In the Dáil Debates of the 11th October it is stated: "The following are the names of the persons returned to serve in the Dáil, together with the names of the constituencies for which they have been elected," and Mr. James Larkin's name appears——

AN LEAS-CHEANN COMHAIRLE

If a Deputy wants to make a short speech he must not preface it by a point of order. That is not a point of order.

Mr. J.T. WOLFE

The Deputy is quite right in his interruption, but even with that document before him he will not take the trouble to read it correctly. What that document informs him is that there were eight members returned as elected, but in fact there were only seven members elected. Deputy after Deputy has been reading that document, which is as simple as can be, which tells you that the returning officer, who discharges no official duties, returned eight members as elected. Then we are told that we should produce a certificate from the courts. The certificate has been produced from the only court that has jurisdiction in the matter. That certificate shows, under the seal of the court, that at the date of the so-called election one candidate was not fit to be elected and could not be elected; it shows that so far as that candidate was concerned he was not elected and could not be elected. The position is exactly the same as this: supposing the name of a fictitious candidate were put up, are we to be told that for all time—because we could not very well bring an election petition against a fictitious candidate, having nobody to name as respondent—the name of that candidate is to remain as being elected?

Mr. G. BOLAND

How would a fictitious candidate be elected?

Mr. J.T. WOLFE

If Mr. Larkin was elected there would be just as much difficulty in electing a fictitious candidate.

A DEPUTY

Somebody would have to sign the nomination paper.

Mr. J.T. WOLFE

We have been told that the Dáil is not an impartial tribunal, that we are not impartial judges, that we cannot decide this question. There is no question to decide. We have got a certificate from a court of competent jurisdiction that a man who was declared elected had not, in fact, been elected. From that certificate there runs the statutory consequence that seven members were elected or, accepting for a moment that the eighth man was declared elected, he was not elected; there were only seven elected. Consequently a vacancy arises, and so far as I can see, the only course open to anybody is that suggested in the motion. There is no other course. We have been told that we should go to court, that a petition should have been brought. By whom? It was open to any elector to bring a petition if he wished. No elector did so, but because no elector brought a petition, is it suggested that the Government, at the public expense, should take the necessary steps to declare the candidate disqualified? Seven members only were elected, and if you take seven from eight you find one remaining—one remaining seat to be filled, and, as I understand it, the motion is to fill that seat, regardless of who is entitled to it.

Mr. LITTLE

I suggest that the alternative course and the proper course to take, if the amendment is not the proper course, is to declare the eight members who were properly elected. According to the Act, a bankrupt is incapable of being elected. Therefore, he was not elected. If he was not elected, the law lays it down that there are eight people elected. Therefore there must have been eight people elected at that election, and all that has happened is that a mistake has been made in this House. Whether the mistake is the sheriff's mistake or the mistake of the officers of this House is merely a matter of detail. The important thing is that a mistake has been made. If the plea of laches is made, that certain people have neglected to do things they ought to have done, I submit that every Party in this House is estopped from proceeding in this matter; we are on all sides prevented from taking a petition, and there is no machinery in this House for dealing with the matter at all. Therefore, we are either placed in the position of leaving the seat vacant or, on the other hand, correcting the mistake that was made by this House. Now there appears to be evidence, irregularly produced in this House, not in an impartial manner, by the Chairman but by a member of a Party, and I submit that that is a grossly irregular procedure. We are asked by one Party to do something which is doubtful law. We are frankly told it is doubtful law, that an action may be taken against us for doing it, and that we may lose that action. Is that a proper procedure for a Government to take? If it is doubtful we cannot do it. There is the difficult question of identity. There is no evidence to show that this James Larkin is a bankrupt. I understand there were two James Larkins up for election, and there is no evidence before the House to show which of the two James Larkins is concerned here. I put that forward seriously as a lawyer. I say that we must have evidence to show that the James Larkin mentioned in the document produced irregularly from one side of the House is the James Larkin who is a bankrupt. So that on three or four counts we are called upon to do doubtful things on doubtful evidence. I submit that the way of registering our objection to the course indicated by the Government, and the only way open to us, this evening, is to vote for the amendment and not for the resolution.

Mr. FLINN

Laymen are called on to contemplate, I hope with a great deal of enlightenment, certainly with a great deal of entertainment, lawyers talking law to them. Deputy Wolfe told us that there were only seven elected. Then he told us that there were only seven elected, and he then told us that if we did not believe it he would say it again. That was the whole of the argument of Deputy Wolfe—"I said it, I am saying it again, and I will keep on saying it until you believe it." That may be law; it is not argument in a body of laymen. It seems to me that we have on the records of the House, in a manner which would seem to be authoritative amongst laymen a prima facie case that James Larkin is a member of this House. That is the way it seems to me as a layman. We have offered to us a motion which assumes that that prima facie case is wrong. That motion has been ruled in order and therefore it is in order. We have been told by the Ceann Comhairle that if this House passes this motion it makes no difference whatever in law. I am glad to hear that. Therefore, in fact if what we agree to, when we pass this motion, is wrong in law, we will carry on another election in which the candidate will be void, and in which there will be two candidates, possibly the same member in two capacities, because the same man may be re-elected, and there will be nothing to decide the question as to who is the member. It is declared to be an open question of law.

The basic issue which is raised tonight is an issue which has been raised many times and in many different ways by this House—the right of this House to interpret the law of this land. That is what we as laymen claim to do. We are offered the opinion of law officers who within the knowledge of every single member of this House have treated with scant respect the considered opinions of judges, expressed in a form in which they would be authoritative amongst laymen. It is on the authority of such law officers that we are asked now to disregard the election of this man. I am leaving out Deputy Wolfe. The Minister for Justice has picked up the Act, he has read the clauses, and has told us that it is as plain as a man can read. That is the same authority that told us that a considered judgment, in a form in which it was authoritative amongst laymen, delivered by a High Court Judge, was a matter of no importance whatever. We laymen have been asked to interpret this law because it is so plain.

There was a precedent for that, the famous precedent of the Workmen's Compensation Act in England. When Mr. Joseph Chamberlain was asked what it was about, and what it meant, he said: "It is perfectly simple: any Unionist election agent will tell you what it means." The same philosophy. Any Party majority will tell you what it means. Any Party majority will tell you what any Act of this Parliament apparently will mean.

I am sorry the Minister for Justice is not here, because I want to say something which I would like him to hear. I understand we are going to lose him, that he is going to carry the traditions and eloquence of this House to another and a great land, and I am glad to know that we are sending in his person a typical example of the old style of eloquence, which is not professed, I think, by any other member of this House except my esteemed colleague from Cork, Deputy Timothy Sheehy. We had, for the first time in my experience of this House, a revival of the peroration, the peroration that lasted three-quarters of the time. Apart from telling, just as every lawyer would, that it was so plain that you must understand it, and that if you did not understand it he would tell it to you over and over again until you believed him, the rest was the peroration— whether or not in failing to claim for this House an authority which possibly this House did not possess—because that is the issue—in failing to claim that we had here, by the right of a Party majority, the power to decide things which possibly we have not at all, we were degrading and throwing away the sovereign traditions of this glorious and sovereign Parliament. That is not the issue. The issue is that we have an Electoral Act of 1923 which is so utterly and so incompetently drawn that there is no remedy in it, no remedy for any possible complication, difficulty or misunderstanding which can possibly arise in an election by electors. That is the issue, not whether we are going to degrade this House by failing to claim for it powers which, possibly, it does not possess, but, whether or not, this House when it could steamroll things through, did steamroll things through so badly that they would be a disgrace, apparently, to any House.

In the last election there were a series of complications. There was one in Limerick, and there were two or three more. I do not particularly want to go into details. One thing that was admitted on all sides was that, whatever the complication was, there was no remedy for it. We are told that in this case there is no court to decide anything. Whatever happens under the electoral law, according to the interpretation of the gentleman opposite, is to be decided by a Party majority here. I say that is a disgraceful proceeding. I say it cannot be true. I say that these people cannot have spent five years here learning to legislate without learning something about how to legislate, and that they cannot possibly have passed through this House an Act so utterly incompetent to do all the things that the Act ought to have done. For the honour and reputation of those who have occupied those Benches for the last five years, and as a tribute, no doubt deserved, to the knowledge and wisdom, the insight and the foresight of every one of those men, you must say that there must be some remedy outside a Party majority for deciding questions of whether or not men are properly elected to this House.

Mr. McGILLIGAN

It is refreshing to hear a peroration from the most eloquent perorator that the House has ever known, the man who has succeeded in perorating for the last two or three days until his natural gifts for brawling have got him into dishonour and disrespect in this House.

Mr. MacENTEE

On a point of order, is the Minister for Industry and Commerce in order in stating that a Deputy of this House is in dishonour?

Mr. FLINN

May I ask that every possible latitude be given to the Minister for Industry and Commerce?

AN LEAS-CHEANN COMHAIRLE

I am not concerned with what Deputy Flinn wants allowed to the Minister for Industry and Commerce. I am only concerned with what the rules of debate do allow the Minister. I think the Minister, on consideration, will decide that the word "dishonour" might be excised from his remarks.

Mr. McGILLIGAN

I withdraw it. I am not going to promise that I will not say, and say again, things, but if I do say and repeat things in this House I would like Deputy Flinn to understand it is not by that means that I want to establish points of law, but because repetition is sometimes necessary for people of little understanding so that they may understand what is being spoken of; but it is not that a point of law be established. The Deputy says that everything in the Electoral Act must be decided by a Party majority. That is his own imagination. Has anybody here said that everything under the Electoral Act has to be decided by a Party majority?

Mr. FLINN

I did not.

Mr. McGILLIGAN

I will quote the Deputy; I will refer him to his own words when they appear. We on this side of the House have stated that there are ways and means at a particular period for deciding certain questions, and these ways and means were not adopted by the people who should have adopted them. We come to this point, assuming it is after the election, that there is definitely no court method of deciding is there a vacancy. There is no court method. Before going any further. I would like to join in the line of argument adopted by Deputy O'Connell on one point. This should not be treated as a Party affair. What the House is asked to decide is not by a division of Parties or by strict Party voting anything that is going to be for the benefit of one Party or another.

Mr. FLINN

Take off the Whips.

Mr. McGILLIGAN

The Whips are off. The only party item I have seen is the definite admission from those benches there that if an election is held in North Dublin they are not likely to win. That is the only pleasant admission coming from the debate.

Mr. MacENTEE

After Carlow-Kilkenny that is not so certain.

Mr. McGILLIGAN

I am not referring to Carlow-Kilkenny but to North Dublin, and I have observed the way in which Deputies on the far side contemplate an election. The admission is that it is going to be a gain for the Government. That is their attitude; it is the one pleasurable party item that I got from the debate. Why should not this House decide the matter? It is the question of the filling up of a vacancy. That, by implication, must mean that the House must decide there is a vacancy. It is for the House to decide that, and I agree with what Deputy Wolfe said and what Deputy Redmond ended by saying, that there are not, as Deputy O'Connell seemed to imagine, points of law at issue. There are certain facts. The law does come in to a certain extent, but the law is so simple that even a layman like Deputy Flinn could be expected to understand it. What is the point of law? It is the point read out by the Minister for Justice. Section 51 —a particular sub-section of it—sets out that "Each of the following persons shall be disqualified from being elected." and one of the persons is an undischarged bankrupt under an adjudication by a court of competent jurisdiction in Saorstát Eireann. If it be decided that a person named James Larkin was an undischarged bankrupt under an adjudication by a court of competent jurisdiction in Saorstát Eireann, then it follows as surely as the night follows the day that James Larkin could not have been elected to this House.

Mr. CORRY

Which of the two James Larkins?

Mr. McGILLIGAN

The Deputy cannot distinguish between a point of fact and a point of law. I am speaking of law in its application. There may be a point of fact to be decided. The Deputy spoke of the identification of the man. One point of fact is identification, and there may be another point of fact. Was this man adjudicated a bankrupt, and is he still a bankrupt? If the House decides in full session that it is not competent to determine that, or it is not the proper way to do it, then let the House determine other means. It is a very simple matter. Documents can be produced from official custody, documents which show that this man definitely is a bankrupt. I ask the House to agree with me that once two points of fact are decided, that the point of law is a very simple matter. That is to say, if we agree that that person was adjudged a bankrupt and was still a bankrupt on the night of the election, that he was incapable of being elected a member of this House. If that is agreed to, then there is a vacancy. That is a simple case.

Attempts have been made to cloud the issue by bringing in other matters. We are told we had in this House an authoritative statement that so and so was returned to serve as a Deputy for a constituency, or a constituency was given for which he was elected. Does the House mean to say that they are going to accept the return of the Returning Officer as a judgment? We had Deputy Lemass's valuable point that James Larkin has a peg for his hat and coat somewhere near the Deputy's. So the judgment of the Returning Officer having been authenticated by the carpenter who put up the peg, or the usher who looks after the department, is going to be accepted as a statement contrary to clear law that James Larkin is, or ever could have been, a member of this House.

The Returning Officer may in good faith have returned him; the Clerk of this House may have read out correctly and accurately the names returned to him by the Returning Officer. That is not a proof or any justification against the law of James Larkin becoming a member of this House. He was incapable on the night of the election of being elected a member of this House and that still runs. The second point brought in and the point to which some attention has been paid is the matter of time, and why this action has been postponed and why when there were proper means of determining this question it was not determined in proper time. We are establishing precedents here and we are establishing what, I think, is a very valuable precedent, that the laws made by this House governing the return of members to this House are not to be flouted by people who go up for election and are declared elected mistakenly. We must end that attempt to get over what this House has declared to be the law. Who should have moved in the early days after the election? An aggrieved person or the disappointed candidate, or the candidate lower on the list? If the candidate lower on the list did not decide to go on but declared that James Larkin was not elected, then an elector in the North Dublin Constituency could have brought a petition. But was it the Government's duty within 21 days after the election to make up its mind and go forward with the petition? Would not the clamour that we have heard of the Government claiming by such action to get an extra seat— would not that have been redoubled if within 21 days this Government had decided to petition the courts in the matter of the return of James Larkin?

Mr. COONEY

What would the result have been?

Mr. McGILLIGAN

The Deputy will probably know that better than I do. Is the Deputy able to say what it would mean?

Mr. COONEY

Would it mean the recounting of the votes?

Mr. McGILLIGAN

Does the Deputy know it would have meant that?

Mr. COONEY

I am asking the Minister who is quoting the law, what it would mean?

Mr. McGILLIGAN

I do not know the law on that subject, but I am informed on very good authority that it would not have meant the recounting of votes, because the votes cast for Mr. Larkin were properly cast. It was for either of the disappointed candidates at the election or for any elector in the North Dublin Constituency to bring it up by way of petition. It was not a matter for the Government. The Government in fact had postponed its decision, had postponed taking action until the people who had a better right than they had, failed to take the proper steps. We are now faced with the position clearly that if two points of fact can be established there is a vacancy in North Dublin and I think the implication of the amendment is that once it is declared there is a vacancy, the proper way of filling it is by the issue of a writ, so that it seems to me we have only two points to decide, some way of identifying this gentleman and some way of proving was he on the night of the election an undischarged bankrupt. If the House does not think that there is evidence here on these two points, let us hear in what way the House wants evidence brought to its notice and what evidence it will take on either of these two points. I say in regard to one point that there is quite satisfactory evidence. There is a certificate from the Registar of the High Court of Bankruptcy that James Larkin had been adjudged a bankrupt on a particular date and that on the night of the election he was still an undischarged bankrupt. If it is thought that that document is not produced in a proper way then let us retrace the ground. It is right that this thing should be done in a proper way. Let us get segregated the points upon which people have doubts. Is there any doubt about the law? If this man was an undischarged bankrupt is it not as clear as anything can be that on the night of the election he was incapable of being elected? It is now a matter of determining the two facts. If that is the case what is the House's will with regard to the determination of the facts?

While saying that let me say this further—one way that can be adopted is the way of the amendment. Deputy de Valera was asked did he, when putting down the amendment, envisage the procedure. He said no, that was for the people who put down the motion to decide. In other words the people who have made up their minds as to a certain course of procedure are supposed to determine for the man who objects to that course of procedure what the procedure should be. The Deputy carefully evaded it and nobody on that side of the House has answered the question —what court is to decide it? Or what is the approach to the court? What is the proper writ and what is the proper form in which one will go to a judge? When these things have been looked into, there is no way of approach to any court in this country on this matter.

Mr. CORRY

You are five years making law—why not do it under the Public Safety Act?

Mr. McGILLIGAN

Has the Deputy made any suggestion of value? There must be somebody oscillating on the Deputy's Bench, because I cannot hear him. There is, at any rate, one thing that the House should not commit itself to, and that is an amendment to decide that we should postpone filling a vacancy until we get a certificate of a competent court declaring that the vacancy does exist. If there is an approach to the court at all it is possibly the best way to go about this whole matter. Let those who say there is an approach at all say what is the proper procedure and what steps should be taken, to whom does one apply, and what does one hope to get from the court? When that is put up, that question can be examined, but as we are advised, there is not now any approach to any court by this House on this matter. There is an approach to the court in another way. There is the man who may think himself aggrieved by this motion. Mr. Larkin may believe he was elected. If Mr. Larkin believes that or if he believed it in the past, it was his duty then and now to present himself for admission to this House. What the Ceann Comhairle will do in that event, I do not know. If he keeps him out, Mr. Larkin has rights in the courts against the Ceann Comhairle, and if he lets him in I believe it would be the duty of the Government, being advised as it is, to move that Mr. Larkin be expelled and try to persuade the House to expel him, and if they succeeded in this. then he has his rights against this House. In no way are his rights defeated or prejudiced by the passing of this motion. There is one man who has an approach to the court, but only one man. There is no approach to the court by this House. And that being the case, we ask the House to declare that in fact a vacancy does exist on law. I am assuming that the House is satisfied with certain points of fact. If not we will have these examined in some other way. I await the suggestion as to how they can be examined.

Mr. O'CONNELL

Does the Minister ask us to accept the facts without having them examined? Does he ask us to accept them without having the facts established?

Mr. McGILLIGAN

I have stated what the point of law is. I did not hear any questioning of it. There are two points of fact. I say with regard to one of them that that is very properly answered by the production of a certain certificate.

Mr. O'KELLY

Who produced it?

Mr. McGILLIGAN

If the Deputy is not satisfied with its production, then let him state the manner of production which will satisfy him and then we will see if that can be done to his satisfaction.

Captain REDMOND

May I suggest to the Minister that the point of law depends entirely on a point of fact?

Mr. McGILLIGAN

Certainly.

Captain REDMOND

The point of law, therefore, does not arise for this House to decide. If this House decides on the point of fact the law is there.

Mr. McGILLIGAN

I shall answer the Deputy in this way. The law is clear. If one is satisfied that there was an undischarged bankrupt who presented himself for election, it is quite clear that he was incapable of election.

Mr. MacENTEE

Is it the function of this House to determine points of law?

Mr. McGILLIGAN

It is not the function of this House to determine points of ordinary law, but this is a point of law which cannot be determined by a court. It is a point which affects the filling of this House.

Mr. MacENTEE

Is it the contention of the Minister that the courts have no jurisdiction so far as offences against the electoral law are concerned?

Mr. McGILLIGAN

No; that is the same piece of folly of which Deputy Flinn was guilty. No one has suggested that the courts have no jurisdiction in regard to the electoral law. I say that in this particular case, this exceptional and unusual case, in the present circumstances, after the lapse of twenty-one days the courts have no control over it.

Mr. FLINN

I am distinctly interested in this question. Is it suggested that there is no means by which it can be determined whether in an election such as this, in which eight people were supposed to be elected, and in which it is contended that one candidate was ineligible, there is to be an election for the whole constituency, or whether there is to be an election for one seat only? Is there any means of determining that in law?

Mr. McGILLIGAN

That is a matter that will have to be argued in the House. If the Deputy thinks there is an appeal to the court on that point——

Mr. FLINN

I am not arguing that.

Mr. McGILLIGAN

I am putting the answer by way of hypothesis. If the Deputy thinks there is an appeal to the courts on that would he tell us how he would phrase his appeal—what manner of writ or appeal he would adopt. How would he get the decision of a court?

Mr. FLINN

My point is that difficulties of that kind have arisen, and under the electoral law, as we have it, there is apparently no court to which we can go for appeal, and there is nothing in the Act which would enable laymen like ourselves to decide.

Mr. McGILLIGAN

Within twenty-one days after the election these matters could have been raised by petition, and we are faced with this peculiar and unusual case, and the House is faced with the problem that it has to determine its own membership. It passed a law as to what its composition would be and it must face what I think is clearly a breach of the law. It has to determine how that breach is to be amended. There is an obvious way. The amendment as well as the motion implies that if there is a vacancy declared the proper attitude is to issue a writ.

Mr. FLINN

The point I am putting is whether there are eight vacancies and whether this House has any means of deciding whether there are eight vacancies or one vacancy.

Mr. McGILLIGAN

Quite clearly there were seven people validly and legally elected, and there has been no argument put up against their election.

Mr. FLINN

But there were three other candidates who were not declared to have been returned. Is there any means by which a court can decide or any other way by which it can be decided whether, say, "X" or the next candidate on the list should not be returned or whether all the votes should not be re-counted. Is there any machinery by which that can be decided apart from a vote here?

Mr. McGILLIGAN

If a defeated candidate thought he had a right to a seat which in his opinion was filled by an ineligible person he had a right, within twenty-one days, to petition, and the matter could have been determined. Such persons must now suffer for their own negligence. Deputy Little said that all parties are estopped by their negligence. All aggrieved parties who could have taken steps within twenty-one days and did not are estopped by their negligence, but nobody is estopped except those whose only method was to approach the courts by way of petition. This House has a right to say what its membership should be. It is put to the House that there is a gap in its membership and the way to fill it is by issuing a Writ.

Dr. WARD

The Minister is arguing that the judgment of the Returning Officer is the judgment of the courts. The Returning Officer's act was a definite one in relation to the election. There was no special judgment of the courts on this and there is no comparison.

Mr. McGILLIGAN

Would the Deputy make his point more clear?

AN LEAS-CHEANN COMHAIRLE

The Deputy has already spoken, and I think the Minister should be allowed to conclude.

Mr. McGILLIGAN

I put it again. There is a point of law and a point of fact. The point of law is simple and we should leave the House to decide the points of fact. There are really two points of fact to be decided by the House. What procedure is the House to adopt to establish the facts to its satisfaction?

Mr. T.J. O'CONNELL

May I make a suggestion? So far as I know, this matter has not been referred to the Committee of the House which deals with such matters, namely, the Committee on Privileges and Procedure. I think the whole matter should be referred to that Committee.

Mr. McGILLIGAN

What does the Deputy mean by the whole matter?

Mr. O'CONNELL

This motion.

Mr. McGILLIGAN

Does the Deputy want referred to the Committee of Privileges and Procedure a sort of legal commentary on the particular section of the Electoral Act?

Mr. O'CONNELL

Yes.

Mr. McGILLIGAN

Then I think it should not be referred to that Committee.

Mr. J.X. MURPHY

Supposing a Writ is issued and Mr. Larkin presents himself for election again and there is only one other candidate, if Mr. Larkin gets a majority and the other candidate does not proceed against him, what happens?

Mr. McGILLIGAN

He is incapable of being elected.

Mr. J.X. MURPHY

The Returning Officer would, I presume, accept his nomination as on the last occasion.

Mr. McGILLIGAN

He would have to.

Mr. J.X. MURPHY

Then if he gets a majority of votes he would be in the same position as now?

Mr. McGILLIGAN

Mr. Larkin is eligible as a candidate to be elected— eligible for nomination but incapable of being elected. It is a fine distinction, but it is there.

Mr. J.X. MURPHY

Would the other person be declared to be elected to sit in this House.

Mr. McGILLIGAN

The other person could, within twenty-one days, petition to have the seat handed over.

Mr. J.X. MURPHY

If he does not, what would happen?

Mr. McGILLIGAN

We would have the same thing again.

Mr. J.X. MURPHY

Then I suggest we are not going to settle anything.

Mr. McGILLIGAN

I think we are.

Mr. COONEY

The Parliamentary Secretary suggested that in his opinion it was not necessary to take up the time of the House on this question, but a lot of discussion has gone on since he made that suggestion, and the longer we discuss that matter the more involved it seems to become. The Minister for Industry and Commerce would have us believe that the sole motive behind the motion is to put matters right in so far as representation in this House is concerned. He wants to know why the aggrieved person did not move in the matter within 21 days after the election. Might I suggest that his Party were also interested in that election, and if they were so confident of the result of any procedure which might follow the submission of their claim, they certainly would have moved. Why did they not move in the matter? Because I believe by moving within 21 days it would have meant a re-count of the votes, and the Government are well aware what the result of that re-count would have been. It is alleged that our opposition to this motion is because we are not confident of winning the seat. That is a matter which only time could tell. The Parliamentary Secretary told us the Executive had been advised that the seat was vacant, and the main argument he submitted in favour of the motion was that Deputy Larkin did not present himself here and take his seat. That was the main argument upon which the Parliamentary Secretary based the motion.

Mr. DUGGAN

I have already denied that. It was not my main argument.

Mr. COONEY

I took a note of it at the time. When one realises that most of the Front Bench have been here for the last five years, that they were here when the Electoral Act was put through the House, and being discussed and considered, what a sad commentary on their great statesmanship and foresight that they have made absolutely no provision for any circumstances which might arise as a result of candidates who are not eligible presenting themselves for election. I should like to ask the Ministry could they prove that there are no others besides Deputy Larkin ineligible for membership of this Assembly, and were any steps taken to ascertain the eligibility of any of the candidates in the last election? The Electoral Act, so far as I can learn, made no provision for that. I know, and most of us know, that the Returning Officer, Mr. Sherlock, took legal advice with reference to Mr. Larkin's nomination, and he stated in the public Press that Mr. Larkin's nomination was quite in order. Mr. Larkin complied with the conditions set forth in the Electoral Act, and he was duly declared elected. I was present in Pearse Street Library when the Returning Officer said: "I have to declare the following candidates duly elected to represent the constituency of North Dublin." There were three returned on the first count, and one was Deputy Larkin. Mr. Sherlock had legal opinion, and his declaration and the declaration made here by the Clerk of the House have now been found to be contrary to the law. They have been found to be based upon false tactics on the part of one of the candidates. The Minister for Industry and Commerce would have us believe that is the reason why he asks the House to pass this motion.

I should like to submit for the consideration of the Deputies this aspect of the question, that if the motion is passed the same fate may be meted out to any of the Deputies to-morrow. What is to prevent this automatic majority from doing so? I would specially warn some of the Deputies on the Independent Benches, and particularly Deputy Alfred Byrne, because there were times in the not far-distant past when some of the Front Bench opposite seemed very anxious to get rid of Deputy Byrne. They had a very safe majority then. I remember reading in the public press that Deputy Byrne was termed a Uriah Heap. There are others along with Deputy Byrne who were not in the good graces of the Front Benchers some time ago. A situation like we are now considering might arise again in the near future. Are you going to provide a future majority of this House with this weapon of throwing out anybody they might desire to get rid of? That is a serious matter for consideration. I think the intelligent Deputies here, and the people of the country generally, will recognize the real motive behind this motion. What is the real motive? I submit, in the first place, that Mr. Larkin would not have been allowed to stand as a candidate were it not for the belief in the minds of the Cumann na nGaedheal Party that he would be overwhelmingly defeated; secondly, that his candidature would split the Republican vote in that constituency; and, thirdly, that his defeat would reflect itself on the industrial field and help to strengthen the exploiting classes of this country. That was the real reason why Mr. Larkin was allowed to stand as a candidate.

Certain measures could have been found to meet the case if he was legally ineligible. Surely there must be some method by which steps could have been taken to prevent his nomination, or are we to have another situation like what Deputy Murphy suggests occurring again? If the motion is carried, a writ issued, and Mr. Larkin presents himself again—he is eligible for nomination—and is elected, how long is this sort of thing to continue before it will be stopped? We have heard a good deal about law. The Front Bench opposite is well versed in law as we understand it in this country. They can quote law probably more eloquently than most of us on this side of the House, and they can quote it better than they observed it in the past. They may furnish all the legal arguments that subtle minds can bring forth, but I suggest the common people of the country will understand the true position. They will know that this great Government of ours which boasted of the last man and the last shilling are afraid of the personality of one man.

AN CEANN COMHAIRLE

resumed the Chair.

Mr. COONEY

They are afraid to allow this man to take his seat here, a man who was elected by the common people and represents more truly the aspirations of the people of this country than any Deputy sitting on the Government benches. Apart from the injustice of it, it is a stupid line of action to take. Larkin, inside this House, could have been kept from the people. The Press could have misrepresented him and could have withheld his statements on the various matters under discussion.

Mr. HOGAN (Minister for Agriculture)

Generally, he could be found out.

Mr. DAVIN

He should have come in, anyway.

Mr. COONEY

Found out through the "Irish Independent," perhaps. We have found a lot of things out through that source. Larkin outside the House will be a more powerful force. He will be a rallying centre for all manner of discontent. I think it should be obvious that this motion is not only autocratic, but stupid. We have heard a lot of talk about constitutionalism. Ministers sitting opposite sanctioned the execution of men in this country, declaring that it was in defence of the Constitution. What a mockery you have made of your Constitution here to-night. Constitutional law will soon become a joke in this country. Given a little more time and with a little more of the ray of criticism which has been thrown on the front benches during the last few months, constitutional law, as the Ministers understand it and wish it to be understood, will have become a joke. When that day comes those who stand for that form of constitutional law in this country had need beware. This Assembly is only a strong organ of authority as long as the people believe in it. This action of yours must inevitably undermine its authority. It will create sympathy with those who advocate abstention from the Dáil.

Now that the Ceann Comhairle has arrived I wish to make the point that to-day I incurred his censure for making repeated interruptions. It is so hard to sit here and listen to all the hypocritical pretence that is dished up to us, and it is so utterly hopeless to get up and attempt to put forth a case in defence of truth in view of the fact that we are faced with this automatic majority, that at times one feels compelled to interrupt when a glaring misrepresentation of facts is being made. Not being an experienced Parliamentary debater, I suppose I will be excused.

We are told that Mr. Larkin is a bankrupt. I have asked the question, and I think it was worth an answer, whether the Ministry can tell us if there are any other Deputies in the House bankrupts. No steps were taken, as far as I was concerned at any rate, to ascertain my eligibility in that respect. There is one thing certain, when speaking of bankruptcy, that the Minister has proved itself to be bankrupt in statesmanship and bankrupt in honesty.

Mr. O'CONNELL

Declare a vacancy.

Mr. COONEY

It is very wealthy in hypocrisy.

Mr. McGILLIGAN

And perorations.

Mr. COONEY

Yes, perorations. Mr. Larkin would not have been disqualified if he were one of those who had the privilege of hunting with the Kilkenny Hounds or running with the Cork hares. He is a man who is out for the freedom of the people, but men like him do not count in this country now—that is, the people who made the revolution. He was one of them, and was an intimate colleague and comrade of the father of the revolution, Jim Connolly.

Mr. MORRISSEY

He ran away from it.

Mr. COONEY

He was one of those who made possible the situation that now exists, and made it possible for Ministers to occupy their present positions. The appreciation which is shown to this man is to take your present line of action. If this motion is passed you can be certain that it will have repercussions which the Ministry least expect. This case of bankruptcy, if it ever arose, arose out of a political dispute, a dispute which was partly political and partly inter-trades union.

AN CEANN COMHAIRLE

The Deputy is now getting very far away from the point.

Mr. COONEY

The Minister said it was a question of fact as to whether the man was bankrupt or not. There is the second point as to whether this particular man, who, we are told, is a bankrupt, is the man in question. There was a case of bankruptcy in which a Mr. Larkin was involved. It was not an ordinary case, the case of a person refusing to pay what one would term just debts. It was a law case, and I submit that any man who can get out of paying lawyers in this country should get some better title than that of bankrupt. I have nothing further to say. I hope, as the Minister for Industry and Commerce assured us, that the Whips will be taken off for the division. If they are, then surely any man of intelligence will vote in favour of the amendment. The motion has been conceived in a state of panic and fear like a lot of other legislative measures which have been brought in here. I have reason for saying fear. By passing the amendment we can get over the difficulty which the Minister for Industry and Commerce submitted was the main difficulty in connection with the amendment, that is the constitution of the court and the method by which we could proceed in bringing the case before that court. If the House is prepared to treat this matter seriously it should pass the amendment. If it is not, then you are going to set up a precedent which will certainly be a very dangerous one. It is a very grave matter. I was surprised to hear the Parliamentary Secretary suggest that the House should pass the motion without giving any lengthy consideration to it. I hope that will not occur and that the House will pass the amendment.

Mr. O'CONNELL

Would I be in order, a Chinn Comhairle, in moving an amendment now? In your absence a suggestion was made, as I understood it, to the effect that the Minister would be prepared to consider favourably the referring of this matter to the Committee on Procedure and Privileges.

Mr. McGILLIGAN

Not this matter, but certain points. The suggestion was that certain points of fact might be referred for determination to the Committee on Procedure and Privileges, the Committee to report back to the House.

Mr. MacENTEE

And that the motion be not proceeded with meantime.

Major COOPER

If a member of his Party were to move the adjournment of the debate now, Deputy O'Connell could formulate his amendment in the meantime and submit it on the resumption.

AN CEANN COMHAIRLE

If the suggestion be that some matters arising out of the motion be referred to the Committee on Procedure and Privileges the obvious course is to adjourn the debate now until to-morrow, and in the meantime frame terms of reference for the Committee on Procedure and Privileges which would meet with agreement. By agreement, either a substantive motion or some form of amendment could presumably be moved. At this stage I would not like to accept from Deputy O'Connell any form of words, because it might only lead to a rather useless debate. If a form of words could be got by agreement, then the question of procedure can be easily got over. There will be no difficulty in arranging for that. Perhaps in the interval, between this and the resumption of the debate, Deputy O'Connell and the Minister would consult with me as to the form the amendment should take. If the matter was referred to the Committee on Procedure and Privileges, I presume that the motion and the amendment would remain on the Order Paper until the report was made, and that when the report was made the debate would be resumed.

Mr. DAVIN

I move the adjournment of the debate.

Mr. MacENTEE

It was mentioned, a Chinn Comhairle, in your absence that a certificate of bankruptcy had been furnished to you by the Minister for Justice.

AN CEANN COMHAIRLE

No.

Mr. MacENTEE

You at least were aware of it.

Mr. McGILLIGAN

It was furnished by the Court.

AN CEANN COMHAIRLE

To whom?

Mr. MacENTEE

To the Ceann Comhairle; it was said that you were aware of the fact. I think if that is the case that it is rather extraordinary that you did not acquaint the House of that fact.

Mr. McGILLIGAN

A vote of censure on the Ceann Comhairle.

Mr. MacENTEE

And there is another point that is worth elucidating.

AN CEANN COMHAIRLE

If the Deputy is entering on censure of the Ceann Comhairle, he cannot do it in this way. I did not hear what was said on the subject of a certificate of bankruptcy at all. But the Clerk has in his possession, that is, in my possession, a certificate of bankruptcy for a Mr. James Larkin. We got that certificate in the course of certain investigations which, it seemed to me, the carrying out of my functions necessitated my making, but it was not for the House. No question had arisen which would necessitate presenting that document to the House, because no action arose on it of any kind. I would like to hear exactly what was said.

Mr. MacENTEE

I would like to know whether it was at the instance of the Minister for Justice this certificate was procured for you or served upon you?

AN CEANN COMHAIRLE

No, what I think I said was that I procured the certificate myself.

Mr. MacENTEE

Of your own volition?

AN CEANN COMHAIRLE

For my own purposes.

Mr. MacENTEE

That raises another point. I take it that you act in all matters for the House?

AN CEANN COMHAIRLE

Yes.

Mr. MacENTEE

It was stated here by the Minister for Industry and Commerce that none of the parties aggrieved moved in this matter within the statutory 21 days. If a candidate is declared elected who is, in fact, disqualified from being elected, and if his name is returned to you in accordance with the statute, and you have some reason to believe that he is disqualified, I put it to you that the duty devolves upon you of initiating proceedings in this matter within the statutory period so that a case like this, where a question of fact is involved, might be threshed out by the proper tribunal.

AN CEANN COMHAIRLE

I have no functions with regard to election— none whatever. It is a matter for my own consideration in a certain set of circumstances whether I have functions with regard to whether a person is or is not qualified to sit in the Dáil. That is the particular aspect of the matter that concerns me. However, I do not propose to go into that. I am not concerned with the election, that is to say that the Ceann Comhairle of Dáil Eireann is not concerned with the election or not concerned with taking proceedings in any action arising out of an election, or for the purpose of proving what happened at an election. The debate is adjourned until to-morrow. Before to-morrow there will be some question of referring some matters to the Committee on Procedure and Privileges.

Mr. LITTLE

Arising out of your answer to Deputy MacEntee——

AN CEANN COMHAIRLE

I do not propose to submit to cross-examination by Deputies. I am quite clear that Deputies would not have progressed any distance even if they had proved something to their own satisfaction. If this matter is going to be debated from the point of view that the Ceann Comharle has done something wrong, the only way that can be raised is by a substantive motion. There is no such motion before the House.

Mr. MacENTEE

I was not approaching the matter from the point of view that you had done something wrong, but simply because certain things had not been done and that we were estopped from proceeding further.