Two amendments have been submitted to Section 1 of the Bill, and these amendments are on the papers supplied to Deputies to-day. I am allowing amendment No. 1, but I am not allowing amendment No. 2.
In Committee on Finance. - Constitution (Removal of Oath) Bill, 1932—Committee Stage.
Will the Ceann Comhairle kindly state the grounds upon which he is disallowing amendment No. 2?
To my mind, the amendment is not in order since it introduces matter not contemplated in the Bill as read a Second Time.
May I submit that the main import and contention in the amendment is to modify the manner of the removal of the Oath and thereby mitigate the material consequences? In view of that fact I will ask the Ceann Comhairle to reconsider his decision.
An amendment by modification is one of the regular amendments, but this modification introduces extraneous matter, and outside considerations such as were mentioned by the Deputy could not be taken into account by the Chair.
The Constitution shall be and is hereby amended as follows, that is to say:—
(a) by the deletion of Article 17 thereof; and
(b) by the deletion of the words, "and shall comply with the provisions of Article 17 of this Constitution" now contained in Article 55 thereof.
On behalf of Deputy McGilligan I move:—
In paragraph (a) to delete the words "of Article 17 thereof" and before the word "and" line 27 to insert the words "in Article 17 thereof of all words in the last paragraph beginning with the words ‘Such Oath shall be taken and subscribed' and ending with the words ‘authorised by him'".
This amendment may recall to Deputies the debate which took place in the Dáil on the adoption of the Constitution, when an amendment was put forward to the same effect and was rejected. We are not putting forward this amendment, because we desire to do what is proposed in the amendment, but the principle of the Bill having been accepted, and the contention of the Government being that what they propose to do is not a contravention of the Treaty, we propose that the words of the Treaty stand in the Constitution. If the contention of the President is correct, or can be shown to be correct, that in existing circumstances it is not obligatory by reason of anything in the Constitution that a Deputy should take the Oath, then the Government has gained its object and for all practical purposes the Oath is removed. If, on the other hand, the Oath remains obligatory on Deputies, even if there are no words in the Constitution but the words of the Treaty, then the object we have in view, that there should be no breach of the Treaty, is secured. I think the House should give very serious consideration to the idea behind this amendment. It is, perhaps, true that we do not want to have our courts here giving a one-sided interpretation of the Treaty. On the other hand, I think it is very desirable that the opportunity should still be given for discussion as to whether or not this particular Oath is obligatory. I think there are very few Deputies who will dispute that at one time this Oath was obligatory. I think there will be few to dispute that at one time if particular words of the Treaty had been simply inserted in the Constitution everybody would have regarded the Oath as obligatory. Whether it is or is not now obligatory really depends—taking the view put forward by the Government—on whether or not the growth that has taken place in status has made a change.
There are great and sound reasons why no violent dispute should be allowed to arise with the other parties to the Treaty in regard to this matter. If Deputies want to get rid of the obligation to take the oath they should be satisfied to get rid of it, and they should not insist on getting rid of it in a way that is likely to cause friction. I think it is necessary in the national interests that whatever is to be done in this respect should be done in an amicable way. Assuming that Deputies are determined to get rid of this Oath at once, but, as they have indicated, have not made up their minds to scrap the Treaty, then they ought to leave the way open for further negotiations and for persuasion of the people on the other side of the Treaty settlement. The people of this country and the people of Great Britain have to do business together in the future. They have, because of their geographical propinquity, in a sense, to live together. There is, undoubtedly, an entirely new situation as compared with the historical situation which existed up to the time of the Treaty. Whatever one may think of the Treaty, it opened up an entirely new chapter in the relations of the two peoples. It was not a case any more of one side being beaten and having to yield to the other side. The military operations which were carried on did not result in driving the British out, they did not make the British position here untenable, and they did not exhaust British resources. They did no more than to bring the British people to the desire to negotiate. When these negotiations took place the surrender in fact, the yielding in fact, was all on the British side, and anything that was surrendered on our side was not practical, but purely theoretical and suppositional. Therefore, that brought about a new chapter between the two countries, and what we desire is that that new chapter should not be brought to an end by any sort of unilateral action on our part, that we should not merely not break the Treaty, but, if we can avoid it, we should not make it possible for a charge of a breach of the Treaty being made against us.
Assuming that the Government are determined on a certain line of action, I suggest that their duty and their obligation is to pursue their object by means which will secure the best possible relations between the people of this country and the people of Great Britain. The principle of the Bill having been accepted by the House, we suggest that, at present, they should take out of the Constitution the specific words which were added, and which were not in the Treaty, and leave the Treaty words stand as part of the Constitution. It would follow naturally from that, that the Constitution being amended in this way, they should enter into negotiations with the people who were parties to the Treaty as well as ourselves, and endeavour to arrive at an agreed interpretation of the Treaty. It was frequently asserted by opponents of the Treaty during the Treaty debates that there ought to be an agreed interpretation, that a Treaty was a document for settling differences, and in the spirit that should animate the relations of the people of the two countries, there ought to be an attempt to arrive, on every occasion on which differences arise, at agreement as to the interpretation of the Treaty. If that view is taken each side would put its views and its arguments in direct negotiation with the other side, with a view to convincing them, if possible. Such discussion should not be carried on in the heated atmosphere which is liable to arise if the particular line of action so far indicated by the Government is taken. Everybody can understand that it is extremely difficult for tempers to be preserved, and for hasty and irritating language to be avoided, if a discussion of the sort that ought to take place is carried on, either by means of long range correspondence or in public. We suggest that the Government, having got a vote of the Dáil in favour of the elimination of any obligation to take the Oath, and having declared that they are not anxious to break the Treaty, ought to be content to get rid of the extra words in the Constitution, ought to let the requirements of the Treaty as set out in the Treaty stand in the Constitution, and endeavour to reach an agreed interpretation of the provisions of the Treaty.
I have to resist the amendment. It seems to me to be of no value whatsoever. Leaving that portion which it is proposed to leave behind in the Constitution and taking away the effective words leaves so much unsound timber, so to speak, adhering to the Constitution. As I said in the Second Reading Debate, I propose to put the Treaty in its proper place. I am glad to see that the Opposition are beginning to realise what exactly we are proposing to do. Our action does not mean that we are acting in any way contrary to the Treaty. Whatever legal effect the words in Section 2, "given the force of law" have, we do not propose to prejudice. Accordingly, in taking the Treaty cut of the Constitution, we say that that is no place for it, that it ought to be dealt with as international treaties are dealt with and kept in its proper place. To leave portion of it there, while taking out the other portion, would be altogether contrary to the general idea.
Might I inquire what the President's conception is as to what is the proper place for the Treaty—is it the dustbin? Has the Treaty no force at all, in his view? It is legal for us—if we are going to keep to the question of strict legality—to break practically everything in the Treaty, but I would like to know what is the Government's view as to the proper place for the Treaty.
Perhaps it would be just as well to explain that before we go any farther. I have already indicated, as clearly as I could, when I addressed myself to this question— those who were talking about honour and the breaking of treaties and all the rest, had their ears closed to anything like commonsense or argument—that the Treaty remains as it was, that we are not proposing, in the present Bill, to interfere with whatever validity the Treaty may have. We are simply taking out of the Constitution matter which ought not to be in our Constitution at all and matter which we are at liberty to take out of it at the present time.
I appreciate that. What I would like to know is whether the Government considers the Treaty has any validity and, if so, just what that validity amounts to.
I am not called upon to decide that question. We are not dealing with that. We are simply putting the Treaty in its place. What that place is and what its effect may be is another question altogether. My contention is that in this Bill we are not dealing with it, good, bad or indifferent. We are not interfering with whatever effect the Treaty has at the moment.
I would suggest that Deputy MacDermot might leave that to the English side to ask.
The President seems to have gone on the assumption, not merely in his answer to Deputies Blythe and MacDermot, but in a great portion of the two speeches he delivered here, that the only Articles of the Treaty which have any binding effect whatsoever are those from Article 4 onwards. If there is anything in his contention, surely anybody reading the Treaty must see that what applies to the later Articles must apply to the Articles up to 4. Anybody reading the Treaty will see that, like many other international Treaties, it may have constitutional effect, and that, in fact, Articles 1, 2, 3 and 4 must affect the Constitution of this State. That is what the President has ignored in the arguments he put before the House. He assumes, as he says, that we can relegate this Treaty to its proper place. Its proper place, so far as the first four Articles are concerned, is precisely in the Constitution. They were meant to have, and have no other purpose than, constitutional effect. Otherwise, they were quite meaningless. Seeing that, apart from the Article on partition and the Article on defence, it was on these particular Articles most of the trouble took place during the negotiations, and seeing that it was on these particular Articles most of the trouble at home took place, I suggest that it is absurd now to come along and say that these Articles can be treated as if they did not exist, which is precisely what the President proposes to do.
The other Articles, to follow the President's idea, may be binding as between the two countries even if they are not binding in our domestic law, but what I think Deputy MacDermot wants, and what Deputies on this side of the House want, is to be informed how there can be any force in Articles 1, 2, 3 and 4 unless they get into our Constitution—unless we make them portion of our domestic law. If we do not do that, we are nullifying them. The President has not got even the remotest idea of the case he is up against. He speaks of putting the Treaty in its proper place. I put the question before—why did he leave the Treaty still scheduled as portion of the Constitution? It is still scheduled. Is there any other treaty so dealt with? The President told us the last day and to-day that he wants to treat this Treaty like any other treaty. Is there any other treaty scheduled? It is quite obvious that this is a purely secondary argument, thought out after the event —that the first thing was to get rid of the Oath and then to back that up with any argument that could be got. The contention that he wants to treat this like any other treaty is not borne out by the form of the Bill itself. The President has not even made an attempt to answer the case which has been put up. So far as Articles 1 to 4 are concerned, the Treaty can only be made operative if account is taken of them in the Constitution. There is no other way by which they can become operative. However pious your intentions may be about observing a treaty in the letter and in the spirit, if you make a treaty and then proceed to make four clauses of it inoperative, nobody can say—whether we like it or not—that you are doing anything else but breaking it.
I am afraid that it is the Deputy who has just spoken who has no conception whatever of the real position. Articles 1 to 4 indicated the starting-off point of the Free State. They gave us a starting-point. We progressed from that, and they are given effect to to-day in the position of the Free State in the British Commonwealth of Nations where, as a co-equal member, we are entitled to make any changes we like in our Constitution, and whatever force there is in the other Articles of Agreement between ourselves and Britain remains untouched. That is the case that I have been making from the start, but apparently Deputy O'Sullivan has not yet got it into his head.
I must entirely disagree with the President when he says that these Articles indicate our starting off point. That is right, but to a point that may be very easily misunderstood. If you are going to say that they indicate a static position at that time, then that is a thing that we must resist completely. The first Article indicates that we have the same position with regard to the British Government as the Dominions had, and all the assertions that the President is now making are merely by virtue of the fact that that position, which was not a static position but one which moved from time to time, still exists. Therefore, his attempt to say that these things are relegated out of existence altogether; all he is claiming for the country at the moment, is due entirely to the fact that those Articles are there. If those articles are not there, then his whole argument, if I can dignify it with the name of argument, falls to the ground. His argument is based entirely on the existence of the arrangement between this country and Great Britain which was made at that time: an arrangement that was not at any moment fixed. It was defined merely by analogy: that the position would be modified by Constitutional usage and by the various agreements made at Imperial Conferences.
The argument of the President seems to me to be rather burking the issue. Here is the proposal: that an Article of the Treaty, exactly as it is, with whatever implications it may have, may remain in the Constitution. The President gets up and says that this is a most unheard of, a most rare thing for an international treaty to be incorporated in a Constitution. I do not propose to discuss whether that is so or not, but there is one thing that is absolutely general and universal, and that is that certain parts of treaties, which require to be made a domestic or a municipal law, must necessarily be incorporated into the legislation of a country. I quite admit that of the thousands of treaties that exist in the world very few of them are incorporatedin toto in legislation, but on the other hand very few of them have not, to the extent of some part of their implications, to be incorporated in domestic legislation.
Take this Article 4. The President says that there is nothing mandatory about it. We contest that. But whether he is right or whether we are right it is evident that Article 4 of the Treaty had something to do with an Oath and had something to do with the members of the Parliament of the Irish Free State. Consequently it had something to do with our internal affairs and, without in any way attempting to decide the question as to what exactly it did mean, it is evident, and I think this cannot be contested, that here, at any rate, is a specific Article devoted entirely to one point. That point relates to membership of this Parliament. You have there an international agreement in which something was undertaken. It meant something, at any rate, and had relation to our internal affairs. As I have said, if you make a treaty whereby you agree to put, say, a high tariff on certain countries and no tariff on others, you must necessarily have that implemented by domestic legislation, because otherwise its terms could not be carried out. When the fulfilment of a treaty requires internal legislation the other party to it has a perfect right to say that that treaty has been broken unless the internal legislation that is necessary has been produced. Whatever this Article means, it means something which requires to be made operative in this country. If the Treaty, as a whole, has the force of law in this country, then it might be argued that, consequently, whatever this Article means also has the force of law.
The proposal in this amendment is that the exact words in the Treaty, without in any way attempting to construe them, be left in the Constitution; that is to say, to be left part of the municipal law of this country, because it was clearly intended that whatever they meant there must be some legislation here to make them operative. Here you dodge, if you like, the whole question as to what they mean. You fulfil the terms of the Treaty in that whatever the Article meant in the Treaty it also meant in the Constitution. If the President were to make, for instance, a proposal that I think would be entirely wrong, that this should be taken out of the Constitution, but that certain legislation should be enacted to make it operative, then that would be a thing that one might discuss; but here is a thing that we have undertaken to fulfil—the conditions of Article 4, whatever those conditions are. Nobody can contest that whatever those conditions may be, if they mean anything at all, they must have required some sort of domestic legislation, and the only domestic legislation available for them is the position as it now remains with that Article in the Constitution.
There is no proposal on the part of the President to make the words in the Article operative by any other Act. Consequently, it seems to me that if the President were honest in the assertions that he has made so far he could have no objection whatever to accepting this amendment. He has said that the Oath is not mandatory in the Treaty, that he had no intention of breaking the Treaty, that he only wanted to remove the Oath which was in no way mandatory in the Treaty from being operative in this country. Well, if the argument that he made at the time was sound, the argument he is making now is not sound. If the Oath was mandatory in the Treaty, leaving it in the Constitution will leave it mandatory here also. The President gave his pledges, whatever they may be worth, to the country that he did not propose to break the Treaty. He assures us that the form of words in Article 4 of the Treaty, so far as I can make out from what he has said, binds us to nothing. If that is so, then he can accept this amendment and say also that he is bound to nothing. If his other statements are true, then I suggest he can have no objection to this amendment. Of course, many of us who heard his speech here on Friday night realise perfectly well that he is very happy about this Bill. He stated here fairly clearly that it was a sort of heads I win, tails you lose, arrangement; either he is going to demonstrate that he can remove the Oath or prove, as he says, that co-equality and freedom are all bosh. In either case he gains. He has saved his face and given some apparent justification for certain acts that took place in this country, and what happens to the unfortunate people of this country is apparently no concern of his. We would like, however, to have a clear statement from him as to why he refuses to accept this amendment. If the thing is not mandatory in the Treaty it will not be mandatory in the Constitution. If it is mandatory in the Treaty then, by his own words and the assurances he gave to the people of the country, it should remain mandatory in the Constitution.
If I were to attempt to consider the amendment that is proposed from the Opposition Benches favourably, Deputy Fitzgerald's speech would convince me that I was wrong, and that the amendment should be rejected. But I was never inclined to regard this amendment favourably, because, to my mind, it is confusing the issue and raising a fog. We have heard a good deal of suggestions that the President is trying to save his face. If he is, I am not sure that he is the only person in this House who is trying to save his face. To my mind, had the President and the Executive Council introduced a Bill containing Article I and Article 4 and left it at that, the position in which we find ourselves in considering this section and the amendment to-day would be very different. I do not think there is any doubt in anybody's mind as to what we ought to do. As I understand it, the case of the Government is that when Article 2 of the Treaty was written it may have contained a mandatory principle which required to be amplified and defined by Article 4, but that the moment the status of this country had developed, and had changed in the course of that development, the mandatory element in Article 2, with reference to the obligation to take an Oath had, so to speak, atrophied and disappeared, and that the definition contained in Article 4 carried nothing specifically mandatory in it at all. The reproduction of that Article in the Constitution, in an aggressively mandatory form, was not in accordance with the Treaty, was not obligatory by the Treaty, and the time has come to implement the unquestioned will of the Nationalist people of this country, and to withdraw the obligation that is at present being imposed on the elected representatives of the people to take an Oath, that some regard as perjury, and that others are driven to the rather unhappy expedient of describing as an empty formula.
Deputy Hogan, whose absence to-day acquits me of the necessity of saying a good deal I intended to say, in his rather raucous tones got up and said, on a recent occasion in this House, that anyone with a primary education ought to realise that it is not reasonable to object to the obligation to take this Oath. He misquoted me, and he implied generally that anyone who took our view, that the Oath should go out of the Constitution, was a half-baked idiot. I have always been in favour, and I still am in favour, of consolidating the ties between our people and the English people. If I had to choose between a republic and free and independent membership of the Commonwealth to-morrow, I would choose the free and independent membership of the Commonwealth, in preference to a republic, and I am convinced that one of the strongest reasons for removing this obligatory Oath from the Constitution is that it is a grave obstacle to good relations between the Irish people and the English people, which would make co-oqual membership of the Commonwealth possible, and I believe that any half measures to that end can serve no useful purpose. The only way of going about this business is the way in which the President has resolved to go about it, in so far as Section 1 is concerned, and that is to take the whole thing, holus-bolus, out of the Constitution and have done with it. The Attorney-General, speaking in this House, explained very fully the Government position, and put up what I believe will prove to be an unanswerable case that this is not a breach of the Treaty——
—that we are entitled to take the Oath out of the Constitution, and I am convinced that it is the right thing to take it out. I believe it is the right thing, because I believe this Oath is an obstacle to good relations between our people and the English people, an obstacle to the permanence of our free and unfettered membership of the Commonwealth of Nations, and because I believe it to be so I am in favour of removing it from the Constitution. There is too much talk, if I might say so, of dishonour and lack of recognition of our honourable obligations. I am a critic of nobody's ideas of what his honourable obligations are, and I have my own views as to my own honourable obligations, and nobody in this House can teach or instruct me in regard to what I should do in honour. The same, I think, holds for other members of the House, and we would do a great deal better if we addressed ourselves to the question we have under consideration, and not to our honourable obligations. We can always judge these for ourselves.
Talking of honour, what is to be said of an administration which, in the light of this, which appears at the end of Article 66 of the Constitution, providing for the supremacy of our own Supreme Court: "Provided that nothing in this Constitution shall impair the right of any person to petition his Majesty for special leave to appeal from the Supreme Court to His Majesty in Council or the right of His Majesty to grant such leave," has got up and said: "We do not give two straws for what is in that Article; nobody is going to the Privy Council, and if they do go, it will be a costly thing."? Mind you, I think there is a good deal in the attitude they took up, but if they can do that simply by passing retrospective legislation, surely to God it is more honourable to come out blunt and plain and say: "we are going to take the Oath out because we believe that we are within our Treaty rights in doing so. If anybody makes representations that it is contrary to the Treaty they can be discussed in the proper arena, but we are going ahead with it and we are doing it in no backstairs manner. We are not leaving it there because we do not believe it should be there, unlike what was sought to be done before, when it was left in and its effect nullified in each individual case that arose, by retrospective legislation." I very much prefer the course we are asked to adopt here, a course in which I unhesitatingly join, but the snag is in the title—and this, to my mind, is one of the great tragedies of the present situation, and I am afraid that part of the responsibility must be laid on the Attorney-General, whose legal advice, I understand, is largely responsible for Section 2 and 3: "An Act to remove the obligation now imposed by law on members of the Oireachtas and Ministers who are not members of the Executive Council." I want to say this, that I have not the slightest objection to taking this Oath. It does not cause me a moment's scruple, or a moment's difficulty, but I know it does cause honourable men grave scruple and difficulty. I would not make a man pass under a ladder if he had a superstition about it, and how much more should I pause before I asked a man to do what he believes is perjury? I may think him foolish or wrong, but so long as he is honestly convinced, however misguided he may be in that view, that to do something is perjury, is it not criminal that I should insist on his doing it, and hold him up to public ridicule if he will not do it. I think it is loathsome. I will not stand up when you play the "Soldiers' Song," because I detest it, and it is associated, in my mind, with horrors, and how much more loathsome is it to a man who has a deep religious scruple to have to subscribe to this Oath? I would bitterly resent it. If the Executive Council proceeded to outlaw me because I was not prepared to raise my hat to the "Soldiers' Song," and kowtow to the Tricolour, I should resent it, and these are purely political considerations. How much more carefully should I pause when it comes to asking a man to swear an Oath to what he believes to be untrue. Come now to the Second Section of the Title—
The Deputy will have an opportunity of dealing with Section 2 later on. We are on Section 1 at present.
I am referring to a section of the Title.
We are not dealing with the Title as such just now.
Is it not an essential part of this Section of the Bill, as well as any other section?
I will hear the Deputy on that.
"And for that purpose to amend the Constitution and also the Constitution of the Irish Free State." These words and their bearing on this Section seem to me to be a great tragedy, and the tragedy of this whole situation. There are a great many people who want to endorse, unqualifiedly, Section 1 of the Bill, but they will find it difficult, and they will fear misrepresentation if they act on Section 1 as they would wish to act in the anticipations of Sections 2 and 3. The Title of the Bill gives us a clue to the difficulty that will beset many people. We want to get the Oath out of the Constitution, and believe we can do it in accordance with the Treaty. The situation created by the nomenclature of this Bill gives many people to pause, and I think it will be of material assistance to us if the President will address himself, before we are called on to vote on this section, to this aspect of the matter, and to say why it was that, on a matter of great principle such as this, the Executive Council were not prepared to present a Bill consisting of Sections 1 and 4 and to have left it at that.
Before this amendment goes to a vote, may I make one more attempt to clear up what is in the minds of the Government? I regret that I, at any rate, am still confused as to their attitude. I am not confused by too much consideration of the question of honour, as the President suggested, because, in point of fact, in these debates I think I have said practically nothing about honour. The point, however, is this: Both the President and the Attorney-General laid very great stress on the question of exercising their legal rights. They said, "Every jot and tittle of our legal rights we mean to have, and as long as we confine ourselves to acting legally no one can accuse us of being immoral either."
The proposition underlying that is a very questionable one, that it is never immoral to exercise our legal rights. I have been given some hope to-day by what the President has said that I have perhaps misinterpreted their attitude. He has spoken of leaving the Treaty valid. What I want to get at is, if that has any meaning at all, are we to consider that we can go ahead and pass any law we like, no matter what its relation to the Treaty may be, and as long as we are doing something legal nobody can blame us; or are we to understand that for some purpose, to some extent, and at any rate in some of its parts, the Government regard the Treaty as having a moral binding force upon us?
I should like to get this amendment back to some narrower ground than that upon which it is being discussed. I should like to clear the way to a more concise discussion on the point, at any rate, that I have in view in this amendment. Right through the course of the debate since this Bill made its appearance there seems to me to be considerable confusion as between a power to do a thing and the right to do a thing. This House is fully empowered to do anything. As I said previously, no matter how ridiculous the thing is, it has the power—nobody can say nay to it. The question of right is entirely another matter and at that point honour does come in and just at that point. This House has the power to pass any amendment whatsoever to any Bill that has ever been brought before it and now is an Act. It has even power to pass any piece of legislation it likes completely abrogating any clause of any treaty, political or trade, or any multilateral Convention which it signed at Geneva. It definitely has power to do all these things. It has, further, this power and it has even this right, that it can by an open act repudiate all that it has done. It can repudiate any treaty it has made, either the one with the British—the original one or the successive ones—or any treaty it has made of a trade type with Germany, France or any other country. It can repudiate any Convention it has made at Geneva—repudiate or denounce, if there are ways of denouncing in the instrument itself. But what they cannot do in honour is to pretend to hang on to a part of a treaty they have signed and to get rid of these parts they do not like, without previously negotiating on the matter with the other parties to the treaty. That is one thing they have not the right to do in honour.
I am asking at the moment that the Government should, at any rate, put their cards on the table with regard to one thing, and one thing only. We have been told that there are a variety of arguments on which there is based the contention that the Oath, agreed to have been in the Treaty at some time, can now be removed from the Constitution, and I think in the background there lies in that argument, from the Treaty. One of these arguments is that the phrase is not mandatory. I am not asking at present in this amendment for a thing which I consider desirable. It is the third best. The best thing to do, to my mind, in this whole situation is to keep the Treaty. The second best thing would be to negotiate an alternative Treaty. The worst thing we could do is to break part of it and pretend we are carrying out honourable obligations. I suggest this as a third thing. Apart from Section 2 altogether, I hold, and have always held, that Section 4 is clearly mandatory in its terms; clearly mandatory both with regard to the fact that an Oath must be taken and that it must be taken in that particular form, and that is denied. I am told to-day that the Attorney-General made an unanswerable case. He made an unanswerable case certainly on one point, and that was this phrase. He said that on the question of whether the Oath was obligatory or not there were two views, and it would be silly for any lawyer to say that one interpretation was the correct one. But what meaning is being founded upon that unanswerable statement of the Attorney-General? That the Government is going to say that a particular thing is correct, and is going to advance on foot of that statement that the Attorney-General has laid down, that it would be silly for any lawyer to say that any particular interpretation was the correct one. Some of them, at any rate, have said that the words "to be taken" were not obligatory. I want to test that, and that only, and, therefore, I say, leave the phrase as it is without the clearly obligatory words that follow, and leave it in the Constitution.
I understand the argument has been made that that cannot be done because it is leaving the Treaty in the Constitution. It is not. I take on that point the argument made by Deputy Fitzgerald. It is correct to say that treaties in general do notin toto appear in the domestic law of any country. It is much more accurate to say that nearly every treaty made between any two countries appears in some form, or at least some clause of it, in the domestic legislation of both countries. We have examples of it ourselves. We have signed a trade treaty with Germany, and there had to be implementing legislation. We signed a treaty with France and there had to be implementing legislation by way of certain taxation. We have signed all sorts of multilateral conventions at Geneva, and we either have had to pass legislation, or have had, when signing the conventions, to admit that our legislation was in conformity. If we took away any of that legislation we would have to go further and denounce the convention. It is not an answer to the amendment to upraise the argument that the Treaty should not be in the Constitution. This is not putting the Treaty in the Constitution. This is taking a phrase and is putting it in the Constitution, and a phrase which has words which are declared not to be mandatory. If the Courts are going to be asked to decide upon them, as they might well be if they are in the Constitution, they are not decided upon the Treaty, but upon the simple net point, do these words “the Oath to be taken” mean that an oath must be taken?
That amendment is going to be refused simply because of the fact that certain judges might declare that these words were obligatory. What judges is this likely to come before, if it remains in the Constitution? The judges of this country. Who are the judges of this country? We have been told by the Government that two of them, sitting on the Constitution Committee, determined that the Oath was not obligatory, that the phrase used in the Treaty, this phrase which I am importing into the Constitution, was not obligatory.
If that is so, the Government then have the advantage that in any trouble with England they would come before a court biassed in their favour, two judges, according to their argument, which I do not believe, having declared the Oath was not mandatory. We give them this advantage, that they can take the case to the court and get these two judges, now sitting in a judicial position, to declare that the words are not mandatory, and, with a judgment in their hands, they are in a stronger position to deal with any British Government in this matter. There is no argument against accepting this. It shows bona fides, if there be bona fides. It gives to a biassed tribunal in favour of the argument an opportunity of deciding whether the Oath in fact is optional or not, and it does not import the Treaty into the Constitution. It takes a phrase as is often done, as is the usual thing. The only other argument I heard against it is that founded upon co-equality. I want to say right here that no argument founded upon co-equality can ever be pushed to this point, that this country, or any other which is tied by a Treaty, can do what it pleases within the terms of the treaty with its own Constitution.
If one takes a bird's-eye view of the powers in Europe, either pre-war or as they are now, there is nobody who can deny that the States in Europe were and are co-equal, and yet there is nobody but would have to say that every single one of these States in its inter-relations with the others, was bound by all sorts of restrictions; covenants and treaties, and that did not take away from their sovereign status and co-equality. A specific restriction that in the exercise of their sovereign authority people have decided to put upon themselves is not incompatible with co-equality and sovereign status. I was interested, as the debate went on, to hear Deputy Davin confine himself to one of his interjections that have been so full of meaning for the last few days, because otherwise Deputy Davin did not express any meaning as regards himself except by interjection. This particular subject came up for discussion when Deputy Davin was a member of an earlier Dáil. He spoke upon this point, and he said:—
It must be plain to everybody that the violation or alteration of any vital clause in the Treaty by one of the high contracting parties that signed would render the whole agreement null and void. Unless Deputies are prepared to face this position honestly and say that they are ready to accept the full consequences of their action, notwithstanding promises, explicit or implied, given to their constituents, they are only wasting the time of this Dáil in moving amendments which, if accepted, would leave the English free to say the Treaty was no longer in existence.
And he went further and said:
The proposal to abolish or alter the Oath at this stage is like trying to destroy the middle storey of a house after the building has been completed.
And then he went on to say:
Are Deputies so squeamish in their conception of an oath of this kind as to insist that it is going to prevent them from being better Irishmen or better citizens than if they had not taken it? If any Deputies feel that way I think they ought not to be in public life, and the sooner they retire from the Dáil to the quiet seclusion of a monastery the better.
I presume that is the reason why the Deputy is so silent quite recently— the vow of silence is upon him.
I do not quite understand what Deputy McGilligan means by drawing attention to my statement that lawyers may take two views upon a certain matter. He seemed to point to it as the only statement made in my speech that deserved any weight. He will recollect that in my speech, when I did make that reference, I also referred to a statement by him with regard to the necessity for repealing the Colonial Laws Validity Act, that there were two views on the effect of that Act, whether it affected Ireland or not, and the reason it was necessary to repeal that Act was in order to put it beyond doubt, as he put it, to coerce the judicial mind. I have endeavoured to see what exactly is the view taken by the late Government as to the meaning and effect of the Treaty. I have been led to believe by what I read in the debates of this House and have seen stated elsewhere, that whatever might be the English view as regards the position conferred on this country by the Articles of Agreement of 1921, there was certainly a definite view adopted by the late Government here and presumably by their legal advisers, to use a phrase of Deputy Fitzgerald-Kenney, that the position given by the Articles of Agreement was not static, but that it was, I think, the phrase used was, on another occasion, dynamic.
I am quite at a loss to understand why all this talk of breaking the Treaty should find such a prominent place in the speeches of the members of the late Cabinet, who must be able to appreciate, however back-benchers and others who do not appreciate, how the argument at present rests between this country and the English lawyers. If Deputy McGilligan will pardon me for saying it, there can be two legal views about any matter. There is the English view, the Thomas view, implicit in the Thomas dispatch, which I suggested the other day he should have stepped in earlier in this debate to prevent being adopted here. It is, I suggest, not consistent with the attitude he took up in such important debates as that which took place when the Statute of Westminster was being discussed here. Certainly it is not consistent to allow some of the Deputies sitting behind the Front Bench opposite, and even some of the members of the Front Bench themselves, to take up the attitude they are taking up on this matter. We can, without making one single fresh argument, find in his speeches arguments with a legal basis to justify every single line of our Bill. That was the implication in my speech the other day, and I repeat it again to-day. When Deputy McGilligan himself spoke as Minister this is how he put the status under the Articles of Agreement. On 16th July, 1931, he said:
When the Irish Free State came into existence in 1921 we happened to strike in at a definite state in the evolution of the other members of the Commonwealth. But their evolution, though politically rapid, had been slow from the point of view of the legal expression of the political facts. There was a whole hinterland of highly anomalous law to be cleared out of the way, and an elaborate system of administrative practice to be transformed or discontinued.
And he went on:
Deputies will agree with me when I say that there can be no two views on the question that when this country accepted the status of Canada in certain respects in 1921, the status of Canada then accepted was not a stereotyped legal formula.
These are our views, and it is on that basis that we introduced this Bill here. If we are wrong in that, and if it turns out that some tribunal that may consider this says that we were wrong, we have had no more earnest advocate of that position than the late Government. But the Minister went further when he said:
Therein lies the kernel of the whole Treaty position and the key to the progress that has gone on.
Has any progress gone on or have we been listening to nonsense for the last ten years? This is not the first step, it is the first open step, as Deputy Dillon put it, to assert the rights that we have been told over and over again have been conferred upon us by this document. If you accept that view there put forward, you will find that this question of honour which troubled so many has totally disappeared. Deputy McGilligan says:
Therein lies the kernel of the whole Treaty position, and the key to the progress that has gone on, I will not say at our own behest, or even always at our instance—since 1926. How well the founders of this State builded, the developments which have since taken place go to show. The task begun in 1926—the first Commonwealth Conference since the Treaty, in which we took an active part—is completed in the paragraphs written down in Part V of this Report.
That, as I said a moment ago, was what I might style as the Irish view. Do they wish to repudiate that view? Do they wish to retreat? Are they in full retreat from that position? Am I not right in saying that it is upon the basis that that view is not right that Mr. Thomas is utilising the Treaty in his despatch? That there may be two views to it finds expression in a statement made by one member in the British House of Commons about this matter. Mr. Amery, speaking on this matter, said:—
The main basis, the first clause of the Treaty of Agreement, was that the status of Ireland was that of Canada and the other Dominions. I do not know what lawyers may say as to what that meant, whether they say that it meant the status of Canada as at the date 1921 and that Irish nationhood was, as it were, put into cold storage, at the 1921 temperature.
Is that the view of the Opposition?
Not at all.
I fail to grasp their argument if it has any other meaning. He then goes on to say:
It cannot be done in practice. You must agree that Ireland, as a Dominion, should develop with the other Dominions and share the same position with them.
We have pushed it very far. This is the first time, I understand, that an effort has been made to assert the position is as the Opposition claim it to be. When during the years past, they took exception to the action of the Privy Council, as Deputy Dillon put it, and put it with great force, they went by a back-door method to do what they accuse us of doing. If this Bill is a breach of the Treaty, every Act that was passed retrospectively annulling the acts of the Privy Council was equally a breach of the Treaty. Deputy McGilligan himself announced in this House in answer to a question that he proposed to bring in a Bill to abolish appeals to the Privy Council. I suggest to him that first of all he stood exactly on a par with the action we are taking here, and that the steps to give effect to that position would be exactly the steps taken by us in this Bill. I suppose it is unnecessary for me to refer to the actual questions and answers but I have them here. On the 18th March, 1931, Mr. Lemass asked the Minister for External Affairs:
If he will state when the legislative proposals to abolish appeals to the Judicial Committee of the Privy Council will be introduced.
Minister for External Affairs (Mr. McGilligan): I refer the Deputy to the answer given to Deputy Mullins on the 11th December, 1930, to which I have nothing to add.
Mr. Lemass: Would the Minister state when it is intended to introduce the legislative proposals referred to?
Mr. McGilligan: I have nothing to add to the last reply.
Mr. Lemass: The Minister did not state when he intended to do so.
Mr. McGilligan: I did.
Mr. Lemass: When?
Mr. McGilligan: In due course.
Mr. Lemass: Will the Minister explain what is meant by the term in due course?
Mr. McGilligan: No, I cannot do that.
Mr. Lemass: Will the legislative proposals be introduced this year?
Mr. McGilligan: Oh, yes.
Mr. Lemass: Within six months?
Mr. McGilligan: I cannot answer any further.
Now if the Oath Clause is contained in these Articles of Agreement or in the Treaty surely appeal to the Privy Council is.
In the Article. Does the Deputy suggest that it is not contended that the appeal to the Privy Council is not in the Articles?
I am not talking of the Privy Council. I have made the case over and over again both here and to the British that Privy Council appeal is nowhere explicitly in our Treaty. If it is to be imported at all it is by Article II. The Oath is explicitly in the Treaty.
If that is so, I would like to know what is the meaning of the saving words just read by Deputy Dillon.
About this Constitution?
I will read them again lest their full import might have escaped the attention of Deputies opposite. They are: "Provided that nothing in this Constitution shall impair the right of any person to petition His Majesty for special leave to appeal"—impair the right. There is no Article in this creating that right. There is no explicit recognition of the right. There is only that implicit recognition of the right. If that is not an explicit reference to the Privy Council and the right of appeal to the Privy Council, in the Articles of Agreement, I should like to know what it does mean.
It is not in the Treaty.
When Deputy McGilligan proposed to introduce legislation to remove that, I suggest to him that it was necessary not alone to remove the principle but specifically to take away the right from the citizen here to go to the Privy Council, in order to make the then position of this State accord with the legal position within the Commonwealth of Nations. He talks here about "the right" and "the power." He says we have the power and that of course this Dáil has power to do any silly sort of thing. We are not basing our case on any such silly argument. We say if our interpretation of the present constitutional position be right, not alone have we power but we have a clear right, which cannot be denied by the British Government, otherwise all these declarations of the Imperial Conferences that we had grown up, all these declarations about co-equality, all these statements that we were entitled to grow with the other Dominions are nonsense.
If our Constitution is to be shackled by the verbiage of the Treaty of 1921, then, of course, there is a question about it. I have yet to learn that that view found acceptance by the Opposition when they were in office. I have yet to learn that it has found acceptance by Constitutional lawyers. I have yet to learn why our representatives were at the Imperial Conference at all if that be the position. To go back to the question of honour, which I dealt with on the last day, surely to goodness, if this document be a Treaty at all in the ordinary acceptation of the term, if it meant anything it quite obviously meant to confer on this country a status and a growth under that status. It certainly meant that we should grow as the other Dominions can grow. What is to prevent our taking advantage of the growth of that status and to allow the Treaty, as it stands, to be the basis along which the growth is to take place? Surely the British are not entitled to say that it is dishonourable or a breach of the Treaty to take advantage of the very conditions that grew out of it as it originally existed? That seems to be the matter in a nutshell, and although Section 2 is not under consideration—I suggest it should not be—the removal of the Oath from the Constitution is necessary to give a clear legal expression to what is a political fact, the words used by Deputy McGilligan previously. There is one other matter that I think I should have referred to in opening. Am I right in saying that the long Title which Deputy Dillon seems to think is not quite suitable, is not being discussed now and that it will be discussed after the whole of the Bill has been considered?
It is the last thing discussed on this stage.
The learned Attorney-General, in the remarks that he has just addressed to this House— I am sure unintentionally—has completely and entirely misrepresented the position which we on this side of the House have taken up, and the position which we have always and consistently taken up. It has always been our contention, and always will be our contention, that the Oireachtas is a sovereign Assembly. That has always been our contention, and we have never departed from it. We are empowered to pass any legislation that we like dealing with this country.
We do not deny that it is within the legal competence of this Oireachtas to pass this Act. We have never contended to the contrary, and such a proposition has never been advanced in the course of the debate on this particular measure. And why the Attorney-General should go wandering around and around, coming back again to the same point and saying: "You are fighting the case of Mr. Thomas, you are fighting the English case," is more than I can understand. We are doing nothing of the kind. And while I do not for one moment charge the Attorney-General with deliberate misrepresentation of our position, I do think it very strange that the Attorney-General, after searching, as he tells us, through the various volumes of the debates of this House, is ignorant of our position. Our position is clear here and now. It is that we are a sovereign Parliament and that we can pass any legislation that we like. That is our position. It has never been anything else. We are told by the Attorney-General and by some Deputy who interjected that we are fighting the English case in this House. We are not fighting the English case. We are fighting the Irish case. We take up the attitude that the best interests of this country compel us to take up the attitude that we are taking up— the attitude of defending the honour of our country and its economic position. That is the attitude that we are taking up, and I contend that it is the right, correct and honourable attitude for every true-hearted Irishman to adopt. That is my attitude, and I believe it is the true and sensible view. We are fighting Ireland's real battle here, because we are fighting the battle of our country's honour. Deputy Dillon said that he was not concerned very much with the honour of individual people. I agree with him. It may not matter very much what the particular subjective attitude of anybody upon any question may be, or what the particular subjective attitude of any particular Deputy in this House may be. It does not interest me in the slightest any more than it interests Deputy Dillon. But what does interest me is that the national honour as a whole should not be besmirched. It has nothing to do with the conscience of any particular individual who may have a twisted or warped conscience. It is the national expression through this House of wrong-doing that besmirches this country. And the breaking of a Treaty is wrong-doing.
The Attorney-General put forward a very strange argument here the other day when he inquired under what code of morals it was wrong for a people to exercise their legal rights. My answer to that is that I believe that it is wrong under every moral code that has ever been put forward. It was wrong under the old natural law, and it is wrong under the modern international law, and it is wrong under the Christian law. If people exercise to the full their rights regardless of the rights of other persons and of other States, then they are acting entirely wrongly. A man may have certain legal rights under municipal law, under the law of his own country, that he cannot morally exercise. For instance, somebody may be sued for a debt more than six years old. If he is doubtful whether he owes the debt, if he has forgotten the circumstances, he is entitled to plead the Statute of Limitations. But if he remembers the circumstances completely, if he knows that he owes a sum of money to his neighbour, he has got a legal right to repudiate it, but he has no right under the moral code to repudiate it, certainly not by the moral code of the Church to which I belong. You cannot satisfy yourselves always by saying: "I am living according to the law of the country," no matter how absurd that law may be. There is a very extreme example given in a very well-known book, Dicey's "History of Constitutional Law," in which it is stated that the British Parliament is sovereign and that it could order the execution of every blue-eyed baby. According to the Attorney-General, if a law of this kind were passed in this House or any other Parliament, people would have a legal right to execute all blue-eyed babies, and a moral right also; and the Attorney-General, I am afraid, would not be in this House. That is the Attorney-General's argument. And between States it is exactly the same. There is such a thing as international law, and perhaps the best expression of that international law is that given by a conference which was entered into in 1870, when Russia declared itself to be no longer bound, on grounds that are set out, by the terms of the Treaty of Paris, which forbade it to keep a fleet in the Black Sea. It was declared by a conference held between the parties to the Treaty of Paris —and the declaration was ultimately signed by all the leading Powers of Europe: "It is an essential principle of the law of nations that no Power can liberate itself from the engagement of a treaty nor modify the stipulations thereof unless with the consent of the contracting parties by means of amicable arrangement." And any State that breaks deliberately a whole treaty or modifies its stipulations without the consent of the other parties to the arrangement, is a State which is breaking its pledged word; and it is dishonouring itself and is entailing serious consequences upon itself.
I do not want to repeat what was said here the other day, that if a State repudiates once its reputation is gone, nor do I want to deal with what I consider to be the very, very serious economic consequences which I believe will follow from this violation of the Treaty. Here you have got explicitly in the Treaty clear definite words: "The Oath to be taken by members of the Parliament of the Irish Free State shall be in the following form." You have got that clearly, definitely, specifically put. There is no statement in the Treaty that there is to be an appeal to the Privy Council. The appeal to the Privy Council came into existence solely because there was an appeal from the Canadian courts to the Privy Council. It was for that reason, and for that reason only. That has always been our contention. We have grown up since. It has always been our contention that we have grown up, and by our growing up we have now powers which we possibly had not some years ago. I will not stay to argue that point at the present moment. The power now exists in Canada, and, therefore, the power now exists in us, unhampered by Section 2, to abolish appeals to the Privy Council. But it is under Section 2 that the Oath comes in. Section 2 of the Articles of Agreement has nothing to do with the Oath. The Oath is very clearly and explicitly in Section 4. It is because it is in Section 4 and only exists in Section 4 that it is a violation of the Treaty to take it out of the Constitution.
This has developed into a two-sided argument of what would be the decision of a court of honour and what would be the decision of a court of law. Quite frankly, my difficulty has always been to discriminate between the action which is now being taken by this Government and the action which was attempted to be taken by the previous Government in relation to the Treaty. To me it seems, reading the Treaty as a layman—and it is as a layman that I would go into a court of honour—the Privy Council was at least as definite in the Treaty, and perhaps more explicit, than the Oath. The contention of our opponents is that they can go into a court of honour as lawyers; that they can bring in their honour so delicately balanced, so beautifully discriminative as to what honourable men can do, that in that court of honour they can swallow without any hesitation the thing which is implicit, but that they must balk as men of honour at the thing which is explicit.
After all, a court of honour is a court of honour and not a court of law. In a court of honour you deal with what were the obvious intentions of the agreement between honourable men. You do not go in there to balk at the difference between explicit and implicit, if the obvious meaning and intention to a layman was that one should be as binding as the other. There was in the Treaty, under the form of a plebiscite, a provision which controlled the permanence of Partition, a provision whose obvious meaning to a layman was of one kind, whose obvious meaning was made a fundamental justification of this Treaty to the people of Ireland, whose obvious meaning was preached from one end of the country to the other by those who defended the Treaty. But in a court of law, under Mr. Justice Feetham, it was found that that was not the meaning; it was found that we were not in a court of honour, that the narrowest possible legal meaning of the terms deliberately chosen to trap the people of this country, could be used to enforce against them the permanent separation and division of this country.
It seems we do not know whether we are in a court of honour or in a court of law. These people go into a court of honour and use the arguments of a court of law when it suits them. You cannot do that. Either we are in a court of honour or we are in a court of law. The British were in a dilemma, and they deliberately used those fools, and those fools deliberately allowed themselves to be used for the purpose of getting the British out of that dilemma. When this was being discussed in the House of Commons, Mr. Winston Churchill, one of the signatories of that Treaty, one of the men who deliberately claimed the right to interpret that Treaty over our heads, said that under the Statute of Westminster the position will be produced under which all sorts of unthinkable things can be done under the Irish Treaty and the Irish Constitution. A legal position will be produced, he said, under which the Privy Council and the Oath and a lot of things would have to go.
There was considerable disturbance of mind in England over this matter. How were they to get out of that? Who was to help them? They could not get out of it themselves. Mr. Thomas, speaking in that debate, warned those who were pressing for the exclusion of the Free State from the Statute of Westminster of the danger ahead: "Remember, there are two Constitutions in the Commonwealth of Nations which will be concerned in the matter—there is the Free State Constitution and there is the Constitution of South Africa, and if you touch the one you touch the other." That was his dilemma. He went on to say: "Having regard to what this House knows of the actual conditions in South Africa, is there a man in this House who will dare to apply to South Africa the provisions which it is suggested could be applied to the Irish Free State?" The answer was that there was none. He was in a dilemma. How was he to get out of it? He could not get out of it himself. Remember, he had no discretion; he could not alter a word, a line, or a comma of the Statute of Westminster. That was not a Bill voluntarily introduced into the British House of Commons to be altered or approved by them. It was drawn up word for word, line by line, comma for comma with every single implication in it worked out and laid on record in the minutes of the Imperial Conference, not by the British Government, but by the representatives of the Dominions. He had to take it as a whole, and the House of Commons had to pass it as a whole. The passing of this Act created an opportunity in the existing conditions in which we can legally do all these things, in which we can exercise all these powers parallel with and involving in their use all the other Dominions. He could not reject it without breaking up this Empire openly. He could not exclude the Irish Free State from it without doing something which it was admitted no single member of the British House of Commons would dare do in view of what they knew to be the actual and unescapable consequences of it in relation to South Africa. How was he to get out of it? The House of Commons could not get him out of it. The Dominions could not get him out of it, but ex-President Cosgrave and the bundle of duds which composed his Council—
Is the Deputy in order in calling Deputies on this side of the House a parcel of duds?
That is just what they are.
It is not a desirable term to use.
It is not, I agree.
It depends upon who uses it.
Has the expression been withdrawn?
Is it right or proper that Deputy Flinn should be allowed to take advantage of every occasion for the purpose of traducing his own fellow-countrymen? I do not suggest that they are his own fellow-countrymen, because Deputy Flinn is not an Irishman. Is it right that the Deputy should be allowed to drag this House in the mire or that he should be allowed to style ex-Ministers of the House as duds?
I will not sit down for you or for anybody like you.
Then I will have to talk the Deputy down, and I will do it with pleasure. I can look after myself in spite of 20,000 Anthonys. The position has been produced in which Mr. Anthony—Mr. Thomas, I really mean; Mr. Anthony Thomas, or St. Anthony Thomas—
You are the low, Liverpool coward you always were.
That is it. As I said, we have reached the position when Mr. Thomas could not get out of his dilemma with the aid of the British House of Commons or with the aid of the Dominions.
Or the aid of a Manxman.
Or the aid of a Manxman.
Yes, like yourself.
Mr. Thomas could not get out of his dilemma unless he could get help, and he sent for it to where he knew he would get it, and he got it.
If by that the Deputy means that he sent to me for help, I say the statement is untrue, and the Deputy knows it.
"And the Deputy knows it is untrue." That is one of those Parliamentary expressions which I propose to ignore.
A Liverpool Irishman.
On a point of order, I am not anxious to interrupt, but has Deputy Flinn's speech got anything whatever to do with the amendment?
A Liverpool Irishman.
It is very hard to say at what point in Section 1 matter relating to the Oath would not be in order—very difficult indeed. Most of the speeches, so far, have been largely Second Reading speeches.
I have not the section in mind now. I am referring to the amendment, which is the only thing we are now discussing. Is the Deputy's speech really relevant?
I submit my remarks are relevant. The Deputies opposite are going to get it.
We will have hooliganism rampant in this House before long.
I desire to call attention to Deputy Anthony's remark, which is, to my mind, a reflection upon the Chair.
Not on the Chair, but on the speaker—the last Deputy who has spoken. He is hooliganism personified.
In the state in which the Deputy generally is, it is not easy for him to be explicit.
Oh, yes. Deputy Flinn's state is well known in Cork City.
Ex-President Cosgrave has said that Mr. Thomas did not send the message to him. He did not write him a letter, did not send over a postcard and did not send over an emissary. He only talked and he presumed that his friend would hear his cry of necessity and come to his assistance.
The cry that Deputy Flinn made before the Tribunal when he wanted to escape military service— the cry he made in Britain when he was a coward and ran away from his responsibilities in Britain.
The Deputy must allow the Parliamentary Secretary to make his speech without further interruption.
If he is not insulting to the House.
That is a question for the Chair.
Is it material what Cumann na nGaedheal did? It appears to me to be terribly uninteresting and it has no bearing on the merits of the Bill.
It does not matter whether Deputy MacDermot thinks it is relevant or not so long as it is relevant in the opinion of the Chair and in line with what has been previously said.
Perhaps the Deputy would now come to the amendment before the House.
We have the assertion that while this thing is quite legal, in a court of honour we would be cast out. That has been thrown at us. Deputy after Deputy has abandoned the claim that we are doing anything illegal. They now talk on the ground of honour. I want the House to understand how this court of honour came into it.
What does the Deputy know about honour?
Why would not he? Did he not graduate at Billingsgate?
Deputy Cosgrave went to Buttevant and made a strong speech claiming to stand for the rights of the Irish Free State under the Treaty. He was not quite so strong for its developability. He did exactly what Mr. Thomas wanted him to do. He got Mr. Thomas out of his trap, as far as a Government of such temporary possession of power in this country could do it, by saying: "We are going to contract out. In a court of honour we are going to contract out of our legal rights under the developability of the Treaty. We are going to contract out of our rights under the Statute of Westminster. Whatever the Statute of Westminster says, whatever powers have been given to us, and whatever legal rights we have, we will, as far as suits you, dear Mr. Thomas, stand by the static position of 1921." There is no other meaning to that letter which Deputy Cosgrave wrote and which it was absolutely unnecessary for him to write.
It was a pure, gratuitous intrusion into the position to save the face and strengthen the hands of Mr. Thomas. But for that no question of a court of honour could possibly have arisen. It was upon the question of law that the matter was tried in the House of Commons. On the question of law it was declared there by a British signatory to the Treaty that we had these legal powers. It was to get out of that difficulty, to get out of the trap set for the British in the 1922 Treaty when they defined the powers of the Free State in terms of the powers of the other Dominions; it was to get him out of the trap in the Statute of Westminster that Deputy Cosgrave wrote a letter which said that we would contract out of those rights, that we would go into a court of honour and refuse to exercise the powers we had under the developability of our Constitution, and under the actual terms of the Statute of Westminster.
I do not think it matters very much, the complete ignorance or lack of knowledge of the last speaker, but the statements of the Attorney-General are extremely ominous. We presume his business is to advise the Government in these things and it strikes us as very appalling that he has completely failed to understand the situation here now, the situation that has been here for the last ten years. It is assumed that there is no difference in dealing with the Oath and dealing with the Privy Council. If they are going to negotiate with the British or to correspond with the British with that confusion in their minds, it seems to me they cannot win out. There has been talk about the British point of view and the Irish point of view. Really what ought to be superior to both is just simple truth. I am afraid if there were two different truths—British truth and Irish truth —with the complete misunderstanding of the situation which the Government have shown, it is British truth which would prevail.
As far as I can make out from the Attorney-General he presumes that our contention is that the position of the Treaty in 1921, that is to say the status acquired then, remains static. He asserts if that is not so, that status covers everything. Our contention is this, that in the Treaty there are certain clauses defining status by analogy; besides that there are other matters. The Treaty lays down that there shall be care and maintenance parties in certain ports here. Can any development in the relationship between Canada and Great Britain change that position? If that position comes to change I do not see myself how any developments of Dominion status could possibly change it, because it is laid down specifically and it has had relation to the peculiar position of the Irish Free State.
Now with regard to the Privy Council, we accepted the same relationship as Canada. We felt that whatever the law might be in Canada, Constitutional usage had modified the position with regard to the Privy Council very considerably. But as it was arguable that a good case could be made out for the fact that we inherited at that moment the position in which the subject had a right to appeal to the King in Council, we put in that clause in the Constitution which was not a mandatory clause.
It says if there be any right of appeal to the King in Council that is not interfered with. Of course Deputy Flinn, who knows nothing at all about these matters, is unaware that in 1926 that question was discussed in the Imperial Conference. We had not that inferiority complex that the present President has. He is not prepared to face up to things because he feels that other people might know more about them than he does. We went over and discussed the matter, and the British and Dominion delegates sitting around the table agreed that the Constitutional position of the Dominions was now such that the matter of the appeal to the Privy Council was entirely a matter for the Dominions themselves to decide; that there was nothing in their position as Dominions which insisted upon the appeal to the Privy Council. That appears quite clearly in one of the resolutions of the Imperial Conference of 1926. That in itself was an interpretation of Articles 1 and 2 of our Treaty, because it was in virtue of the analogous position in our Treaty that the argument was advanced that the appeal to the Privy Council was implied. When the Imperial Conference of 1926 laid down that it did not necessarily flow from Dominion status that a Dominion which did not want to have the appeal to the Privy Council was bound to have it, that was an interpretation by agreement and by negotiation on a question of status.
Our argument in this case is that development of status of a Dominion and everything that goes to any Dominion in the way of power, status or anything else, by virtue of its going to any Dominion comes to us, but we have besides that specific arrangements vis-a-vis the British— between the British and the Irish Free State—which are laid down specifically in the Treaty. Anything that is not set down specifically in the Treaty was by implication in the first Articles, but anything set down specifically in the Treaty arising out of the geographical position, the historical position or the actual administrative position between the two countries at that moment—I am not going to say that any of these should remain for ever, but what I will say is that they should be changed from time to time to meet the circumstances by negotiation between the two countries.
The Attorney-General is insisting all the time in trying to make out that the attitude we are taking is incompatible with our attitude on the Privy Council question, but if he has that in mind, in any dealings with the British he would certainly run this country into a very bad mess. We had a watertight case with the British on the Privy Council. If there had been since we came into existence any right of appeal to the Privy Council it was by virtue of the analogous position of ourselves with the other Dominions. In 1926 it was clearly laid down that the right of appeal to the Privy Council over the head of the Government of a Dominion no longer existed, as merely flowing from the position of the country as a Dominion. In 1929 or 1930 or some such year we proposed to bring in a Bill to give specific legal effect to what was admittedly the Constitutional position with regard to Dominions.
Here in a Treaty with the British Article 4 lays it down specifically that there shall be an Oath taken to the King. Supposing Britain became a Republic to-morrow. If that Oath flowed only from the status position you might say that automatically the word "King" ought to be substituted for the word "President." So far as I understand the position, and so far as I would interpret the position of treaties, if that happened, the position of the Oath to the King would still remain by virtue of the Treaty. But the British might come to us and say that position is changed now, and that the word "President" should be substituted for "King." They would have to come to us as they came to us with regard to Article 12. They had to get our agreement to the change there although it was obvious that the machinery had broken down and that it was impossible for a certain proposition in that Article to be fulfilled. The British did not turn around and say: "Everyone knows perfectly well the position is now changed and we cannot get the men appointed in the way stated." They actually came over here and, as far as I remember, we discussed it from morning until evening and we agreed that the position had changed and that another arrangement had to be made because it was impossible for either the British or us to secure the fulfilment of a certain condition. With regard to anything that is specifically laid down in the Treaty why are those things laid down specifically?— Because they were dealing with things that were required and that did not flow from the status as Dominions. That is why they were put down.
The British put down the provision as to the care and maintenance parties in Spike Island and Beare Island. Why did they put that down? If it was innate in the position of a Dominion that British care and maintenance parties should be in the ports they would not need to have put it down. Because that did not flow from status it was put down. If we want to change the arrangement with regard to the care and maintenance parties in ports there is only one way of doing it, by going to the British and saying: "The circumstances under which this Clause was made in 1921 no longer exist. It is an inconvenience to us. We find it undesirable. We think you will agree that it is a position that should be changed now." We certainly would not go to the British and say: "The status we took in 1921 is quite different from the position in 1932; these men must get out." There is talk about honour. There is a good deal of a mix-up about honour. Some people stand for honour because they are honourable. That would not appeal to Deputy Flinn. Another matter has to be considered—that of the interests of this country. The President on Friday put forward a doctrine—a most damnable doctrine, a doctrine which if any country in the world should resist it would be this country. He said, in effect, that if a powerful country makes a treaty with a weak country, then the weak country has the right to interpret and twist and distort—I should not say "twist."
I did not say anything of the kind. The Deputy has twisted, as he usually does.
I was just correcting myself. Perhaps the President knows the difference between twisting and distorting. The President stated that, in the circumstances I have mentioned, the weak country has the right to set itself up as sole arbiter as to what is meant by that Treaty. In the words of the President, the weak country, if it is Ireland, is entitled to translate the Treaty in the Irish way. The sanctions of a treaty consist of three things—sense of honour, consciousness of interest, and power to enforce the conditions of the Treaty.
If you are going to say that the weak country has the right to make itself the arbiter as to the meaning of the Treaty and to insist upon whatever interpretation it likes to put upon the Treaty, what is going to be the position of the big country? If you go to negotiate with the British it will come back to the one thing—the power to enforce. If we are going to negotiate with any country in the world, and we take up the point of view the President propounded here last Friday, the business of the big country is to use the big stick with us. If, at any future time, it should be necessary for us to negotiate with the Six Counties, which would be the smaller and conceivably might be the weaker party, are we going to negotiate and put things in black and white when they can come along and say later: "We want to amend this; we are the weaker party, and if the Free State attempt reprisals —I think that is the word used by the President—"then they are going to be in the wrong." It seems to me that that is the most diabolical doctrine. It is up to us, in our own interests, as a weak country, to insist upon the complete fulfilment of treaties —the most nice and exact interpretation of the meaning of treaties. That is in our interests. Honour and interest with us, as I believe was always the case, are identical. If we are going to say to the British "We are going to interpret this document in this way and make ourselves sole arbiters," they can do the same to-morrow. What have we of these three things— honour, interest and power to enforce? Have we got honour? It seems to be rather dubious at the moment.
Were you not doing that in the Privy Council case?
We were doing nothing of the sort. There is no specific mention of the Privy Council in the Treaty. The Attorney-General will agree that the only way it could be imported into the Treaty position was as part of the law or practice or constitutional usage of the other Dominions.
Did the English agree with that?
Yes. We insisted that they should agree with it.
Did they put up any case against it? Did they attempt to argue the case? They did nothing of the sort. That was the position then. Up to 1926, I quite agree, there could be argument as to whether appeal to the Privy Council was not an essential part of the Dominion position. In 1926 the British agreed it was not an essential part of the Dominion position. If not the British Government, but certain individuals attempted to argue that, although it was not part of the Dominion position, it applied to this country then we would defy them. We would say this—which I put to the Attorney-General—if any impartial international tribunal after the Imperial Conference of 1926 considered the matter, they could come to no other decision but that we were fully justified and entitled to remove the appeal to the Privy Council. I put it to the Attorney-General: would any body of responsible lawyers give it as their opinion that any impartial international tribunal would give a decision that the Oath in the Treaty is not mandatory? Would any impartial international tribunal lay it down and pledge its reputation—the Attorney-General seems to be rather nervous of his reputation since he left the legal explanation on Friday to the President—that the Oath is not mandatory? Is the Attorney-General going to tell me that if he goes to any body of international lawyers and asks them for advice as to what we may expect an impartial international tribunal to do, they will tell him that the act we are performing is other than an outrage on international law and usage? In the case of the Privy Council, does the Attorney-General or anybody else say that an impartial international tribunal could come to any other decision than that the removal of the appeal to the Privy Council was eminently justified and unchallengeable? If the Attorney-General is going to mix up these two things, his negotiations with the British are going to be made perfectly impossible. In arguing with us, he seems to be in a particularly strong position through not understanding the situation. It is very hard to argue with a person unless you have some common ground of knowledge. The Attorney-General seems to have a completely distorted idea as to the negotiations that took place with the British during the last ten years.
We have always recognised that in respect of anything specifically laid down, in the Treaty it was laid down specifically for the reason that it did not flow from the Dominion position. That we have always recognised and must necessarily recognise, not merely for honour's sake, but for the sake of our own interest, because the sanctity of treaties is a thing much more vital to us than to those who have the power to enforce the keeping of treaties. We are dependent on the sanctity of treaties. Any specific matter laid down in the Treaty is laid down specifically because it does not flow from the Dominion position. When it is laid down specifically, it is a statement of the relationship or of an existing fact between this country and Great Britain. That is not really a Dominion matter. It is a definition of the specific and peculiar relations existing between this country and Great Britain. These peculiar relations apply only between ourselves, and they can be altered, from time to time, by agreement between the two contracting parties. What is the proposal here? In this amendment we are not attempting to interpret the position. We are merely leaving in Article 17 exactly what is in the Treaty. If, as the Attorney-General has tried to hint but has carefully refrained from stating definitely, the development of status has in some peculiar way completely eliminated the specific Article in the Treaty, then what remains of Article 17 in the Constitution will be absolutely meaningless.
I should like to remind the Attorney-General of one little, historical fact. The Attorney-General's and the President's argument was that Article 4 is only in to state the form of Oath to be taken, because the Oath is implicit and is binding on us whether Article 4 is in or not, by virtue of the position in Canada and our status.
Is that what Deputy Blythe said?
Surely the Attorney-General knows perfectly well that in 1921, when we were in negotiation with the British, the Deputy's profession was not very numerous in our movement. We were really inexperienced, if you like. We did not set ourselves up as great construers of international documents. We used our commonsense and tried to see that one or other reading was applicable. If anybody expects us to turn round now and stand for the things some of our advisers told us in 1921, he is expecting far too much. It does not matter what advisers said now or then. What really matters is what the truth is.
That is very hard on the Chief Justice.
Will the Deputy mark the date—1921?
I do not remember whether the Chief Justice was one of our advisers in 1921 or not but he was not present in London during the negotiations.
He came in 1922.
In the document immediately preceding the Treaty there was an oath set down, and that oath was identical with the oath in Canada. If the President's contention, that the whole thing flows from Article 2, were well founded, that would have been completely unnecessary. The British did insist on an oath here irrespective of what was done in Canada; they would not have needed to refer to any oath at all if, as the President says, it was implicit in our status when we took over in 1921. So far as anything laid down specifically in the Treaty is concerned, we agree and have agreed always, and are prepared to continue to agree that change requires preliminary agreement between the Government of this country and the Government of Great Britain. We have never at any time asserted or in any way implied that we intended to break any specific arrangement agreed to between us in the Treaty. We have insisted in the matter of the development of status that there was a matter of interpretation and we have insisted, and will always continue to insist, that any attempt to interpret blatantly and clearly against the truth was a thing we were not going to stand for. That is the position. We stood for truth in the interpretation of status and we stood for truth, honour and our own interests in the interpretation of the specific clauses in the Treaty.
The Attorney-General warns us that we are playing Mr. Thomas's game. He says that no one should be better aware of that than we are. I cannot see how it can be said that we are playing Mr. Thomas's game in insisting that in the interpretation of a specific document between two peoples the clear and the obvious meaning of the word is the first thing to be accepted. It is only by agreement between them or by some superior court or something like that that the non-obvious and clear meaning of the thing should be accepted if it is against our interest.
We are talked of as though we were standing up for British rights, the implication, to my mind, being that British rights and truth are identical. That has never been our point of view. Our point of view has always been that Irish rights and truth and our honour are identical. If the Government, or the people of this country, do not want to be bothered with talk about honour, let them think of something which may mean more and which is of vital interest. The existence and well-being of this country depend upon honour in this case. They depend on the most religious observance of the Treaty on both sides. We have not the military or naval forces to impose upon England a rigid observance of the Treaty. She has that power to enforce it against us. We must use our other weapons: that, in the eyes of the world, we are going to stand for honour and truth and justice between the two countries. If we turn to the world and say: "Honour, truth and justice be damned, we have certain blackguards in our country who do not want to take the Oath, and they are dearer to us than honour, truth and justice," then you are going, necessarily, to sacrifice the economic well-being of the whole people as well as our relations with Great Britain. You are going to sacrifice everything so that the consciences of the murderers of Kevin O'Higgins may be satisfied.
If that is to be our line, then this Government is right and this country is going to disaster. I do not know whether I have succeeded in making it clear to the Attorney-General that there is a vital difference between the points that we were dealing with and this point that he has now brought up—this matter of the Oath. If the British, on their side, attempted to suggest that some change in their relationship with Canada in any way changed the specific relationship between us and them, then we would equally have to protest.
There is another matter I want to refer to. The President on Friday last said that if the British took reprisals against us he would at least have the satisfaction of having proved to the people that equality and freedom were all humbug. Before the Bill goes finally through I would like to hear from the President what he means by reprisals. Would, for instance, the placing of an embargo on our goods be counted as a reprisal? Would the removal from us of the benefits of Imperial preference be counted as a reprisal, because, if so, I think you will find that most countries of the world would not only permit, but would insist on that reprisal.
Of course, when the Deputy who has just sat down addresses the House, one is always prepared to find that he does things just as is done with regard to the doctrine that I am supposed to be propounding. He takes an obvious statement and twists it until nobody can recognise it in the twisting. This damnable doctrine that I am supposed to have propounded is only damnable in the misrepresentation of it. It is a well-known doctrine: the doctrine that if you interpret a treaty between two parties the assumption is that the stronger party has been able to impose its will upon the weaker to the extent, at any rate, of being able to express what its own will was, and that if you are going to interpret it you may reasonably assume that the strict meaning of the words should be applied in favour of the weaker party. That is the doctrine, and I submit that it is a reasonable doctrine and not a damnable one.
There has been a lot of play made with the difference between the position of the Privy Council and the position of the Oath, One is implicit and the other is explicit. Deputy Fitzgerald has tried to make out that there was a vast and a vital difference between the two positions. There is, to my mind, the difference between tweedledum and tweedledee as far as this is concerned, that the right that is referred to in the Constitution— referred to as a right and recognised as a right by those who made the Constitution apparently—if it exists at all springs solely from the status Articles in the same way that the obligation to take this Oath springs from the status Articles. I have been listening to the nonsense that has been spoken about the words of this particular Oath during the whole of the debate. Is anyone going to suggest that Lord Birkenhead could not put in the words he wanted to put in: that he did not know the right words to use? I submit that he did know and did use the right words, and that the words he used are to be taken to indicate that there was an assumption of acceptance of some Oath.
The obligation to take the Oath arises from Article 2. Article 4 was necessary simply because there was a variation in the form of the Oath to be taken. Therefore, you have the words here "The Oath to be taken shall be." If there was no question of an obligation to take an oath otherwise, being implied, there is no doubt whatever that what would have been added are the words in the Constitution—"there shall be taken an oath" or something of that kind. It is quite obvious to anybody who reads the document as a whole that "to be taken" is a reference to the implied obligation in Article 2, and that obligation springs from an analogy between the position here and of Canada at the time. It is by analogy, therefore, an oath was taken in Canada. Our position was to be the same in the Free State. It was to be by analogy with the position of Canada. The Oath was taken there, but there was a variation of it provided for, and that was the variation that was put down in Article 4.
Now our position is this: that just as Canada to-day could, without the slightest shadow of doubt, bring in a Bill to remove their oath, so we can bring in this Bill, and do it quite consistently with and without any violation of the Treaty. It has not been proved on the other side that there is a violation of the Treaty. A mere statement does not prove it. The whole argument is on the assumption that there is a violation involved, but there has been no attempt whatever to prove that, none whatever. All this argument about honour, the breaking of treaties and the sanctity of treaties and all the rest of it is based upon an assumption that has not been proved, but our contention is that we are not violating the Treaty in any respect whatever in bringing in this Bill to remove the Oath. We are bringing in this Bill to remove the obligation to take the Oath in the same way that Canada might. I say that we are doing that without in any way altering the force of law of the Treaty where it has the force of law here, and that we are not in any way altering the validity of the contract whatever validity the contract otherwise possesses.
Now, it has been said that the introduction of Clause 2 in this Bill suggests a doubt in our minds as to whether we can do this without violating the Treaty. I say that that is not the purpose at all for which the clause is introduced. We are asked on the other side, why not let this matter be decided by a court of law? My answer to that is that the courts could not decide it, and I pointed that out in the Second Reading of the Bill. The courts, if they gave a verdict in our favour, would not help our position a whit, because it would be said: "Oh, it is your own courts did it." If, on the other hand, they decided against us, if they made a mistake and decided against us—as I said before, mistakes can be made by judges just as well as they can be made by other people—then in that case the mistake would be irretrievable. We would be told that "even your own courts would not find in your favour."
Our attitude is that this should not be a matter for our own domestic courts at all. This is a matter of the interpretation of a treaty which has to be taken up with the main parties. When we have got this Bill through and settled our own position with regard to our own attitude here then let the British talk about it. Let them make their protest against it. We are quite prepared to hear them. We are quite prepared to hear what they have to say, but any dealings with them about this Oath will be as equals. At the present moment, and in the present position here, we are inferior because they have imposed something upon us which is going to deprive us of that equality of status which is absolutely necessary for us if we are to talk with them about this Oath on equal terms. We hold that what we are doing we are doing within the Treaty. There has been no argument on the other side to prove that we are not, except the argument that Article 4 can stand by itself and that the words "to be taken" are clearly by themselves mandatory.
That is a construction of the document, apart from the whole texture of the document. Mr. Lloyd George, in his communication to Mr. Griffith on 10th December, 1921—I forget the exact date, but, from 10th to 13th December, 1921—pointed out the difference between these status Articles and the other Articles of the Treaty. He pointed that out quite clearly, and indicated also that the position was not to be a static, but a progressive one, and we hold that Articles 1 and 4 have been given effect to, and that they have progressed to the point at which they are best expressed by the statement that anything Canada can do, anything that Britain can do, in virtue of their status, we can do. Is there anybody here who is going to deny, for one moment, that if the British House of Commons considered that it would be in the interests of peace in that country, or otherwise, they could bring in an Act to-morrow without consulting anybody else, to remove, from the members of Parliament, the obligation of taking the oath which they at present take? As a matter of fact, we know that the whole history of the imposition of the oath in England proves quite clearly that it is something which the British Parliament brought in at a certain stage, mainly for religious reasons.
And that later on, they could get rid of it, if it served their purpose. A lot of play has been made from the other side, in regard to the difference between power and right. We have not been arguing about our power to do certain things, but about our right to do these things. We have heard the argument about our legal right and the moral right. I do not know if I referred to that myself at all, but, as far as I am concerned, the view I hold is, that nations are capable of expressing their moral rights by treaties, and by laws, and that we have only to interpret the law here, in order to secure the moral situation. We have the moral right to do everything contained in this Treaty—there is no quibbling about that. We are not doing something suggested by Deputy Fitzgerald-Kenney, when he said that we are trying to do something, like a person who had pleaded the Statute of Limitations to get out of a just debt. We are doing nothing of the kind. In fact, as I said, our right to do this is the real test of whether or not we have that co-equality which is boasted about so much by members of the Opposition. The point has been made by Deputy J. M. O'Sullivan—I think it was he— about the Schedule in the Treaty. If he had studied the matter carefully he would have found that, right through several Articles of the Constitution, there is a reference to the Scheduled Treaty, and the Schedule, from that point of view, is necessary by way of reference.
Hear, hear. It is not like every other Treaty, then.
There is reference to this particular set of Articles; you want something down there—some of the things you refer to—because in the Constitution, as they drafted it at that time, they chose that particular way of writing the Constitution. We could write it completely differently to-morrow if we wanted to, and leave the Treaty as we propose to-day on one side, as having the same effect as any treaty between any two nations. We propose to do it, at any rate, to the extent set out in Clause 2.
These are the only points that seem to me to call for reply, and it seems to me that the amendment would simply leave a piece of decayed timber. The words "shall be," etc., have no particular meaning in the Treaty, without the imperative words that compel the taking of the Oath. There is no sense, whatever, in leaving them remain. We have either to take it out completely, or else to put in words which remove any ambiguity. Our attitude, at any rate, is that we can remove this Article, and we are doing it, without in any way infringing the Treaty, and I submit that there has been no argument from the other side proving that there is an infringement of the Treaty.
Might I ask the President if he would mind answering the question I put, as to whether he, in fact, regards the Treaty as morally binding or not? I quite understand that he considers that this Bill is not a breach of the Treaty, but does he consider the Treaty morally binding?
Whatever my own views may be about the foundation of the Treaty, as a Government here, we are acting within the mandate which accepts the Treaty for the time being.
Mr. P. Hogan (Galway):
That is what you call a straight answer?
I would like, first of all, to have the confusion into which we have strayed cleared up somewhat. Do I understand that all this matter as to comparison between the action with regard to the Privy Council and the action with regard to the Oath will fall for discussion when the section comes to be considered? If so, we can leave them aside, at the moment, and deal with the one point. I am presuming that is the case. May I take that for granted?
As the Ceann Comhairle pointed out, it is very difficult to discriminate between what is and what is not in order in this. Therefore, I think the decision has been that what Deputy McGilligan is assuming is in order on the section afterwards.
Then I propose to confine what I have to say to the amendment which is supposed to be under discussion. There was an amendment put down in my name to delete, not the whole of Article 17, but only certain words. I want to get an answer, if there is an answer, from those who refuse to accept that amendment. The point has been clarified by the President in his last speech. He says that the obligatory force with regard to the Oath comes from Article 2 and not from Article 4; that Article 4 by itself means nothing. That is his contention. I ask to have inserted in the Constitution, Article 4 only, not Article 2. We have been told that Article 4 by itself would not impose an obligation. I want to have that tested. I want to have that brought before impartially - minded people, people accustomed to rule on such matters, accustomed to the niceties of constitutional law. We want simply to leave it in the Constitution as it is in Article 4. We are not going to import into the Constitution, as far as the amendment is concerned, that part of the Treaty which, according to the President, gives the Oath its obligatory force. We are taking only the part which, according to him, is either meaningless or else leaves the Oath optional. What is the objection to leaving these words in on the part of people who hold they are meaningless, or else leave the Oath optional, when they are moving to take away the obligation imposed by law? That point has not been answered.
You will want the whole document construed together. You are taking Article 4 out of its context.
No. The President's contention is that if you had a document to construe you would bring in the part which gave it its obligation. I was leaving that out.
Let us have the thing argued. Two Articles are brought to bear on the question of the Oath, and the President's contention is that the second of these Articles, Article 4, is either meaningless at the best, or it is such that the Oath could be declared optional. The first of the two Articles, Article 2 of the Treaty, is that which gave the Oath its obligatory force. I say leave out the Article which is going to give it the obligatory force that the President says is there, and leave only for the discretion of the judges the Article which says, either nothing at all, according to the President in one of his statements, or else that the Oath is optional, and that is being refused. Why? Because there is a conscience and a fear behind it distinctly. I said previously: look at the tribunal it is going to go before. We were told by several speakers on the other side that the Chief Justice, when acting as Attorney-General, declared that the Oath was not mandatory. I do not know whether he said that or not —I do not know that he did. We are told that another member of the present judiciary, who was then on the Constitution Committee, was also of the opinion that the Oath was not mandatory. We are going to put before a tribunal, biassed in that way, not the whole Treaty, or Article 2, which might be said to be obligatory, but only this meaningless Article, and the Party that is so strong in its belief that the Oath is not obligatory is frightened to accept that test before its own judges, who are biassed, because it is said they have already declared that the combination of the two Articles did not make the thing obligatory. We only propose to put in that one Article, and there is the contention that they will hold it is obligatory.
The contention is very simple. You are leaving what was in fact a form of oath and taking away the obligation to impose it. If you got a thing like that away altogether from the Articles of Agreement, as an Article of the Constitution, you would naturally be inclined to make it obligatory, because it was away from the whole context in connection with which it would be interpreted. You remove it from its whole setting. You import it into the Constitution, where naturally you will say to yourself, "What is the idea of putting into the Constitution a form of words if you do not have the imposition of them?" It seems to me you could not leave it there.
Mr. Hogan (Galway):
Leave the whole lot there.
All the Articles.
Our position is that all the Articles of the Treaty are there. Whatever force or validity the Treaty had at any time, it is still left there. What we are doing is, we are taking away the imposition here, which is a domestic matter. Whatever test we care to put on our own people is our own affair at the present time, anyhow. Whatever it may have been in 1921, it is certainly our own affair to-day. I say that if there is any reality in this co-equality, then we are quite free, on account of the whole situation arising from Articles 1 to 4, to remove that domestic test.
I ask you to leave co-equality out of it, as it can be discussed on the section.
We can leave out co-equality if we are only asking to put into the Constitution an Article which says that the Oath is optional. If I brought forward a clause which got the President's approval as being merely an optional phrase, a phrase which imposes no obligation with regard to the Oath, and imported that into our Constitution, would he say that the putting in of a phrase about the Oath in an optional way derogates from co-equality? Surely not. That is what we are proposing. We are proposing to put into the Constitution one of the two Articles. A combination of the two, according to the President, makes the Oath obligatory, because Article 2 overrides Article 4. I say to him, "Put in Article 4 alone, removing Article 2, which imposes the obligation," and the answer is that the judges, when getting that without the context, will be bound to decide that the words "to be" are mandatory. That is what we said all along, and now we have your own confession about it.
I am giving here the interpretation which anybody who studies the document as a whole would give to it. In the case of a number of people they do not realise the implication in Article 2 of the words "to be." If you had Article 4 by itself, you would have to ask yourself the question, "Is it not a strange thing that a lawyer would put words of that kind into a document? The implicit obligation is in Article 2, which quite a number of people did not see.
Did anybody see it?
As regards the putting in of one of these without the other, I say that that takes away the relation of one to the other, and, therefore, takes away the meaning that the second would have in relation to the first, and to put it in alone would make nonsense of it. Therefore, we are opposing the putting in of this one part. By putting in one here the meaning that would be attached to it would be obviously different from the meaning attached to it if you had it in relation to another.
The President admits in reality that the judges would declare the phrase to be mandatory. That is certain.
I have another objection, which I already mentioned, that this matter should not be left to our courts to decide. It is a wrong principle.
What is a wrong principle?
To have the courts deciding an international matter. As I have shown, such a system works to the disadvantage of the country, because a judgment of its own courts would not be accepted by the other parties, who will say that the courts are prejudiced, whereas if a judgment was got against you in your own courts, it completely rules out all chance of having the matter considered favourably between the two countries, because it would be said that even your own courts decided against you. On the ground of principle, therefore, you cannot separate Articles 2 and 4 without giving Article 4, by itself, a meaning it would not otherwise have.
I thought I had replied earlier on that point as to bringing the Treaty into domestic legislation. I agree with the President when he stated that that was unusual but I say equally firmly and accurately that it is a most usual and normal thing to have any Treaty taken up in certain of its clauses in domestic legislation. And if the judges were going to decide on that clause only the Treaty is nowhere about. They are not deciding on the Treaty but what the President believes to be the optional phrase and it is safe for the President to trust his own courts, biassed as they have been described from their previous history, to decide that. There may be strength in the contention that if our judges came to a particular decision in favour of the contention of the President the British would not accept it, but what a wonderfully strong position, morally and legally, the President would be in if he got such a decision; and the mere fact that he avoids it very much weakens the position he believes he has.
I suggest there is another reason why we should not submit a question like this in any court. It is because we are a sovereign assembly. We are supposed to be co-equal with England and to have the same powers with regard to the Free State that the British House of Commons has with regard to her England. It has been held in a case of this kind that it was wrong to submit a matter of this kind to any jurisdiction except that of the House of Commons.
Why not wipe out the judges altogether?
Where the question of the control and privileges of the House of Commons is concerned it was held by Blackstone, who, perhaps, is one of the greatest authorities in a matter of this kind, that the whole of the law and custom of Parliament has its origin in this one maxim "that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House and not elsewhere." And in another case Lord Denman laid it down that: "whatever is done within the walls of either assembly must pass without question in any other place," and Judge Littledale said "it is said that the House of Commons is the sole judge of its own privileges, so I admit as far as the proceedings in the House and some other things are concerned," and so on. There are several judgments given by various other authorities.
What is the Deputy quoting from?
A book called "The Oath of Allegiance" by Denis O'Crowley, formerly judge of the Irish Republican Courts. The decisions given by such men may not appeal to Deputies. People on the other side may sneer and say it is British law. What old customs have we to guide us unless we go by the established authority and practice in other countries where they are recognised and approved, and why should we be so slave-minded as to say that we have less sovereignty for our Parliament than the British authorities claim for their Parliament?
The Deputy who has just spoken and was so clear in this matter has left me under some misapprehension. I would like to know if he will say this sovereign assembly.
I was taking your point of view of it.
He said it was a sovereign assembly from 1922 until now. He suggests that now we are preventing something being done that would make it less sovereign. I wonder is the Deputy opposite in agreement with the Minister who said only a few weeks ago that the title of this House was faulty.
I have been listening to this debate and in the unique position of having an open mind upon it I listened to Deputy McGilligan's usual cogent and powerful argument on the question. I would like to find out whether it could possibly be maintained that the words of Article 4, detached from the words of Article 2, would carry the same meaning they do when they stand admittedly as a definite Article to Article 2. Article 2 lays down status. I shall not read the whole of it but it seems to me that Article 4 proceeds to set out the terms of the Oath as required in Article 2. That is at least one point of view. Can any one maintain that the Article in the language of Article 4 "The Oath to be taken by members of the Parliament of the Irish Free State shall be in the following form" appearing in a statute alone, that that is making the same case as one makes when it is standing with Article 2?
Of course if it stood alone an argument would be put up of quite a different character if it were detached from Article 2. I do not want to deal with that as I expect the President dealt with it from the Fianna Fáil point of view. From my point of view if Article 4 stood alone the "to be" argument is not a very complete one, but when Article 4 is read in conjunction with Article 2 quite a different situation arises and you have to make up your mind at what state of development Article 2 has arrived before you deal with Article 4. If you leave Article 4 in a Constitution where Article 2 does not appear at all, then a different and a much more complicated situation arises. I am afraid if I say more on this matter I will be called to order for discussing Section 2 of the Bill. I should say I see all the difference in the world between Article 4, standing in conjunction with Article 2, and Article 4 alone in a statute as the Constitution would be.
We listened to a lot of legal argument on this question but there is another side to it. What exactly do we mean by taking out Article 4, Article 4 is an oath acknowledging the King. What do we gain by taking it out? The Attorney-General said we had the same legal right as we had to take the Privy Council powers out. Why repeat that? The legal rights are not denied.
Except when we use them.
Why does the Attorney-General think like that? If the Deputy would think less and had listened to what for the last few days has been said it would shorten the discussion. No one denies the legal rights and the Attorney-General knows that, and the attempt to drag in legal rights is an attempt to confuse the issue. We are a sovereign Parliament and have sovereign rights and the Attorney-General knows that. His case is that legally and morally we are in the same position in taking out the Oath as we were in taking out the Privy Council.
He need not drag in the legal point. If we are sovereign, we have all the legal rights the same as Germany and France have their legal rights. But apart from this question of interpreting what somebody tells us is what we mean when we take out Article 4, will the President tell us that he befogged the country? What are we after? When we take out Article 4—we are taking out the acknowledgment of the King. Is that not true? Is that not the intention? That is the only Article that recognises the King. The King is in the Constitution and I am talking of taking out the Oath. Let me put it another way: When we take out Article 4 and announce our intention that nobody here shall take the Oath that is in the Treaty, then we take the King out. I only want to clear up the position. If the King is in our Constitution— and the King is here by reason of the Governor-General's presence and is in existence in the Oireachtas—it is the King, the Dáil and the Seanad—if it is the intention to leave the King in the sense that the Legislature is the King, the Dáil and the Seanad, what is the objection to Article 4? What exactly do you mean—what does the President or the Fianna Fáil Party mean when they take out Article 4? The President and the Attorney-General stated that the Canadians would have the right to refuse to take the Oath, a legal right. For the sake of argument—I may not know as much constitutional law as the President or the Attorney-General—let me admit that, let us have that admitted once and for all. Supposing the Canadians took the Oath out of their Constitution or whatever Agreement or Treaty they have, what exactly would they mean by that? Can you conceive any civilised body of people taking an Oath out of their Constitution or their Agreement without on the other hand intending to declare a Republic?
I cannot. That is the difference. I do not believe the country can understand the point of view of people who want the King here as part of the Legislature or, rather, who will not object to the King as part of the Legislature here, but who at the same time will not acknowledge him.
Why should we compel our neighbours to acknowledge the King even though willing to take the Oath ourselves?
We are not taking the Oath for ourselves or our neighbours here. We are taking the Oath for an entity—the State.
I am talking of individuals who are asked to commit perjury.
With great respect, the Deputy does not talk for himself or he should not be here. He should be talking here as the elected representative of a certain constituency. We are not talking now of the Deputy as a member. We are talking now of the position of the King and the State here. I cannot for the life of me understand the national point of view which is willing to see the King in the legislative machine, in the machinery for making laws—the King, the Dáil, and the Seanad—which is willing, let me go the whole distance, which is even anxious to see the King here as part of the legislative machine but draws the line at acknowledging him or recognising him, nor can anyone else. I do not for a moment want to get involved in the particular point which the Deputy raised. I want him to answer me a specific question. Is it an understandable national point of view that this Irish nation should be anxious—I go that far—to see the King, anxious for whatever reasons, material or otherwise, as part of our legislative machine, as part of the machine which makes legislation, which governs the interests and the life of every man in the country, to see him there and yet will not acknowledge him and will go to the length of civil war to prevent an acknowledgment of him?
Is that a possible situation? Is that a situation that anybody believes that any country except a fourth-rate country would take up? I want to put this genuine question from my point of view. I used the word "anxious." I will say "willing" instead of "anxious." Is this State willing to see the King as part of its legislative machinery and yet will not acknowledge him? That is the real question here. That is not a question for lawyers or pettifoggers. It is only a question for pettifogging lawyers, because there are lawyers and pettifogging lawyers.
And twopenny lawyers.
And the worst lawyer and the most pettifogging lawyer of all is the knowledgeable man—the President. Most lawyers make a good bit of money out of it, the fireside lawyer, the man who is a tricky man, who can draw up an agreement in a loose way so that anybody can interpret it as he or she wishes for both sides. But let us talk about the country, apart from the lawyers. I take it the President would not deny that is what we are asked to do. Take the real interests of the country, apart from the narrow legal interpretation of the section. I want to be clear, and I want to put it this way to him: Does he take up the position that this State wants to see the King as part of its legislative machine and is willing to see the King as part of the legislative machinery of the country, of the sovereign Parliament of the country and at same time does not want to acknowledge him? Is that his position? I do not expect an answer, knowing the President. I will get an answer to some other question.
Why do you ask the question then?
I put it to you, A Chinn Chomhairle, and through you to the Dáil, that in this very fateful measure, that is the real question for this country. That is the first question. Now, I can understand there being two sections in the country, one section who say that they are unwilling and another section who say that they are willing. I can understand people who say: "We are unwilling to see the King here in any capacity and we are ready to be put to any inconvenience that may be caused by his absence." There was always a small minority of Republicans and doctrinaire separatists in this country. They are a smaller minority to-day than ever they were—much smaller. There are plenty of people in this country and plenty of men on these benches, and on the front benches, who have that tradition in them.
You are not one of them.
How do you know?
I know too well.
Look here, sir, I want to tell the Deputy who made that observation that my immediate ancestors —ancestors is the only word I can use —spent their time and money in keeping the Republican organisation alive in their own country, and every Deputy of Fianna Fáil from that county knows that. If the Ceann Comhairle were in the Chair, no one knows it better than he. I am making no excuses to President de Valera or any Deputy on the benches across there for my Republicanism or for my Nationalism. It is better than theirs and much longer in this country than theirs. I am no parvenu here. I am not going to make any excuses here for my action on this very important measure. I come back to the point, are the Nationalists of the country willing to see the King in the legislative machinery but will not acknowledge him? That is the real question. All the rest is pettifogging, face-saving, lawyers' quibbles, and nothing else. In reply to that question I can see two answers. I can understand two answers to that question—one from the people who say that "whatever the inconvenience or whatever the losses may be, we want to see the King out and have a Republic either now or soon afterwards." Is that what the Deputy means? That is the question that every man, whether he is Republican or anti-Republican, down the country is asking. That is the question we are entitled to vote on.
When I was speaking the other night Deputy Norton said: "Why did you not leave the Referendum in?" I can tell you. The Referendum was used to trick the people. The idea underlying the use which President de Valera was going to make of the Referendum three or four years ago was to try and trick the people just as he tried to trick them about the Oath at the last election. There was no such issue as the Oath at the last election. If you go down through the country and ask the electors about the Oathsimpliciter, what would they answer? Do they want the Oath or not? Nobody cares very much whether it is an oath or a declaration. The real question to put to this country is: Do you want to remain in or to go outside the British Empire? That is the real question to put to the country; that is the honest question to put to the country; that is the real issue here and not any other issue. And will the Attorney-General, who knows so much, tell me: Is taking the Oath out of the Treaty and the Constitution—because that is the meaning of it—is that going to be a Republic or is it going to mean separation? Would the President tell me that? Does he know? He does not know.
He is not in a position to say "yes" or "no" to that question; and that is really the serious question for the country. Does the taking of the Oath out of the Constitution and bringing about a state of affairs in which no Deputy entering this House will take the Oath or acknowledge the King in any way— does that mean the establishment of a Republic outside the British Empire? That is the real question. Is the President in a position to answer it? He is quick to interrupt if he is. He is not in a position to answer that.
I shall have time to answer yet.
That is a question that has been asked half a dozen times in this debate, and it has not been answered yet; and it is a question that should have been answered long ago. The working people of the country, whom you are representing here, are not concerned about saving President de Valera's face or with making legal reputations. They are concerned with their own material interests; and their own material interests are going to be heavily affected by the answer to that question. That is the question that should be really answered here. Is the taking of this Oath out of the Constitution, and refusing to allow Deputies to take the Oath when entering this House and Senators when entering the Seanad—is that going to mean the establishment of a Republic outside the Empire?
To go back, I agree that that is the line that a certain small section of doctrinaire Republicans take in this country; and that is a line that I can appreciate. But if that is the President's line, should we not be told it? Should not the country be told it? Should not the country get an opportunity of saying whether they are in favour of the Oath or not? I want to put this seriously to the Labour Party, because it does affect the poor, because it affects unemployment, because it affects every interest which they have at stake: If this is the real issue, if the real issue to the country is—are you going to go outside or to stay within the British Empire? —should not the country get an opportunity of saying what they mean on that before this Bill is passed?
Without duress, the Deputy says. The country has a right to react to duress. The Deputies sitting here, and the Fianna Fáil Deputies, who are not, I claim, of better timber than the Deputies sitting here—we all have to yield to duress. The French had to yield to duress, and the Germans had to yield to duress. Supposing that the Treaty was signed under the threat of an immediate and terrible war, has not Thomas Walsh, my next-door neighbour, a right to take that into account, and has not Thomas Murphy, in the County Tipperary, a right to take that into account? Has not every civilised man to take the reactions which are against him into account and act accordingly? I do not care if this country deliberately decides to defy duress and to go through anything that the people may have to go through in spite of duress. But what I do object to is that the country has got no real chance of deciding on the real issue: and that is, whether we want to remain within the Empire or separate. That is the real issue. And if that is not the real issue we are in the most humiliating position that the Parliament of any country was ever in, because if the issue is not separation or remaining within the British Empire, then all the talk and all the legal opinions that we have been treated to have been so much waste of time. Because, what then is the issue? And I put this to Deputy Dillon: If that is not the issue, then the issue is that there are men who want to remain within the Empire. who want to see the King part of their legislative and constitutional machinery, but they will not say it. What a degrading, futile, childish position for Irish nationalism to sink to! That is the point of view I hold firmly to. That is the point of view I put steadily before the country, and to which I have never got any decent, fair or square answer yet. I put it to the President that he is trying to walk on a tight-rope. I put it to him that there are only two issues, and that he has not put either. We put our view to the country. We told the country: You are independent, you can exercise your independence as you wish, we suggest to you that you should exercise it by remaining within the Empire. Has not that been our line? Is that not a straight line, an understandable line? What has been President de Valera's line? He has not gone to the country and said: I stand for a Republic, for separation, for no connection with England. He will tell me that the people are not ready. Of course, I shall be told whenever the people are ready. I am not talking of what he will do, but of the issues put before the electors. He went to the country and he told the people: We will take out the Oath, we will not break the Treaty, and then he told the people what they were really asking: There will be no unemployment and there will be no work. That is what he told them. The people voted for the latter part of his programme: No unemployment and no work; and they did that after he had given them an undertaking that for his own reasons he would take the Oath out of the Treaty, but would not go outside the Empire and would not break the Treaty. Is not that what happened? Is not that what is going to happen? We have a Bill to take the Oath out of the Constitution, to withdraw all legal validity from the Treaty.
Does the President deny that the Treaty will be no longer law if this Bill passes?
No, I do not.
The Bill here takes the Oath out of the Constitution and withdraws all legal validity from the Treaty.
Are we discussing Section 2?
I am dealing with the arguments that we have to meet.
I was stopped when I referred to Section 2. It is important that our position should not be compromised.
I am luckier than the Deputy. We have here a Bill to take the Oath out of the Constitution.
This is a Second Reading speech, too.
The speeches on the Government side have been Second Reading speeches.
I understand the Chair ruled with regard to Section 2.
On a point of order, would it be fair to Deputy McGilligan, who is not now in the House, to allow a discussion to proceed on Section 2? He stated explicitly that he did not wish to discuss that section until we came to it.
To be quite accurate as to what Deputy McGilligan said, he did not refer to Section 2 but to an amendment to Section 1.
Quite so, but he wants to discuss Section 2 when it comes up.
I suggest that Deputy McGilligan never mentioned Section 2. He referred to an amendment to Section 1.
Deputy McGilligan was told that as far as possible everything relevant to Section 2 would be discussed on that section.
Deputy McGilligan confined his remarks to the amendment and not to the section to which the amendment referred. The amendment was an amendment to Section 1 and Deputy McGilligan, in the last statement he was making, was discussing the amendment and not the section to which the amendment was put down.
Fortunately, I have just one or two sentences with which to conclude. We have here a Bill which seeks to take the Oath out of the Constitution. We have a Bill which will withdraw all legal validity from the Treaty. What I want to know from the Attorney-General, and particularly from the President, is whether, when that Bill is passed, we will not be outside the British Commonwealth of Nations? Can the President say whether we will or not? I suggest to the Labour Party that they should listen to the answer and satisfy themselves about it. If in fact we are, then this country has been tricked and grossly tricked.
It certainly gives one great satisfaction to see our new model Opposition going through their paces in this not very brilliant debate. One would imagine that this subject has been adequately discussed, not merely during the past four or five years, but during the past ten years and that the country is well aware of the different points and has long ago made up its mind why a decision ought to be taken and the decision that the country wants is the decision that this Government are now looking for.
When Deputy Hogan talks about pettifogging lawyers I wonder whether in this country or outside it one could find a more pettifogging lawyer or one who deals in greater quibbles than he himself does? He knows that in 1923 not alone did the former Government impose this Oath upon the members of the Dáil in spite of some of the best legal advice in the country, but they went so far as to impose declarations embodying a somewhat similar oath upon all civil servants. Even the poor teacher of Irish who had to go round the country was compelled by these gentlemen to take an oath of allegiance, to forswear his nationality, in order that he might be allowed to teach the national language. They compelled civil servants and forced teachers to make this declaration; they compelled the members of the Dáil, and their whole argument is that there was something honourable and something right and something just about this arrangement.
The Attorney-General and other speakers on this side have, I think, sufficiently demonstrated that there was no great legality about it. The legality, it has been clearly shown, is on our side in the action we now propose to take. When we come to consider all the talk about public honour, national honour, honesty and enlightenment, the right thing, the decent thing and all the other bosh we have listened to recently, I wonder do the people who say those things really represent this country or is there anything in the theory that this is a separate nation? What was all the pother about before this wonderful Treaty was brought along? The Irish Party, as I said a few days ago, in its most degenerate days never subscribed to some of the remarkable declarations the gentlemen on the opposite side gave utterance to. They would have us believe that the Irish people think there is something of national honour involved in taking a declaration that we do not want to take.
I must protest against the effort to make the people believe that Englishmen have taken up a definite attitude about this test. The Opposition Party pretend that there is a body of feeling in this country deeply concerned about the Oath.
I maintain that the people of this country do not care twopence about this test and that is one of the reasons they want to get rid of it. Further, they know that the Government that has in the forefront of its policy the taking away of this test has given them peace since it came into office. They are prepared to support this Government and the sooner we succeed in doing away with this test perhaps the better for all of us. The country wants to give this Government a chance to carry out its programme; to give it a chance of maintaining the peaceful conditions that have existed since we took over office.
Deputies on the opposite side want to brush that aside. How strange are their speeches from what we used to hear when we sat in opposition. We were told of the dreadful evils that would happen when Fianna Fáil took office. We do not hear much of that argument now. The country knows there was nothing in it and as time goes on the country will begin to realise exactly who has been deceiving it. We are told of the evil things that will take place when the Oath is abolished. Where are all the evil things we were told would happen? Is the great British Empire waiting for Deputies Hogan, Cosgrave and the rest of them to hurl questions at us as to whether we are to remain in the British Empire before they make up their minds as to what they are going to do with us—that is, if they think it wise or prudent to do anything?
The British Government had not to wait for the Opposition Party in this House to put questions before it made up its mind as to what it would do. The British Government knows this matter has been going on for years, has been discussed and fought out in election campaigns. It knows that in spite of all the dreadful things threatened and in spite of the feeling of panic they tried to create that conditions were never so peaceful. We were told that no man's life would be safe if Fianna Fáil were elected; that a man would not be safe going home from the fair with 2/- in his pocket; that some morning he might awake and find his house burning. The people are in no mood to be trifled with. They have a serious position to cope with because of the existing economic difficulties. In spite of all their dread prophecies the country turned down those now on the Opposition Benches. When they were ten years in office how was it they never had the courage, the prudence, the discretion to test the feelings of the country? They never gave the country an opportunity to express in a clear and emphatic way its opinion upon this single issue.
In the last election Fianna Fáil could not disentangle this question from every other question. I submit that in so far as it is possible under any system of election to get a mandate on a single question, the Fianna Fáil Party have got a definite mandate and it is a mandate on this particular issue. That is not denied.
Is it not time that the Minister would come to the amendment?
The ex-Minister for Agriculture tries to get over that question of the mandate by trying to throw dust in the eyes of the public as to what the British Government are going to do. What are the British Government going to do? Surely the British Government have got quite sufficient encouragement from their allies here during the past two or three weeks to do their damnedest, and let them do it. This Party is prepared to go out of office on this issue and if we do go out of office it will be all the sooner that we will come back, and come back with a clear and unequivocal majority.
It was not for fun that people like myself refused to take this test when it was put up to us, when we were in public employment. We refused to take it. We refused to forswear our principles. Is it suggested that Englishmen or men in any other country would want Irishmen to take a test in which they in conscience do not believe? But supposing that we agree that the theory of the present Opposition is right and that this thing should be left as it is, then the question of peace in this country, the question of our mandate, the economic policy in which the present Opposition professes to be interested would have to be considered.
They have loudly proclaimed what a model Opposition they are, how they are out to be constructive and helpful and that they are going to help the Fianna Fáil Government along the right road. These experienced statesmen are going to help the Fianna Fáil Government along the road to progress. Even if we assume that their contention is correct, if we give up this whole matter to-day and say that we are not going to proceed with it any further, is that going to be any great victory for the British Empire? I wonder will it? Will the British Empire be safer or more secure in the hearts of the people if we leave this question as it is or as it has been? What satisfaction will it be to the British Government or to anybody else to feel that this test which is degrading in its nature and which cannot last, is enforced here? I submit that from the democratic point of view it cannot last.
This test is going to go. We all know that the symbols of Imperialistic paraphernalia are falling away; that they are being destroyed and are going into dissolution in every country in the world. This thing will ultimately fade away. I do not think anybody will contend that it will not. When it is clear that this measure will be to the advantage of the country, when it is clear that it will mean a whole-hearted national effort to advance upon our economic difficulties and try to solve them, when it is clear that the abolition of this test will bring that consummation about and will bring about a new feeling of cordiality, friendliness and permanent peace to this country, would it not be a shame for anybody to put the whole thing back again and plunge the whole country into controversy which might never end?
Would it not be better to get away from these things? We are going to go through with it. When I am told that the people interested in it are only doctrinaires, or on the other hand, that they are the murderers of Kevin O'Higgins and so on, and that no attention should be paid to them, I say that they have a far better right to speak in this matter than some of the members on the opposite side. They represent the national feeling, however wrong their actions may have been, or however we might disagree with them. We on this side have never challenged them as exponents of real national feeling. We believe they are animated by worthy sentiments. The pity is that the late Government had not the patriotism and the statesmanship to take many years ago the step we propose to take and thereby solve this question.
Had that step been taken it is quite possible that these murders would not have taken place and that the dissensions would long since have disappeared. The Deputies on the Opposition side of the House would have been quite free long ago to go about their business. I do not believe that they need have the slightest fears now.
I do not believe that the Opposition are fair to themselves or to the country in taking up this attitude. Nobody wants them to take up this attitude. Nobody has asked the Cumann na nGaedheal Party to do so; no body of national opinion in this country representative of the old Sinn Féin movement has asked them to take up this attitude. Why should they take it up? Have the British Government asked them? I do not think so. Why are they persisting in this? Undoubtedly, they are disappointed in being out of office. According to themselves, they hope to be back soon. Well, they need not feel so terribly disappointed if their hopes are genuine. It seems they are so disappointed and angry with the Irish people that they are prepared, instead of giving the House an exhibition of what decent, honest and sportsmanlike Opposition should be, to enter on a campaign which may last for a considerable time and betray a huckstering and denunciatory spirit here in this House, a thing which I submit will not do the country any good. The only effect of it is to hamper the Government and perhaps that is the real object of it. Is it to prevent the country from realising the seriousness of the economic position in which the Opposition Party profess to be so interested that they are not prepared to allow the country to go along and tackle all those problems arising out of unemployment, agricultural depression and the other problems that we are confronted with in the Budget?
We have no apologies to offer in regard to this matter for it is a national question. We have not intervened in this debate because it is a matter that we cannot argue. We have the feeling that there should be no argument about this matter. We have had always the same feeling. We have always been consistent about it and we are consistent about it now. I believe in the present circumstances the overwhelming body of the Irish people will agree with us in the efforts we are making. On historical, democratic and plain, national grounds we want to get rid of this test. Even viewing it from the narrowest possible compass, we appeal to our friends across the Channel to regard it as a conscience test, a test that has been reduced, as the President pointed out, to something worse than a nullity, to a regular farce by the interpretation that the late Government put upon it. Is it seriously contended that any men of intelligence and enlightenment at the other side of the Channel want to maintain this conscience test?
I do not believe there is any large body of opinion in England in favour of it. I know that there is a certain type of newspaper in Britain which will be very anxious to have speeches made in this House, such as have been made by the chief Opposition Party. It will give the "Die-hards"—the people who are always anxious to make Irishmen in England feel that they are inferior beings —encouragement. The Opposition Party should really examine that question seriously, to see whether in all this talk about standing up for national honour and so on, they are really thinking of the ordinary Englishman in the street—the ordinary fair-minded Englishman. Their arguments seem to be directed to evoking some answering echo, some reply from the Tory Press in Great Britain. Has not this country reached a nice position in our historical evolution when the gentlemen whom the "Morning Post" and other English organs, that maligned and treated in a way that no Irishman with any sense and spirit could do anything but resent—is it not a strange situation to have the Opposition to-day making exactly the same case in this House that the "Morning Post" and other English newspapers and the people that they speak for in Great Britain are making? I submit that the Opposition Party had a great opportunity of getting on to really solid national ground in this debate and bringing about the unity that the Irish people so ardently desire. The people recognise that there must be differences of opinion in this House on economic and on political questions, but I think that 99 per cent. of the Irish people, those of them who took a part in the struggle for independence and helped to establish this House and this Government, would be anxious that we should come together finally, and that we should have some definite, national programme on which we could agree.
Anybody who has studied the present question and who can disentangle the realities from the fog in which the Opposition have striven to envelop it, cannot do otherwise than believe that we are merely carrying out a policy that the late Government tried to carry out. We are trying to carry out the same policy that it was shown in this House they tried to carry out, and that they announced they were going to carry out, with regard to the Privy Council. With regard to that matter, may I remind those who are greatly worried about Section 2 of the Bill that when we want to put this question beyond yea or nay in the Bill, when we want to take it out of the competence of the courts here to invalidate any action we may now take, we have a very good reason for doing so. The reason is that we cannot be sure that the present Opposition Party, either that portion of it led by Deputy Cosgrave or that portion led by Deputy Thrift, will not take steps afterwards to take this matter to the Privy Council. If they have not in the back of their minds the idea of taking this question to the Privy Council, to try to override the legislative act of this House in that way, what on earth is the meaning of the opposition to this section?
I believe the Cumann na nGaedheal Party in taking up their present attitude does not represent any considerable section of national opinion. They may persuade themselves into the belief that they are evolving some new policy on the lines of the policy of the late Irish Party in the British House of Commons. I do not think they are up to that standard because the Irish Party in the British House of Commons, however we differed from them, on all possible occasions stood up, not only for the rights of their own country, and for its independence, but for the rights of every subject nation. The present Opposition Party, which succeeded during its last couple of months in office in carrying into force a Coercion Act that has been a headline for those who are repressing nationalism throughout the world, have now the temerity to tell us that they have discovered a wonderful new policy of Irish nationalism. I think if the leaders of the Irish Party were here, and if all the circumstances were explained to them, nobody would be more surprised or more perturbed than they, that having got an independent and sovereign State, as we are told, an independent and sovereign legislature, we should have an Opposition Party whose chief object and chief function in the public life of the country seem to be to try to bedraggle or put some stigma upon us when we are taking national action, action in which we have the people behind us, that we are not ashamed to take and that there is nothing dishonourable or discreditable about. That is what I call the inferiority complex. It indicates that those gentlemen in spite of their ten years in office do not know the real feelings of the Irish people. If they think that the last election did not give sufficient indication of the feelings of the Irish people on national questions, I submit that the sooner the Irish people get an opportunity of expressing their opinion in a more definite way —in a more unequivocal way, if that is possible—then the better for all of us. If the Opposition really believes that we have come here to do honest work, if they are anxious to cooperate with us in trying to put into effect an economic policy which will get our country out of its present difficulties, I submit they are going the very worst way about it. They are not fair to themselves and not fair to the country. They ought to have more patriotism and they really should have learned more than to pretend to think that a Party which has lost its love for Ireland, whose only weapon is fear of England, which waves that weapon in the face of the Irish people has the slightest chance of coming back to power.
I hope I am in order in discussing the amendment. The Government Benches have wakened up. They are making, so far, all the speeches relevant to the Second Reading which they are sorry they did not make last week. We have certainly had that from more than one speaker on the Government Benches. Deputy Dillon asked whether there was any person who held that Article 4 by itself would be mandatory. I would say, yes. I hold that it would. I will say further that everybody at the time the Treaty was signed—I only know of one exception where a tentative view was put forward to the contrary—held that Article 4 was mandatory. The signatories on both sides not merely held that the Oath was mandatory, but that Article 4 was mandatory. We have heard arguments from the President. It is very strange that all the years he was in opposition he never put up that argument. It is very strange that he never put it up at the recent elections. His theory then was that the Oath had not been made mandatory in the Treaty. I am quoting his own words from a speech he made at Carrick-on-Shannon—that the Oath had not been made mandatory. I submit that if Deputy Dillon or any other Deputy has any doubts as to whether Article 4, standing by itself, is mandatory or not, and wants to know whether any court would hold that, the way to find that out is to vote for the amendment. The amendment will give that opportunity. It will give the people an opportunity of testing that precise matter, whether under the Treaty or in the position in which we are now, Article 4 is or is not mandatory. Does anybody hold that Articles 1 and 2 by themselves would have imposed an oath? I suggest they would not. They deal with allegiance and have got nothing whatever to do with whether members entering Parliament take the Oath or not.
Articles 1 and 2 make no reference to an oath. They have merely got to do with questions of allegiance, with acknowledgment of the Crown as a symbol of the sovereign authority, so far as this State is concerned. There is no mandatory force in Article 1 or Article 2 so far as any oath is concerned. So far as any oath is mandatory in the Treaty, it can only be under Article 4. I understand the argument put up to be that if there is an obligation to take this Oath it comes not from Article 4 but from Articles 1 and 2. These Articles by themselves would not have imposed any such obligation. I think the argument of the President was that Article 4 was in respect of this matter simply a variation of Articles 1 and 2—that Articles 1 and 2 imposed an oath of a certain kind, namely, the Oath taken in Canada, South Africa, Australia and other Dominions, and that Article 4 simply prescribed a modification of that Oath. No such oath is prescribed either directly or indirectly in Article 2. Articles 1 and 2 deal with allegiance. Article 4 gives a sanction so far as the definite acknowledgment of that allegiance by certain persons is concerned. That is the only Article that deals with the Oath.
I am now dealing merely with the amendment. The question as to the value and position of the Oath can be discussed on the section. So far as the amendment is concerned, if there are Deputies, like Deputy Dillon, in doubt as to whether or not Article 4, standing by itself, is mandatory, then the way to find out and to get that question answered is not by statements from this side or the opposite side of the House and not by alleged opinions, which may never have existed, but by appealing to the supreme legal authority in this country. Deputies who are in doubt can find out for themselves by voting for this amendment. As the Deputy in whose name the amendment is down, I should say that there were other courses which we could have taken. This is not the best course to take. There were other courses open to us. These courses have been rejected. A lot of the statements indulged in here can be tested by adopting this amendment. The suggestion that matter contained in a treaty should not be tested before a court of law is a new suggestion. It is by no means exceptional for treaties to be given the force of domestic law. Most of the conventions of the League of Nations, as the President will find out if he has not already found out, are in that position. The countries are asked whether or not their domestic law is in accord with the convention they have accepted. If not, they are given time to bring their domestic legislation into accord with it. You are not asked to take over the Treaty into your Bill. What you are asked to do is to take that provision of the Treaty into your Bill. That is all the amendment asks you to do. You are asked in this particular respect to bring your domestic legislation, or municipal legislation, as it is called, into accord with your international obligations. The Government refuse to do so. The President suggested that he did not want to elevate this Treaty into a position over other treaties, though in fact he has done so. In this Bill, it is left in a peculiar and particular position. If he wanted to do as he says, he could have done it in another Bill. I suggest that there is a fear on the part of the Government that any court would interpret Article 4 as mandatory. Therefore, I ask the House to support the amendment.