The following amendment in my name is on the order Paper:—
To delete all words after the word "That" and substitute the words "the question of granting leave for the presentation of a petition, purporting to be prepared in accordance with Article 48 of the Constitution, be not further considered until the Oireachtas has prescribed the procedure to be adopted for the presentation of the petitions contemplated in Article 48 of the Constitution."
I daresay I am not giving you, sir, or perhaps any Deputy in the House, any information when I say that I was extremely interested when I saw Deputy de Valera's motion on the paper. I saw, of course, that the motion introduced many difficulties, and, no doubt, there were many others that I did not perceive. As to which difficulties we should come up directly against, I could not foresee at the time. As the debate proceeded, I saw more clearly many of those difficulties. I think it was only when I heard of the amendment that the Labour Party had thought of submitting to the House, and heard the terms of that amendment, that I began, as I thought, to see clearly the way in which the House ought to proceed. The reason why I thought I clearly saw the right course, I hope to give a little later.
I would like, with the permission of the House, if I can, to try to follow my own lines of thought throughout the whole debate. Deputy O'Connell stated. I thought in an exceedingly admirable way, my thoughts in connection at first with this subject. With much of what he said I found myself in complete agreement. My first impression, in fact, was that this motion indicated a wish and an intention to proceed on constitutional lines and in a constitutional way. With Deputy O'Connell I, as a supporter of constitutional government, am strongly of opinion that constitutional action, when taken in constitutional way, should be supported, and must be supported, by all who support constitutional government at all. So long as that action is taken under an Article of the Constitution and is taken in a constitutional manner, it seems to me it must command support, and so far I am in entire agreement with Deputy O'Connell. But I do not think that I have heard put forward by any of the speakers on this motion any contrary view. So far as I have heard the opinions of the Independents expressed, Deputies with whom I am, perhaps, most in contact, it seemed to me that in this connection the position could be clearly stated in very few words; that so long as Article 48 is an Article of the Constitution, a constitutional operation of that Article cannot with reason be opposed by all who support constitutional government. But again I say that I do not think I have heard that proposition contested by any of the speakers on this motion. I think it ought to be regarded by all parts of the House as incontrovertible. Perhaps in stating the matter thus, I lay more stress on the words "constitutional operation" than has been formerly laid by previous speakers, and perhaps more than would be laid by various members of the House, even by some Independents. It seems to me, however, that such operations of the Article must be in all their points constitutional. It must carry out the express action that is laid down in that Article; it must carry it out in the method indicated in that Article and by the steps indicated by that Article.
I think it was here that I began to diverge from Deputy O'Connell. I do not think in a matter of this kind that we can pick and choose between what is important in the Constitution and what is not important. If we wish to attempt to do a thing we have to do it constitutionally if it is under the Constitution, and to adopt a constitutional method of doing it, and constitutional steps for doing it. In legal matters technical procedure is important. If we depart from it we open the door to difficulties and dangers, and I cannot, with Deputy Lemass, be partly or slightly constitutional. I think when once we depart from the constitutional line we become unconstitutional, and I do not think it is possible in such matters to say that one thing is important and that another is unimportant.
The House will bear with me when I ask them to follow my analysis of Article 48. I take four leading points in it. The first sentence I regard as important though the time for its operation has elapsed. It is important because it gives a clear definition of what the Initiative is intended for. It is the initiation by the people of proposals for laws—I put in the word "proposals" for clearness—or proposals for constitutional amendments. If I were trying to make a case, which I hope I shall never have to do, before lawyers, I might be disposed to argue about the phrase "constitutional amendments." I do not wish to make any point of it here. I am willing to take that in the way I think it is taken by the proposer of the motion. I take it to mean amendments of the Constitution. It then refers to the initiation by the people of proposals for laws or proposals for amendments of the Constitution. That is all that I gain from the first sentence—the definition of what is meant by the Initiative. Then I come to what I regard as the second point in the Article, and that is the petition. I want Deputies to be absolutely clear as to what is meant by the petition. "Should the Oireachtas fail to make such provision within two years, it shall on the petition of not less than ..." formulate provisions for the Initiative or submit the question by means of a Referendum to the people. The petition is merely to compel the Oireachtas to formulate proposals for the carrying out of the Initiative, or to take the other alternative—consult the people about it. The petition refers to nothing else. It is simply a petition for the formulation of provisions by which the Initiative can be worked, and if the Oireachtas does not choose to formulate those provisions it must take, as I understand the Article, the opinion of the people by means of a Referendum as to whether or not they wish the Initiative to be introduced. I think it is a very important point. The petition is only a petition to set that going.
Then we come to what I regard as the third point in the Article. That is, after the petition has been presented, the Oireachtas either does make such provisions for the working of the Initiative or it takes a Referendum of the people on the matter.
It is only then, after that has been determined—we will suppose determined in favour of the Initiative—then and only then does the question arise of proposals for legislation which are not important for us to-day. Looking at Deputy de Valera's motion, it seems to me that he has slurred over the various distinctions which I have tried to make clear as appearing, to my mind, to be contained in that Article; and that he has in this motion more or less merged together all the different steps which are indicated in that Article, even to the extent of specifying one particular proposal for the amendment of the Constitution, which I take it he hopes to introduce by means of this Initiative. I think it is that which has led to what it seems to me to be a great deal of confusion in the debate that followed. I do not think it is any wonder. In such a matter the only hope of proceeding properly is to proceed step by step. The fact that all these things are more or less brought together in this motion would seem to me to be largely responsible for the diversity of opinion which has been expressed about this motion from the various sides of the House. To such an extent was that the case that I think —and I hope I am not misunderstanding him—that one Deputy went the length of thinking that if the motion were passed, the Oireachtas would not only be bound to formulate a provision for the carrying out of the Initiative, but that the Initiative could be at once applied by bringing forward a particular amendment which was indicated not in the motion, but in the speech of the proposer.
It was only when the motion was itself followed by the speech explanatory of it and the debate that followed, that the different points were raised and brought home to my mind. As you said, sir, after the speech in which the motion was introduced, a general discussion became inevitable. Different points were raised, and though I hope to base my case for the amendment on a very much more restricted line of argument, I hope the House will bear with me if I make a few remarks about the general points that have been raised in that discussion. I do not think I could very easily avoid it. The first point definitely to my mind that arose was, I think, a legal point. As such I do not presume, as a layman, to think that I am offering an opinion of any value. I can only state my own opinion as it seemed to be brought home to myself. It seemed to me perfectly clear that the petition considered in the Article is merely a petition that the Oireachtas shall formulate provisions; for this petition, as explained by Deputy de Valera, is a complicated petition. It included that provision, but it included more, and it is a legal question as to whether the inclusion of more did or did not vitiate the whole thing. To my mind—I may be wrong —the argument that many of the signatures to the petition might have been obtained, might have been put to that petition, because the signatory wanted a particular amendment that Deputy de Valera wanted, and wanted it very badly, and therefore signed quite independent of what he thought about the formulation of the provisions altogether; that that argument was sufficient, and would be sufficient in a court of law, to vitiate the whole petition. That is only my opinion. I do not pretend that it can be of any value at all to anybody else, but I give it as my opinion. I have often told the House that I make no claim in matters of law to be anything but a mere layman.
But the next difficulty was a still larger difficulty. It was a difficulty as to whether it was possible to make use of an Article of the Constitution practically to subvert the Constitution; to introduce, as I think I had better call it, directly to introduce under an Article of the Constitution, an anti-Treaty amendment. Now, that is the big difficulty which has been raised by this motion of Deputy de Valera's. It immediately raises the question: What is the Constitution? The Constitution consists of a series of Articles given in certain pages of the book I have before me here. Those Articles are a schedule to an Act, the first schedule to an Act, and those Articles only have validity because of that Act. They are given validity by Section 1 of the Constitution Act, and they are limited and controlled by Section 2 of that same Act. It is impossible to consider the Constitution as having validity at all apart from the Constitution Act, which gives it force.
It may be for academic purposes an excellent study in Irish and English literature, or how to pass from one to the other. But apart from the Constitution Act, the Constitution as specified in these pages of this Book in my hand has no meaning at all and no force at all. It is impossible to consider it apart. It has validity because of Section 1 of that Act, and it is limited and controlled by Section 2 of that Act, and Section 2 of that Act specifically states that "if any provision of the said Constitution, or if any amendment thereof, or of any law made thereunder, is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy, be absolutely void and inoperative.
Now how under any Article of the Constitution which takes its force under that Act and which is controlled by that section could it be possible to introduce an amendment to that Constitution which is repugnant to the Constitution? Or, putting the difficulty in another way, even if that amendment of the Constitution were carried by the Referendum, how can that amendment to the Constitution have any force whatever in view of the fact that it is controlled by that Section 2, which states that, in so far as it is contrary to the Treaty, it is void and inoperative? It seems to me to be perfectly clear that under the Constitution, by an Article of the Constitution, it would be utterly impossible to go contrary to the Treaty, or to break up the Constitution itself, which is what going contrary to it would do.
I would suggest that if the Oireachtas were to set about the formulation of proposals for the Initiative it would be bound in the formulation to make such provisions as would make it impossible to introduce under the Initiative any amendment which would be contrary to the terms of the Treaty. I suggest that the formulation of those provisions necessarily involves the setting up of some scheme, some method, some plan, by which proposed amendments to the Constitution would have to be tested and sifted, whether it were done by the Judiciary or any other way that may be thought of. Some such sifting would be necessary in order to prevent the Initiative being set in motion to introduce an anti-Treaty amendment. Whether that could be done is quite another matter, but it seems to me to be absolutely clear that those who want to bring about a change in the Treaty could not hope to proceed by means of the Initiative—that the only way in which such a change could be introduced would be by the direct method, by attacking the Treaty through the Government, by an Act of the Oireachtas declaring that we are no longer going to be bound by the terms of the Treaty.
May I digress for a moment at the risk of being out of order, at the risk of speaking absolutely in vain? May I appeal—and I wish that I could speak not as a plain matter-of-fact speaker, but with the eloquence which many Deputies have at their command—not alone to Deputies, but, in so far as my words are reported, to the country, for a cessation for a time at least of this anti-Treaty agitation. It is true no doubt—I put the best interpretation on it—that that will mean for many the holding up of the fulfilment of ideals that they hold dear, but, if so, did not the acceptance of the Treaty mean for many the giving up of their views, their hopes, their ideals, too, and they sacrificed those in order that they might join with the majority of their countrymen in the hope that a measure of unity might be attained and that all together might work to bring peace and prosperity to the country. I think those who made sacrifices, and they were sacrifices, have loyally attempted to carry out what they set out to do. They have co-operated, they have done all that in them lay to make that cooperation effective, and to support all attempts to bring prosperity and peace to the country.