I move that the Dáil do not agree with the Seanad in the following amendment:—
Title. The words "and also the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922," deleted.
Vol. 43 No. 5
I move that the Dáil do not agree with the Seanad in the following amendment:—
Title. The words "and also the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922," deleted.
I move that the Dáil do not agree with the Seanad in amendment 2:
Section 2. The section deleted.
It is proposed in the Seanad amendment to delete that clause which took the Treaty out of the Constitution in this country. When it was argued before this House we were presented with two peculiar arguments somewhat destructive each of the other. In the first place, we were told that it was essential to put the Treaty into its true position, that it should not form part of the municipal law and that, therefore, it was proposed to take the Treaty out of the Constitution. But we were told by the Attorney-General, when he was questioned as to what legislation gave the force of law to the Treaty, that it was the Agreement Act of March, 1922, and that that was in fact law in this country. The peculiar position was that while it was necessary to take the Treaty away from being part of the domestic law of this country the argument was that whether we passed the section or not the Treaty was part of the domestic law of this country. It is typical of the mixed manner in which the whole matter has been treated. If it were desired to remove the Treaty from the area of the domestic law in this country, then that would require also the repeal of the Free State (Agreement) Act of March, 1922, in so far as that was law. We are not told why that further repeal was not insisted upon. We know that the Government insisted upon dealing with one part of what has been spoken of as having two parts; that they insisted on doing that in this Bill, having qualified it with a phrase in the Title "to remove the Oath and for that purpose to remove certain other things." The other things aimed at are, in the main, the removal of the Treaty from being part of the Constitution of this State. The argument I use is founded on the use of that phrase and that phrase means nothing else than this, that unless the Constitution is freed from the Treaty the Oath is still obligatory. The necessity is imposed upon the Government notwithstanding any argument to remove the Treaty from the Constitution because if it did not it could not remove the Oath. That is the position we find ourselves in, because it must be held that the Oath is in the Treaty specifically. We hold further that legislation is required to implement the Treaty, and if this is to be removed there is no legislation giving force of law to the Treaty.
The effect of the amendment which the Seanad passed when they deleted this clause is to keep alive the Treaty in this country, because, as I have argued in this House before, not only does this Bill violate the Treaty by taking out one particular clause, namely the Oath, but by Section 2 of the Bill as it went to the Seanad the whole Treaty is voided. The reason for that is because the Treaty did not become a valid binding document until it was ratified by the necessary legislation. The Act which ratified that piece of necessary legislation on behalf of this State was the Act and the section of it which this Bill proposes to remove and to repeal. I placed that argument before the House before. The President was unable to deal with it. He asked me if I could get any English lawyer who would agree with the view I was putting forward. Any contention off his own bat that my argument was wrong he was unable to put forward. He may shelter himself behind some English lawyers. I do not know who they are but he was unable to put forward any reason or to attempt in any fashion to counter that argument of mine.
It is quite true—and I am going to deal with the matter now—that our learned Attorney-General did endeavour to deal with it. I will deal with the Attorney-General's arguments. I think the House will decide as to the force and the validity there is in what the Attorney-General was pleased to call the arguments before the House. I will read from Vol. 41, No. 7, col. 2095, of the Official Debates in which the Attorney-General makes this statement:
Under the Free State (Agreement) Act, Section 1, the force of law was given to the Articles of Agreement. The Provisional Government came into existence....
There the Attorney-General is completely wrong in his facts. It was not under the Free State (Agreement) Act, Section I, that the Provisional Government came into existence. The Provisional Government was in existence before the passing of that Act, because it came into existence on the 14th January, 1922, and that Act did not become law until the 31st March, 1922. So much for the care with which the Attorney-General examined into this incident. He goes on further:
The Provisional Parliament sat as a Constituent Assembly. What further Act was necessary in order to give the force of law to the Articles of Agreement here?
There is a clear definite statement that ratification of the Treaty was contained in Section 1 of the Free State (Agreement) Act, and not only upon that occasion but on subsequent occasions in the course of the debate the Attorney-General is reported as having gone back again and again to the same argument. I am sure the House will be a little bit surprised when it hears that in the Free State (Agreement) Act of 1922, of which the Attorney-General read sub-section (1), there is also sub-section (5) which he did not read to the House, and which runs as follows:
This Act shall not be deemed to be the Act of Parliament for the ratification of the said Articles of Agreement as from the passing whereof the month mentioned in Article II of said Articles is to run.
There you have the argument put forward by the Attorney-General that the Free State Act is an Act to ratify the Treaty not only on behalf of England but on behalf of this country. His contention is that that one Act was supposed to be sufficient to ratify for both, that the Treaty, in spite of the terms and in contradiction of the meaning of the word "Treaty," only required unilateral ratification, and he relies upon that in the teeth of the statement in the statute itself that it does not ratify the Treaty, and is not an Act of Parliament ratifying the Treaty. Here you have the Attorney-General coming and addressing this House, and advising the President— being one of the persons upon whose opinion the President has based his entire contention and attitude—reading one section of the Bill—I want to make it clear that I do not charge the learned Attorney-General with coming to this House and deliberately misleading it—and stating that in his opinion that section ratified the Treaty, when he knew there was a clause in it saying that it did not. I do not accuse the Attorney-General of deliberately misleading the House at all, but I accuse the Attorney-General of being grossly negligent, and grossly careless, when coming to this House and addressing it—and also presumably when he was advising the President—that he did not go to the trouble of reading through the Act upon which he relies. He comes on one sub-section, stops, and does not continue to the end. Let us go further with the Attorney-General's contention. He says that this statute—The Free State (Agreement) Act—gave it the force of law and that it is the whole foundation of the Treaty; that it received its entire legal sanction and legal force from that statute. He was kind enough to say that if I were not a politically-minded lawyer I would not have the temerity to argue to the contrary. I think I shall manage to satisfy the House that I, the politically-minded lawyer, have got the opinions of the judges, so far as they have been expressed on that matter, on my side. It is necessary to go back for a moment or two—I shall do it very briefly—into the history of the entire transaction. Everybody knows that the Government of Ireland Act of 1920 was passed and that Dáil Eireann issued a proclamation on 2nd May, 1921, declaring the so-called Government of Ireland Act illegal. Following upon that there came the negotiations for a Treaty and the Treaty. It was agreed by Article 17 of the Treaty:
By way of provisional arrangement for the administration of Southern Ireland during the interval which must elapse between the date hereof and the constitution of a Parliament and Government of the Irish Free State in accordance therewith, steps shall be taken forthwith for summoning a meeting of members of Parliament elected for constituencies in Southern Ireland since the passing of the Government of Ireland Act, 1920, and for constituting a Provisional Government, and the British Government shall take the steps necessary to transfer to such Provisional Government the powers and machinery requisite for the discharge of its duties, provided that every member of such Provisional Government shall have signified in writing his or her acceptance of this instrument. But this arrangement shall not continue in force beyond the expiration of twelve months from the date hereof.
The Provisional Government was not a Government functioning under the Act of 1920 at all. It had nothing to do with the Act of 1920. The members were members of one House elected for certain purposes and they were to constitute a Provisional Government but they were not to constitute the Houses which, together with the Governor-General, were the institution having legal power to pass laws in this country under the Act of 1920. Therefore, the Provisional Government was not established under the Act of 1920. It was established and came into being because its members were appointed by the Parliament for Southern Ireland. Such members were identical, I think, except for one person, with the members of Dáil Eireann of the time. If Deputies look at Article 17, it will be perfectly obvious to them why the Irish Free State (Agreement) Act was passed. The Irish Free State (Agreement) Act was passed in order that that Article might be carried out and that the necessary transfer of powers and of machinery should be made, as it was made under that Act. The reference to the Articles of Agreement for a Treaty set forth in the Schedule having the force of law was for the purpose of making that binding upon the British Government at the time. Everybody must be aware that there were two Governments prior to the Treaty in this country, both Governments declaring themselves to be de facto and both declaring themselves to be de jure. A delegation was sent from here to negotiate a Treaty. The British Government, in order that it might give away the legal authority which it claimed to have, found it necessary—it was necessary if they were, according to their own laws, to divest themselves of the authority which they claimed—to pass legislation. It was for that purpose and for the transfer of functions that this particular Act was passed. It is clearly set out in that statute that it is not the Act ratifying the Treaty. It is an Act to enable, according to every possible formality, the people of this country, through their elected representatives, to ratify the Treaty.
The next step was that there was an election held and what is called the Third Dáil met upon 9th September, 1922. The members of that Dáil proceeded to pass this Constituent Act, which is the Act giving the force of law to the Treaty in this country. That is to say, that is the statute giving the ratification to the Treaty in this country required by Article 18 of the Treaty. Not until the Treaty had been ratified here, not until the Constituent Act had been passed did the British, on their side, even purport to ratify the Treaty. The Free State Constitution Act, 1922, which became law on 5th December, 1922, after the passage of our Constituent Act, No. 1 Dáil Eireann, 1922, is the measure which is expressly stated in Section 5 to be the Act of Parliament for the ratification of the said Articles of Agreement. Therefore, we have the position that the British Parliament did not ratify this Treaty until December after the statute had been passed here containing the section which the Government now proposes to repeal—the section which gave ratification, and necessary ratification, to the Treaty in this country. The Attorney-General, however, says that "ratify by necessary legislation" means to ratify by legislation in England only. He puts that argument forward on very curious grounds. What is meant by ratification by one party of a treaty, I must frankly confess I do not, and cannot, understand. Ratification means and must mean ratification by both parties if the instrument is a treaty and if it has powers proceeding from both parties and not from one party alone, which seems to be the Attorney-General's contention. The Attorney-General goes on and advances the strangest argument which it would be possible to put forward. He contends that as the words "ratify by necessary legislation" occur in Section 18 and the words "Act of Parliament" occur in Article 11, therefore "legislation" and "Act of Parliament" must mean the same thing. In other words, he puts forward the contention that the parties to this Agreement, in dealing with the British ratification, used the words "Act of Parliament" when they meant "Act of Parliament" but later changed the term and used the word "legislation." The Attorney-General says that because they used "Act of Parliament" in one place and "legislation" in another place "legislation" must mean "Act of Parliament." I should imagine that if the Attorney-General were not so legally-minded, the very fact of the change of words would go to show that there was a deliberate intention to change the meaning. That is how a lawyer would interpret it. I do not say that that is a complete and entire argument because this may be a badly-drafted document. If it is a well-drafted document, then "legislation" cannot mean "Act of Parliament." It must mean "Act of Parliament" plus something else. In a badly drafted document, I grant it might possibly mean "Act of Parliament," as far as this argument only is concerned, but it is a prima facie presumption that the signatories to a document like this changed their words because they meant to change their meaning. As I said, that is the rule of legal interpretation, the very opposite to the rule the Attorney-General announced and I shall give shortly two authorities on that matter. In the case of Hadley and Perks, Law Reports 1 Q.B., Lord Blackburn stated:
It has been a general rule for drawing deeds and other legal documents from the earliest time which one is taught when one first becomes a pupil to a conveyancer never to change the form of words unless you are going to change the meaning, and it would be as well if those who are engaged in the preparation of Acts of Parliament would bear in mind that that is the real principle of construction.
There, you see Lord Blackburn says that the first thing a law student learns is not to change the words unless you are going to change the meaning, but according to the Attorney-General when you change the words you keep the meaning the same. Here is another statement of the law:
It is a rule of construction that where, in the same Act of Parliament, and in relation to the same subject matter, different words are used the Court must see whether the Legislature had not made the alteration intentionally, and with some definite purpose, prima facie such an alteration would be considered intentionally.
Resting my argument upon these authorities, I say the conclusion you should draw from the use of the words "Act of Parliament" in one place and "Legislature" in another is that "Legislature" and "Act of Parliament" have two different meanings, and that they used "Act of Parliament" when they wanted to mean Act of Parliament and that later they used "Legislature" because Act of Parliament was not wide enough, because it meant Act of Parliament and Legislature meant a legislative body set up under Article 17 of the Constitution in this country. I hope in a moment to show that I have the judges on my side also. In Cahill v. the Attorney-General, Irish Law Reports 1925, page 70, Judge Meredith said: "These Courts were established under the Constitution enacted by Dáil Eireann by the Constitution of the Irish Free State Act (Saorstát Eireann Act, 1922, No. 1 of 1922). That Constitution must be recognised by these Courts as an original source of jurisdiction, and as regards the whole code of law to be applied, is the one and all sufficient root of the Title."
Nothing there about the Attorney-General's contention that the one and all sufficient root of Title under which we live and move and have our political being is a British Statute. Judge Meredith declares that the Irish Free State Constitution must be recognised as the one and all sufficient root of Title. He goes on with a stronger argument. The argument the Attorney-General put before the House the other day was the argument put before our courts and turned down. I am sure the Attorney-General would not put an argument before the House if he had known it was considered by our courts and held to be entirely wrong. I again say it is very strange that the Attorney-General should never have read the case of Fogarty and others against O'Donoghue and others, of whom I think the President was one of the defendants although he did not recognise the courts or go far enough as to appear through solicitor and counsel. There Judge Meredith says, as reported in the 1926 Irish Law Reports, 531:
An argument was pressed by Mr. Overend on behalf of the defendants, that the body called the Third Dáil could not be successors of the Second Dáil by reason of the fact that in some way the Third Dáil was derived from the English Government and its authority based upon Acts of the British Government.
That is the Attorney-General's contention. To my mind sufficient and conclusive argument to the contrary is found in the solemn pronouncement embodied in the Constitution which states: "The source of all authority is derived through the people of Ireland." The Attorney-General says that everything comes through these British Statutes. We say no, that everything which exists now in this country, and the validity and binding effect of the Treaty, does not come, and could not come through a British Statute. We say it has been accepted and it is now completely accepted by both sides that the only power that can make laws in this country are the people of this country. I say that that is recognised by both sides because if you turn to those Constituent Acts you will find, also, in the Preamble:—"Dáil Eireann sitting as a Constituent Assembly in this Provisional Parliament acknowledges that all lawful authority comes from God to the people and in the confidence that the national life and unity of Ireland shall thus be restored hereby proclaims the establishment of the Irish Free State (otherwise called Saorstát Eireann) and in the exercise of undoubted right decrees and enacts as follows."
Remember, that is not only the declaration of the people here in the Dáil Assembly—there was no Seanad at the time—it was the declaration of the Oireachtas and was accepted as a true statement, not by force of an Act of the British Parliament. The declaration is made that Dáil Eireann sitting as a Constituent Assembly acknowledging that all lawful authority comes from God to the people, and that is accepted as being binding by the British Parliament because of the Schedule to the Act of December, 1922, the Irish Free State Constitution Act set out in its entirety in this Statute. In other words, they accepted its validity and binding force. Where then does the Attorney-General's argument come in that the Treaty has its binding force upon this country by reason of a British Statute, and by reason of that alone? Where does that come in and how could that, conceivably, be a correct argument in the teeth of the definite statement that the British Parliament had no power at that time to make any Statute binding upon this country or any law binding upon this country and that is not denied by themselves?
Let me take it from another point of view, and look at the Attorney-General's argument from another angle. Does the Attorney-General believe in it, or could he believe in it, for one minute himself? If his contention is that the Treaty has force of law through a British Act it cannot be denied that our Constitution Act would be perfectly unnecessary. Our Constituent Act is so much waste paper. That is the Attorney-General's contention. If the Constituent, Act does not give force of law to the Treaty; if the Treaty has its force of law solely and entirely from the Free State (Agreement) Act, then, our Constituent Act, No. 7 of 1922, was perfectly unnecessary and the repeal of it is absolutely worthless. If the Attorney-General is correct in his contention, what he should have done, or what the President should have had done, when introducing this Bill, was to see that the Act which the Attorney-General declares to be the Act giving binding force to the Treaty should no longer be the law of the country. Pass this Act, even as it went up to the Seanad, and, if the Attorney-General is correct, the Treaty is not touched— the Treaty is still law because you have not touched the Free State (Agreement) Act, and if the Attorney-General's contention is correct, the first thing you would have to do would be to repeal the Free State (Agreement) Act. If that Act is not repealed, the Treaty still remains unchanged by this legislation—that is his argument. The Treaty is made law and the clause saying "the Oath to be taken" is made law, according to the Attorney-General, by the Free State (Agreement) Act, and, therefore, so long as the Free State (Agreement) Act remains, the Treaty remains, and your courts will have to hold, if the Attorney-General is correct, that the Oath was still binding. That shows the impossible position into which the Attorney-General has run himself.
If the Attorney-General put forward the arguments he put forward here before any court, it would refer to its decided cases, that neither the Free State (Agreement) Act nor the Constitution Act of 1922 is what gives binding force to the Treaty. Our courts would and must hold, following the legal dicta which I have read out, that the only Statute ratified and giving force to the Treaty in this country is this Constitution Act, by Section 2, and the Attorney-General, and the President, recognise that when it is the Constituent Act that they seek to repeal, and not the Free State (Agreement) Act, which, if the contention which the Attorney-General is now driven to put forward be correct, is the Statute giving force to the Treaty here.
There is another way of looking at this matter. The President has talked a great deal about the horrible thing of having our domestic law subject to any Treaty which we have made or which we may enter into, but this Statute leaves that condition unaltered, if the learned Attorney-General's contention is correct. If it is the Free State (Agreement) Act which gives force of law to the Treaty, this Treaty is still binding on our courts, and our municipal law in respect of which the President has been so anxious to say he wished to have above everything else, is still bound, according to the Attorney-General's contention, by the Free State (Agreement) Act, the Act giving force to the Treaty. Might I ask why, if the President believes in this argument of the Attorney-General, or if the Attorney-General believes in it himself, is not this Free State (Agreement) Act the Statute which is sought to be repealed now? Because, of course, you can repeal it. You are a sovereign assembly. I have heard a great deal, both from the President and from the Attorney-General on the question of status. I have heard a great deal of what I can only characterise as extremely bad and illogical argument on the question of status. There is no question of status and there can be no question of status arising here. Our status is perfectly plain and known to the whole world. Our status is the status of a sovereign independent State, a State which can do exactly what it likes and bound by no other considerations than the considerations which bind other sovereign States. We cannot break into international law as this Bill is attempting to do, nor can we break the moral law, but subject to these limitations, this State is as sovereign as a State can be, and, therefore, there is no question of status and no question of status can arise here. But we have a Treaty which ought to be kept binding on us. The President was very fond of talking, during this debate, about the Canadian precedent, and declaring that Canada could take the Oath out of its Constitution and asking why should not we. Canada cannot take the Oath out of its Constitution. And why? The reason is this, that, in effect, the Dominion of Canada is really a Federal State, and the States which constitute the Dominion of Canada came together, made their agreement and had their agreement embodied in the British North America Act, and they are determined that that Act shall remain unchanged, and unaltered, because that Act, which brought them into being, is the contract and bargain which those various States made, one with the other, and precisely, and in the same way, we made a bargain and we should be animated by just the same principles of straight-forward action as the Canadians have been, and we should stand behind the Treaty which we entered into.
I cannot let this occasion pass without, at least attempting to convey or to translate the feelings of many of my constituents in Cork City. I do feel that a very grave responsibility indeed rests on the shoulders of every member in this House, and, particularly, on the shoulders of the Labour Party, who, I assert, got no mandate whatsoever to vote for the abolition of the Oath in this Parliament. At several of my meetings, since 1923 on, I undertook that I would do nothing during my term in the Dáil that would, in any way, endanger the position that we had achieved by reason of the Treaty. I feel also that much of the good and useful work that has been accomplished by this State during the last ten years has been accomplished by men of outstanding constructive ability. Any of us who has taken even the slightest interest in the proceedings at the various Imperial Conferences must recognise that two outstanding men, with very marked constructive ability, helped to secure for us the position we find ourselves in to-day. These two gentlemen are the late Mr. Kevin O'Higgins and Deputy McGilligan, one time Minister for External Affairs. It cannot be gainsaid that advantage was taken of the successive Imperial Conferences further to strengthen the position which was obtained as a result of the Treaty. We find that instrument, which was fashioned and made and improved by the delegates from this country at successive Imperial Conferences, being used now by the present Government to undo most of that good work.
I feel that the Government would be far more usefully employed in approaching this matter through the ordinary channels rather than creating unrest and unsettlement in this country and doing great damage and injury to our products in other countries. There is no question that we have by these recent discussions, and the introduction of this Bill particularly, very considerably endangered our commercial prospects in other countries and our commercial relationships with other countries. We have had recalled in this House the treatment of perfidious Albion, as Great Britain was termed, in her dealings with this country on occasions. I want to suggest to the House that while we can do many things by enactments or Acts of Parliament there are things that no enactment of this or the British House of Commons can achieve. Although there were successive enactments which were directed towards improving the status of this country and its nationals, I suggest that there is no Irishman who would ever forget that the Treaty of Limerick was broken. We were all taught in our schooldays to regard Limerick as the City of the Violated Treaty. It is not Great Britain is breaking this Treaty. If there is any perfidy or any wrong being done on this occasion, it is being done by us and being done by us with our eyes open to all the consequences that may ensue. I have suggested that certain things can be done by Act of Parliament and that there are certain things that Acts of Parliament cannot do. They cannot eradicate from the minds of any nation the wrongs done to them by the people of another nation. I suggest that if we by this Bill—I take it it will be passed by this House—en-danger the position that has been created in this country by the Treaty, then we will have done one of the worst day's work for Ireland. Personally, I am not going to give it my sanction as representing the people who sent me here, because I undertook that I would not endanger that position. It cannot be suggested that President de Valera, for whom I have respect as head of the State, is a better statesman or Irishman than Patrick Sarsfield, Earl of Lucan. We have it on record that even Sarsfield signed that Treaty under duress. I want to know from the President does he know of any Treaty signed in any country that was not signed under duress. At the conclusion of the Boer war, arrangements were entered into by which the Boers got very substantial sums of money by way of compensation. They too entered into those arrangements under duress. There has been no occasion in history in which there was a vanquished and a vanquisher in which there was not duress of one kind or another. The very presence of policemen on our streets shows that there is duress to keep the peace and be of good conduct.
I do want to express my disappointment at the Attorney-General's contribution to the general debate. The Attorney-General apparently based all his arguments on the legal aspect of the question. Nobody has suggested, at least very few laymen have suggested, that we have not a legal right to do the things that are sought to be done in this Bill. But I do suggest that it will bring new hope and encouragement to every usurer, every rackrenting landlord, and every profiteer in this country when he is told by no less an authority than our own Attorney-General that the legal aspect is what is meant in this matter, a matter which appears to me to be concerned as much with the honour of our country as it is with the legal aspect of a document such as the Treaty. I would be very slow indeed to think that honour and equity found no place in the considerations of our country. That is how I construe the Attorney-General's argument during this general debate.
We have heard during the course of the discussions, not alone in this House but outside the House, a very cheap jibe thrown at anybody who offers any opposition to any measure of this character introduced by this Government. We are told, forsooth, because we do not want to see the Treaty position endangered that we are Imperialists. If it is Imperialism to honour one's bond, if it is Imperialism to endeavour to secure that the very delicate economic fabric that has been built up in this country will not be interfered with—because I believe that interference at this juncture will cause further unemployment and further misery in our country and has already divided many of our people and brought about a good deal of instability and unsettlement in this country—if it is Imperialism to resist that, if it is Imperialism, as I have suggested, to honour one's bond and to feel proud as Irishmen that our country would honour its bond, then I am an Imperialist. If it is Imperialism to be able to say that we stand as much for honour and for the honouring of our bonds and promises as an Englishman does, as a Canadian does, as a South African does, and as an Australian does, then I am an Imperialist.
One question perhaps might be properly asked of the Attorney-General, a question which I have attempted to solve myself and solved in my own way. I have solved it in a way which I will suggest. Can we claim to be co-equals in the British Commonwealth of Nations with the other Dominions if this Bill becomes law? I suggest that we cannot. I also suggest that we cannot have it both ways. If we legislate along these lines here, repudiate our honourable obligations entered into in the Treaty, we cannot grouse and should not grumble if, on the other hand, the other party to that honourable agreement hits back and hits back in his own way. We have it stated on the authority of a British Minister that if the Oath Bill goes through Great Britain will retaliate by withdrawing from us the Imperial preferences which she extends to some of our commodities. If this British Minister has blundered, if Mr. Thomas has blundered, is that any reason why we should blunder?
I feel that much of the heat that has arisen during these discussions, both in this House and outside, has been engendered by the gentleman to whom I have referred now as the British Minister. If he has blundered why should we follow suit? Why should President de Valera's Government follow the example set by Mr. Thomas and so make a further blunder? If we prefer to vote ourselves out of the British Commonwealth of Nations, let us not grouse about it and let us take our medicine like men, if and when we are hit either politically or economically. If we remain in we will have all the advantages that will accrue to us by way of preference and otherwise and if we leave we will suffer very many disadvantages. I am not one of those people who wish to exaggerate or place any impediment in the way of the activities of the Government in certain directions. I said early in this session that I would like to give them a try-out, but I think here it should at least be admitted that on an important issue of this character, a highly important issue, we might at least have had the matter put very plainly before the people.
I came here with no mandate to remove the Oath. I challenge any member of the Labour Party: did he ask his constituents with regard to the Oath and did they give him a mandate? In any public speeches I read or heard, made by any of those Deputies, it was never suggested that they asked for a mandate on the Oath question. So far as they are concerned, and I subscribe to this myself, they have declared in the speeches that I have listened to or read that they would do nothing that would jeopardise the position that this country had, and still has, under the Treaty.
I want to put it to the President very briefly that the best way to disagree with this amendment and the rest of the Seanad amendments is to drop this Bill and face the real issue. It seems to me increasingly obvious that the fundamental issue of whether we are to remain in the Commonwealth of Nations or go out of it cannot be evaded much longer. Although to leave the Commonwealth of Nations would be a breach of the Treaty, the official spokesmen of the British Government have stated that no opposition will be offered to our leaving if we want to. It seems to me that either by a General Election or by Referendum the electorate ought to be given a chance of deciding.
It is almost certain that the form of the Oath could be changed by agreement and it is even possible, and I am inclined to think probable, that the Oath could be got rid of by good-tempered diplomacy were it not for the fact that the people who are raising and pressing this issue of the Oath are people who desire to cut the connection altogether and get rid of all our partnership obligations to the Commonwealth. Whatever were done about the Oath, the fact would remain of our allegiance to the Crown as a symbol of the Commonwealth, and it is the fact that matters and not the particular form in which that fact is recognised. I, for one, though I would prefer to be in the Commonwealth, have no objection in principle to an independent Irish Republic, and would feel no difficulty about giving it whole-hearted loyalty; but I detest this business of facing both ways and acting as disloyal and untrustworthy partners. I think it is about time the people of this country were given a rest from political issues. Let them settle the matter calmly, without intimidation, and with knowledge of the material advantages and disadvantages in either course.
I am sure the President realises as well as I do that there is an element in this country which lives on animosities and animosities alone—animosities between nations, animosities between classes, animosities against individuals. Let us put these people out of business, let us stop fighting shadows, and let us fight the real enemies of Ireland, the ignorance, the fears, the suspicious and the hatreds that flourish in our midst and let us get rid, above all, of the poverty which nourishes these things.
I would have had more respect for the arguments of Deputy Fitzgerald-Kenney if, following the earlier discussions of this Bill, he put down an amendment to give effect to the views he advocated here. He said that I put forward certain arguments when the Bill was being considered in the Dáil in the first instance and that I repeated those arguments and emphasised them on the Committee Stage. I think he made the very same point on the occasion of the Second Reading that he has now made. Apparently, he did not place so much reliance on his own arguments because he failed to put down an amendment upon which we could have had a proper discussion. He attacks me because he says that I in some way concealed something from the House when I was developing the legal argument. I repudiate that. I am perfectly familiar with all the sections of the Free State Agreement Act. I had them in mind when I was speaking before. Surely, if the Deputy were so interested in that measure he had ample opportunity of looking up the sections that were referred to? He could just as easily have discovered the information then as he has discovered it since. I merely based my argument on the interpretation of Article 18. I am not going to go into details again. The whole matter was gone into fully by me on the Committee and other stages. Apparently, although the Deputy condemns my action, he admits a similiar argument was presented by a man to whom I am sure will at least be paid the tribute that he is a competent lawyer.
I should have thought a good deal of this discussion was dead and buried, having regard to what has happened since the debate. One very interesting development took place when our action here in passing the Bill was discussed in the British House of Commons. One leading lawyer said that we had a perfect right to pass this Bill; no objection was taken to our right. I am not going to enter into a discussion on the difference between right and power. Our right to pass the Bill was not challenged. Comment was made on the fact that even in the British House of Commons not a single lawyer got up to argue to the contrary. The position adopted by Deputy Fitzgerald-Kenney and followed by Deputy Anthony seems to me rather strange. I suppose in this matter I have a certain legal responsibility; I have a responsibility for advising the Cabinet and the President. Deputy Anthony thinks fit to charge me with saying that I base my argument on the legal side of the case. He went on to say that no one can deny that we have, apparently, proved our case to the satisfaction of the ordinary man. I do not see why he should quarrel with my action in explaining the legal aspect of our case for the purposes of the passage of the Bill.
I do not think at this stage of this controversy that argument with the Opposition is going to have any weight. They have, apparently, made up their minds that when we state we are acting within the four corners of our legal position we are acting, as they suggest, in a manner calculated to bring about a deliberate breach of an honoured obligation. They have made up their minds that the whole situation here is governed by the moral obligations created by the existence of this Agreement of 1921; whereas our position is, as has been stated over and over again, that within the rights conferred on us by this instrument of 1921—call it a Treaty or any other name—within the four corners of it—and accepting the position which has grown up since, which has been created by development at the various Imperial Conferences and by virtue of the enactments of the British House of Commons, no challenge can be legally given to our constitutional rights to enact this legislation. That has been our position. Apparently the challenge to it from lawyers on the other side of the water, so far, has been very weak, practically nil. And I must say, as I said at the earlier stages of this discussion, that the arguments advanced here even by Deputy Fitzgerald-Kenney would not be advanced for one moment by lawyers on the other side of the water, challenging our rights and ability to pass this legislation.
Does the Attorney-General challenge the accuracy of my argument?
I certainly do.
Then I should like to hear the Attorney-General's arguments for it.
My answer has been given in my speeches on the earlier stages of this Bill.
Answers which I think I have riddled with quotations from judicial decisions.
I do not accept for one moment that Deputy Fitzgerald-Kenney has riddled any arguments that I put up. His arguments would not hold water for five minutes in any court of law. The Deputy may dress them up to appear here as if they were sound arguments or arguments having weight, but when he seeks to draw a distinction between enactment by legislation and the passing of an Act of Parliament, I should like to hear him address such arguments to a court of law—that "approval by the necessary legislation" cannot mean the same thing as the passing of an Act of Parliament.
Most certainly I say that "legislation" includes Acts of Parliament and Acts of the Dáil.
My argument was that that does not follow from the interpretation of these words and I differ completely from the Deputy. I say that the whole basis of his argument on that point is completely misconceived. His whole premises are wrong. That argument was then followed with another argument that even though we remove this section of the Constituent Act, we do not deprive the Treaty of the force of law by virtue of the Free State Agreement Act. As the President has pointed out, our aim is to remove this document from the overriding position which is given it in the Constituent Act so as not to have all our Constitution fettered in the way in which it is. No other Constitution is similarly fettered in any other country.
By the Attorney-General's argument it is still fettered.
That places it in the position in which it has the force of ordinary legislation. Apparently, the Deputy misconceived from the start that our objection to it is not its having the force of law but allowing it to remain an overriding provision, a provision which overrides every enactment of the Constitution. It affects the position under the Constituent Act. It shows that either I did not make myself clear or he misconceived my argument when he takes that line in answer to it. Then the Deputy goes on with the usual talk, "We are a sovereign independent State," and so on, but apparently we cannot do this.
Reference has been made by some of the speakers to the disturbance we are causing by bringing in this legislation. As I have already said, the opinion of the various legal men and of every lawyer whom I have consulted in connection with this matter—and I consulted a good many—was that we had a perfect right to introduce this legislation and the disturbance that has been caused was caused by those who adopted the argument to which we can give no weight. No independent lawyer would give any weight to that argument—that, seeing there is a moral obligation created by the instrument of 1921, we should remain in the immutable position of that document.
Not immutable—variable by agreement.
Our argument is that a British lawyer, examining the position created by the Agreement of 1921, examining every development that has taken place since, examining that in a cold, legal manner, cannot challenge our right to do this; and the consideration on which is said to be impossible by the Deputies on the other side would have no place in any lawyer's argument on this matter.
Might I ask the Attorney-General one question? Would he consider the question of a usurer's claim to act by force of law, getting an assurance of protection from the section of an Act—that that was based on right?
It is rather an unusual position in which to place this country towards England, the position of a usurer.
I thought that at this stage the Attorney-General would, in defence of his position as a politician, try to maintain some sort of standing as a lawyer in attempting to answer the case put up here. The Attorney-General was the adviser of the Government. Consequently we must assume that the Government case has been based on his advice and that it is at one with his own statement here. It has been pointed out on this side by Deputy McGilligan and Deputy Fitzgerald-Kenney that the case put forward for this particular Article obviously is contradicted on the Government side. It is stated that for that purpose—I think these are the words in the clause—this Article is to be removed from the Constituent Act. "For that purpose" it is to be removed—because presumably the force of law is given by the Constituent Act. Presumably it is for that it is being removed. But the Attorney-General said before that the force of law is given not by the Constituent Act but by the British Act, the Act of March, 1922. I do not remember the exact name of the Act. It has been pointed out here time and again that that was the Act that gave the force of law and then that this is the Act which has to be changed in order to remove the force of law. The Attorney-General dodges that point. How does he dodge it? He says that a similar argument was presented by competent lawyers. It was presented in a case in which there was an attempt made to defraud this State of certain moneys. Possibly we admit the right of certain people to employ a lawyer whose job it was to make the best bogus case that could be made. He made the bogus case that the Deputy has put before the House before the courts of the State. The courts of the State turned it down as an argument that did not hold water. The Attorney-General now comes along and says that the word of a lawyer who is paid to plead a bogus case in the courts, that his word and the bogus case he puts forward are arguments to be taken as binding in law on the people and not the decisions of the court of the country.
The Attorney-General states that he has read every clause. It was perfectly evident when he spoke here that he had not read every clause of the 1922 Acts. He says now that the purpose is to leave the Treaty and its constituent clauses as part of the law of the country, leaving it as part of the municipal law, but dissociating it from one Act, the Constituent Act. That has not been the statement of the President here. He has stated time and again that he wishes as far as the International Treaty is concerned that it shall not be part of the municipal law of the country. The Attorney-General gets up and in his usual way, without any sense of responsibility, makes general statements without bothering beforehand to ascertain whether they were true or not, just like his casual statement of a couple of minutes ago. It was stated time and again that in no country in the world does an international agreement attain the force of municipal law. I pointed out that the agreement entered into between the United States and Great Britain overrides the American Constitution. It does seem that Deputy Fitzgerald-Kenney was right in stating that the Attorney-General was not attempting so much to make a case as to attempt to conceal the facts from the House. The only fact which he has not succeeded in concealing is that he has not considered it in the way in which it is his duty to consider it having regard to the office which he holds or else that having considered it he realises that there is no case to be put before the House and he seeks to blind the House with a number of stammering words that are only an attempt to confuse the ordinary man in the street.
Anybody listening to the Attorney-General in this House must admit that he has completely failed to make the case which he tried to make. He says that an English lawyer would argue that the Treaty has the force of law and that all this depended on a certain British Act of Parliament. He is basing everything on that. If he is basing it on that, is he going to accept the corollaries that will flow from that position? He may tell me that at the moment just to appeal to the more ignorant of his followers in the country, but there will be certain corollaries flowing from that which will destroy the case the Attorney-General wishes to make. He says further that English lawyers admit that we have the right to introduce any piece of legislation we wish. That is an attempt to answer a point that has not been made. We will admit that this country being sovereign has the right to pass any laws, but we made a certain agreement with England, just as America did in regard to her liquor trade—we made it in our Treaty of 6th December, 1921—and no sovereign right can exist in any nation which gives that nation the right to break its word.
We can alter the Treaty by agreement with the British. That is admitted, but neither the Irish Free State nor any other country in the world can possess that sovereignty which will give it the right to pledge its word one moment and to break its word whenever it pleases to do so. If we were an isolated Republic, as we know the President wants and which he is doing his best at present to bring about—we have almost become isolated from England and France in the last couple of months—and we were to emerge from that isolation to make agreements with other countries, we are by making that agreement asserting that whatever rights we possess we are prepared to forego in so far as they affect the point upon which we have agreed in the Treaty. That is the position which there has been an attempt on the part of the Government to try to confuse. We have asserted, always asserted that this was a sovereign and independent State and the pre-eminent demonstration of that is that we have made agreements with another country that we shall do certain things and that we shall not do certain things, but as an international person endowed with moral responsibility, this nation has given its word, and what we assert is that this nation is not within its right in breaking its word any more than any human being has the right to break his word.
We do assert that this Treaty must necessarily be considered in the light of new circumstances, any new circumstances that were not conceived as possible or as likely at the time the Treaty was made. That is the position. I think it is a scandal in regard to this Bill which is brought in here and which is clearly going to do enormous damage to this country, that at least some attempt should not be made to defend it. The Attorney-General came before the House and made a case which will not hold water, a case which if it did not carry its own contradiction was a contradiction of the case made by the President. He has tried to re-establish the case which he made here before or attempted to establish a new case, but he does neither. He gets up and stammers a few words in the hope of deluding semiignorant people in the country that he had put up some sort of defence. He has asserted what the President has not asserted, that certain Articles derive the force of law from an Act that they do not touch or purport to touch. Either the President is wasting his time by bringing in these Bills when he should be bringing in the Bill which was proposed in the British House of Commons or the case put forward by the Attorney-General does not hold water.
An attempt to put forward a case here on a plea made by a lawyer on a case brought forward in the courts, a plea against which the courts decided, is I suggest an attempt to plead something which is dishonest. It seems to me that if the Attorney-General in his private practice gives such advice as we find him giving here, if he advises people to be guided by an argument that was put forward in the courts by a lawyer, the courts having decided against that argument—well—personally I would not go to him for advice.
This Bill has been up before the Seanad. The Seanad has made certain amendments, clearly guided in making those amendments by their concern for the trade and the well-being of the country. It comes back here and the President merely gets up and says that he does not accept these amendments, that he intends to put it across the Dáil by his majority. The Attorney-General tried to defend the Bill, but I maintain, and it is apparent to everybody here, that the Attorney-General has not even attempted to answer the case made against the Bill on this occasion or on a previous occasion. He presumably is the legal adviser of the Government. All I can say is that the Government that is depending on such legal advice is going to destroy themselves, which would not concern me in the least except, unfortunately, that they have to carry my country to destruction with them.
This is the first occasion upon which Section 2 of the Bill stands naked and alone before the Dáil. I do not propose to spend much time on it because its very existence condemns it. The President introduced the Bill into this House to abolish the obligation of taking an oath which had been prescribed for every member of the Oireachtas. For that purpose this Bill was introduced. The first section, unquestionably, was directed towards the end which he had undertaken, and this section was then attached to the Bill, and the President himself said that it was attached to the Bill on the advice of his legal advisers. I think it is a very great pity, in this case, that the President listened to his legal advisers. An issue which was, I believe, an issue commanding the sympathy of the great majority of the people of the country, was clouded and, to my mind, destroyed, and it became apparent to me that an attempt was being made, under cover of that issue, to do something far more than the people ever authorised the President to undertake. The Attorney-General to-day said that, so far as the arguments of the Cumann na nGaedheal Party were concerned against the right and justice and power of this Oireachtas to remove the obligation to take an oath, no lawyer could attach any weight to these arguments, no reputable lawyer would consider them worthy of consideration. And yet, we are told that in order to safeguard this procedure it was vitally necessary to bring in Section 2. Is there no competent lawyer on the Irish Bench? Although the Attorney-General says that no reputable lawyer would consider the arguments as to the injustice or impropriety of this Act worthy of consideration, does he suggest that there is no such lawyer on the Bench in Ireland?
As to the question of removing the Treaty from the sphere of the law, I have said before that that business has nothing whatever to do with the business indicated in the Title of this Bill. It has nothing whatever to do with the business which President de Valera says he has a mandate to deal with. It belongs to another department of legislation altogether and might properly be considered on another occasion. An attempt is being made here not to consider it but to drag it through the Oireachtas at the tail of another measure, to force it through the Oireachtas in the name of another purpose. That is a procedure to which I do not think the President should ever have made himself a party, whatever the views of his legal advisers were. I will vote against this section and I will vote against Section 3 as well. They are both unnecessary and, in my opinion, have done incalculable damage. I think that perhaps the President himself is beginning to realise that his lawyers' judgment may or may not be good in so far as the law is concerned but in the sphere of national politics I am afraid that the advice he got from his lawyers has led him into a maze which. I think, has complicated the whole national life of this country disastrously. I think that he will arrive some day or other at the point of bitterly regretting having introduced it. He has yielded to advice to insert Sections 2 and 3 and he has now definitely decided to force them through the Dáil and through the Oireachtas as a whole. Some day he will regret that. Whatever he may have done for Ireland in the past, I think that, in his handling of this Bill—in the manner in which he has now finally announced his intention of handling it —he has done the greatest disservice to this country that any one man could possibly do.
We are discussing an amendment by the Seanad to delete a certain section of what has been described as the Removal of the Oath Bill. No argument was made by the President as to why we should disagree with the Seanad. The only argument that was made has been made by the Attorney-General, and is there anyone here who feels clear on the matter as a result of the arguments made by the Attorney-General here to-day or who has been convinced to vote one way or the other by the arguments arising out of what the Attorney-General said? It has been said that no man's opinion is worth more than the arguments upon which he has founded that opinion. What is the opinion of the Attorney-General, judged by that test? In the course of the last debate, the Attorney-General said that the Treaty was law in this country and that it had been given the force of law by reason of an Act passed in the British Parliament in March, 1922. He was challenged on that. He said that under the Free State (Agreement) Act of 1922 the force of law was given to the letter, and he asked what further Act was necessary to give the force of law to the Articles of Agreement here? In other words, that the Articles of Agreement were given the force of law by the British Act of 1922 and that they required no further Act to give them the force of law. To-day, Deputy Fitzgerald-Kenney made this comment upon that —that in addition to Section 1, which the Attorney-General read, there is also sub-section (5), which he apparently did not read. Sub-section (5) says:—
This Act shall not be deemed to be the Act of Parliament for the ratification of the said Articles of Agreement as from the passing whereof the month mentioned in Article 11 of said Articles is to run.
It is not to be deemed the Act of Parliament for the ratification of the said Articles of Agreement.
That is what the Attorney-General says gives the force of law to the Treaty in this country, and his comment to Deputy Fitzgerald-Kenney was to ask him if he would dare to put that forward in court. To that the reply is that it has been put before two courts for a decision. There has been a decision of the judges upon it. What has been the decision? That the Articles of Agreement for a Treaty got the force of law in this country not from that Act upon which the Attorney-General relies, but from our Constitution Act of 1922. The Attorney-General says that the Treaty gets the force of law in this country from the Act of March, 1922, and, as if that were not sufficient, asks what further Act is required to give the force of law to it, although the very thing he quotes says:
This Act ... shall not be deemed to be the Act of Parliament for the ratification of the said Articles of Agreement as from the passing whereof the month mentioned in Article 11 of the said Articles is to run.
That is the opinion upon which this irrevocable step has been taken. I queried it before in this House. We had the Attorney-General, who had been silent up to a certain point, and we had the Minister for Justice, the great dome of silence as far as this debate is concerned. Not a word from him on law with regard to the Treaty or the debate for the removal of the Oath, and yet, funny enough, he was the person who was brought into consultation when British Ministers visited this country, one of them being a lawyer. I suppose they thought it better to have a man with no legal opinion than a man who had two views on everything, because the man who had not expressed himself about it, at any rate, if he had initiative, could invent arguments. Yet we are told that Deputy Fitzgerald-Kenney has misunderstood the whole question with regard to taking the Treaty out of the Constitution. It is not because we want to take it out of the Constitution simpliciter but because we want to take it from being in an overriding position. Let us take the Attorney-General's point. It was not our Constitution Act but the British Act of March, 1922, that gave the Treaty the force of law in this country. He stated further that the British Act was carried over by Section 73 of the Constitution and is consequently law at the moment. We are now taking the position that we are going to take it out of the Constitution as overriding it and we are going to leave it as part of the domestic legislation upon which the judges may still function. We are in a worse position than ever. It is apparently uncomfortable for those who want to break a Treaty to proceed on their course while there is an Act which imposes the Treaty as an overriding factor on the Constitution. People who have little care for honour do not mind if there is an Act hanging around somewhere as long as it is a different Act and not expressed to be an overriding Act. There is room there for an agile, but not for an honest, man to query that you can keep one and break the other, but you could not easily use the argument of breaking one and keeping the other if they are both in the same document. Judges in court having the capacity to relate two articles, two statements, two documents, two obligations, whether in the same document or not will say “what we want is the law.” That is where our Attorney-General leads us. The thing which gives the force of law to this country is a British Act, and nothing else was required to give the force of law, although the British Act says it is not an Act for the ratification of the Treaty. We are told further that the Act has the force of law here at the moment and yet it is necessary to remove the Treaty from the Constitution, in a Bill entitled:
An Act to remove the obligation now imposed by law on members of the Oireachtas. ... to take an oath, and for that purpose to amend the Constitution, and also the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922.
The legal adviser of the Government has told them that for the purpose of removing the obligation to take the Oath they would have to amend the Constitution (Irish Free State) Act, and the way they proceed to amend it, on that advice, is to remove the Treaty from the Constitution. That is done for the purpose of removing the obligation imposed upon members of the Oireachtas to take the Oath. Yet the man who told the Government that also told this House that although you could take away the Treaty from the Constitution, it is another Act and he did not advise at all on the repeal of that further Act. The third point is not a legal point but was brought in to buttress up the Attorney-General on the point raised by Deputy Fitzgerald-Kenney. According to the Attorney-General, British lawyers have not said that the Government of the Irish Free State has no right to do this. Have they not? Has the Attorney-General's reading gone very far on the point? Has he considered what was the opinion of the legal officers of the British Government as expressed in the Statute of Westminster debate, in the discussions that took place in the House of Commons and in the House of Lords? If he reads these he will know that British lawyers have dared to say that we have not the right to do what is being done by this Bill. I advise him to extend his reading, for he will find it clearly put there for the information of people, whether it is accepted by us or not, that this is wrong. I take the despatches that passed. They open with the statement that the High Commissioner of the Free State had a consultation with the President. The first British reply states:
In the opinion of His Majesty's Government in the United Kingdom it is manifest that the Oath is an integral part of the Treaty made ten years ago between the two countries and hitherto honourably observed on both sides.
Does that mean that the lawyers do not believe, on the other side, that this act is wrong? Take the simple statement, the first retort from the other side to the comment made by Mr. Dulanty on behalf of the Government:
In the opinion of His Majesty's Government in the United Kingdom it is manifest that the Oath is an integral part of the Treaty made ten years ago between the two countries and hitherto honourably observed on both sides.
Yet we are told that British lawyers did not dare to say so. The counter to that is to read what British lawyers are quoted as saying on the debate on the Statute of Westminster. In the despatches there is the one phrase which I have read. What is the good of putting up legal arguments, when the opening move is to say that we believe that the Oath is not mandatory; and secondly, on the legal side to run away, as the Attorney-General ran away, from the arguments of Deputy Fitzgerald-Kenney? What was the rest of the argument only that whether it is legal or not we are not going to pay? Why should British lawyers enter into a debate of that kind? It is not put forward by a legal mind. The whole point of the argument to the British is: "A fig for your law, we are not having it; it is an anachronism; it is intolerable; something people here will not have and do not want to have." There is not much room for lawyers to argue against that, but it is making the best of a bad situation from the Attorney-General's point of view to drag in this point. British lawyers have not entered into the pettifogging sort of quibbles that he has put up, as to what law gives the Treaty force in this country, and what more is required to implement it than the British did.
At any rate this requires some answer from the Government. They came to this House with a Bill to remove the obligation now imposed by law on members of the Oireachtas to take an Oath, "and for that purpose"—the words must have some meaning—"to amend the Constitution, and also the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922." Why is it necessary to amend the Constitution Act of 1922 for the purpose of removing the obligation imposed by law, if the Treaty does not impose by law the obligation to take an Oath? It may have been an unfortunate phrase, in which case what Deputy Dillon says is correct, that the Government that took the Attorney-General's advice will live to regret the day they took it. It may be that the Attorney-General was put into the awkward dilemma of defending something he does not believe in, and that the amateur lawyer's decision was put in to tie up the two things which the Attorney-General certainly cannot believe are necessarily to be tied together. Whoever is responsible, whether the professional lawyer or the amateur lawyer, this Bill has gone through the two Houses. It is still before this House and still has got the phrase that it is an Act to remove from the members
... the obligation now imposed by law on members of the Oireachtas .. to take an Oath, and for that purpose to amend the Constitution and also the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922.
For what purpose is it necessary to amend the Constitution Act in order to remove the obligation imposed by law? What is the interaction of one point on the other, except that the Treaty does impose by law the necessity to take an Oath? If you take the phrase from the Constitution, and leave the Treaty where it was, you have apparently failed in your endeavour to remove the obligation in law to take the Oath. The House now has to pay attention to a Government which finds itself in this position—that, according to the legal advice given by its Attorney-General, it can remove the Treaty from the Constitution; it can take away that Article of the Constitution which imposes the Treaty upon the Constitution. It must do that for the purpose of removing the obligation imposed by law on members of the Oireachtas to take an Oath, but it has still got left the Act of 1922, which scheduled the Treaty. If the Treaty imposes the obligation in law to take the Oath, that obligation is there until the Attorney-General again advises—and advises better this time—that that has got to be repealed and that the Government must come forward with a Bill to repeal it.
Deputy McGilligan has twitted me with a statement I made on Second Reading regarding two views. That statement has been misused against me by Deputy McGilligan and others. I made that statement in answer to Deputy Fitzgerald, who has paraded himself as an amateur constitutional lawyer. He denied that there was any analogy between a proposal to remove Article 2 and a proposal to remove Article 4. Deputy Fitzgerald alleged that there was a complete distinction between them, as one related to status and the other did not. On that, I said there were two views.
Give us your quotation.
I shall give you a quotation—"The first four Articles."
Give us the quotation of yourself firstly.
I am giving your quotation of me. I said there were two views on that point. There is one view which states definitely—"The first four Articles of the Treaty contain the terms of the Agreement as to what may be called the external Constitution' of the Irish Free State." That includes the Oath Article. That statement, it may interest Deputy McGilligan and Deputy Fitzgerald to know, comes from no less a person than the Chief Justice of the Irish Free State. Following up that statement, I said that there were two views, one of which was apparently represented by the lawyers who had advised Deputies McGilligan and Fitzgerald and the other represented by an eminent authority like the Chief Justice. I pointed out in an earlier discussion that this Section 2 followed from the possible correctness of the Chief Justice's view as against Deputy Fitzgerald's view. I went on to advance the argument which Deputy McGilligan and Deputy Fitzgerald have been so eager to dispute—that when it was proposed to remove the appeal to the Privy Council, which had reference to one of the status Articles, a proposal analogous to this proposal appeared in the draft Bill. We, according to them, have no right or authority to do that, nor is any legal officer justified in advising that a similar section should find a place in this Bill. All this play-acting and nonsense have gone on and I cannot quite see what purpose they are intended to serve.
On the question whether the Privy Council was implicit in Article 2 or not, there were two views and that was the reason their advisers advised that that section should go into the Bill. The reason which induced them to produce a draft with that Section 2 in it was, as Deputy Blythe said, not accepted by the Government. But it was put before the Cabinet by their advisers. The very same reasons which induced their advisers to recommend the insertion of Section 2 in that measure has induced the legal advisers of the present Government to advise that the same section should go into this Bill.
All the row which has been made about this section is absolutely unreal. Deputy Dillon says that this Bill, if it had stood with Sections 1 and 4, would not have produced any trouble. I say that the Deputies on the opposite benches are responsible for creating this turmoil by putting forward arguments which they, in their hearts, must know are unfounded and dishonest. They are responsible for the turmoil, and not the President or his legal advisers. All this came out in the discussion on the earlier stages of this Bill and no attempt was made to answer that particular argument. Deputies opposite sneered at the arguments about the Privy Council whenever it was mentioned. I have attempted to state the reasons why there is an analogy between the proposal to remove the appeal to the Privy Council and the proposal to remove this section of the Constitution. So far as the legal adviser advising a Government as to the form which a Bill should take is concerned, the considerations are exactly the same as regards the insertion of Section 2 in this Bill and in the Bill dealing with the Privy Council.
As regards Deputy McGilligan's sneer as to my misunderstanding of the effect of Section 1 of the Free State (Agreement) Act, I would draw his attention to a very elementary point which probably has not escaped him, though I hope it has. The Deputy quoted the words of sub-section (5) Section I of the Free State (Agreement) Act: "This Act shall not be deemed to be the Act of Parliament for the ratification of the said Articles of Agreement as from the passing whereof the month mentioned in Article II of the said Articles is to run." That has reference to Article 11. It is not to be deemed to be the ratification of the Articles as from the date whereof the month mentioned in Article II is to run. Deputy Fitzgerald-Kenney and Deputy McGilligan have played about with the idea that certain words in Section 2 are tantamount to ratification. If the Parliamentary draftsman had desired to express ratification, there was nothing more simple than to do so. The words used in Section I, sub-section (1) of the Free State (Agreement) Act are: "The Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Schedule to this Act shall have the force of law as from the date of the passing of this Act." The saving in sub-section (5) does not take away from the fact that these Articles are given the force and effect of law by that Act. Granted that there is any gap in that argument, when you come to the Constitution Act in England, that gap is filled up by Section 5. Section 5 of the Free State Constitution Act states:
This Act may be cited as the Irish Free State Constitution Act, 1922 (Session 2), and shall be deemed to be the Act of Parliament for the ratification of the said Articles of Agreement as from the passing whereof the month mentioned in Article 11 of the said Articles is to run
So there is the position clearly as provided in these two Acts. I do not know that it is necessary to take any more seriously the arguments advanced. I think it is quite incompatible, almost on the border line of dishonesty, for Deputy McGilligan to put forward the suggestion that there is no justification behind the insertion of Section 2 of this Act, for the reasons I have stated.
Did the Attorney-General regard the proposal to remove the right of appeal to the Privy Council as a breach of the Treaty? That goes to the root of the whole question— whether it is a breach of the Treaty. Cumann na nGaedheal abandoned it on that ground. That would not be necessary if Cumann na nGaedheal proposed to break the Treaty. There is no analogy between that and the Removal of the Oath Bill because the President gave a solemn declaration that he would not break the Treaty.
I challenged Deputy McGilligan to deny that I read from his answer in this House that it was proposed to introduce a proposal to abolish appeals to the Privy Council.
And to break the Treaty?
No. I am going to give the Attorney-General's statement here afresh as he did not quote it himself.
I have not got it with me.
I could have handed it over to him and helped him out of his difficulty. Here is the actual quotation. It is introduced on Articles 2 and 4 and will be found in the Official Reports, April 29th, 1932, Column 1010. He said "First, on the question as to whether the Oath is obligatory or not, I admit there are two views."
Could anything be plainer than that? "On the question whether the Oath is obligatory or not" he said "I admit there are two views. Any lawyer would be silly, on a difficult question which has been discussed over several years, to lay down positively that his own interpretation of certain things is absolutely the correct one. I admit there are two views. I say there are eminent lawyers, men whose eminence would be admitted by every Deputy on the opposite benches if I mentioned their names, who do hold that the Oath is not obligatory. They hold it for different reasons that Deputy Finlay made such amusing play with, and which were repeated by Deputy Wolfe and Deputy McGilligan. They hold it, because interpreting the status which was given to us at the time, and examining the position in Canada they will not quite say—owing to the structure of the various Articles and the interpretation of them—the Oath is not obligatory. That is the view which might quite easily prevail with a good many Courts."
He puts the simple issue as to whether it is obligatory or not and on that simple issue he says there are two views.
Do you deny there are two views?
I know the Attorney-General has two views.
But do you deny there are two views?
Of course there are.
Then what are you talking about?
I object to people, who say there are two views, deciding to take and about to take an irrevocable step founded upon one view, and that is that the Oath is not obligatory.
Were there two views about the Privy Council appeal?
I am just now dealing with the Oath and the question is whether it is obligatory or not. If there are two views, what is the best way of resolving those? If there is a clash of minds, and if opinions conflict on points, if there is something to be decided, surely people ought not to be silly enough to say that though there are two views ours is the correct one, and we are going to do irrevocable things and in that our view must prevail. Or were all these despatches bluff? Were these despatches all bluff or is it intended to retain to the bitter end, no matter what economic difficulty it may cause, the view that the Oath was not obligatory, or whether it was obligatory or not, one view is to be put forward as if it was the only one. There was the clear cut phrase in the Attorney-General's statement that there were two different views and his actual words go to show that he meant us to believe that there were two different points of view on this matter. It is alleged that I have misused what I quoted. I want to use it and not to misuse it. I read it and I like to read it. I have not taken any action that would be inconsistent with my own views, but the Attorney-General has not yet explained his attitude, how it is that, holding there are two views about the Oath being obligatory, he is advising his Government on the line of action they are pursuing at the moment. That is where the inconsistency is.
He talked of the Privy Council and he says he was not answered. I do not know whether he will say he was not sufficiently answered but an attempt was made by myself to answer him on the Fifth Stage. I was, I repeat, quite prepared to bring in proposals to take away the right from the Privy Council to hear appeals in this country. I was prepared to do that by methods which when they first made their appearance were declared to be constitutional by two Lord Chancellors in England. Another eminent lawyer, Lord Cave, said, when we were bringing in our proposals for dealing with the Privy Council, that we had discovered a most ingenious and most effective method of preventing appeals and he declared that method constitutional. I had legislation prepared and both the Attorney-General and the President know what the type was and that it was quite in consonance with the opinion of the then Lord Chancellor as to its constitutionality. In reply to my request as to what further could possibly be done, our legal advisers advised that certain things might be done and our Departmental adviser advised certain things might be done. There being two views with regard to the Privy Council and two drafts of the position with regard to the Privy Council having been submitted, I said that one of those drafts would certainly be represented as a breach of the Treaty and that we could not deny it. We did not bring in that bit of legislation, but we were prepared to bring in the other. We did not go in for having two views and acting as if there was only one view, and that no one could counter that view. We considered the situation, and we knew that in the end public opinion would be the test. We had, to all intents and purposes, secured that the Privy Council was not to have effect in this State. We knew we could take a further step, which had been declared, in advance, by the legal authorities on the other side, to be constitutional, and we said there was that further step, and we would take it. But it is incorrect to say that our advisers recommended the late Government to take more radical measures.
What happened? Did we go on to write these foolish, maudlin sort of despatches about Ireland's wrongs, on a case upon which we had been legally advised that there were two views. To act so is only riding for a fall. It is only running the risk of ridicule. When we had the test of public opinion to pass and knew that we could pass that test by a particular piece of legislation, but were not sure that we could pass it with another piece of legislation, we left the matter so. The Attorney-General pretends to enlightenment as to our intentions, because he discovers a piece of paper in the Department, and does not think it worth his while even to follow out, with the Departmental officials, as he might have followed it out, how it came to be there. He does not hesitate to say that it was the advice of Departmental officials, although he could easily discover that this was not the fact. He verged very near saying even that it was the advice of the legal officer who preceded him, although he could have found out easily that that was not the fact. One of the proposed measures does not represent the advice of either of these people as to how to deal with the Privy Council. It was what you might call research work, done at my request, as to what might happen if certain steps were taken; what would be the result if we stopped short, at a certain point, and what we would be driven to if we went beyond it.
But there is an analogy and the analogy is what we did intend with regard to the Privy Council. The Attorney-General and the President know that there is legislation in draft of a particular type, and they can relate that particular legislation to phrases used at Imperial Conferences and used in the House of Lords, on two occasions, and they can make up their own minds as to whether or not that particular piece of legislation is constitutional. They will find other pieces of legislation that were not introduced, or passed for introduction, and, yet, they attempt, or they pretend to base their own attitude to the Oath on these things. The analogy breaks down everywhere, but it breaks down mostly in the action that followed on the appreciation of certain results. But here we have an Attorney-General who says that, on the specific question of the Oath, there are two views, and who, expanding that, later on, says "Most lawyers will admit that there are two views on certain questions." We have the Minister for Justice, who has not broken silence yet on this matter at all, and these are the two wise legal heads that are behind the Government in what they are doing in this. Have we got from either, or from the President, interpreting them, any statement yet as to the point I have put so frequently? A Bill is brought in to remove the obligation imposed by law on members of the Oireachtas, and there is an addendum to that Bill. The addition is to amend the Constitution Act of this country, and we are told that it is necessary to amend the Constitution Act of the country, for the purpose of removing the obligation imposed by law on members of the Oireachtas to take an Oath.
I will simplify that in another way. The Constitution Act has in it the Treaty. It is necessary to amend the Constitution Act, by removing the Treaty, for the purpose of removing the obligation imposed by law on members of the Oireachtas to take an Oath. Is it agreed that there is an obligation imposed by law through the Treaty to take an Oath, and if it is not agreed that there is an obligation imposed by the Treaty to take an Oath, why is it necessary to remove the Treaty in order to remove the obligation to take an Oath? That point has not yet been answered. Nobody has explained what is the meaning of those words "for that purpose," and, until that is explained, we do not know what was the advice actually given by the Attorney-General or what the silence of the Minister for Justice amounted to. It may be, as I said before, that the professional lawyers are in the background, and that it is the amateurs who are riding for a fall, but we should have even the amateurs' halting explanation of why it was thought necessary, in a Bill to remove an obligation imposed by law, also to amend the Constitution of the Free State by removing the Treaty therefrom, and to join the two things by the phrase "for that purpose."
The Treaty must be removed to enable the obligation imposed by law to be taken away. If it is not clear from that that the Treaty imposes an obligation to take an Oath, I do not know what is clear, and if that is clear, then to remove the obligation to take an Oath imposed by the Treaty is a breach of the Treaty, unless it is previously agreed to.
I have listened to the remarks of the Attorney-General, and, discussing them purely as a lawyer, and not, as it were, in any political atmosphere, I fail to see that he has advanced, as yet, any answers to the criticism of the repeal of Section 2 of our own Constitution Act, which was put forward here, during the course of the Bill through the House and to-day. The criticism mainly directed at Section 2 of the Constitution Act was that it set for us in our legislation, a headline, and the headline was the Treaty; in other words, that, in our legislation in this House, we would have to have regard to our Treaty obligations. The criticism directed against the repeal of that section was that it was an attempt, in an oblique manner, to remove, once and for all, any Treaty obligations which we might have and to remove the headline of the Treaty which was set for the House at the creation of the State. The Attorney-General has attempted to answer the criticism of the section with this argument, that our own Constitution Act of 1922 has nothing whatever to do with the Treaty; it is not necessary and it is inadvisable, perhaps, that the Treaty should have the force of law here, and, apparently, for the purpose of securing that it would not have the force of law here, the Attorney-General certainly advised the Government that they should repeal Section 2 of our Constitution Act of 1922. When this House is faced with the effect of such a repeal, what does the Attorney-General say? He says: "Oh, no, Section 2 of the Constitution Act of 1922 does not give the Treaty the force of law here. It is some other Act," and he turns to the British Act of March, 1922, the Irish Free State (Agreement) Act.
I think there is a very simple answer to all this argument, and it is this, that, if the Government decided that it was inadvisable that the Treaty should have here the force of law, then, their advisers would certainly have said to them "The one Act which gives the force of law in this country is the Act which you require to repeal." The Attorney-General says that the Irish Free State (Agreement) Act of 1922 is part and parcel of the law of this country, by virtue of Article 73 of the Constitution. If he be correct in that argument, it is open to this House to repeal any provision whatever of the Irish Free State (Agreement) Act of 1922, and, if he is sincere in his argument, if he is sincere in the advice he has given the Government, would not one of the first things that this Bill at present before the House have included be the repeal of Section 2 of the British Act, Irish Free State (Agreement) Act of 1922?
Does the Bill include such a provision? It does not. It includes the repeal of Section 2 of our own Constitution Act. Why is that? Because the Government were advised that that was the measure which gave the Treaty the force of law here. It was only when they were driven to a defence in this House as to the effect of such a repeal that this thought of the Irish Free State (Agreement) Act, 1922, came into their heads. The opinion expressed by the Attorney-General on the Irish Free State (Agreement) Act, 1922, is in direct conflict with that of two or three or four Judges in this country. That may not concern him. He holds undoubtedly that there are two views about matters. There are two views about everything, the wrong view and the right view. Four Judges of this country considered this matter in cases entirely free from any political atmosphere, considered it on a very simple issue as to whether the members of the Gárda Síochána stationed in the Dublin Metropolitan District should have their pay reduced or not. There was no political issue in that. It cannot be suggested that it was considered on any political issue. The Judges held that the Free State (Agreement) Act, 1922, did not bring into being the Treaty and, therefore, did not give our Constitution here the force of law; that it was through the Acts of our own Parliament. The Attorney-General may lightly turn aside all these opinions of the Judges. I do not think the country will follow him in that view. The only people who will be delighted with that view are the members of the Dublin Metropolitan Guards who were serving at the date of the Treaty, who have been defeated in their action, and who can quite well turn to the Government now and say, "Pay us the £200,000, or whatever sum it is, you owe us by reason of our salaries having been wrongly reduced in 1922." They will be the only people who will hear of it with pleasure. The general body of the people throughout the country will not hear of it with pleasure. I suggest they will not pay much attention to the disregard of the opinions of the various Judges expressed in the Courts of our country in cases where no political issues were involved. It would appear to me that when an argument such as that advanced by the Attorney-General is put up to this House it is to conceal from this House the main effect of the repeal of Section 2 of our own Constitution Act. The effect of that repeal is to get rid, once and for all, of the Treaty in this country; to get rid of the obligations which any legislation of this House owes to the Treaty. I say, and I ask the members of the House seriously to consider, that there is no mandate from the people for such a disregard of the Treaty and for getting rid of it in this way, and this House should be very slow indeed to remove from itself the headline which it set itself in 1922 at the date of its creation and inception.
We have had several Second Reading speeches all over again, the same arguments advanced and the same pretence that we are acting dishonestly, that we are breaking the Treaty, that we had in the Dáil during the Second Reading and other Stages and in the debates in the Seanad. It has been possible to create a great deal of confusion in connection with this matter, because from the very beginning the Treaty was an ambiguous document—deliberately ambiguous. The British wanted to make it consistent with their position. The Irish delegation wanted to get a document which, as far as possible, would be consistent with their position, and the result was that you had in the British House of Commons one interpretation given to it and you had in Dáil Eireann another interpretation given to it. That difference of opinion lasted right down until very recently when the British Government thought it would serve their purpose to accept the Irish view of the position—the position that was put forward by the Irish delegation. Is it unfair in dealing with Great Britain, when they want to claim a certain interpretation which they were unwilling to give to it formerly, that they should be faced with their own interpretation? I do not think it is unfair. I did not put it forward, but, if it were necessary, I would have no hesitation in puting it forward and saying to whoever might claim a different interpretation that they had no right to do it.
From the Irish point of view it was claimed that this was an international instrument entered into with a sovereign State, a State that had declared its independence, and, having declared its independence, was going to do away with that independence and give it up; having declared its independence of this British Empire, was going to be submerged in the British Empire again. On the other hand, you have the British point of view. The British said: "You have been in rebellion; we have not acknowledged your independence at all; we do not admit you are independent; anything you get you get it from us; any instructions you get come from us, are our creation; we pass our Acts of Parliament and they give you whatever rights you have; you have no power in yourselves to get them; all authority does not, in fact, come from your people exclusively; it comes from our legislature." From the first moment it was signed until the British found that they could then put us in a corner by claiming the sanctity of Treaties, giving to the document a name which they had denied it at the beginning, making it possible to bring up arguments about honour and the breaking of words, we had nothing about this question of a Treaty. They were Articles of Agreement for a Treaty. Then when they were pushed, it was an unique document. It was between peoples; it was not between constituted States. We have had that ambiguity from the beginning and the gentlemen on the opposite benches, who know about the ambiguity as well as I do, tried to pretend here to-day, now standing on one leg and now on another, that there is confusion in our arguments, that we are illogical and do not know what we are doing.
I pointed out from the start that we could approach this from two different points of view. In dealing with the British, I had a choice of either position to take up. I could take up whichever one was going best to serve the national interests. I knew many a time, when an effort was being made to take up the Irish position, that, on account of the circumstances, the British could take up the other and get a great many people to agree with them. I knew that every single act of theirs was perfectly consistent with the position they had originally taken up. They took mighty good care that it would be so. The result is that we have confusion of thought and ideas here, introduced deliberately in order to confuse the issues, to fool the people, and to pretend to the people that we are dishonest, when, in fact it is the people who put up those arguments, knowing what is involved, who are dishonest.
It is suggested that we are exceeding our mandate here, that there was no necessity for doing this, and that by some back-door method I am trying to do something over and above that of the removal of the Oath. I indicated what I was doing over and above what might be deemed by some to be what was necessary for the removal of the Oath. I was going to take no chances and I said so. I said that if there is going to be the slightest bit of doubt about whether we can or cannot do that in regard to our own municipal law I am going to take very good care that in passing legislation there will be no doubt, and that we will not have a position created in which citizens of the State might posibly bring us before our domestic Courts to interpret an international document. I have given the reason why that was a bad policy.
If that was the President's view, why did he not accept Deputy McGilligan's amendment to Section 2 which would have made it impossible to bring matters before the Courts?
I gave my reasons at the time—I dare say I will repeat them again before I am finished—why I did not take Deputy McGilligan's amendment.
I said at the time that I was in this Bill doing two things, removing the obligation to take the Oath from the Constitution—the particular Article which imposed it— and at the same time putting the Treaty where international treaties, international instruments, ought to be. I was going by that Act to assert in a way in which it could never again he questioned that, so far as we were concerned, it was an international instrument and was not something that was a fundamental part of our Constitution. If the British have given way on the point and if, for their own purpose now, they admit it is a Treaty, they can have no complaint if we put it where it ought to be, in the position in which all treaties between peoples are usually put.
There is no example of a Treaty like this between two sovereign States being put in a position in which it overrides the Constitution, in which Articles of the Constitution have to be interpreted with regard to it. That is fundamentally a wrong position. It was opposed at the beginning by legal and other committees that were put into being at the beginning to draft the Constitution. They did not want it there. They did not believe, regarding the Treaty from their point of view, that it was necessary that the Treaty should be put in as an overriding part of the Constitution. It was only when the British were enforcing their interpretation of it, it was only when, through their insistence, that the Constitution, not merely the Treaty, should be framed as they wanted it, that you had this situation created.
I feel it is only right that the ambiguity should be cleared up so far as we are concerned once and for all and that the Treaty should be put into its proper place. In order to remove any possibility of doubt I think it is necessary to take that action. If it is asked why did I not put it in a second Bill my reply is that there might be some doubt. A doubt was expressed as to whether, in our domestic courts, we would get a decision in our favour. Because a domestic decision in our favour would not be recognised internationally I said: "That is not the proper court to decide that matter in. If the point as to whether or not we are keeping the Treaty has to be decided by a court, then the court must be one that will be binding on both parties". If you get an adverse decision in your own courts then you will be finished. They would say: "Even your own courts have decided against you." You need not go for redress anywhere. If your own courts decide in your favour where would you be? You would not be very far advanced because the other party would say: "That is all very well. That is simply a decision got in your own courts and your own courts were naturally biassed in your favour." Therefore it would be improper to leave the position in which a citizen of the State might bring you before your own courts and possibly get a favourable decision. If the decision went against you you were finished. If it went in your favour it would be of very little advantage to you.
Some time back, before the President was interrupted, he was talking about people standing sometimes on one leg and sometimes on the other. He was at the time using arguments about the Treaty and he said that had been done and suggestions of dishonesty on the part of the Government had been made. He mentioned that the people who were responsible for doing that were merely seeking to mislead people here. I would like to know if the President meant the Opposition.
I touched upon the confusion of arguments which are not kept completely separate, arguments in which the conclusions derived from one source are made to appear as if they were derived from another. I said that when such arguments are put forward deliberately by people who know what the circumstances are, I could only conclude that they were put forward with the intention of deceiving.
Does the President mean the Opposition?
I would like to know if the Opposition have acted otherwise than regarding this document as a Treaty?
There have been arguments put forward and discussions have been based sometimes upon one argument and sometimes upon another in the hope that the confusion that would be created in that matter would lead to the belief that there was want of logic or dishonesty on the part of those who represent the Government.
If that is meant in reference to the Opposition, it is not true.
I am not going to enter into any cross-examination or any cross-questioning upon this matter. I said you can get two consistent lines of argument here and, whether you pursue the one or the other logically, if you keep them apart you can arrive at the conclusion that we are not either breaking the Treaty or removing it from its position as an international document. I pursued both lines of argument. The Attorney-General laid stress upon one particularly, because we are in this case dealing not with our friends on the opposite benches but with another party that has in the past taken up a certain attitude. That was why I asked Deputy Fitzgerald-Kenney whether any British lawyer ever put up such a view. It was not that I attributed to British lawyers any more acumen than to Irish lawyers or anything of that sort. I asked would any British lawyer to do it, simply because I knew that to do it was going to run counter to everything the British have done up to the present time.
The only argument put forward that merits any consideration from the opposite benches, the only one that even suggests a difficulty in every line was the one that was put forward by Deputy Fitzgerald-Kenney when he said that if you remove that particular Section, then the Treaty is no longer accepted by the nation; the Treaty is no longer an international document; you have repudiated the Treaty. I think I am right in saying that that was the purport of the Deputy's speech.
Now, as against that, the line that was taken by the Attorney-General, which is the only line that we need have to meet against the British, is perfectly sound and has been admitted to be sound by several lawyers. Deputy Fitzgerald-Kenney, I think, it was who spoke about the Act of Ratification and the "force of the law" and he carefully mixed up the two. What gave the force of law and what was the ratification? From the British point of view, which is the only point of view we have to meet at the moment, the force of law came, as the Attorney-General showed, from the Act of 1922.
Then our courts are all wrong in deciding that they did not.
Our courts are dealing with ourselves domestically. We are at the present time dealing internationally and the question we have to ask ourselves is the simple question whether by our action we are or we are not violating the Treaty, whether the action we propose is consistent with the Treaty? We say it is. Nobody has attempted to show where our action was a violation of the Treaty. We pointed out definitely what our argument was—that whatever might have been the position in 1922 as regards the obligation here in this Assembly to take an Oath, there need be no obligation here to-day so far as our Treaty obligations are concerned. And why? Because there has been an unequivocal declaration of admission that our status is that of co-equality, and that there is no power outside that can impose obligations here of a domestic character, no power except our own. No outside power can do it. It can only be done by our own will and power. The test of that that I always put was: "Could Canada do this thing?" Of course Mr. Fitzgerald-Kenney says Canada can, but Canada does not want it.
I agree completely. Canada wanted to keep its word and that is the reason why Canada will not do it. President de Valera wanted us to break our word.
Canada wanted to suit itself. It suited Canada and it suited the various States of Canada to keep it in that form, and because it suited Canada, Canada did that and if Canada did not want to do it Canada need not do it. But the Deputy wanted to pretend that we had the same power as Canada and yet we cannot do what Canada can do.
I have never said that this State has not legal competency to break the Treaty. Legally you are competent to pass this Bill, but at the same time you are breaking the Treaty if you pass it.
To assert a thing as Deputy Fitzgerald-Kenney asserted a dozen times does not make it so. The Deputy asserts that we are breaking the Treaty. I hold that we are not breaking the Treaty.
That does not make it true.
We are acting on the conviction that we are not, and we intend as long as we have the Irish people with us to do it. We are proceeding in the only way that any people who are convinced that they were right would proceed. The test for us is whether other States could do this. I say they could. Why can we not do it? Because we are told we are bound by some Treaty obligation not to do it. I said there is no such binding now; that there has been a change in the situation; that Britain has come in with the representatives of the Free State in Imperial Conferences, and other conferences at which representatives of the Free State were present. The British admitted that our status is one of co-equality and that there can be no interference in any aspect of our domestic affairs. Another confusion that is sought to be created is the difference between this Act of ours, an act of severance from the British of a State of the British Commonwealth of Nations. Deputy MacDermot is very fond of bringing this thing on. On every possible occasion he raises it. He stated that this is an act of severance.
I have never said it was an act of severance.
Deputy MacDermot has suggested it. He said to do the decent thing, to ask the people to sever their connection. I hope to see the day when we will be able to do the decent thing, the decent thing that Deputy MacDermot talks about. But we are away from that at the present time. When Deputy MacDermot or anybody else gets from the British Government an unequivocal declaration that the declaration of this country or the declaration even of the Twenty-Six Counties of this country of their independence will not be regarded by them as a hostile act, then we will be able to take up the challenge. But no Irishman can take up the challenge at the present day whether he considers that right or not because the British Government have not yet stated unequivocally anywhere that they will not consider that a hostile act. I will be glad to get that statement from them. I have been challenging them myself from the first day I entered into politics in the political life of this country. I have since then asked from the British an unequivocal declaration that the people of this country will not be interfered with by hostile action on their side if the people should choose completely to get away from them and have no connection whatever with them. We have never got that declaration.
May I ask the President what does he mean by hostile action? Does the President mean by that action involving hostilities against this country?
I mean by hostile action action that one takes against another if he feels that that other has done him wrong. I hold we would be doing no wrong to Britain if we declared our complete and actual independence to-morrow. But Britain will not accept that, and has not accepted it. She has always threatened hostile action of one kind or another if the Irish people dare to do it. Read Lloyd George's speeches.
Lloyd George is not a member of the British Government.
Here again we have ambiguity. Let us get that declaration and I will take up that challenge.
Is it hostile action by Britain not to buy our goods?
Britain has no right to take hostile action against us for exercising what is our natural right, but the British have always threatened.
But is it not Britain's natural right to buy whatever goods she pleases?
She has no right to rule here; none whatever.
She can buy where she likes.
We hear duress talked about and about an instrument having been signed under duress as if it had some moral force. I know it is expedient over the world, a matter of expediency, that instruments signed in that form be so regarded because they are only alternatives to the instrument of force or as somebody on the opposite benches said they might lead possibly to extermination in the next type of war unless they were accepted.
But they are accepted on grounds of expediency, do not forget it, and on no other grounds. If a man comes up to me with a revolver, points it at my head and asks me to hand over my watch and I give it to him, and if not content with taking it from me he makes me write out that I surrender all my rights to that watch and I give him that document, let us ask ourselves what are the moral consequences that would flow from that. Am I to feel myself absolutely bound by that as if it were a free-will engagement, voluntarily entered into? I ask myself what are the sanctions behind that? Shall I not try to get that man who has taken my watch, put a revolver at his head and make him hand back not merely the watch which I have given him but the right which he made me surrender? Will I not get back my watch and the right that I have surrendered to him? Will I not get back the watch and the document as well? That is of course what has happened. That is of course what happens in war. We may not be able to argue it out logically to complete satisfaction but we have every one of us the instinctive feeling that any obligation which would be imposed under duress like that has not the moral value of an obligation voluntarily and freely entered into.
There is something in that argument about duress. Do not forget that there is. All that can be claimed here, the argument of duress and all that can be claimed for it, is that on grounds of expediency it is perhaps wise for us to accept it. That is all that is in it. Let gentlemen on the opposite benches not talk of honour and honesty in this thing. Why did they not think of honour and honesty when they were asking the Dáil to come and enter into that contract on the pretence that having entered into it, they could any day they wanted to, forget whatever obligations might be imposed in it? That was the time to have the considerations of honour and honesty in mind. That was the time to have in mind the sanctity of treaties and it is not when people are doing what they are really entitled to do, even under the strict letter of it, that the Deputies opposite should try to mass the forces of public opinion, which, goodness knows, have been hostile enough, to mass these forces against us by the pretence that we are tearing up international documents.
No case has been made either here or in the Seanad that would indicate that we were in any way breaking the Treaty. What was the force of Article 4 if it had become obligatory? We showed the effect of the declarations at the Imperial Conference on that and Britain herself had admitted that no limitations on our domestic rights, of a character such as that of the Oath at any rate, would hold any longer. You cannot have that declaration and have the imposition of the Oath at the same time. You cannot say that a man is free if he is bound before your eyes. We are either free in this matter or we are not. We propose at any rate to put it to the test. We are either in a prison house with doors locked on us or these doors are open wide. How shall we find out except by going to the door and seeing if we can get out? There is no other way of trying it. Whilst I am prepared to grant that the Opposition should have every opportunity of putting their point of view here or before the country, I think the Opposition facing us has gone beyond any limits that a decent Opposition should go when a question of rights, so fundamental as these rights are for our people, is concerned.
Is that a threat?
That is a statement of what I believe to be a fact.
Is it a threat?
You want to double your guard.
We have had Second Reading speeches. I have been driven by remarks that have been made into another Second Reading speech without perhaps wishing to say anything at all about it, because in this particular matter the issues between Parties have been so knit I do not believe that there is any likelihood that any argument, no matter how sound, is going to win another vote. Therefore, I am saying what I am saying without any belief that it is going to help in the slightest in getting any votes for the Bill beyond those given already. I am compelled to say that when I see what appears to be dishonesty on the part of members of the Opposition who are trying in a difficult question on which confusion has been created—
On a point of order—
Sit down, sit down!
I shall hear the Deputy on his point of order.
On a point of order, I say the President has clearly stated to the House that he accuses us of dishonesty. Is that not so? I know that the people behind him want to howl down anybody who does not agree with them. If he makes that statement I accuse him of being a liar.
The President has not accused anybody of personal dishonesty. He has not imputed personal dishonesty to anybody so the Deputy is quite out of order in calling the President a liar.
Does the President say that he does not accuse us of dishonesty?
He did not make a charge of dishonesty against any particular Deputy.
He said it against members of the Opposition.
And we are all members of the Opposition.
And we resent it.
As I understood the President he referred to dishonesty in the policy of the Opposition or in the actions of the Opposition. I did not take him as making any reference to dishonesty in regard to any particular individual.
If that is your interpretation I must say that the President conveyed a different impression to my mind. It appeared to me that the President was charging us as individuals with being individually dishonourable men. If that is not the case I would like the President to make it clear.
My statement as regards his being a liar only applies if that is what the President said.
The Ceann Comhairle can only construe a statement as it appears to him.
Accepting your construction I certainly withdraw but only accepting your construction.
I can only say that any of my statements across the House, in so far as order is concerned, will compare favourably with those of the gentlemen opposite.
That is a very frank statement.
If the Chair holds that I have been guilty of a disorderly statement I withdraw it without hesitation. The position is that the acceptance of the Seanad's amendment would mean first of all that the Treaty although we claim it to be an international document is going to be allowed to continue to hold a very exceptional place. I would like to ask Deputy Dillon whether he wants that to be so. Apparently his argument as to that point is that it is an international document and that it is still to be in the position in which every Article of our Constitution is going to be interpreted by it.
My argument was nothing of the kind. I would be reluctant to interrupt the President at this stage but I am sorry if I have not made myself clear.
I cannot see what objection there is otherwise to it. It does two things as far as we are concerned. It takes the Treaty out of the over-riding position in which it should never have been put.
My contention is that if this act of removing the obligation to take an Oath is not a breach of the Treaty, then Section 2 is not necessary. If it is a breach of the Treaty, I am not concerned or interested in England's rights. I am concerned that an Irish leader should keep faith with his own people. He promised not to break the Treaty and he has a solemn obligation not to break it. England's rights do not enter into it.
If they do not enter into it, then where are we at all? I thought we had obligations—that Britain had rights through an international document which we proposed to break?
The first day I spoke here I said that I was opposed to it because I thought and believed it was the betrayal by an Irish leader of his pledge given to the Irish people.
I wish that Deputy Dillon would have shown wherein it is a breach of the Treaty, because the only place wherein, even if I were breaking the Treaty by the removal of the Oath—and Deputy Dillon apparently is prepared to do away with the Oath whether or not it is a breaking of the Treaty—
It is not.
I doubt very much, if Deputy Dillon read over his previous statements, if he does not come to the conclusion that as regards the Oath, whether it was a breach or not, he would agree to it.
No, Sir. I said that I accepted the view that it was not a breach. But if it were a breach of the Treaty then you must tear up the Treaty and set up a Republic.
Deputy Dillon is prepared to take our views with regard to the Oath and not with regard to Section 2?
I would have been better pleased with Deputy Dillon's speeches if I could have seen more consistency and if he had shown us wherein Section 2 could possibly be a breach of the Treaty. His argument was not that of Deputy Fitzgerald. I cannot see how Deputy Dillon can argue for one moment that Section 2 is a breach of the Treaty. The section, as far as we are concerned, I repeat once more, is brought in for the simple reason that we did not want to have this question brought up to be decided in a domestic Court. Consequently, if there was a doubt—and there was a possibility of that happening—we are anxious as far as we can to prevent that possibility. We are doing it frankly, and we think we have a right to do it, in the interests of our people. The second purpose for which it is introduced is to put the Treaty in the place that treaties between nations usually occupy. I admit that that might be a matter for another Act. I agree that it might mean that, but when it is going to serve the other purpose, which is germane and necessary from our point of view for complete safety, then I think it is justifiable that, instead of having two Acts, it should be incorporated in one Act. That is why it is here. If there was no question of the possibility of our domestic Courts being asked to try this matter—and I have already shown that I do not think it is a proper way —then, I agree that this could have been put more appropriately, from Deputy Dillon's point of view, in another Act.
Why not take the chance?
Because I do not believe in half doing things. Do it right when you are about it at all. And we are doing it right. I do not propose to speak any more in this debate. I have said, on the general heads, what I want to say. I had hoped that this would have passed without these Second Reading speeches, because I do not think they are going to lead anywhere. It was necessary, however, to state once more where we stood.
I want to ask two questions. First, if the President has taken the opinion of the Attorney-General or any other lawyers that a domestic decision in our favour —that is, in our Courts—would have no international validity. Is he aware that international law is founded upon the decisions of Courts and that, for instance, Lord Stowel's decision in favour of the British Government is cited as an example?
I can answer that by saying that I did not think it necessary to ask anybody because it so much stands to common sense that a domestic court, which would be held to be a biassed court if it gave a judgment in our favour, would be regarded as prejudiced by the opposite party.
Will the President say if the Free State Treaty is a binding document in this State and what document gives it validity?
It is binding because the Treaty was accepted—accepted as being ratified anyhow—by those who set up the State.
What document is there now giving the Treaty the force of law in this country?
There are two points of view. There are two consistent lines of argument.
What is the President's personal view?
My own view is that the ratification of the Treaty, in so far as it was ratified at all, from any Irish point of view, is open to question— that there might be a very big question involved in that if we take it as coming from Dáil Eireann, the Parliament of the Republic. As a matter of fact, with my own hand I stroked out the motion "That Dáil Eireann hereby ratifies." It was going to be proposed by Arthur Griffith. With my own hand I struck out the word "ratifies," which he had put down, and put the word "approves," and he accepted that. The reason he agreed was that it would not have been competent for a Parliament that regarded itself as sovereign and independent to ratify any such instrument. So, as far as ratification is concerned, looking from a purely sovereign point of view at the sovereignty of the old Dáil as the Parliament of the Republic, ratification can very well be questioned. From the Free State point of view it was held by the recent Executive Council that ratification was provided in the instrument itself. It was indicated quite clearly in the instrument, and when legislation was mentioned in it, it was deliberately ambiguous, because the British did not want to admit that we had here a sovereign Parliament that was capable of a sovereign act, such as the ratification of an international instrument, and, because they wanted to maintain their position, they put in the word "legislation" by which they could claim their own Act of Parliament. But it provided for a form of ratification in its own terms and it was that Act fulfilled the conditions which were mentioned in the instrument itself. That was the ratification. If you want to go back, and to go behind the foundation of the State, the Judges in my opinion do not have to go behind the foundation of the State. As far as they were concerned a certain thing was begotten in a certain way. A certain stage was reached. There was the foundation then of a new State, and naturally the Judges in any court dealing with law would trace the origin of the creation of the new State. I do not see anything wonderfully complex in this decision at all. They simply did not go beyond the creation of the State, and regarded themselves as Judges functioning on legislation which dated back its origin to a certain date. Of course, to those who did not want to go back, who are ashamed to go back, there is no question involved; none whatever. It is quite plain, simple sailing. It is not so simple to people who keep all the facts in mind from the very beginning. All our difficulties in Ireland to-day are begotten from that fact that there were from the very beginning, ambiguities of one kind or another deliberately created. Unfortunately, we are not at the end of them yet. I sincerely wish we were. We are trying, as far as we can, and as quickly as we can, to get out into the position in which we will really have a solid foundation for our position. To the legal question, therefore, as to where it gets its authority—the Irish view—which I take it is Deputy Fitzgerald-Kenney's position, my answer would be that the Treaty was ratified, and that there is no suggestion of undoing the ratification. The ratification provided for in the Act was effective. It stands. Whatever power was given by that ratification still stands. We are not denouncing the Treaty. We are dealing with the domestic application of certain parts of the Treaty which by development have become obsolete. That is the position. If you go from the other angle that the British might have pursued, then the arguments of the Attorney-General are there.
I asked the President a question which he could have answered in one sentence, yes or no. He is after speaking for twenty minutes and has left me where I was. I asked him if the Treaty has the force of law in this country, if he would name the instrument which gives it the force of law.
It is a very old dodge to be asked to answer a question by yes or no. The answer has to be given in a detailed presentation of all the circumstances.
If the President wants to go on for another twenty minutes I do not want to interfere.
The Treaty has the force of law as an international instrument because it was ratified.
By what document?
Not by a document but by an Act.
The Act provided in the instrument which says that it must be presented for ratification—I think ratification is the word used—to the Members of Parliament elected to sit in Southern Ireland.
Not ratification. Ratification by legislation.
The President stated that members of the Opposition were ashamed to go back. We are not ashamed to go back. We will go back to the time when we accepted the invitation of Mr. Lloyd George to see where Ireland would fit in in the Commonwealth. All our troubles started from the acceptance of that invitation. We are not ashamed to go back.
Would the Labour Party go back?
Do not mind the Labour Party.
Will the President, who has been most courteous in agreeing to answer questions, allow me to ask one more? Leaving the Treaty out of the question altogether, as I have consistently done, and assuming for argument's sake that we are not breaking the Treaty in removing the Oath, I want to ask this question: Now that it has been made absolutely apparent as everyone would have expected that the British regard the removal of the Oath as a hostile act; and that, moreover, it has become apparent that the Commonwealth as a whole regards it as something inconsistent with the obligations of partnership——
I will leave out anything disputable. Let me put it this way: Now that it is apparent that the British regard the removal of the Oath as a hostile act and that we have done something inconsistent with the fundamental principle of consulting our partners about a matter relating to the basis of the Commonwealth as a whole, why not as well be hanged for a sheep as for a lamb? Why not let us get finished with this question? The only reason the President gave was that he has no mandate. For heaven's sake, let us consult the people and get the matter cleared up.
I am not accepting any of these amendments.
I move: That the Dáil disagree with the Seanad in the following amendment:—
This Act shall not come into force until an agreement has been entered into between the Government of the Irish Free State and the British Government providing that Article 4 of the Treaty of 1921 shall cease to have effect and such agreement has been ratified and approved by Resolution of Dáil Eireann.
Is there to be no statement?
I do not purpose to make any statement.
We find ourselves again in the peculiar position that on an amendment, which comes from the Seanad, providing that this Act shall not come into force until an agreement has been entered into between our Government and the British Government that Article 4 of the Treaty shall cease to have effect and such agreement has been ratified and approved by Resolution of Dáil Eireann, we are simply told by the President that he does not propose to accept it. No statement is made as to the reasons. I return again to the legal position in which we find ourselves. The Seanad has proposed to delay the coming into operation of this particular measure until there is agreement that Article 4 will cease to have effect. The President says he will not accept that and he said that, in the circumstances which he has recently described. He has been challenged by a variety of people as to why it is necessary to remove the Treaty from the Constitution of this country. The only answer I could extract from the storm of words in which the President indulged was that he was taking no chance. There was apparently some residuum of doubt in his mind about leaving the Treaty in the Constitution. He had doubt in those circumstances as to whether the obligation imposed to take the Oath was removed, and he was not taking any chances. That is to say, if the Treaty must be put in jeopardy to ensure that the Oath is to go, then, in that conflict, the thing that is to go by the board is the Treaty. That is the gist of the last argument. He will take no chance. He said, later on, that it was to remove any possibility of doubt. He admitted it would be much better done in a second Act. His sole justification is to remove the possibility of doubt.
Again I say that statement does imply, on the positive side, that there is a doubt in the President's mind as to whether or not the removal of Article 17 from the Constitution would have any effect if the Treaty is still left in existence, and is still left as approved in the Constitution given to this country. Never in the course of his long harangue did he come to the other point. What about the Act upon which the Attorney-General relies as being law in this country? The Act passed by the British Parliament in March, 1922, is, according to his legal adviser, gripped by Article 73 of our Constitution and is law. And if it is law and if there is no doubt about the Oath being imposed by the Treaty then there is doubt about the removal of the Oath as long as that Act, gripped by Article 73 and in force in this State, is not repealed.
The Seanad amendment asks that there should be delay until there is agreement that Article 4 is of no effect, but the President says "No" to the Seanad's appeal. The Attorney-General believes there is not a lawyer on the British side who holds that the removal of the Oath is either illegal or inconsistent with our present status, and that no British lawyer will argue it is anti-Treaty. In these circumstances the President will not accept the Seanad's proposal and wait until there is agreement with Britain that Article 4 of the Treaty has ceased to have effect. The President has told us in regard to the whole issue there is a fundamental difference of opinion between the people of this country and the British as to what the Articles of Agreement amount to. There is no doubt upon one point. The present Opposition has never wavered in their view, that there was a Treaty in 1921, that it was implemented later, and that there is a Treaty still in force between the two countries, and whatever quibble the President may indulge in, for purposes of argument, and whatever twists and turns he takes between the points of his argument, there never was any such distinction made here. It was always accepted and argued by us that it was a Treaty, and on every occasion on which that point was ever raised or could be raised here, or in London, or in Geneva, there was never any failure to raise the issue. In many cases we had it established that it was a Treaty. We got it agreed by professors of law and jurists writing in journals upon law that it was a Treaty, and we finally got British statesmen in their turn to say that, whatever doubts there may have been upon it at one time, there is no doubt about it now, and all these statements were made prior to the emergence of the present squabble. I stress that lest the President might argue that the contention had lately been changed to bring new strength to the British in the present squabble.
The President, in all this matter about the Treaty, says that he pursued both lines of argument, though the Attorney-General only pursued one. The Attorney-General pursued only one although he shouted aloud that no reputable lawyer would be so silly as to say that there were not two views. By implication, therefore, he says there is another line of thought, that people can argue another view, and by implication comes round to the President's point that there are two views. While saying there are two views, and that there can be arguments on both sides, why does the President propose to take that irrevocable step which is founded upon only one point of view?
The Seanad asks that there should be agreement. The President believes with the Attorney-General that no British lawyer would controvert our possession of sufficient power to enable us to get rid of the Oath. He believes that there is an argument of substance, an overwhelming argument based on the analogy he makes with Canada. The Seanad asks that there should be pause until there is agreement on the Treaty issue and until the coercive power to this argument based on the Canadian analogy is shown to be as good as the President thinks it is, and until we see if the Canadian analogy satisfies the people who, his Attorney-General says, have no legal arguments to put up against this country in what it is doing in this measure. Let the President test out, after pausing on this, with the British Government, or with the Canadian Government, or with any of the other Governments of the Commonwealth, whether or not they regard this country as being in every detail in the same position as Canada. I would not hold that we are. I doubt if there is anybody who will hold that there is absolute similarity as between any of the members of the Commonwealth. Two of the States of the Commonwealth stand out in a peculiar position by themselves, ourselves and South Africa, with Treaty obligations. The rest have not Treaty obligations, but they have imposed obligations, obligations not accepted in the way ours were, but obligations imposed by constituent Acts of the British Parliament. The President makes play with the phrase, which he always tears from its context "The States of the Commonwealth are in no way subordinate, one to another, in any aspect of their domestic or external affairs," and he stops short there, although there is only a comma in the declaration, which continues "though united by common allegiance to the Crown and freely associated as members of the British Commonwealth of Nations. Why does the President always stop there at the comma? Has the President ever quoted that phrase "though united by common allegiance to the Crown and freely associated as members of the British Commonwealth of Nations" in any of the speeches he has made on this?
I have. I have read the whole of it.
I would like the quotation.
Look it up.
I would like the reference to it.
When I quoted it at all, I quoted it in full.
There was always the stop. I often sat here with this document in my hands, and the President has not, to my knowledge, gone beyond that point "in no way subordinate one to another in any aspect of their domestic or external affairs."
And I say that is not true.
And then comes the full stop, although it is not in the context.
I say once more that that is not true.
"Although united by common allegiance to the Crown." That is the phrase that must be brought, as a matter of fact, into the context of this argument, and another item must also be brought into the context, that we have a Treaty. If there is a status Article in the Treaty and if there are other Articles which do not depend on status, it is going to require considerable argument to prove that a status Article can so enlarge as to get rid of a specific limitation, signed to and agreed upon, and that particular thing will not be got over by merely throwing in the phrase "in no way subordinate, one to another, in any aspect of their domestic or external affairs." Anyway, if that argument has weight, that because there is a statement that members of the Commonwealth are "in no way subordinate, one to another, in any aspect of their domestic or external affairs," let us have that argument made and let us see if that argument is going to win through as easily as the President and his optimistic Attorney-General think, and let us have the pause the Seanad requires to see if this matter can be settled by agreement. Because the agreement ought to be easy if what the Attorney-General says is true, that there is no British lawyer who will contest the validity of what is being done here, and if what the President says is true, that words quoted from the 1926 Conference are an unequivocal expression of opinion that any such thing as an Oath, in the circumstances of this State, is an anomaly. If all these things are so easy, let us get the coercive power of these great arguments brought to bear on the other parties to the agreement. Let us have them paraded before the other partners in the Commonwealth, and let us have some report back as to whether or not they agree with the easy optimism of the President and the Attorney-General, who have no doubt about the answer to these things.
The President, in the end of his harangue, said that he is acting on the conviction that we can do what is being attempted in this Bill. What is that?—that we can remove the Oath. The President is "acting on the conviction." Has his Attorney-General that same conviction? This is what he said, previously: "On the question as to whether the Oath is obligatory, I admit there are two views." Now, that was in answer to his own preamble that I wanted him to say whether, "I believe the Oath obligatory or not." That is the quotation, and the Attorney-General's answer to the question: Did he believe the Oath was obligatory or not, was "I admit there are two views. Any lawyer would be silly on a difficult question, which has been discussed over several years, to lay down positively that his own interpretation of certain things is absolutely the correct one." Has the Attorney-General the conviction which the President says he has, that he can do this? Where is the conviction? Which one of the two views does he adopt? Was he the legal adviser on whose legal advice the President has assumed conviction that what he is doing is correct? Is it the Attorney-General, upon whom the President leans for his assurance in this matter, or is it the Attorney-General who advised that, when the removal of the obligation imposed by law was being attempted, for that purpose an amendment of the Constituent Act was necessary, and was necessary in this particular, that you had to take out the Treaty from the Constitution? We have never yet got the answer to the point: Why are these two things being brought together? Why are they being joined by the phrase "for that purpose," excepting the argument, which the President has lately used, that he is putting the second part in because he is taking no chances with this?
I want to relate that again to the simple item of this whole Bill—we want to remove the obligation imposed by law. There is a Treaty there. It may be—some people have doubts—that the Treaty does impose an obligation to take an Oath, but, in order that we will take no chances, we are going to wipe out the Treaty, and we are going to do that and say that we are not breaking the Treaty; and while we are doing that, we say that no British lawyer has been found to say that we are breaking the Treaty, and, while we are doing that, the Attorney-General of this State, who, presumably, was called in to advise on this matter, says that there are two opinions about whether the Oath is obligatory or not. But the President is taking no chances. He is taking no chance with the removal of the Oath. He is taking every chance with a breach of the Treaty, and when the two things have to be put in contrast, he is going to have the Oath removed, and it is a matter of indifference to him whether the Treaty is broken or not. He is going to argue, while the Oath is being removed, that it is not a breach of the Treaty. His Attorney-General has only one point of view on this matter, while he can pursue two lines of argument, but the Attorney-General, to whom he points, has pursued two lines of argument and he shouts loudly that there are two points of view about this, as there are upon any matter almost. If that does not mean a recognition of the other point of view, and if it does not imply some doubt as to whether the other point of view is right or not, I do not know what words mean. The whole argument is summed up in the President's statement, which I have quoted three times, that he is taking no chances in this matter. As I said, he is taking no chances with the one item but the Treaty can be let go.
The last comment the President made on all this was that this is a simple operation of trying if the door is open. He said that we have been told that we have, in the Treaty, an open door to freedom, and he proposes to try it whether the door is open. The method he proposes for trying whether the door is open is the old-fashioned one of slamming his head up against it, and he does that, although, if I may relate the phrase again to the metaphor he used, the Attorney-General has warned him that there are two views about whether the door is open or not in this particular matter. The President is not going to accept the Seanad's suggestion that there should be a pause, and that we should wait and, keeping the Attorney-General in the background, try somebody who has one view on the matter and see whether that person can get the force of argument brought to bear on the other parties to the agreement, and get it agreed that Article 4 of the Treaty has ceased to have effect. In these circumstances we could have what the President says he wants and have the Treaty honourably kept. Even at this late stage, even when the Bill has been put through this House and the Seanad with this amendment, the President refuses to accept the suggestion that there should be some delay now and that some pleasant approach should be made to see if agreement can be secured in the matter. The matter is decided for him. He is taking no chances. Another Deputy has said in this House already to-day that he may come to realise quite soon that his action has been unfortunate, that his attitude has been provocative, and, worst of all, it has been shown by the speeches in this House that, while this unfortunate action and this provocative attitude have been taken up, he has not a solid opinion behind him that what he is doing is right legally. Having gone a certain distance in a hurry and mistakenly, it is a matter of prestige now about drawing back, even although it is not drawing back to any point other than saying, "Let us see what will happen to the negotiations." That is what the Seanad has asked and what, even at this late point, we think the Dáil should accept, it having been revealed how weak, how unreliable, how vacillating in all points, is the opinion behind the President upon which he is acting in this thorough-going fashion.
Before the debate ends I should like to ask one question which seems to be of practical importance, and that is: whether the President has now any reason for believing that the passage of this Bill will do anything to promote decent order in this country and to consolidate the foundations of the State? In other words, is there any reason for thinking that any section of the community will become reconciled to our present Constitution, will present themselves, perhaps, for election to the Oireachtas as a consequence of the removal of the Oath, or is there an objection, a more fundamental one, an objection to our being in the Commonwealth at all?
I propose to vote for the amendment. Perhaps I should say this: The President has been unable to take my point, which I have raised on more than one occasion during the debates on this Bill. However, I remain convinced, and I have always felt, that so long as there was an agreed tribunal between the two parties to this agreement upon which this State is founded, if we were satisfied that something we proposed to do by way of legislation was not a breach of the Treaty, we were entitled to proceed and the onus probandi that it was a breach of the Treaty lay upon the other party. If we had agreed upon a tribunal, one with the other, to which the other party would go, and if they could satisfy that tribunal that what we had done, or purported to do, was a breach of the Treaty, then by virtue of our agreement our proceeding was null and void and had not been done at all. Therefore, it would be immediately incumbent on the President to go back to the country and say, “I did all I could do with the authority you placed at my disposal to carry your will into effect. It has been decided in the light of the agreement that exists that it was physically impossible for me to do what you wanted me to do. If you still want this to be done, then you must give me wider powers to go further than I asked leave to go in the first instance.” The procedure of the President in insisting on Sections 2 and 3 of the Bill has done away with that position and, to my mind, created a position in which the President says, “If within the Treaty we can remove the Oath we shall do it on our mandate, but if it involves breaking the Treaty, then we will suffer no risk of that being declared at the agreed court and outside our mandate. We will abolish the Oath; we will abolish it, in any case.”
The President has advanced the case that were we to get a decision in our own courts, the other party would say, "That court is prejudiced in your favour." Were it to be against us, then our case was greatly jeopardised. I do not care what the other party says. The other party are as much bound by obligation as we are bound and they have agreed to a court to which this matter should be referred. The President has repeatedly stated that the Constitution was drawn in agreement with Great Britain and that Great Britain consented to all its implications. It has been laid down again and again that if there was a difference the way to invalidate a piece of legislation which was alleged to be a breach of the Treaty was to cite it as such before our Supreme Court, and if, on their declaration, it was a breach of the Treaty, that piece of legislation was null and void. If the other party did not choose to accept that, then it was for them to prove their justification in not accepting it, and I think they would have a difficult task. Therefore, I am convinced that had the President taken the course that I had hoped he would take, we were in an invulnerable position and, honestly believing that this was not a breach of the Treaty, we would pass the legislation. If, on reference to the appropriate tribunal, it was proved to be such a breach, then the legislation was as if it were never passed and it was open to the President to go back to the country. He has destroyed that position, if this Bill passes into law in its present form. Therefore, I say that if it be the President's intention to withdraw that safeguard to the existing position, then, unless we are prepared to destroy the entire Treaty position and to revert to the status quo ante of 1921, I see no remedy at our disposal but to meet the other party, discuss the proposal and on their assenting to it proceed upon it. Had the President left the existing safeguards, I do not believe such a course was necessary at all, and I believe the ordinary process of legislation was adequate and honourable. With Sections 2 and 3 attached, I cannot see the President's point of view. I fully appreciate that he believes he is acting according to the highest standards of national honour. I must only ask him to believe that I am acting on the same dictates. Influenced as I am by these considerations, I am not prepared to vote for the Bill with Sections 2 and 3 in it. Now that these sections have been carried by the Dáil, I feel bound to vote for the amendment in order that, even as the Bill at present stands, it will not come into operation without the consent of the other party to the Treaty, or the complete repudiation of the Treaty and reversion by this country to the status quo ante of 1921.
I cannot think that the Deputies who have spoken are so very innocent as they pretend to be. What is in this but an invitation not to agree? Is it not quite clear if the British do not want this all they have to do is to refuse to agree? Then there would be an end to this matter. I wonder what Deputy McGilligan and those with him would have said if a proposal of that sort were put up about the Privy Council or about their interpretation of the Treaty? How did they claim they got their interpretation of the Treaty accepted? They believed they were right; they maintained their position, even though that position was assailed by those who did not want them to take it up. They held to their position.
The Deputy himself has told us where.
At the Imperial Conference.
When dealing with the British. There were other places, too.
But mainly at the Conference.
There were places other than the Conference where they took up that position; they took up that position in Geneva and elsewhere. They got whatever acceptance of their position they have got by maintaining, asserting and believing that they were right. Our position is the same. We believe we are right in this. We know that this amendment is a wrecking amendment, introduced simply to postpone the thing for ever — until Tibb's Eve. Agreement, when one of the parties knows that all it has to do is to refuse to agree and then it will have it as it wants it! Deputy McGilligan and others appear to be very innocent when sitting on the Opposition Benches.
Perhaps the President will answer the question I put as to whether the passage of this Bill was expected to bring any other section into the Oireachtas?
I can give no guarantee on that of any kind. All I can say is that once there is no obligation on any citizen to forswear any principles he has about the rights of this country or the form of Government he wants in this country, once he can come in and all that is asked of him is to come into an Assembly of other representatives of the people without any further commitment except to obey majority rule, then I think the cause for opposition so completely disappears that I cannot understand reasonable people not taking the course. I know there is a section of the community opposed to this. I am opposed to it myself. I came in here: I submitted to whatever had to be done and I did that simply because there was no other road, no other course, by which I could do what I considered to be my duty. It was a humiliating course in the last analysis. The only alternative was force. I did not want to use force, neither do the men who are outside and who are not accepting this. They do not want to use force. What is necessary is to indicate to them that there is a plain, open road by which their aspirations can be achieved and that there is nothing which would appear to close that road, such as the making of provisions which are inconsistent with their views.
I am opening the road and removing the barriers. I believe when the road is opened it will be travelled along. I believe that when you have that peaceful road open towards the attainment of those people's ultimate aspirations, it will be taken. There may be a few who will refuse to take it, but any solid reason for doing so would disappear. I believe that by the opening of that road we will have made an advance towards peace and constructive effort here that will not be achieved by any other method. You are presented with the opportunity of getting unified direction for the nation here or, at least, for this part of the country, by removing this, which is a barrier to certain people. Those people refuse to accept what we were forced to accept as the lesser of two evils, as they then appeared to us and as they still appear to me.
I regarded it at that time, and I have not ceased to regard it, as the lesser of two evils, the other evil being that, being outlawed, we would naturally resort to the outlaw's methods. Once there is no idea of outlawry, once every citizen is free to hold what ever opinions he likes, once this becomes openly a democratic Assembly in the full sense, representative in the widest sense, I believe common sense suggests that the difficulties we have at the present time will disappear. I am, I agree, banking on that common sense. I have no assurance. I am not looking for any assurance, but I think the opening of that road promises such advantages to the nation that it is worth our while to clear away the barrier.
Am I wrong in thinking that there were a great many speeches to the contrary made by leaders of a certain section of the people?
That may be. So far as I am concerned, I am convinced that this is a wise course to take. It is only when I am proved wrong that I will admit that this is not the proper course to take. I think it is the course that national dignity demands and that anyone working for national peace should take. With regard to Deputy McGilligan's point, he said that I omitted words relating to being united by a common allegiance to the Crown. I said it was untrue that I omitted them. The question of allegiance is not involved here. The allegiance of the State to the Crown is not involved here, good, bad or indifferent. What is involved is whether there shall be an obligation imposed on members to take the Oath. The removal of that obligation does not end the allegiance at all. It does not end the question of King George being King here in so far as he is made King by the Treaty. What is being removed here is simply this test which has all the objections to it which tests of every kind have. The attempt at confusion by suggesting that this is ending allegiance and that this is cutting ourselves away from the Commonwealth is all beside the point. A day may come when it may be necessary to consider other matters.
In answer to Deputy MacDermot, I may say that I am prepared to take the challenge. Let the British on their side take the challenge and we can have it out. Let the British declare unequivocally that they will not regard a decision by the Irish people to go outside the Empire as an act of hostility and will not follow a decision of that sort up by a hostile action against the Irish people. I am prepared to take the challenge. If they do not make that unequivocal statement I am not going to ask the Irish people to decide in the other form in which they may have to decide. Notwithstanding the threats, notwithstanding the action they may decide, but the decision then will be taken under quite different circumstances from the decision which it is pretended we are now in a position to take.
The moment the ambiguity of that matter is cleared up, I for one would be only too happy to have the matter decided once for all in order to know where we stand.
May I ask this question? The President is invariably kind and courteous. I want to ask him whether he would regard as hostile action the mere withdrawal of trade privileges that go with membership of the British Commonwealth of Nations?
No, I would not. I have never pretended that I wanted to have it both ways as they say. Not for one moment. As far as we are concerned if our people decide to become an independent Republic, then they are not entitled to any privileges that might go with association in the British Commonwealth of Nations. They are entitled simply to what they can get by mutual trade advantages, and if you ask me they are not getting any more at the moment.
I think the President is entirely wrong in describing this amendment as a wrecking amendment. It is true that there have been some differences of opinion between the Government and the British Government in regard to the interpretation of the Treaty and that we have held to our position, that we have made progress and that we have succeeded in almost every case in having our view accepted. We held to our position in Conference and we made progress by negotiations and conferences and we got our views accepted in that way. There is no reason at all for thinking that the position is changed now. In fact I think that the President himself must believe, if he will think over it for a minute that, just as in the past, it will be possible now to get agreements made with the British by negotiations, to get new views accepted, to get a Treaty in certain respects if necessary re-interpreted so as to bring the two countries to common accord. If the President accepted this amendment and if he acted on it and if he did what he ought to do where there is a question of difference of agreement about the Treaty, make the attempt to get into accord with the other Party, then I believe that the object he has in view would be much better served than by the course he is taking. It would be much better served not merely in a political or constitutional sense but it would happen that no damage of any sort would be suffered by the people of this country. To accept the amendment would not necessarily mean that it would be postponed to Tibb's Eve and it would not happen as experience shows that the other people would not listen to reason.
We can testify to this that ever since the Treaty the British have been eminently willing to listen to reason; that sometimes progress has been slow, but there has been no such thing as being up against a stone wall. The Government that was in power did not proceed by legislation when there was no agreement. The President mentioned the Privy Council question. We had two views about the Privy Council question, but we delayed until there would be complete agreement, and we were, I believe, on the point of getting complete agreement. Meantime we took certain interim steps that saved the situation for the time being.
With regard to the other matter with which the President dealt, I do not believe that in the matter of dealing about the Oath and the provoking of an unnecessary quarrel with the British and allowing things to go on interrupted outside, he is taking the line that is going to give any prospects of peace in the country. He has admitted himself that the most prominent leaders, or the people whom we judge to be the most prominent leaders, those whom he is trying to conciliate, have on many occasions, and from their organ in the press, indicated that they attach no importance to the Oath and I think that if the President hopes for big results from the line he is taking he is away back before 1917. A new propaganda and a new doctrine have grown up in all the world since 1917 and the people who are attached to that doctrine and who are engaged in that propaganda do not pay any attention to the minor old-fashioned things that the President is so much concerned with. I will be greatly surprised and very happily surprised if it turns out that the line the President is taking has any conciliatory effect in certain quarters here. I am too much afraid that what it will do will be to encourage them and I believe it will bring the country difficulties. It will bring greater difficulties rather than diminish difficulties.
The President talks about the British making a declaration outside. The President talks about settling things once and for all. Nothing of a political or constitutional character can be settled once and for all. There is always the fact that new generations will grow up, circumstances will change and any decision that may be taken by one generation may be reversed by the next. It is true that the fruits of the decision cannot be got rid of; that many of the fruits will remain, but the question cannot be closed and settled for all time. It is liable to be opened up again. The thing for the people to do is to make their decisions for the time being and from time to time in the varying circumstances of the time. It is a childish thing to say that we will decide an issue for all time, for circumstances are always changing. It is for us to decide things as best we can and to make the decision in the best way we can.
Every individual is coerced in every decision he has to make. He is coerced by the want of means of getting a living and by every factor that impinges upon him. No condition exists in which a decision can be made in vacuo. It is idle to expect otherwise. If the Deputy would be willing in some circumstances to say that he would stand for remaining in the British Commonwealth of Nations then he ought to say it, subject to conditions, and he ought not to take up the equivocal line he is taking up. He should aim to do one thing. The Deputy's policy has been in the past to divide our people where they might have easily been united; his policy has been to make one side decide for one thing and another side for another line of action. I think the Deputy has done much harm by that line of action in the past and he is continuing to do it.
How much harm has Deputy Blythe done?
Deputy McGilligan has again trotted out his usual arguments. I do not know whether he really appreciates the meaning of what he said. My words were directed to the interpretation of the Treaty. Taking the Treaty document as it was in 1921 there was a doubt about taking the words, the literal words in the agreement itself whether they were or were not obligatory. But now things have so changed that we can remove this Oath. That is a matter on which I have no doubt whatever. I think if the Deputy likes to study the despatches he would see our position is absolutely clear. In paragraph 5 of the despatches the position is set out:
The Government of the Irish Free State must maintain that this is a matter of purely domestic concern. The elimination of the Oath, and the removal of the Articles of the Constitution necessary for that purpose, is a measure required for the peace, order and good government of the State. The competence of the legislature of the Irish Free State to pass such a measure is not open to question and has been expressly recognised by the British legislature itself. It is the intention of my Government, therefore, to introduce immediately on the re-assembly of Parliament a Bill for the removal of Article 17 of the Constitution, and for such consequential changes as may be required to make the removal effective.
Quite clearly the statement is put there that the right to do so was recognised by the British legislature. And it is very pertinent to observe that neither in the succeeding despatches nor in the succeeding statements made by the British Government also has that statement been controverted. But Mr. Thomas has gone back and adopted the arguments presented to the British by the gentlemen on the opposite side waving the Treaty in our faces. I challenged Deputy McGilligan in the last discussion here and I challenged Deputy Fitzgerald that when they went to the Imperial Conference and asked first at one and again at a later Conference to get agreement, that it was competent for the legislature here to deal with the removal of the Privy Council — I challenged them that they were told at that time that they could not do it because they would be breaking the Treaty. I challenge them that they were told at that time that they could not do it because that would be a breach of the Treaty and I challenge them if the attitude they took up was not the same attitude we are taking up now, that whatever the position was in 1921, things had so changed that their right to do so was unquestioned at that date. I further challenge them that Deputy Blythe has stated, and it has been implicit in what Deputy Dillon has said, that this question of conference agreement has been something that has been thrown overboard. I fail to understand why they have the hardihood to state, if the 1930 Conference Report emerged from the Conference without any agreement on this question of the Privy Council or the right to remove it, notwithstanding that it was expressly stated here, that they proposed to remove the appeal to the Privy Council. Now they suggest that they were not going to do it in the bold way that we propose to do it. Am I not correct in stating that notwithstanding the fact that Mr. Thomas, the same Mr. Thomas with whom we are dealing, took up the attitude that that is a breach of the Treaty, Deputy Fitzgerald, Deputy McGilligan and the Government proposed to get on with the proposal to remove the appeal to the Privy Council? I also want to know how Deputy McGilligan stands for the method which he says was the ordinary backdoor method, of taking away the appeal to the Privy Council? I challenge him again if that is so and I challenge him if the British representative at the Imperial Conference ever gave assent to that method of removing the appeal.
Three times it was assented to.
I challenge Deputy McGilligan whether the representatives of the British Government ever gave sanction to that method or any method of removing the appeal.
At the Imperial Conference twice.
Shall I show you the minutes?
I would be prepared to have them quoted. Give us the reference.
You cannot expect me to quote them.
Give us the passage.
These challenges can be answered. Do not be too "flatheamhail" about them.
I would be quite content if the Deputy could give us the passage. When we see where it is contained we will be satisfied.
That the British have three times assented to the removal of the appeal to the Privy Council.
The British have three times declared that a certain method of dealing with the Privy Council was constitutional.
Am I right in stating that Mr. Thomas said that the removal of the appeal to the Privy Council was unconstitutional?
That one method of doing it was, but another was not. I would like the Attorney-General to think over it for a little while to get out of the difficulty, because I like challenges.
I have given you one challenge.
Which I retorted to by my answer.
When I make the challenge implicit in my challenge, is the assertion that Mr. Thomas declined to accept your view and Deputy Fitzgerald's view as to whether the Privy Council was implicit in Article 2 or not?
The Attorney-General is blundering again to cover up his previous blunder.
Imperial Conferences, like ordinary meetings, are articulate through their minutes.
And I can prove that the Attorney-General has misread them in two other instances.
The Attorney-General talks about the back-door methods which we had of removing the Privy Council. I took him to mean certain actions that we took in regard to particular judgments and decisions of the Privy Council. I understood he was referring to our action in the Lynham versus Butler case and the other case. When he asked us if the British Government approved of that, if he means by approved that they liked what we did, certainly they did not, but they admitted that we were perfectly right constitutionally and our action was not challenged by them.
Suppose we bring in a Bill for the removal of appeal to the Privy Council are we going to get the support of the Opposition?
If you bring in one of my Bills certainly, but not if you bring in the other, because we rejected that as being a breach of the Treaty.
There is no doubt that agreement had been reached with the British Government about the Privy Council as to the method of dealing with the Privy Council?
Certainly as regards one Bill. I have already answered the President that we will give him our support in that Bill.
The President asked whether there was agreement with the British Government as to the form of Bill to be introduced. If there was no agreement on the form of Bill, why did the Deputy state that he was going to introduce a Bill to remove it?
Because we knew one of them was unconstitutional. I did not say I had two opinions on the matter.
I referred to the matter of whether there is now any legal or constitutional obstacle to our removing the Oath. On that I have no doubt whatever.
As far as I remember I challenged the Attorney-General to state if it was his opinion or whether any large body of legal opinion could be got to assert, if there was ever a probability of this question going before an impartial tribunal, that the court would go into the matter on the lines proposed by the President. The Attorney-General said in reply to me, in reply to that legal question, that there were two legal opinions involved and that anybody who said otherwise would be a fool. The challenge I put on the point we are discussing in this Bill, was, would he give a legal opinion to assure the President that if when they went before an impartial international tribunal ever a probability that that court would give a decision in his favour and it was in reply to that that the Attorney General said that there were necessarily two opinions and that he would be foolish to advise that there would be only one opinion. That had no reference back to 1921. That was a statement in the surrounding circumstances of to-day. I think the Attorney-General if he will cast his mind back will see immediately that he has misread on that point.
I said three times dealing with the matter that I have heard that you cannot read—
I think that supports my view that the Attorney-General has to quote a thing half a dozen times before it penetrates to his inner consciousness. He is the type of man whom certain people would describe as having esprit d'escalier— the type of man who, having said something, has to think out afterwards what he should have said. He is now trying to explain away the flaw in his own arguments. He is now trying to explain his own blunders but this is going to remain against the Attorney-General as long as he remains in law. I will read it to him again.
You admitted it was right.
Of course it is right —right from my angle but not right from the angle on which he says we are going to take an irrevocable step founded on one of these opinions of which he says there are two. It is quite an obvious point. If I say there are two opinions on anything I am not going to advise immediately banging one's head against a door in order to prove that one of them is right. If I say that two things are possible with regard to a particular situation I am not going to ask the country to become embroiled with a friendly nation to prove one of them. That is what he did.
I said I had no doubt we had the right.
Let us hear what he said on the 29th April. There was only one point of view then to be considered — was it legal to take away the Oath? On the 29th April, this was his own statement: "He wanted me to say whether I believe the Oath obligatory or not... First on the question as to whether the Oath is obligatory or not, I admit that there are two views. Any lawyer would be silly on a difficult question which has been discussed over several years to lay down positively that his own interpretation of certain things is absolutely the correct one." The President is going under the assumption that it is the correct one. He is banging his head against a door.
I would like to hear the whole of it read.
I am going to read it all. I want to get back to this door argument. It reminds me of a story of two niggers discussing the sale of a mule. One of them — the one to whom the mule had been sold — complained afterwards that, to use an Americanism, he had been "sold a pup," because it was a blind mule. The other said "it was not blind at all and I told you it was not blind.""Then why," said the other "did he run up against a tree?" The other nigger replied "he is not blind, but he just don't give a damn."
That is just the position of the Government. It is not exactly blind. It is not even a one-eyed man that is leading them: it is, if I might say so, a three-eyed man; and it just does not give a damn. What does the Attorney-General mean when he says that "any lawyer would be silly to lay down positively that his own interpretation of certain things is obviously the correct one. I admit there are two views. I say there are eminent men—even eminent lawyers— whose eminence would be admitted, who had held that the Oath is not obligatory." Who had held it, he says. They held it because, interpreting the statement which was given to us at the time and examining the position in Canada they will not quite say "the Oath is not obligatory." The President could not get a more ambiguous statement than that, with all his experience in ambiguity. What does the Attorney-General think about the Oath on the 29th April? This is the outstanding blur upon the Attorney-General. He discussed it with various people and lawyers and he had their opinions and his own opinion — his two views — and any man would be silly not to say that there are two views. The dispatch does not say there are two views. It says: "there is only one view, and that is ours." We are told that we are a dishonourable Opposition because we are holding that there is another view. Is the Attorney-General a dishonourable man because he said there were two views? If not, why are we dishonourable, because we preach the same argument? That is the Attorney-General's mistake. The trouble about it is that, if a man is capable of making that mistake, if he is to be relied upon in these matters, it is important to know that he was not brought into the conference. We had the great temple of silence introduced to the British legal Minister who came across. If he is capable of making a mistake on fundamental issues, what reliance can be given to him on the smaller points? On that, the Government is so assured, that they will not have any agreement, any thought of the conference which, the President admitted, brought the Treaty to such a point — although for that he deserves no thanks, because it was brought in the face of his opposition and in the face of the maligning of everything that was done.
The Attorney-General's only recourse when this is brought up against him is to get to the Privy Council, and we have this performance about challenging to this, that, and the other thing. I can speak with some authority about these Imperial Conferences. I was at one in 1923. I was at one in 1926 and again in 1929, and I was at the last one in 1930. Had I the documents in my hands, I believe I could point to the very pages where certain things were said — where Lord Cave said: "You do not need anything further, because you have discovered a most ingenious way of preventing the appeals." I go further. We discussed this question slightly in 1929. We discussed it heatedly on many occasions in 1930, and the point at issue then was not that the Bill should stereo-type the position which we have achieved — which is that no appeal can in fact be taken to the Privy Council— but the downright removal of the Privy Council from the Constitution. That was what was under discussion. As far as the first thing was concerned, there was pretty nearly unanimity. We were within our Constitutional rights. I explained it myself. I had my words queried and finally accepted, and what we had done by way of post factum legislation on individual cases was constitutionally correct. That is a thing I say without any fear of challenge. A Bill to establish that position—to do it by one piece of legislation instead of by several — is the same. There were objections to any further action with regard to the Privy Council. There was definite objection, but again the conference method was tried.
I have said — and I cannot speak openly — what I have done in a sort of a hint. Let the President advance his Oath question to the same point as we advanced the radical taking away of the Privy Council, and he will be able to go to the people and say that not merely to a section of the community on his side, and he will have the whole community, and further, will have South Africa, Australia and Canada on his side. That is the Privy Council situation. There were two ways of dealing with it. One, agreed, constitutional. Apart from the Privy Council document altogether, a remark was passed twice, I think, in the House of Lords. There was the other radical way of dealing with it, which was not agreed to, and we did not proceed with the legislation. If the President brings in the first Bill I am speaking of, I do not think he will find much difficulty about it here or elsewhere. He will if he brings in the second Bill because we will say now, being in Opposition, what operated in our minds when we were the Government and what prevented us from taking certain action. Why should we not say it again when people are going to take action which we thought it unsound for us to take? The first Bill is a different thing and, on that, I think the President will find that there will be no difficulty here or on the other side, except the difficulty that will be raised, as it might be, by his approach to such a problem, but not by the actual way of dealing with it in the end. At any rate there is the Attorney-General to go back to always. His two opinions mean that there were at one time two opinions, and how is he clear in his mind that the other thing is an analogy of the Privy Council? He had previously misquoted what happened with regard to the Privy Council, and if he has not read into the document what he has said, he has not read the document properly, and has not got any information from the Constitutional law sense, but that might be the result of a defect in his reading. In the face of the Seanad amendment, asking for some pause in the hope that there may be agreement, to which the President says: "No, we will go ahead," it looks badly for the false analogy of what we had done. What we did all the time was to study advance by methods of conference and conciliation, and we got to the point that the President had to admit that he found in the Treaty virtues and points he never suspected. They were brought out by the method that the Seanad in the amendment asks to have adopted. The President will not have that, but relies upon the two-minded Attorney who is advising him on the special matter whether the Oath is obligatory or not.
This debate reminds me of a spiritualistic seance. At least the Opposition are calling up the dead, and invoking once again the spirit of British ascendancy in this country which has entered into their souls and has become a part of themselves. We are told by Deputy Blythe that we should make an attempt to get the Treaty differently interpreted. Listening to them one would think that the Treaty was the birth certificate of the Irish nation; that it was necessary to legitimise the race and give it what it claims as a birthright. We are to make an attempt to get the Treaty differently interpreted, as if Irish history began with the Treaty. They have been making the attempt to get it differently interpreted. We heard Deputy McGilligan talk about the fictitious victories of 1923, 1926, 1929 and 1931. They removed the appeal to the Privy Council in "the most effective and ingenious way." They have been negotiating about it for over ten years but the appeal to the Privy Council is still in the Constitution but the Oath is gone.
It is not.
It is gone, and is as dead as Queen Anne. The whole proceeding on the part of the Opposition is as malodorous as the attempt to resurrect that dead and almost forgotten lady. It is as malodorous and as futile, because the Oath will never again be alive as an issue in Irish politics. We disposed of it for ever and the next Dáil that meets in this House will be a free Dáil, not oath-bound, and not concerned in any way with a Sovereign outside this country. If there is one thing that convinces that the method which the Government has pursued in this matter is the correct one, it is the speech to which we have just listened from Deputy McGilligan. It was not merely the correct method but the only honourable method. He has boasted here, and has repeated as a brag what was said to him by Lord Cave: "You do not have to remove the appeal to the Privy Council, because you have discovered an ingenious and effective way of removing it." I do not know whether his way was effective or not, but I suggest that there must have been some doubt at any rate. Otherwise why so much cogitation? Why was so much time spent on a Bill preparing to remove the appeal to the Privy Council, an appeal which, even after four victories, General McGilligan — Talleyrand McGilligan — at the Imperial Conference was still afraid, and was still unable to bring to this House, or unable to convince the Government, of which he was a member, that it was wise to bring into the House? Which is the more honourable way of dealing with the Constitutional problem? The ingenious and effective way of Deputy McGilligan or the honourable or straightforward way of the present Government? If we were constitutionally entitled to remove the appeal to the Privy Council, which was implicit in Article 2 of the Treaty, are we not constitutionally entitled to remove the Oath also? The Deputies cannot have it both ways. If we can dispose of the appeal to the Privy Council we can dispose of the Oath. I suggest that when a constitutional issue arises there is no necessity — and it would be neither honourable nor courageous — to ask permission of any outside power to deal with that issue, that if we asked any power external to these shores to deal with that issue would be acknowledging overlordship from that power. It used to be the claim of those who sit on the Opposition Benches that we are co-equal with Great Britain, that there was no longer any suggestion of British domination here. Why are we to restore the suggestion of British domination here by asking permission to determine for ourselves what is a purely domestic issue? The one thing that seems clear from the debate, particularly from the speech that was made by Deputy McGilligan, is that opposition to the course which we are taking is merely vexatious opposition, that they have constituted themselves the British Light Brigade in the House, that they are skirmishing for England, and that they are manufacturing arguments which the English themselves never dreamt of. If there were any other proof than Deputy McGilligan's speech needed to show that the Opposition is vexatious, that it is not based upon any concern for this nation's honour or for this people's welfare, it would be the statement made by Deputy Blythe that the President has created differences, had caused trouble throughout the country and that he had divided the people. Nobody knows better than Deputy Blythe how hard the President strove to avoid those differences. Nobody knows better than Deputy Blythe that this very question of the Oath, which divided the people ten years ago, has remained a living issue in Irish politics, that it is upon that issue this Party was returned to power — to remove that Oath — and, by removing it, we hope for ever to remove the cause of dissension amongst Irishmen.
The Attorney-General has the habit, when he gets up, of referring to the question of the Privy Council. I am rather glad he did because it was a point which I tried to put twice before and no answer was made to me. The argument by analogy with the Privy Council is just an attempt to misrepresent the whole situation. The Privy Council position was that, by Article 2 of the Treaty, there was an analogy with Canada and as Canada had an appeal to the Privy Council an appeal to the Privy Council would flow from that Article to this country. The President argued that, in so far as the Oath may have been mandatory in the Treaty, it flowed only from Article 2 in the same way as the Privy Council did. So far as my memory goes, our argument in 1930 about the Privy Council was based largely on whether we should take action prior to the passing of the Statute of Westminster or not. So far as I remember — I am only speaking from memory — the indications were that there would not be the same opposition to our action with regard to the Privy Council after the passing of the Statute of Westminster as there was prior to the passing of that Statute, because there is no mention of the Privy Council in the Treaty. It can only be brought into the Treaty as flowing from our comparison with Canada in Article 2. The Oath is specifically set out in Article 4 of the Treaty. The President on, I think, the Committee Stage of this Bill, said that Article 4 was only in the Treaty because it was necessary to provide for a variation in the form of Oath in our case as compared with the Canadian case. At the moment, I thought he had possibly forgotten the circumstances of 1921. Then I remembered that in his concluding speech on the Second Reading on the previous Friday, he had himself referred to the fact that the final draft of the Treaty, as it stood on the Friday prior to the 6th December, was brought back containing Article 4 not as it is now but as he himself said, with a direct Oath in it, as in Canada. The whole argument about the Treaty had centred round that Article providing for an Oath. When that Article provided for the identical Oath there is in Canada, the suggestion or attempted argument, which nobody can pretend to think a very honest argument, that that Article was only brought in to provide for a different form of Oath from Canada cannot hold water. From 11th October until 6th December, the central argument regarding the Treaty was as to the Oath clause. The Oath clause provided in no way for any variation of the Oath as taken in Canada but for the identical Oath as taken in Canada. On the other side an attempt is made to mislead the people by drawing a bogus analogy with the Privy Council and it is argued that the Oath flowed from the same Article. Then there would be no need to bring in a specific clause. The President said that Article 4 was only brought in — he knows it is not so — to provide for a different form of Oath from Canada. Yet, he stated on Committee Stage that when the document was brought back on Friday morning or Saturday he looked down a few clauses and fixed upon the Oath clause. He said that that crystallised the whole position, and that that was exactly the same Oath as was taken in Canada. Now, he turns round and says that Article 4 was only brought in to provide for a variation of the form of Oath and that the Oath so far as it was mandatory was only mandatory by Article 2. The whole history of the situation contradicts that. The fact that the Oath is set out specifically, that it has one Article to itself, the Article on which the whole Treaty debate turned between us and the English, indicates quite clearly that that was a vital thing. The Privy Council was not even referred to. We proposed taking action with regard to the Privy Council because the Privy Council appeal only flowed from Article 2 of the status Article and because our status had changed since 1921. But the specific details in the Treaty have not changed since 1921 and can only be changed by agreement between the two parties.
I am reminded by the Parliamentary Secretary that agreement was come to as to the time in which a certain programme would be got through. Looking at the clock, I am afraid that we may not be able to fulfil that programme. As regards the Deputy's argument, I myself made a mistake about the document. The Deputy prides himself on his memory but we were both wrong. I looked up the document since and the modified form of Oath is in it, so that the argument about Canada does not apply.
The modified form of Oath as we have it now?
The form as it appeared was not the Oath taken in Canada at all. What made me look it up again was that the modified form I was supposed to have suggested could only have come from the Canadian Oath if it was the one there. It was based upon something existing in a document before me. When I looked it up. I found I had made a mistake. The Deputy prides himself on his wonderful memory but all his argument is based on wrong premises.
I cannot accept the President's statement. The President says that the form of Oath he proposed was based on the Oath in a document before him.
The Deputy will agree with me in a moment. I interrupted now because it would be only a waste of time making an argument based upon a fallacious foundation.
It was brought in as a good argument.
No. I had seen a document a few days before and I saw just a short form they have in Canada. Afterwards, I said: "How can I have made any such suggestion of that sort based on such a foundation?" I found, as a matter of fact, that it was not the form in Canada that appeared in the document that came over on that Friday or Saturday.
It was the direct form of Oath. The whole discussion during the period prior to that had been not as to whether our analogy with Canada was implied in the Oath but turned entirely upon the insertion in the Treaty over and above Article 2 of the stipulation as to the Oath. I think the President will remember that when Arthur Griffith came back for a week-end he said, "You will get no agreement without the Oath." I do not want to misrepresent the President but I think he replied, "Yes, an oath but not that oath."
No. The whole argument is based on a mistake that I made which you accepted.
I make no mistake when I say that the central point of argumentation between 11th October and 6th December, was the specific clause to be inserted in the Treaty setting out the form of Oath to be taken here. That was the whole point. A vote was taken on that again and again; it was postponed. But that was the point on which, really, the Vote on the Treaty was taken, not on Article 2, or anything flowing from that. Nothing of the sort. It was not Article 2 that divided us. We were prepared to accept that without any trouble. The whole trouble that brought about the crisis was not Article 2, but Article 4, which set out the form of the Oath which was to be taken. That is the truth.
I do not want to go into that argument; it would take too long, and it would really not be to the point.
If the President denies that I shall bow to it.
It has been agreed to conclude the Fourth and Fifth Stages of the Control of Manufactures Bill, and the Second, Third, Fourth and Fifth Stages of the Housing Bill between now and 10.30.