Dáil Éireann debate -
Wednesday, 1 Dec 1948

Vol. 113 No. 6

The Republic of Ireland Bill, 1948— Committee.

SECTION 1.

Question proposed: "That Section 1 stand part of the Bill."

Mr. de Valera

Before we pass Section 1, it is right that every member of the House should know exactly what it is that is being repealed, and what would be the legal and practical effects of the repeal. As far as the Act which it is proposed to repeal is concerned, Deputies who have studied this question at all will know that that Act was one of a pair. Two Bills were introduced here on the 11th and 12th December, 1936. The occasion was the abdication of King Edward VIII. The British Government at that time proposed certain legislation ratifying the instrument of abdication which was signed on the 10th December. The States of the British Commonwealth agreed that they would request legislation from the British Parliament ratifying the abdication, and that they would give their assent to that legislation. The Government of the day felt that such a course would be quite inappropriate here. The two Bills were brought in as a pair, it being clearly stated that the second Bill would not be passed unless the first Bill was accepted.

Now, the effect of the first Bill which became an Act on the day on which it was discussed here, namely the 11th December, was to take the King out of the Free State Constitution. The King was removed. The Crown was removed. Everything that pertained to monarchy in that Constitution was taken away. In particular, the Article which vested the executive power in the King was amended. In its original form it made it quite clear that the executive power was vested in the King. After the amendment it made it clear that the executive power was vested in the Executive Council, that the Executive Council would exercise all the executive powers as of its own right. It was also provided that the Executive Council, subject to the restrictions indicated by law, might use, for the purpose of accrediting its diplomatic representatives and other functions of that type that were mentioned in connection with our external relations, any organ used as a constitutional organ by the States of the British Commonwealth. It is clear from that that the only way in which it was possible to use the King, who was the organ in the States of the British Commonwealth, was to use him as an agent, not as a principal—to use him as an agent of the Executive Council.

Now, what was the position that was created as a result? By removing the King from every Article of it, the Constitution at that stage was a republican Constitution, as was clear to those who had studied it. There was still remaining, of course, Article 1 of the Constitution and the question that naturally had to be examined was, to what extent, when the King was removed from every Article of the Constitution, our association as a co-equal member of the Commonwealth, as expressed in Article 1, was affected or could subsist. What were the implications in that particular Article so far as the King was concerned? The view that was taken by some of the Deputies who were here on the opposite benches is clear from, for example, the statement that was made by Deputy Lavery, the present Attorney-General. On that occasion, he said:—

"Examining the Bill in the time that I and the House have had in which to do it, it would seem to me that the effect of it is to remove the King from the Constitution and to give to this country a republican Constitution. That may or may not be a desirable thing."

The whole of the opposition to the first measure came from those who opposed it because the King was being removed. When Deputy Norton opposed the second measure, my own view at the time—I can be quite frank about it—was that he simply wanted to make a demonstration; that he had not even studied the matter, After Deputy Norton had spoken, Professor Thrift, who was a Deputy at the time, spokeDeputy Professor Thrift, who followed immediately after Mr. Norton, commenced by saying that he thought he had seldom listened to more unadulterated nonsense than the speech they had just heard. "Deputy Norton failed even to appreciate the information which the President gave him yesterday, and did not appreciate the fact that this Bill is not one which appoints a new King in any sense of the word." Continuing, he said:—

"...I do not think that it is possible to stress too strongly that this Bill is not a Bill which, in a sense, appoints a successor to King Edward VIII. If we pass this Bill, we shall do two straightforward things. We shall, on our part and of our own free will, accept the abdication of the late King. We shall appoint to the new King certain functions in relation to external matters. That is all that this Bill does."

Looking back on it at this period of time, I think that anybody who examines the question will say that that was a fair comment and a fair appreciation of what was being done.

Minister for External Affairs (Mr. MacBride)

Whose comment was that?

Mr. de Valera

The comment of Deputy Professor Thrift on "unadulterated nonsense" appeared to me to be more than justified. The Bill which became an Act on 12th December, the day following the other, was "a Bill entitled an Act to make provision in accordance with the Constitution for the exercise of the executive authority of Saorstát Éireann in relation to certain matters in the domain of external relations and for other matters connected with the matters aforesaid." It was an Act then to make provision in accordance with the Constitution. It was quite clear that that Act could not exceed the powers that were given by the Constitution. If it did, it would have been declared invalid. In the old Constitution it was in the power of the Supreme Court to declare a Bill which was repugnant to the Constitution invalid and, consequently, when this Bill came before the Parliament, as the other Bill had become an Act on the preceding day, it was not possible to use the King that was mentioned in any other capacity except as an agent and it did not, as Deputy Thrift clearly saw, bring back a King of this country as successor to Edward VIII. Edward VIII had abdicated.

In the first instance, the Bill was in a simpler form than the form in which it was finally passed. In that simpler form it was perhaps more evident than in the final Bill what the purposes were. The reason for the change was that certain doubts had been expressed on the previous day, when the two Bills were before the Dáil, as to whether, when you had removed the King completely from the Constitution, there might not be, in view of the fact that in British law the King was the fount of authority and justice, some function that had been overlooked. Consequently the original draft was amended, and the second part of Section 3 was introduced. That amendment was intended, in the first place, to make quite certain that the King who was abdicating could not appear in any shape or form. The fear had been expressed that it was not sufficient to take him out of the Constitution, and the original draft went on the assumption that taking him out of the Constitution was taking him out completely, and probably it would be held to-day by most lawyers that that view was right. The Bill had to be passed in a hurry, and no risks or chances could be taken. It had to make doubly sure, and sometimes when you try to make doubly sure you make the matter less sure; in taking a second step to confirm a first you may sometimes throw a doubt on the validity of the first step, and that happened here in the light of subsequent argument. The intention was clear; it accepted the abdication of Edward VIII in the most formal way.

In the first draft no cognisance was taken of the abdication of Edward VIII. Why was it changed in the second draft? To take cognisance of it? The first reason was to make assurance doubly sure. The other was to indicate that the power lay here for it was desirable to show very clearly and very definitely that as far as any King in this country was concerned, he was a Parliamentary King and subject to the will of Parliament. It was desirable that that should be done because if you were to allow it to be suggested that it was possible by some way other than by this Parliament to appoint a King for this country, we were in a completely subject position. We maintained that we were in a sovereign position, and, consequently, that we had the power and we exercised the power by taking note of that abdication and declaring it ratified. By this action we indicated our power. We took, therefore, notice of this instrument of abdication because, remember, before this, on the 10th December, which is the date referred to here, he was accepted in the Constitution—whatever may be said about the people—as King. We took note of that, accepted his abdication and made it as final and as complete as we could.

You notice that there is reference in that paragraph not merely to the specified purposes indicated in an earlier paragraph of the Act, particularly the previous sub-section in which we permitted the King who is King of Canada, Australia, and so on, to be used by the Executive Council as an agent, but we were indicating in this paragraph that Edward VIII had disappeared, as far as this State is concerned, not merely for these purposes but, as a precaution, as in the way here indicated, for any "other purposes". The question was: were there any? Nobody could point to any at the time, but a fear was expressed that on account of the way the King is bound up with British law which had been taken over here, some particular case might arise in which it might be desirable to see that no vestige of the authority of Edward VIII was left. It was to cut it off completely that these words, "other purposes, if any", were used. The next thing to be done in the paragraph was to indicate who was to be successor to Edward VIII for the exercise of those particular functions which were assigned to him in Section 2. That person had to be indicated. We had indicated it otherwise by saying that he would be the King who would be recognised by Canada, Australia and New Zealand for the purpose of accrediting diplomatic representatives and so on. He was indicated in the second instance in terms, I quite admit, which did not appear to some of us to be quite satisfactory, because it was suggested that the new person indicated might be appointed for purposes other than those set out in sub-section (1) of Section 3. The answer was, first of all, that there were no such purposes in fact and, secondly, if there were any functions or purposes contrary to Article 51 as amended, they would be automatically cut off as if by a sieve, as Article 51 was a sieve to cut off any function other than those permitted by Section 51.

Minister for Industry and Commerce (Mr. Morrissey)

On a point of order. May I ask if this is in order on the Committee Stage? Are we to have a Second Reading debate again?

An Ceann Comhairle

The section deals with the repeal of the whole Act and, therefore, it is pretty comprehensive. The Deputy is dealing with one question raised on the last day as to a difference of interpretation of that section.

Mr. Morrissey

I want to be quite clear so that there will be no misunderstanding. I have no desire to stop the Deputy in his apologia.

Mr. de Valera

It is not an apologia.

Mr. Morrissey

I want to be clear that this debate which has been opened on such a wide scale will not be narrowed later. I take it other Deputies will be free to follow the line taken by Deputy de Valera.

An Ceann Comhairle

The Chair can only rule in regard to each Deputy as he speaks. I cannot give any judgment in advance. The Deputy who is speaking has not gone away from the Act that is being repealed; he has not departed from it.

Mr. Morrissey

From the section?

An Ceann Comhairle

The section deals with the whole Act.

Mr. de Valera

I think I made it clear in my introductory remarks. We are, in this section, about to get rid of a certain measure and it is only right that the House should know what they are getting rid of and the precise effect from a legal and practical point of view that will result from its being abolished.

An Ceann Comhairle

The Deputy might go too far on that, because on the Second Reading Stage the principle was agreed to.

Mr. de Valera

I submit that it is not the principle of that particular section. Agreeing to the principle of the Bill as a whole does not mean that any particular section cannot be argued against. I think I may take it that I am entitled to give a vote for the Bill as a whole when I have had an opportunity of dealing with the particular parts to which I object. If I were to object to this section—that is the repeal section—I think I would be entitled to vote against it, even though I voted for the measure as a whole. It is only right that we should have clearly in our minds what we are doing. In order that the precise effect of what we are doing would be clear I have had to indicate what is the effect of this Act which we are about to repeal. The effect of this Act is simple. It got rid of Edward VIII by ratifying the instrument of abdication and it enabled the Executive Council of that date, in accordance with Article 51 of the Constitution—so far and no farther—to use as an instrument, or to use as a statutory agent, which is in every way perhaps the most appropriate word, the King who was used for the purpose of accrediting foreign representatives, etc., by Canada, Australia, etc., so long as we were associated with those States. That was the position in 1936. I think the Minister for External Affairs hinted that I was not too happy myself about that particular section to which I referred. The reason was that there was a difference of opinion.

Mr. MacBride

About sub-section (2)?

Mr. de Valera

Yes. There was a difference of opinion between some of the legal advisers. Some were for making assurance doubly sure; the others were satisfied that they were sure already, that the simple Bill which had been brought in in the first instance was quite sufficient without anything further. The Attorney-General, or whoever was in charge, was of opinion that it was desirable to make assurance doubly sure and there was, therefore, a certain uneasiness as to the effect of the particular phrase: "for all other purposes, if any". We had that question definitely in mind when the new Constitution was being considered and when it was being discussed here. Having it in mind, we took the opportunity in the 1937 Constitution to remove anything in the way of a doubt. You will find in Articles 28 and 29, which indicate the executive powers, and also I think in Articles 48 and 49, the question of the extent to which existing legislation should be taken over. We took over the same scheme, namely, the Constitution in which there was no kingly function, no function of a King as such. We took over that idea and we also took over the idea of allowing the Government of the day, with which all executive power and authority lay, the power of using as an instrument or as an agent the person who was King of Canada, Australia, etc. In other words, we took over the External Relations Act in the taking over of British law. But, of course, it was only to such an extent as was consistent with the Constitution.

The Minister for External Affairs stated recently that there was something strange, that either the King was there and the Act was ultra vires or that the Constitution was not a republican Constitution. That is a complete non seqitur so far as I can see. The position was that the Constitution was the overriding instrument. Any law which was taken over which was in any respect inconsistent with the Constitution or repugnent to it was to that extent invalid and inoperative. Therefore, as the Constitution was clearly a republican Constitution, there could be no question of importing the King into it or with it or around it by means of the External Relations Act.

Mr. MacBride

Does the Deputy agree then that the External Relations Act was in fact ultra vires the 1937 Constitution?

Mr. de Valera

I do not. I have not said so. I said it was a question of making sure and in this case the danger did not exist. In this case you were taking a completely new instrument and you were doing the thing completely. I have not said it was. But, if anybody argues it was, I say to such a person: "If your contention were to be accepted, the sieve of the Constitution cleared that out."

Mr. MacBride

Was it constitutional or unconstitutional—the External Relations Act?

Mr. de Valera

My own opinion is that the lawyers who found fault with the External Relations Act as it was passed were not in agreement and were in fact not right.

Mr. MacBride

Your opinion was that it was constitutional?

Mr. de Valera

My opinion is that it was but, at any rate, the whole position as it stands to-day is perfectly simple and perfectly constitutional.

Mr. MacBride

Is the Act therefore ultra vires the Constitution of 1937?

Mr. de Valera

I did not say so. I am not a lawyer. I have listened to the lawyers arguing. If I were an individual who had that case, I would stand by it. I believe it was constitutional.

Mr. MacBride

It was ultra vires?

Mr. de Valera

It was perfectly constitutional. In any case, as to whether it was constitutional or not, the question is: is there anything that was done which was unconstitutional? You may argue about words as you please. There was a perfectly simple constitutional position in which the Government of this State could use as an instrument, as an agent for the accrediting of our representatives to other States, and as a mark of their association with these States, a person who, if he had not been a King, would have given rise to no difficulty.

If, for instance, you had to-day a grouping of the States of Europe, such as France, Belgium, Holland and Luxembourg—to take a few neighbouring States—and if these States came into association and agreed that to mark themselves out from other States that were not in the association, they would accept in accrediting their representatives to other States, the signature of the President of France, it would be perfectly possible for them to do it if they wanted to do it. It would be perfectly within their competence to do it, and it would in no way be a derogation from their sovereignty.

Mr. MacBride

It was not on these grounds that I suggested it was unconstitutional. I suggested it was unconstitutional in that it made the King of Britain the King of Ireland.

Mr. de Valera

It did not, and no one has ever attempted to prove that.

Mr. MacBride

It is in the Act.

Mr. de Valera

No lawyer that I have ever met has ever said that, and I have discussed this question very intimately with different sets of lawyers, both those who were in official positions and those who were not.

Mr. MacBride

I thought you said a moment ago that there was a doubt about it.

Mr. de Valera

What I said was that there was a question of some vague thing which might possibly exist, but nobody ever discovered it and nobody was ever able to lay their finger on it. This instrument is not importing a continuing personality or a continuing agent. It is importing an agent ad hoc for each particular case. There was no continuity of personality at all. It was a series of individual acts since 1937. I would be interested to know— I did not think it worth while to put down a question about it—how many such Letters of Credence were signed.

Now, nothing will show better the actual position, I think, than to read for Deputies one of the Letters of Credence which was put in the Library for the information of Deputies. That was done some time ago. I was asked to give the information and I gave it. I have here the form. There was a general evolution in these forms. When we came in originally, the position was that I saw some documents signed by the Government here as His Majesty's Government of the Irish Free State. Letters of Credence were in the name of His Majesty and definitely originated from him as from the centre of authority. Passports, in which the usual requests were made, were in the name of His Britannic Majesty. That was not the position when we were leaving office, and it is not the position to-day when we are going to get rid of this External Relations Act. This was the general form. It began "Your Holiness," or "Sir," or "My Brother" according as to whether the letter was addressed to the Holy Father, to a King, or to a republican President or some person in a republican State. It then went on:

"The Government of Ireland"—

Mark you, it says the "Government of Ireland"

"—being desirous of maintaining the relations of friendship which exist between Ireland and (the State concerned is then mentioned) have advised me that they have judged it expedient that So-and-so be accredited to Your Holiness or Majesty (or whoever the head of the State might be) in the character of (Ambassador Extraordinary and Plenipotentiary or Envoy Extraordinary and Minister Plenipotentiary) of Ireland."

It starts, then, with indicating who it is that is originating, and is the source of, this request.

"The Irish Government feel assured that the choice of So-and-so will be perfectly agreeable to Your Holiness or Majesty (as the case may be) and that he will prove himself worthy of this mark of confidence."

It then goes on:

"I, therefore, request, on behalf of the Government of Ireland,"—

in which he had no part himself, obviously,—

"that Your Holiness (or whoever it might be) will give entire credence to all that this person shall communicate to Your Holiness or Majesty in their name, and I take this opportunity of renewing to Your Holiness or Majesty the assurance of my sincere friendship and of the unfeigned respect and esteem which I entertain for Your Holiness or Majesty (as the case might be), person and character.

Given at my Court at So-and-so on such and such date. I am, Sir, my Brother, etc."

That shows clearly that the person who signed this document, and those who were receiving our representative, had got documents from the same person in another, and in quite different, capacity, and I am perfectly certain that they were not so simple as not to notice the difference between them. In one case he was acting as principal; here he was obviously acting as agent. Whether that is desirable or not is a matter on which we can have our views—whether or not it was desirable to have that thing done. That is a question of policy. I am anxious that the House would know precisely, before they do this, what was being done and what is the existing position.

At the moment I have not got with me the passports which were issued at the time we were leaving office. These passports were issued by the Minister for External Affairs asking, in a corporate capacity, that the usual courtesies and so on would be given to the person who had the passport. I want to point out at this moment, before we get rid of this Act, what the actual, legal constitutional position in practice is—that we are here a republican State, and that this republican State, in order to mark its association with other States,. was simply making use as a statutory agent of the person who signed our letters in one capacity and in quite a different capacity for other states. As I have said, we can have our views as to whether that is desirable or not. I want to say what the Taoiseach said some time ago—his words probably are not quite the same as mine—but I do say that the British Crown in this country has, in the minds of our people, always been associated with British rule. It was the symbol of British rule in this country.

Mr. Lloyd George expressed a truth when he said—I think it was some time between 1914 and 1919—that "centuries of brutal and often ruthless injustice and, what is worse.... centuries of insolence and insult have driven hatred of British rule into the very marrow of the Irish race." The British Crown, therefore, as symbolising that rule was not acceptable to the sentiments of our people. We naturally were not anxious to have in any shape or in any form the British Crown associated with our free institutions. That is perfectly true. The question was then whether it was possible for us to have it as a symbol of association. It was not the association with the States of the British Commonwealth that our people objected to. I have over a number of years made statements similar to the statements that have recently been made by the Taoiseach on that matter. I believed them true then. I believe them true to-day. I believe he is expressing the truth. Association with these States appeared to me to be on a very different footing from that of the Crown. Association was acceptable so long as it was quite clear that it was to be a free association. That seemed to me to be something that our people could accept provided that the terms of the association were satisfactory. I could not think myself, and I have been struggling with these problems since, I might say, 1917—I was very close to these problems in 1921— of any simpler way by which association could be signified. I have suggested that France and Belgium and Holland and Luxemburg could show association by accepting the signature of, say, the President of France. Or, if we wanted to-morrow to join an association of which the United States would be a member, and, being the strongest member, it was agreed that in order to distinguish members of the association from other States the signature of the President of the United States might be used in accrediting diplomatic representatives abroad.

One of its values of which we had better take note before we get rid of this Act—and I am only repeating, I think, in other words what the present Minister for Finance said when he was on these benches—was that there were no real commitments in that symbol of the association—or co-operation, as I have put it. I may tell the Taoiseach, for it will interest him, that one of the reasons why we did not use the symbol "association" and that we inserted instead "co-operation" was that we believed and held in fact that there was no free association inasmuch as the Treaty was imposed by threat of force.

The Taoiseach

The Treaty was gone at that time.

Mr. de Valera

Not at that time. The Taoiseach will remember that all this started in 1936. The battle for the land annuities was still not won; we had not yet got the ports back and a lot of other things were not there. The attitude of the Party to which the Taoiseach then belonged was that this was a free association. We denied that. We felt that that was an association which was imposed by the terms of the Treaty which, in my opinion, anyhow, and in the opinion of those who were with me at the time, was accepted here, in so far as it was accepted, only under threat of force. I could never see myself regarding an association imposed under such terms as being entitled to be called a free association. But "co-operation" in that sense would be free because there was no duty or obligation to co-operate if you did not want to do so. There was a question of coming to consult and consider the question of co-operation.

The position is that we are getting rid of this symbol. In my opinion— and remember that I am in favour of getting rid of it—it is very doubtful when people come to examine this in later years, whether it may not appear that you, by means of treaties or other, arrangements which you may have to make to preserve such an association, as you say you want, will be incurring greater obligations than were contained in the symbol.

The Taoiseach

We are not making any treaties.

Mr. de Valera

Already there are questions of reciprocal arrangements and so forth. I am quite willing to admit——

The Taoiseach

I am sorry to interrupt——

Mr. de Valera

——that even though you were in the association—it is a thing that some people forget—you would have to make treaties and so forth in order to obtain certain reciprocal rights. They do not follow directly and immediately from the association itself. The point is that I should like here, even if I were not to be in this House another day, to sound a note of warning. As one who has been fairly close, both in an executive capacity and in opposition, to the central problems for now close on 30 years, I should like to say that if we are getting rid of this measure we shall have to be mighty careful not to enter into any arrangements which will be substituted for it in order to preserve an association. There seems to be a desire to have some association. The question is whether the association is not in a simpler form now than it will be following this measure. I am in favour of removing this Act. I am in favour of removing it because of the confusion that has been created about it. I do not admit that any jurists who examined the matter had any doubt whatsoever as to what this State was. I do not admit that any foreign State had any doubt whatever as to what our real status was. The Minister for External Affairs said that the question of our sovereignty should be made clear. Nobody has questioned the sovereignty of this State—nobody. At no time that I know of has the sovereignty of this State been questioned.

Mr. MacBride

Why has the Deputy stated on repeated occasions to the House that one of the reasons for not repealing this Act was that we might find it difficult to be recognised by other States?

Mr. de Valera

Not at all, I did not want to have the confusion——

Mr. MacBride

Then there was confusion.

Mr. de Valera

——that might be created if, as the result of some intriguing, perhaps with the British Government or somewhere else, some foreign State might possibly withdraw its representative from here and use some excuse such as the excuse that we were creating a new State or something like that. That was 1936 and not the present time.

Mr. MacBride

But no later than this year the Deputy stated that one of his reasons for not repealing the Act was that we might find it difficult to be recognised by other States.

Mr. de Valera

I said that was the reason formerly——

Mr. Aiken

1936.

Mr. de Valera

I am saying——

Mr. MacBride

This year.

Mr. de Valera

I am quite prepared to admit that I hesitated, even though there was confusion, in going to my colleagues in the Government and asking them to remove it. First of all, I quite realised at that time that, if I were to bring in such a Bill, the atmosphere then was very different from the atmosphere which prevails at the present moment. If we had introduced that Bill, with one or two exceptions, there would immediately have been a campaign of attack against us by the then Opposition. I considered, therefore, that it would not be in the interests of the country at the time. On the 6th August last when Deputy Norton was again talking "pure and unadulterated nonsense," I said to him: "If you believe these things now, act." I told him further, lest there should be any doubt, that we would not oppose him. The reason was that I believed that if this Act had to go it was better that it should go when there was some chance of a united Parliament bringing about its repeal rather than that it should go at a time when there might be a division of opinion in the country.

I admit I did hesitate. I hesitated, first of all, because "feeling" or sentiment is something which could not be left out of account. If one were prepared coldly to examine the whole situation, without any feeling, one could say that the present was not an unsatisfactory arrangement. Not merely are we a sovereign State, but we are a republic now before this Bill passes. It is as clear as crystal that there never was at any time at any acceptance of allegiance. The mark that was used was used merely to show an association with the other States of the Commonwealth.

People who do not examine these things coldly in the light of intellect might be easily misled merely because it happened to be a King who was used as that mark. It was easy for some people to suggest that we were accepting him as a King and were giving him allegiance. We had taken away the oath of allegiance out of the old Constitution. In 1936 our position was already clear. It was abundantly clearer in 1937 that we were a republic. Our association with the British Commonwealth was simply marked by this symbol. On the 29th December of that year the British Government stated that the enactment of our Constitution made no change as regards our membership of the Commonwealth. That was made spontaneously and voluntarily. The Minister seems to suggest that we were in doubt as to whether or not we were a republic. At no time have I ever been in any doubt as to our republican status.

Mr. MacBride

I am sorry to interrupt, but the Deputy made categorical statements for two years afterwards. Did he not examine the position until then?

Mr. de Valera

The Deputy made certain categorical statements mainly about the use of a word to describe the State.

Mr. MacBride

May I read for the Deputy what the Deputy said?

Mr. de Valera

The Deputy has already read that. I know what I said. These are some statements of mine in reply to a paper read in University College together with some statement that I made in the House. At the time of the enactment of our Constitution it was not my desire that any controversy should arise as to the designation or description of the State particularly when the State's jurisdiction was to extend over the whole of our country. When the Constitution was being put to the people I was not going to resurrect an old controversy centring around the monarchy and the Treaty debate. That Constitution was accepted by the majority of our people. Had I resurrected all the old discussions centring around the name of the State the only result would have been to cloud the entire issue at the time and we might probably not now have our Constitution at all.

Mr. C. Lehane

It would have cleared the position up.

Mr. de Valera

That is what the Deputy thinks now but were it not for the wisdom shown then the Deputy would not be where he is to-day. Deputies can very conveniently forget the past.

General MacEoin

Not so easily as the Deputy does himself.

Mr. de Valera

I deliberately refrained from introducing the word "republic" because I felt that the whole controversy would have raged around that word and the Constitution itself would have been forgotten. I knew that when the time came for us to resolve the matter as a separate question we could do it. We can resolve it now by stating definitely what was always the fact—but a fact that was denied by some.

We can state now that we are a republic. That is a different matter from doing it at the time when the Constitution was before the people. I was meditating upon the matter at that time but I decided that any attempt to resolve it then would lead to a division of opinion. Secondly, there were certain advantages in retaining the symbol and I was prepared to hold those advantages for a little longer until the association, interrupted by the war, would again consolidate itself. That has now happened. To some extent it is true to say that I provoked the bringing in of this measure by certain remarks of mine to the Tánaiste in August last. I may be regarded as having provoked the introduction of this measure. Whatever or whoever caused it, I have not said at any time that we were opposed to the measure.

It is, however, my earnest wish that we should clearly see what we are doing. I do not wish to enter into any controversy as to whether we were or were not a republic up to this. I am not particularly perturbed as to designation. A name has no particular value to me as long as the country is divided. It is the institution that is important. When our country is united we can decide upon our name. There has never been any question as to our sovereignty. If you mean by "status" how exactly a State is to be classified and in what particular category, then I say that I am not one of those who think that we should of necessity fall into any one particular category. States' relations and their institutions develop in accordance with the needs of their people. Grammarians classify language into rules but it sometimes happens that the language changes and then the rules must change. But that classification is not a vital essential to speech. Neither is the particular classification of a State vitally essential. Speech develops and grammarians make changes to meet that development. In the same way States develop.

The class into which a State falls depends upon its institutions. The historian subsequently sets out to trace the progress of the State and classifies it, placing it in its particular category. The characteristic of the British Commonwealth of Nations was said to be that it defied definition and classification. That was said to be its intrinsic value. It is unique amongst associations. State institutions evolve out of the State's unique circumstances. If a State evolves a mechanism by association with other States which is sui generis that is not a sufficient reason why anyone should sneer and jibe at it because it does not fall into some existing classification. But in truth there is nothing fundamentally wrong in the arrangement that existed. It may not fall into any of the ordinary classifications. Without a doubt, however, our State is a republican State. There was nothing in the arrangement that was in any way contrary to the State being so classified.

Mr. MacBride

What other republic in the history of the world ever utilised the King of another country in the manner in which he was utilised here?

Mr. de Valera

May I ask, in reply, what other organisation is like the British Commonwealth? If, to-morrow, it was decided to be a good way of denoting an association of States, such as France, Belgium—Belgium was a kingdom; I do not know if it is a kingdom now—Holland, which is a kingdom, and Luxembourg—if these countries with France, decided that their association was to be denoted by the use of the signature of the French President in regard to the accrediting of their diplomatic representatives, what is unreasonable in it? It has not been done already, but is that to be a reason why the thing is wrong? Why should something be wrong if it is merely unusual and has not been done already? The relations of Britain, Canada and Australia are relations that have not been paralleled by other States and if there is a solution, which would enable us to work with them in amity and in accordance with the desires of our people, why should we be cut off?

The only thing that could be said against it was that the particular symbol used was the British King, and the British Crown associated with British rule was not accepted as a suitable symbol of the association. That is the only thing that can be said about it. Because it is unusual it gave an opportunity to everyone who wanted to sneer at it. That is one of the reasons why, believing that clarity here was essential, I agreed with the Taoiseach when he said it was very much better that we should make the position clear and not be wasting our time in arid constitutional discussions. I agree. It was not I who introduced this question as to what particular type of State we are. When I was asked about it I said we were a republic. I said some years ago that we are an independent republic, associated with other countries as a matter of external policy. That is the whole question—just as Britain was in the League of Nations because of her external policy, we were associated as a matter of our external policy with the States of the British Commonwealth. To mark this association we availed ourselves of the procedure of the External Relations Act by which the King, recognised by the States of the British Commonwealth, acted for us under advice in certain specified matters in the field of our external relations.

That is an accurate statement of our status as an independent republic and an accurate statement of the manner in which the signature of the British or Canadian or Australian King was used in regard to our external affairs. We did not necessarily have to use that symbol. Without passing this Bill at all, as we stand at this moment, without any repeal of the External Relations Act, the Government, which is the centre of executive authority and in my opinion the real head of the State—because the head of the State need not necessarily be an individual; it can be a body just as well—can act through an agent.

The real head of the State here acts through an agent and the Government at this moment can use that particular statutory instrument. In my opinion the Government is entitled to use any agent it wants. There is only one Article in this which is really important in the situation. In my opinion, by its authority, the Government could nominate any person it wants to sign letters of credence—the Chief Justice, the Taoiseach, the Minister for External Affairs, anybody except the President.

Mr. C. Lehane

Except the person who should normally do it.

Mr. de Valera

The question is that the only thing we have to look at— to be simply normal and fall into some readymade category?

Mr. MacBride

What other country is in our position—is there a single country without a head?

Mr. de Valera

We have a head. When you do a thing first it will always be first and you cannot show other examples if you are doing a thing which is unusual. Take our circumstances. We were a small country trying to tear ourselves out of the heart of an Empire.

Mr. Fitzpatrick

By putting the King at the top. You were tearing yourself out of the Empire by retaining the King.

Mr. de Valera

The King was not at the top. Do not continue here the sort of stuff you can talk at the crossroads. There is no King at the top; the King, in fact, was at the bottom. He was an instrument, an agent, and one of the arguments used against us was that it was really something which was humiliating to him. Some people said if they were in his position they would not do it. If he did not, that was all about it. But he was not at the top. That is the misrepresentation.

Mr. Fitzpatrick

Who was?

Mr. de Valera

The Government was at the top. The Government here, in so far as the executive power is concerned, is the supreme authority subject to the criticism and control which can be exercised by this House and ultimately by the people. If you want to know where the ultimate sovereignty lies, it lies with the people. They ultimately have to decide who are to be the persons from whom their rulers have to be chosen; who are the people who will make their laws. Ultimately they should be given an opportunity of deciding questions of policy but unfortunately now they will not be given it. They should be given the opportunity of deciding what is the national policy that is going to be pursued by the Government. Coalition prevents that. The people are sovereign. If you are looking for the head of the State, the central source of authority, that is ultimately with the people. The next organ to the people is this Assembly and the associated Chamber, the Seanad. The next centre of authority so far as executive power is concerned. the organ of State through which the power must be exercised, is the Government. As regards the head of State, one will realise this idea was very appropriate in the days of monarchy. The King in Council is the supreme judge. It is the King in the Legislature who is the final element in the legislation and it is the King, through his Ministers, as they are supposed to be, who is the chief executive authority.

In a kingdom or a monarchy you have something you can readily point to as a head of State. You have not that where the powers are distributed, where each power is more or less sovereign in its own particular sphere. Each one of them might be entitled to be regarded, in its own particular sphere, as a head. We were anxious that the President, as the first citizen in the land, should get powers—he cannot at present on account of our Constitution—which would indicate as much authority as would make him not merely a symbol but a real power. I am altogether in favour of giving him these powers, but the fact that it was unusual is due to the circumstances in which our Constitution and our situation here have evolved.

I have pointed out what I think is being done. We have a republic and we are simply getting rid of one particular agent representing or marking our association with a group, but in my opinion we could probably appoint to-morrow, if this Act were passed to-morrow, if we wanted to, seeing that there is no restriction so far as I can see on the power of the Executive to appoint anybody as their agent, the King if he were regarded as suitable, not because of our association but as an individual. There is no restriction on the power of the Executive to appoint any individual they choose, except the President. The President exexcluded because it is not one of the functions given to the President explicitly in the Constitution and it is indicated in the Constitution that, if the President was to get any powers over and above the powers he has, these powers would have to be given to him by law, and would have to be exercised by him on the advice and under the control of the Government.

We can do everything, it seems to me, when this Act has gone, that we could do before it went. The only value of the repeal of this Act is a certain demonstration, a demonstration to clear the air; I am one of those who favour this. I have been gradually coming to that opinion for some time, on account of the dislike of our people for the British Crown as the symbol of British rule and the possibility of misrepresentation as the Deputy opposite has sought to misrepresent it—that, because the King was in it at all, he was to be in it in his former capacity, as being a head and a fount of authority instead of a mere instrument. Because it was possible to misrepresent the situation and to create confusion, I am in favour of getting rid of it and we will, therefore, vote for this section. I think it only right, however, that the whole of our position in this matter should have been made clear.

The Taoiseach

I want to speak on this section very shortly and, I hope, very succinctly. I think it would be very wrong and contrary to the national interest if the speech to which we have just listened for over an hour should reopen that which I have referred to throughout the discussion on this Bill as the arid controversy as to our constitutional status. Deputy de Valera has stated that the reason for his utterance to-day is that he wants the people to know quite clearly what they are doing and wants Deputies to be apprised of what they are doing. What we are doing in this Bill is getting rid of the talk to which we have just listened and the kind of answer which must inevitably be given to the discussion which the speech we have listened to must entail. The speech on this section, to which we have listened, emphasises and underlines the argument I put forward on the Second Reading as being one of the reasons why this Bill was necessary. I did myself make it absolutely clear that that reason was not the principal reason impelling the Government to bring in this measure at this particular time, but that it was a supplemental reason to the principal reason for which the Bill was brought in. We want to stop the arid controversy about our constitutional status and about constitutional law.

I said on the Second Reading that we had too many constitutional lawyers in this country; what I really should have said is that we have too many lay constitutional lawyers in this country. Deputy de Valera has stated that, in the preparation of the Executive Authority (External Relations) Act, 1936, two views were taken as to a certain matter. One was whether it was necessary to put in these words, "all other, if any, purposes", and the other that it was not necessary. One section assumed it was necessary and the other said it was not.

Deputy de Valera said he followed then the opinion of the Attorney-General of the time, but he expressed here to-day the view that the Attorney-General's opinion was wrong and proceeded to state quite clearly and simply his view of this Bill and its effect, what it was intended to do and what in fact it did, and he specifically laid down the proposition that any jurist examining this Act of 1936 and the other Act to which it was complementary, the amendment of the then existing Constitution, would have no doubt as to what our real status was. I have discussed for the past 12 years with lawyers of various types and political opinions what our political status was. We argued it "in, about and round about and we came out by that same door as in we went," and up to the present moment I do not know what our status was.

I am not suggesting that any view I take or any other view put forward would necessarily be the correct view. It is possible that Deputy de Valera is right. I concede that it is possible that he is absolutely right and I concede absolutely that he believes himself to be right, but that there exists a multiplicity of other opinions is also beyond all doubt and that situation has given rise to all these controversies, disputes, doubts and difficulties which have occupied such a lot of our time in this House for the past 12 years. That was one of the reasons we wanted to get rid of all this. It is as I emphasised, and I want again to underline the fact, not the principal reason for this Bill. I do hope that this speech of Deputy de Valera's will not give rise to the expression of a variety of views in this House on what was the meaning of the Executive Authority (External Relations) Act, 1936. I could put forward for hours and hours a variety of arguments, of suggestions, as to what the Bill meant and what it did and did not do. I do not intend to do anything of the sort. The proposition I want to lay down is that Deputy de Valera has stated his view which, he says, is a clear view and I have other views which I could put forward and various other people have different opinions. Any of us may be right, but what I want to do is to stop the discussion which leads nowhere and that is one of the principal reasons for the Bill.

Deputy de Valera stated that he wanted to sound a note of warning. I do not know why he should sound a note of warning. We do not want any notes of warning; no notes of warning are necessary. There is no warning, by way of note or otherwise, necessary in connection with the Bill. When this Bill becomes law, we will be in the position that we will have no association, formal or informal, with the other members of the Commonwealth of Nations. It was in order to prevent further argument about this class of thing that we took up that position. We might very easily have woven out of our constitutional ingenuity some other link or symbol—anything you like—to mark the fact that we wished to continue our factual relationship with the members of the British Commonwealth of Nations, or Commonwealth of Nations, as I should call it now; but we thought it better, in order that there should be no more controversy, no more discussion, that we should be enabled, when this Bill became law, to assert beyond all possible shadow of doubt that there was no link or symbol lurking around anywhere binding us to the Commonwealth of Nations. We wanted to stop all further controversy and that is why we made a clean break here. We wanted to have the position absolutely clear so that no one could hang an argument on it again. We wanted to put a stop to the arrant, futile discussion which was diverting our energies from the work which we have to do. I do not want this discussion to start again. We require no warning. We are fully alive to the fact that, when this Bill becomes law, we will be an independent State. We have got recognised that, to make use of that neutral word, a factual association exists.

We recognise that there exist common interests between ourselves, Great Britain and other members of the Commonwealth of Nations. Those interests will go on exactly as they were before, without any symbol or other mark of our association. All property rights will be in the same position as before; our doctors and other medical people will be in the same position; the arrangements we have with regard to double income-tax and all other matters will be precisely as they were. There will be free passage of men and—subject to existing treaties and other arrangements—of materials between this country and Great Britain and the other members of the Commonwealth of Nations. Everything will be precisely as it was before, but we will have a completely independent republic without any symbol other than the factual one—if you can call a factual existence a symbol—indicating our desire to have the closest association with the members of the Commonwealth of Nations.

I do not want anyone to go around talking about these things and talking about warnings. I want to eradicate that from this discussion, here and now, because behind that suggestion and implicit in it is the suggestion that we will have to do something by way of making a treaty as between Great Britain, Australia, Canada, New Zealand, India, Pakistan, and Ceylon, to show that there is association, to provide for a statutory agent of the Crown within the Empire. I do not know what that means. We will have to make no treaty we would not have to make here if the Executive Authority (External Relations) Act, 1936, were not repealed.

There has been a lot of talk about Commonwealth preferences and other matters of that kind. Most of the matters in the way of trade and commerce between all the members of the Commonwealth of Nations are hammered out on the basis of reciprocal rights and interests and not on the basis of symbols. That position will go on as it was before. We got anything we got from Great Britain—such as we got in the trade agreement last July— because it was good business for us and it was good business for Great Britain. We have people living in England, but so have the British people living here. We have ties with our relations in England, so have the British here. The whole matter is one of reciprocity and I do not want to have tremendous damage done by the phrase used by Deputy de Valera, issuing his notes of warning. I want to see all that wiped clean out of the public mind.

Mr. de Valera

I do not want it to be taken in that way.

The Taoiseach

I accept the Deputy's word.

Mr. de Valera

If the Taoiseach will look at the statement made by the Minister for Finance on this same subject of the symbols and the difference between them in treaties and agreements of that kind, he will see what I am aiming at.

The Taoiseach

I have not the slightest intention of looking up what the Minister for Finance said some years ago. I accept the Deputy's assurance that nothing sinister was referred to in his speech. I think he can accept it from me that it was rather disturbing that he should make that statement, and I certainly want to get that out of the public mind.

Major de Valera

I would like to follow up one point made by the Minister when he was concluding the last day, without going into a detailed discussion on it. Before doing so, I think we may approach this repeal measure on the basis that we know now where various people stood and what the facts of the position are. The fog and confusion that the Taoiseach has referred to, if it was there at all, resulted from the activities of political lawyers, and I do not propose to follow into the intricacies of that. The first question I would like to ask the Taoiseach and the Minister is this. Am I correct in the view that this Bill, this section in particular, does no more, as far as Section 1 is concerned, than repeal the provisions for using the King as an agent for external relations?

Mr. MacBride

It is repealing the whole Act.

The Taoiseach

The whole thing, from start to finish, is repealed.

Major de Valera

Let me put it another way. This Bill is declaratory of our present position, as far as we are a State.

The Taoiseach

Do not take me as agreeing to that.

Major de Valera

It changes our external relations as well.

The Taoiseach

Do not take me as agreeing with the Deputy, that it is declaratory of the present position.

Major de Valera

I want to meet the position as it stands. We are taking this Act off the Statute Book and then declaring that the description of the State is a republic. On sub-section (2) of Section 3 of the External Relations Act, the Minister made a point, in closing the Second Reading debate, that the Act brought back the King. Is not that the point the Minister made?

Mr. MacBride

It did, in fact, as far as it was constitutional to do so.

Major de Valera

I join issue with the Minister on that.

Mr. MacBride

Read the sub-section.

The Taoiseach

Give me your question now, and then you can ask the Minister, and you can fight it out between you. I want to know if I am needed here to answer another question.

Major de Valera

The point arises out of the Minister's contention. On Section 3 (1) of the Act there is no controversy as to what you do, but in Section 3 (2) the Minister contended that the force of the words "tenor thereof" was that the King abdicated according to the tenor thereof and that by virtue of the word "Ireland" in the descriptive clause of the King, he was brought back.

Mr. MacBride

The Act of Abdication was made part of our law.

Major de Valera

Yes, it was part of the law of Saorstát Éireann. The Act of Abdication is to have effect "according to the tenor thereof" and the tenor thereof is that this instrument should be given effect to immediately and "immediately" was the 10th day of December, 1936. Therefore, the effect of that section was to say that the King, King Edward, had abdicated as from the 10th December.

Mr. MacBride

I do not know whether the Deputy missed the point I was making. The Act of Abdication is given the force of law by this Act. The first declaration of the Act of Abdication is that the King, King Edward VIII, is King of Ireland.

Major de Valera

Was King of Ireland.

Mr. MacBride

You have, therefore, by this Act, declared him to be King of Ireland.

Major de Valera

I will answer it this way. Under the old Constitution he was King. We republicans never admitted it, though we had to face the factual situation and the legal situation under a law forced upon us by the Treaty which we made it our business to get rid of. The legal situation, which we were taking cognisance of in the Free State, was that certainly up to December 10th, 1936, there was a King there. We republicans never acknowledged him, but for legal purposes it was so. I must admit that, but I make this admission no further than that it was the legal position; that it was the accepted legal doctrine, which no republican ever acknowledged. The legal position was that on the 9th December, 1936, there was King Edward and, within the old Free State Constitution, he was King of Ireland, within that law which we, as republicans, abhorred and repudiated. We simply used that legal position to try to get rid of it.

Mr. MacBride

Did you not get rid of him on the 11th?

Major de Valera

I am talking about the 9th. I shall come to that quickly enough if I am not interrupted. On the 10th we had the instrument of abdication. On the 12th an Act was enacted in this House providing that "immediately upon the passing of this Act the instrument of abdication shall have effect according to the tenor thereof.""Tenor", as the Minister appreciates as a lawyer, has a rigorous connotation. Because of that, that section must be read as that immediately on the passing of this Act, the instrument of abdication would have effect as from the 10th December. That was the effect in law. That being so, notwithstanding the fact that the Act was enacted here on the 12th, in contemplation of our law, King Edward VIII had abdicated on the 10th. The legal position then was that on the 10th, on the coming into operation of his abdication, that notionally his successor, according to whatever law there was providing for the King, continued to be King. His successor, of course, was the present King, his brother. Therefore, on the dawn of the 11th, the King for the purposes of the Free State Constitution was George VI, but the actual identity of the King is unimportant for present purposes. On the 11th, by an Act of this House, that said King—not Edward, but his successor—was removed from the old Constitution of Saorstát Eireann completely. Therefore, he was gone. Now, on the 12th, the further provision was made that "his said Majesty (Edward VIII) shall for the purposes of the foregoing sub-section of this section and all other (if any) cease to be King." That is of the same nature as the first clause. He ceased to be King as from the date of his abdication, and then it says that "the King for those purposes shall henceforth be the person who", etc. The effect of that is that his successor becomes the King for the purposes of the External Relations Act and "all other purposes (if any)".

Mr. MacBride

Surely the Deputy does not suggest that the Act amending the Constitution passed on the 11th December had any reference to King George VI as a distinct monarch?

Major de Valera

I was trying to put this point, irrespective of the particular person who would be King at a particular time. Notionally, the monarchy was continuous and passed from one person to the next person entitled to the Crown. The King never dies. The point I am making is that "all other purposes" in Section 3 (2) means all other purposes left over, if any, from the Act of the previous day. I do concede to the Minister that there have been discussions as to what the precise position thereafter was. I do admit that there was room for discussions in an interim period, but I think a strong case can be made for the intentions of the Executive of that time. I am arguing as a lawyer, just putting the finishing touches to the matter. In fact the country knew where we stood. The actual position in fact was that we were sovereign here with a republican status, using an external organ. Arguing legally on the matter, on that basis, I would, if briefed, be well prepared to argue that the position on the passage of the External Relations Act was that we were a republican State, utilising a roving consular-general, as Professor O'Sullivan called it, for the purpose of external relations. I need not prolong that matter. It has been argued before, but the Minister has joined issue with me.

I think it is more important to look at what our position in 1937 was. Supposing I adopt the Minister's argument. Just for the sake of safe-guarding myself from any possible implication that I admit the Minister's legal arguments in regard to the King, I have gone into what I have referred to just now, but supposing for the sake of argument there was such a possibility, what was the position of the Constitution in 1937?

Mr. MacBride

Just for the sake of getting things clear, does the Deputy admit that the External Relations Act, in effect, continued the King as part of the organ of the State.

Major de Valera

I do not. Let me say precisely what I do think it does legally. It defines the King who is to sign the credentials of foreign Ministers, I mean in our external relations, who in other words is to be King within the meaning of Section 3. Perhaps I might make myself clearer. It is a misuse of the term "King".

Mr. MacBride

If the word "King" is not to be used as the word "King" in the Act, then I give it up.

Major de Valera

Many a lawyer would not give it up. Does the Minister remember a famous case—and this was held to be perfectly good law —where under the Scrap Iron Act, in order to obtain certain effects, there was a definition that "the term scrap iron shall include horse". This is something of the same nature.

Mr. MacBride

Does the Deputy seriously suggest that the word "King" is to be given any meaning other than the word "King" as used in the Act?

Mr. de Valera

Yes—the meaning that he was King of Britain——

Mr. MacBride

King of Ireland.

Mr. de Valera

——King of the other places.

Mr. MacBride

And Ireland. Mark you, you put in the Act "Ireland".

Mr. de Valera

No. Of this State.

Mr. MacBride

Ireland.

Major de Valera

In any event, the argument I have just put forward meets the Minister's point. If "tenor" is to be construed so rigorously as to embrace a descriptive portion of the Act as a positive declaration, as the Minister intends by importing it, then "tenor" must be equally rigidly construed to embrace that effect should be given to this instrument immediately. If "tenor" is rigorous enough to make what is purely descriptive declaratory, then "tenor" is rigorous enough to make "immediately" mean rigorously what "immediately" does mean, and if "tenor" is rigorous in that sense, I can see the Minister's view about King of Ireland, but I say the Act of Abdication must of necessity have taken effect on the 10th, the day before the King was removed. All that is anterior to the preparatory Act and the force of the Minister's argument is completely gone. That is the legal position, I submit.

To get on from that—supposing I concede to the Minister a doubt, it is all I will concede—what was the position when the new Constitution was passed? The new Constitution was overriding law and, in particular, it enacted Article 48:

"The Constitution of Saorstát Éireann in force immediately prior to the date of the coming into operation of this Constitution and the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922, in so far as that Act or any provision thereof is then in force shall be and are hereby repealed as on and from that date."

By virtue of that Article, if the Minister's contention and the contention of certain other lawyers is correct, in so far as the External Relations Act imported the King in any way into the Constitution of Saorstát Eireann, supposing we admit, which I am not in fact admitting—I am merely admitting for the purpose of argument here—supposing I admit that the External Relations Act imported into the Constitution of the Free State the King, whether it is in an attenuated form or whether a completely sovereign form, even if he was imported back to the extent of putting him in the 1932 position, then the effect of Article 48 of this Constitution is to obliterate him again.

Mr. MacBride

That is my contention.

Major de Valera

I quite agree.

Mr. MacBride

That this Act was ultra vires the provision of the 1937 Constitution. The Deputy agrees with my view?

Major de Valera

I do not in that further deduction.

Mr. MacBride

I thought that was what you were arguing just now.

Major de Valera

Even if I admit it— we are agreed upon one point.

Mr. MacBride

Are you not arguing my very point of view now?

Major de Valera

I am because I want to follow further.

Mr. MacBride

Do you agree with it?

Major de Valera

I do not.

Mr. MacBride

If you do not agree, why do you argue it?

Major de Valera

I can and very often we do it in court, as you know.

Mr. MacBride

This is not the court.

Major de Valera

It is just as well to have it on the records.

Mr. MacBride

You have argued for me, as far as I can see.

Major de Valera

Against you first and then I go a step further and say, even if you are right, which I do not concede—the alternative plea——

Mr. MacBride

Will you tell us what your viewpoint is on it?

Major de Valera

I will tell you in a moment or should I, like the rest of the lawyers in this House, not tell you but throw up a fog? The point is this that, even if you are right and if the King was imported into the old Constitution, you are perfectly right in your contention that Article 48 of the new Constitution wiped that out completely and, therefore, I agree with you that if the effect of the External Relations Act was in any way to import the King back into the Constitution in spite of the intention of the Executive and the Legislature which passed it, then, in so far as the External Relations Act is repugnant to the Constitution, it is unconstitutional and void. I agree there. But, nevertheless, you will agree with me, I think, that in so far as the provisions of that Act are in accordance with the Constitution then, by virtue of the continuing laws provision in the Constitution, they are valid.

Mr. MacBride

If sub-section (2) of Section 3 is out, there is nothing left in the Act.

Major de Valera

Oh, there is.

Mr. MacBride

Unless you have no Act of Abdication, no successor to your King, unless you say Edward VIII has continued on ever since.

Major de Valera

I will answer that, too. The position is this: supposing I admit your contention, the result is, the abdication is sped and finished. It is not a continuing thing. It is something that was done for all time and a repeal cannot affect it. It does not revive anything that was done—another principle of statute law. So, as far as abdication is concerned, that is done and sped. As far as anything might have been imported into the Free State Constitution—which I do not admit— it is unconstitutional. It was unconstitutional under the 1937 Constitution, and therefore it is sped.

Mr. MacBride

Therefore the Government has been operating under an unconstitutional Act?

Major de Valera

No, we have not. So that you are left, for the moment, with the position that Sections 1, 2 and 3 (1) and 4 of this Act are in force up to now. Supposing we take that and if sub-section (2) of Section 3 did what the Minister said, it was unconstitutional and was gone. Now Sections 1 and 2 are not unconstitutional because Sections 1 and 2 are in complete accord with the Constitution because the Government succeeded the Executive Council and it is in accord with the vesting of authority in the Government. Sections 1 and 2 of the External Relations Act are perfectly constitutional and, therefore, have current force until to-day. They were redundant and unnecessary, I agree, because they are explicitly provided for in the Constitution.

Now, where are we with regard to Section 3? The position in regard to Section 3 is that, really, under the Constitution—Article 29—the executive power of the State in or in connection with its external relations shall in accordance with Article 28 of that Constitution be exercised by or on the authority of the Government. In other words, Article 29 (4) thereof is really equivalent to the provisions of Sections 1 and 2. All the executive authority in regard to external relations being vested in the Government.

Article 29 (4) 2º then provides:

"For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument or method of procedure used or adopted for the like purpose by the members...." etc.

By virtue of the sub-section (1) of Section 3 of the External Relations Act, it was declared that the Government might use a particular king, and the King recognised by those nations— and there is no doubt who the King recognised by those nations is—within the meaning of the law declared in Article 24 was the King provided by the sub-section.

Mr. MacBride

What was the reason for the unconstitutional sub-section then?

Major de Valera

I do not know.

Mr. de Valera

Was there anything unconstitutional then?

Mr. M.J. O'Higgins

I thought that this was all to prove that there was no confusion.

Major de Valera

There was nothing unconstitutional done. The question was, was there any possibility of anything illegal being done. There was neither.

Mr. MacBride

Was it legal to declare the King of Britain King of Ireland?

Major de Valera

That was an Act relating back to December 10th. As I argued with the Minister—but I am deducing the Minister's own argument —even if by accident, contrary to intention of the Legislature, it was to do what the Minister said, by virtue of the Article I have quoted, if the Minister's contention is right, if it was that sub-section (2) became unconstitutional and therefore vanished from our law notionally; the legal position here to-day is that sub-section (2) of Section 3 has notionally vanished from our law on the passing of our Constitution because of repugnancy and the Act which we are passing to-day consists of three sections, Sections 1, 2, 4, and Section 3 (1), sub-section (2) of Section 3 having gone. That, I submit, is the actual legal position here to-day.

Mr. MacBride

The only body that has the right to expunge a law from our Statute Book is the High Court and until the High Court makes a declaratory order declaring it to be invalid it remains and the only other body that could remove it is this House.

Major de Valera

I do not know whether that would be sustained in a court of law, but I disagree with the Minister. If I understand the Minister to say that we would have to wait for a declaratory order for a thing to be unconstitutional, I think it is a misstatement of the position completely.

Mr. MacBride

No, it is not.

Major de Valera

The position is that the passing of this section is either consistent with the Constitution or repugnant to the Constitution. If it is consistent with the Constitution it remains good law to-day, but if, on the other hand, it is repugnant to the Constitution it becomes void, not voidable at the option of the High Court, but void from the moment of passing.

Mr. MacBride

A law is in full force until it is declared unconstitutional by the courts.

Major de Valera

I join issue with the Minister on that. From the passing of the Constitution anything repugnant to that Constitution went from that date. However, I do not want to argue the point; I simply want my view on record and now that the Minister has put his view on record let us leave it to the lawyers and the jurists to choose between them. I assert as a proposition of law that if there is anything in the Minister's contention that sub-section (2) of Section 3 is unconstitutional, it is gone and we are not even repealing it to-day because in fact it was repealed from the date of the passing of the Constitution by virtue of the provisions of the Constitution. I have gone on a little bit longer than I would wish. I think I have answered the Minister's argument, but if the Minister is correct, nothing unconstitutional was done because it was permissible for the Government to use any agency. They used the agency permitted in sub-section (1) of Section 3. It was not clear as to what sub-section 3 (2) meant —I am talking as a lawyer—but in practice, as this country and this House knew, we are all very clear as to where we stood. Section 3 (1) is sufficient support of what has been done. The net practical position is that everything has been right and legal up to this.

On the Minister's view we are repealing an Act with one sub-section gone by virtue of the Constitution; according to others we are repealing the whole Act. In any event, the Government might have used that agency and it was quite permissible. If the Government wanted to do this themselves, if they did not want to give the power to the President, if they wanted to put the seal of the Government on documents instead of sending them to London, the Government could have done it without legislation at all, according to Article 29. The reason that legislation is necessary arises under Section 3 of this Bill and I do not intend to anticipate possible discussion. I have only risen to develop the Minister's argument and to answer it and I particularly wanted to develop it to its logical conclusion on the hypothesis he adopted although I did not agree with that hypothesis.

Mr. MacBride

I think that probably the discussions that have taken place in this House this evening are an indication of the degree of confusion which seems to have existed even among people who have studied the provisions of the Act. I do not propose adding to the confusion beyond stating what my view of the legal position was under the Act. Sub-section (2) of Section 3 gives the force of law in Ireland to the Act of Abdication. The Act of Abdication declares that King Edward VIII of Britain is King of Ireland. The External Relations Act therefore gives the validity of law to that declaration and gives the force of Irish law to the declaration by the King of Britain that he was King of Ireland.

Major de Valera

From the 10th December.

Mr. MacBride

From the 10th or 11th or from any date you like. It does not matter. Having declared in effect King Edward VIII of Britain to be King of Ireland, the sub-section then proceeds to provide for his succession:

"That his successors shall henceforth be the person who, if his said Majesty had died on the 10th day of December, 1936, unmarried, would for the time being be his successor according to the law of Saorstát Éireann."

Major de Valera

Is the word "successor" used?

Mr. MacBride

"The King for those purposes shall henceforth be the person who if his said Majesty had died on the 10th day of December, 1936, unmarried, would for the time being be his successor under the law of Saorstát Éireann."

I do not know whether the Opposition wants to quibble with me as to the difference between the word "successor" and "succession".

Mr. de Valera

Not on that.

Mr. MacBride

There was one point that was not dealt with by the Leader of the Opposition or by Deputy Vivion de Valera, and that is, the last few words of the sub-section. I do not want to add to the discussion, but it would be interesting to know who would be the successor under the law of Saorstát Éireann. To my mind, the clear effect of the provisions of that sub-section was to make the King of Britain King of Ireland in so far as it was constitutional to do so. I am not prepared to advance a definite opinion as to whether, under the then existing Constitution, it was constitutional or not.

I am inclined to agree that it probably was, having regard to the fact that Article 1 of the Constitution, as it then was, provided that we were a member of the British Commonwealth of Nations. There would, therefore, seem to me to be nothing inconsistent in recognising the King of Britain as the King of Ireland. However, I do not think any useful purpose would be served by examining that position. My view is that, whatever the position may have been up to 1937, the Act became unconstitutional as from the passing of the 1937 Constitution.

Mr. de Valera

Surely not the whole Act, if there was any such thing, but a portion of it.

Mr. MacBride

I do not think that a court would hold, if called upon to examine the position, that it was an Act that was divisible. This matter has been discussed frequently in our courts on constitutionality issues and the courts have refused to dissect sections and declare a half section unconstitutional, or some words unconstitutional. They have usually declared either the Act as a whole to be unconstitutional or a part of the Act, where it is a long Act and where that part could be segregated into one compartment.

Major de Valera

Is it not a principle of construction that each section is separate?

Mr. MacBride

No. In a constitutional case, the attitude the courts have taken is that they are not going to declare a sentence or a section or a sub-section unconstitutional. They will take the body of the Act which deals with the matter which is unconstitutional and declare it unconstitutional. That matter was discussed at the time of the Trade Union Act. It was probable that only one or two sections of Part III of the Act were unconstitutional, but the court declared the whole of Part III, which contained 30 or 40 sections, to be unconstitutional.

Major de Valera

That is if they were interdependent.

Mr. MacBride

Looking at the Act as a whole. I think it is in the realm of guess work that any court would divide a sub-section and say that that sub-section was unconstitutional and the rest was constitutional.

Major de Valera

What happens if the Act was unconstitutional?

Mr. MacBride

It is on the Statute Book and there are only two ways of getting rid of it: either a declaration by the courts or repeal by this House. The Constitution provides that the only court that can deal with it is the High Court or the Supreme Court.

Major de Valera

There is no doubt about that.

Mr. MacBride

The Article states:—

"Save as otherwise provided by this Article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution, and no such question shall be raised (whether by pleading, argument or otherwise) in any court established under this or any other Article of this Constitution other than the High Court or the Supreme Court."

The Act remains law until it is declared to be unconstitutional. I think that anything done under the Act remains constitutional. Otherwise, you would be in the extraordinary position that an unconstitutional Act might be passed, as has been done by this House on a few occasions, and you might be leaving the Government of the day in a position where it might be amenable for having behaved illegally and unconstitutionally. Therefore, you have to deem it, unless you want to make them amenable for their breaches of the Constitution, to be the law and to have been constitutional until it is declared unconstitutional. That is the law as it stands

I am sorry that the Leader of the Opposition when quoting from Professor Thrift stopped at the point at which he stopped. I understood Deputy de Valera to quote Professor Thrift for the purpose of using Professor Thrift's opinion to back up his own. I think the Leader of the Opposition stopped at the words: "That is all that this Bill does". Professor Thrift went on to say:—

"It does not ratify any appointment and it does not make any appointment. It deals entirely with functions, just as yesterday's Bill dealt with functions. It was my contention yesterday—I have exactly the same view to-day—that removing the function did not remove the entity— that, although we have deprived the King of certain functions attached to him in our Constitution, the King remained."

That seems to destroy the value of that quotation in the sense in which it was used. As to the question of whether there was any confusion as to whether or not this was a republic before the repeal of this Act, I think the best argument I can use is to rely on statements made by the Leader of the Opposition himself.

An Ceann Comhairle

May I ask the Minister did that point arise in the discussion to-day?

Mr. MacBride

It did. I am not going to use many quotations. I will just refer to two. In November, 1938, Deputy de Valera, who was then Taoiseach, speaking at the Fianna Fáil Ard Fheis said:—

"There may be obstacles of fact or on material or other grounds but there is no legal obstacle to your declaring a republic in the morning."

Apparently he had no illusions at the time that we had not got a republic.

He went on:

"Dáil Éireann has only got to repeal the External Relations Act, 1936, and you have a complete republic in fact for this part of Ireland."

A short time afterwards, Deputy de Valera, as reported in the Irish Press of the 23rd November, said:

"I for one am sorry because I feel that if we were able to say we are an independent republic there would be none of this confusion which exists at the moment and which is helping to cause dissatisfaction and is, in a sense, a source of danger."

Presumably, these were Deputy de Valera's views in 1938. I do not know that anything happened constitutionally since that would alter the set of facts upon which he had based those views then.

I do not think that, in saying good-bye to this Act now, any useful purpose would be served by prolonging the discussion on the position which it created at the time it was enacted. I am quite prepared to say that it may have served a useful purpose for a certain period, but I think there is agreement generally among all sections in the House that it no longer serves a useful purpose, and I think it would be a pity to try and justify it as something more than it was.

Mr. de Valera

There are just a few words that I would like to say before we do pass it. I assure you that I will be glad to see the end of it. There was a very simple case. It was: what were we allowed to do, and what were we doing? We were allowed, if we wanted to and if we regarded it as good policy in the interests of our State and as a mark of our association, to draw up our Letters of Credence and get them signed by whom? Not by the King of Ireland, but by a person who was a King, and because he was a King of other States—by the person who was the King of those States.

Mr. MacBride

Whom we had declared to be King of Ireland.

Mr. de Valera

Whom we had declared to have been King of Ireland. I will come to that again. I am not a lawyer. I am only a plain, blunt man with ordinary intelligence. I hope that I am just able to read English and to interpret it in the ordinary way. I learned just a little bit of the law from the good people who were my advisers over a period of years and got some idea of how lawyers' minds work, and of how the law is interpreted. That is all I claim. I do not want to get too much involved in the net of legalism, but I think I am able to get the layman's clear view of what is important in these things.

With regard to the word "King" it was because he was the King of those States that he was chosen and because he was for them a symbol. If we wanted we need not have used him. There was no suggestion at any time that anything we did was unconstitutional. It could not have been unconstitutional because, in my opinion, we could have used him if the External Relations Act was not there. From the practical point of view, therefore, it did not arise. The only case in which it could possibly arise was on the question as to what is our status—and whether we are genuinely a republic or not. It was because of that vague sort of thing, I admit, that possibly too much precaution was taken. It was that extra precaution that caused the trouble about somebody floating about, of a possible person as King of Ireland. That supposed possible person we never met in practice. There was no other purpose and to suggest otherwise is completely devoid of any substance. In fact there was no such purpose. What did we do? There was a King before December 10th. He was there by law which we had to operate. It was not a matter of our feelings. It was the law of the State which we had to operate. We had not then come to the position which we have arrived at to-day. We had tried even with arms to prevent that position arising, and let nobody think that it was our will or desire that these things happened.

On the 10th day of December there was a person who, according to the law which we had to operate at that time and which the courts would take eognisance of, a King who was King of Ireland. That was the title, and that was a claim that had been accepted by the people who were responsible for the Constitution and for the position which we had inherited. He was King of Ireland. The question was: was this particular person to be imposed from outside, or a person that we would keep under control and get rid of if we wanted to? We wanted to have it made quite clear—that is the reason why extra precautions were taken— that it was within our power to declare that he was abdicating in accordance with the law. On the next day we finished that situation. We took cognisance of it on the 11th. We finished him, or he finished himself as King, on the 10th. We took note of that and on the 11th we passed these other Acts. That particular person, as an individual, could no longer claim in any sense whatever to have any kingly power, rights or authority here.

He was gone. Very well. As I have pointed out, there were lawyers who held that that was quite sufficient, and that there was no need to take any notice whatever of the instrument of abdication. The idea was to make assurance doubly sure, and also to make it quite clear that we could either put him up or pull him down—that is the King who was in the old Constitution.

Mr. MacBride

So we pulled him up.

Mr. de Valera

Wait awhile. We could do either. We did not put him up. What we did was this: we indicated that the person that we were going to use as the statutory instrument was the particular individual who, but for the action which we had taken by knocking him out of Irish law, would have been his successor. He would have been the individual who succeeded him because that particular person was the King of Canada, Australia and New Zealand. It was indicating him as the person who was King of those particular States. That was our view. We were supported in that view by the law officers of the day though there were others who were in another Department who did not take that view. We were simply appointing and nominating to perform these particular functions an individual who was no longer our King or in our law, but who was the King, and could be called the King, of those particular States.

I never had any doubt in my mind with regard to it. I will admit that in these two cases I wished to have the matter clarified. I feel that it would have been a good job for the country in the long run if what we are doing to-day had been done earlier. I deliberately tried, by my attitude towards Deputy Norton, to force the Executive to bring in this. I did so with full malice if you like. I tried to compel them because I believed it was going to be in the interests of the country that it should be done. I believe that, not by opposing the doing of this now, we are going to get a degree of unanimity in doing it which could never be secured if we were on the other side.

I want to say with regard to our status and with regard to the statements which I have made that they were in reference to the name republic. I did not want to have any controversy as to whether the republic only extended over Twenty-Six Counties and I did not want that the name itself should be brought into disrepute. The Minister said that this is a republic for the whole of Ireland de jure and that de facto it only extends to the Twenty-Six Counties. Because our jurisdiction is not made effective—at the moment you cannot make it effective—in regard to the Thirty-Two Counties, you will find people pointing a contemptuous finger at the republic of the Twenty-Six Counties. I did not want that.

Mr. MacBride

I do not think we would, unless we encouraged it.

Mr. de Valera

I am not encouraging it; quite the contrary. I think it is a wrong and an unpatriotic thing to do. One of the persons I saw recently attaching an epithet of contempt to it was the very person who, when he was a Deputy in this House, tried to force me into a position which, if I had agreed, would have caused a controversy throughout the country which would not be profitable. I avoided that, I am glad, until we got unanimity. We would not have got that unanimity of viewpoint on any occasion I have seen up to the present. The Minister stated, very nicely from a rhetorical viewpoint but in my opinion it was a lot of nonsense—I have not the paper by me at the moment——

Mr. MacBride

To-day, is it?

Mr. de Valera

First of all he said there is the question of whether we are or are not a republic. To me there is no difficulty about that—certainly not since the time the Constitution was passed. It was clear to me then that we were a republic.

Mr. MacBride

That is not what you said in your public statements.

Mr. de Valera

When I was asked in this House to give a considered opinion I gave it.

Mr. MacBride

Several years afterwards but during 1937-38——

Mr. de Valera

But during that time I did not want a controversy and I did not bother.

Mr. MacBride

But you said——

Mr. de Valera

You inferred that I thought so but I did not say so.

Mr. MacBride

May I read——

An Ceann Comhairle

The section we are on is the External Relations Act repeal.

Mr. de Valera

We are discussing here what precisely is the position we have at the moment and what will be the position when the Act is gone.

Mr. S. Collins

On a point of order. In the first speech made by Deputy de Valera to-day he said every bit of this, and is it in order to repeat it now?

An Ceann Comhairle

Unfortunately I did not hear the Deputy's full speech and I do not know.

The Taoiseach

Are we not all agreed that the Act will go, so what is the use of the old argument?

Mr. de Valera

I quite agree with the Taoiseach on that point but I want to make the position clear as far as I am concerned. I think it is only right and just that we ought to be clear on what we are doing. I am as convinced as it is possible for any human being to be convinced that unquestionably we have been a republic since 1937. In the interim period, I admit, certain people were raising doubts.

Mr. MacBride

That is not what you said.

Mr. de Valera

When we were dealing with the Constitution we deliberately took steps to try to remove even that possibility of doubt. I shall deal now with the question of the head of State. I do not know what the Minister means by that. Does he want to suggest that every head of State has the same sort of functions? The functions of a head of State are the functions that are given to him in the Constitution. As a matter of courtesy we call our President the head of State. I doubt, however, if legally a person looking for the centre of authority would say that he is the individual. Such a person would rather say that the centre of authority resides in the Government's group. I have, for instance, seen that it resides in the group of the Federal Council in the State of Switzerland.

The next point is with regard to the King. On that matter I am absolutely convinced that there has been no King in this country.

Next comes the question of association. The position was that we had got rid of allegiance. It was, as far as I understand it from the 1926 declaration of the Imperial Conference, allegiance to the Crown. The Crown was the bond and allegiance to the Crown was necessary. We had repudiated allegiance. Therefore we were wrong if we were to take 1926 as the basis. But the British Government and the other Governments apparently took a different view. I was quite content to let that situation rest for a while. This was 1937. We had not settled a number of things then which we were able to settle afterwards. I did not want to force that issue. It did not matter a thraneen to me as long as we were prepared to have association what their view was provided that the bond was not the sort of bond that we had formerly. I had good reason to believe, and I believe that it would have been so if it were not for the war, that there would have been quite a different development. I believe that— the situation being a choice of one of two things, what you might call external members and the others—they would have expanded as they had expanded before, and allegiance as such and acceptance of the King as such would not have been insisted upon as being the unifying symbol of the association. I did not want to force that issue.

I was asked two questions: (1) Are you a republic or not? I gave an affirmative answer. It is not right for the Minister to suggest that I was not able to answer in the affirmative. I said very definitely that we were a republic. (2) Are you in the Commonwealth of Nations or are you out of it? That was not a question for me to answer.

Mr. MacBride

You did not answer that, did you?

Mr. de Valera

I will tell you why I did not answer it and why I said I could not answer it. I said that if allegiance as has been suggested by the 1926 declaration and the acceptance of the monarch is a condition of membership, then we are out—that is, as far as our judgment is concerned. As far as their judgment was concerned they had said something different. After seeing our Constitution and understanding the whole situation they said that it made no fundamental change. That being so, I did not want to force the issue. I was prepared to leave it to them to make the decision and they did finally make the decision. The decision arose ultimately as a result of the war situation. I did not want to force it for two reasons. The first was the point of view of the interests of the country. I felt it was just as well to leave that situation as it was. The second reason was that to do so would again cause a very bitter controversy in this country as to whether we were in or out. We did that with the sanction of the people. The results were there. They knew. If the results were those that the other people cared to wring forth from it I was quite content to let it go. My belief is that that situation might have resolved itself in a different way from the situation as it is to-day if it were not for the war. The answer to-day then is, and that answer has been quite clear for some time past, particularly in discussions with regard to nationality, that the position gradually became clear and that they reversed. We did not change our position. They said that the situation had not changed as regards our membership in 1937. They changed their view afterwards and said that we were out.

The position is clear that we are to-day a republic and that we have not any formal association with the States of the British Commonwealth. We are no longer members, and any associations we have with them are of a type that are determined rather by the facts of our relations and not by any formal agreement. That, in my opinion, is the situation to-day. In so far as this Act helps to make that situation clear I am in favour of it. I am in favour of it personally, irrespective of any views that may be held as to its value in other regards. That is my position.

Major de Valera

There is one matter that I want to make clear. I misunderstood the Minister about constitutional law vis-a-vis the courts. I want to correct the misunderstanding. I quite agree that if a law is made to-day the determination of its constitutionality or otherwise is a matter for the courts and that anything done thereunder up to the time of such determination will be treated as valid. The case I was making against the Minister really rests on Articles 48 and 50 of the Constitution when taken together. If you take the Minister's contention that subsection (3) of Section 2 of the External Relations Act was repugnant, then by virtue of Article 50 only so much of that enactment will be taken over as is consistent with the Constitution. The presumption is that all laws, constitutional and otherwise, were impliedly repealed and the laws that were carried over notionally re-enacted by the passing of this Constitution. Article 50 reads:

"Laws enacted before, but expressed to come into force after, the coming into operation of this Constitution, shall, unless otherwise enacted by the Oireachtas, come into force in accordance with the terms thereof."

I merely make that point in order to show that the Minister and I appear to be completely at loggerheads.

Mr. MacBride

Good, bad or indifferent, it is going.

Major de Valera

Yes, but the point is——

Mr. MacBride

Let it go peaceably now.

Major de Valera

Whether subsection (2) is or is not there does not matter because nothing could have been imported by that Act into the Constitution and the Constitution was, therefore, a republican Constitution.

Mr. MacEntee

I understand a question has been raised in the course of this debate as to whether the Act which the section proposes to repeal did bring the King back into Ireland or not. When doctors differ the results are unprofitable for the patients. When lawyers differ prolonged discussion in the House may result; if that discussion leads to prolonged discussion in the courts it is profitable for the lawyers. In a matter of this kind, if there is any doubt as between one member of the Government and another, we should go to Cæsar. I understand that the Minister for External Affairs has given to the House his opinion as to what the enactment of the External Relations Act did. May I quote to the House the opinion of an even more eminent authority, the opinion of an erstwhile Attorney-General of this State and leader of the Bar and who is now Taoiseach? Speaking on the Second Reading of the Executive Authority (External Relations) Bill, 1936, the Taoiseach—Deputy Costello as he then was—said at column 1431, Volume 64, of Dáil Debates:—

"It was perfectly clear to us that Section 3 (2) of the Bill as it stood yesterday, did not in any way not merely recognise but regularise the abdication of the King. I indicated yesterday that we agree with the President that it was essential for the maintenance of the supremacy of this Parliament that we should ourselves pass a Bill dealing with the situation created by the abdication of the King. I entirely disagree with the views put forward by Deputy Norton on this subject—that we are by our act to-day in a hurried fashion electing the British King as King of Ireland."

I hope that the Ministers and Deputies of the House who have been misled by the arguments which have been used by the Minister for External Affairs—and other inexperienced Deputies—will take note of the considered opinion of the Taoiseach—Deputy Costello, as he then was. May I repeat it: "I entirely disagree with the views put forward by Deputy Norton on this subject—that we are by our act to-day in a hurried fashion electing the British King as King of Ireland"? Deputy Costello, as he then was, went on to say:—

"We are doing something in the exercise of our sovereign rights as a sovereign Parliament which we are entitled to do and which we ought to do, so long as we remain a member of the British Commonwealth of Nations."

As to whether we were or were not at that time a member of the British Commonwealth of Nations I do not know. I am not, of course, a lawyer. At any rate Article 1 of the then Constitution still stood. May I remind the House what strong republicans we were when this Constitution was passed? In order to do that I propose to read Article 1 of the Constitution of 1922:—

"The Irish Free State, otherwise hereinafter, or sometimes, called Soarstát Éireann is a co-equal member of the community of nations forming the British Commonwealth of Nations."

I do not wish to burden the House or claim the indulgence of the Chair in quoting what the leading members of the then Opposition said in regard to Article 1 of the Constitution and the Treaty, of which it was the fruit and in the light of which it had to be construed. There were certainly most emphatic assertions from the Taoiseach, amongst others—Deputy Costello as he then was—from the Minister for Finance, Deputy McGilligan as he then was, and from the Minister for Defence, Deputy O'Higgins as he then was. There were most emphatic declarations that they stood and felt in honour bound to stand on Article 1 of the Constitution and the Treaty.

The Taoiseach

As long as the Treaty was there.

An Ceann Comhairle

I would remind the Deputy that that issue was not raised.

Mr. MacEntee

That issue is raised in the quotation I am giving from Deputy Costello, as he then was. No reservation and no qualification was expressed in that debate: "We stand for the maintenance of the Treaty and for membership of the British Commonwealth of Nations."

An Ceann Comhairle

Is the Deputy proposing to answer on this stage what the Taoiseach said on the Second Stage?

Mr. MacEntee

No. I am dealing with one subject only. It is proposed here in this section to repeal the Executive Authority (External Relations) Act of 1936. In view of that am I not entitled to recall to the House the circumstances under which the External Relations Act became law, what it was proposed to do by that Act and what changes it made in the practice, procedure and executive power by which our foreign representatives had hitherto been accredited? I do not wish to pursue that line at any great length. I have merely indicated that the Taoiseach, Deputy Costello as he then was, was a strong upholder of the Commonwealth of Nations and, indeed, I might say a very strong upholder of the British monarchy.

The Taoiseach

Nothing I said in that debate bears out that statement at all. It merely shows how afflicted we are with lay lawyers.

Mr. MacEntee

I do not know whether I am at liberty to controvert the statement which the Taoiseach has just made by way of interruption. This is a sample of what he did say at column 1297 of Volume 64:—

"That was what the Crown stood for and it has stood for nothing else. It stood as the symbol of our freedom, our free association. That is now taken away by these Bills which are recommended to the Dáil by the President to-day."

The Taoiseach

According to that!

Mr. MacEntee

That is what the Taoiseach stood over, according to the Official Report, on the 12th December, 1936.

The Taoiseach

The Deputy would not read out the part where I said we never accepted the Crown.

Mr. Aiken

Why did the Taoiseach not read it out himself?

The Taoiseach

I did, on the Second Reading of this Bill.

Mr. MacEntee

I suggest I am entitled, having been challenged by the Taoiseach, to quote liberally from his speeches on that occasion. I could quote very liberally, but I prefer, if I may, with your indulgence and the courtesy of the House, to continue in the words of the Taoiseach to demolish the thesis submitted to this House by his Minister for External Affairs, that the External Relations Act of 1936 brought the King back into Ireland. I quote:

"I entirely disagree with the views put forward by Deputy Norton on this subject—that we are by our act to-day in a hurried fashion electing the British King as King of Ireland. We are doing something in the exercise of our sovereign rights as a sovereign Parliament which we are entitled to do and which we ought to do, so long as we remain a member of the British Commonwealth of Nations."

This is his criticism of the procedure we adopted, and certainly it is not the type of criticism which one would expect from a very strong republican:

"It would have been more proper, I think, if instead of the procedure which was adopted yesterday to consider the question of a Bill dealing with the removal of the name of the King from the Constitution, that a Bill would have been brought in dealing solely and only with the situation created by the abdication of the King."

That statement was made by Deputy Costello, on the Second Reading of the External Relations Bill, 1936.

"A Bill comprising any section other that what will be comprised in this Bill in Section 3 (2) with the amendment which is to be proposed by the President is necessary."

The Taoiseach has been holding himself up to the country as a person who has been always unreservedly opposed to the External Relations Act, as it is commonly called. I propose to show here that, so far from being opposed to that Act, the Taoiseach, when he was Deputy Costello here in opposition, actually advocated it. Here is what he said:

"If such a measure had been brought in yesterday, very little time would have been spent upon its consideration, and it would have been more in accordance with constitutional usage and practice if some arrangement had been come to with the countries of the British Commonwealth agreeing to this and agreeing that an instrument necessary to give ratification to the documents signed by the late King would come into operation simultaneously."

Notice taken that 20 Deputies were not present; House counted, and 20 Deputies being present,

Mr. MacEntee

Deputy Costello was arguing that a certain course should have been pursued on the previous day and he went on to say:

"That would have been the proper procedure. We were faced last night with the fact that the King had abdicated under the provisions of the British Parliament. So far as this country is concerned, he has not abdicated yet. That is not a situation that should have arisen."

I do not know what Deputy Costello found to criticise in the fact that we had not tried to act simultaneously with the British Parliament, that we had chosen to pursue a course which made it quite clear to everybody that we were acting independently of the British Parliament. The Taoiseach, or Deputy Costello as he then was, made it quite clear that while the King had abdicated in Great Britain, the King under this Constitution had not yet abdicated in Ireland and therefore we were not marching in step with the British Commonwealth, the British Government or indeed with any of the British Dominions; we were acting, more or less, on our own, acting as much on our own as we could, within the limitations imposed on us by this Constitution of 1922. Deputy Costello then drew a moral and that moral, I think, was a correct one. He drew the right conclusion:—

"The very fact that we are here engaged on this Bill is in itself a very significant manifestation of the powers of this Parliament."

It was a manifestation of the powers of this Parliament that was made possible by a Fianna Fáil Government because, according to the remarks with which Deputy Costello had prefaced that statement, if a Fine Gael Government had been in power they would have been so anxious to assimilate their conduct with that of the British Commonwealth that they would have proceeded in quite a different way and they would not have manifested the powers of the Parliament in the singular way in which we did.

"If anybody had said in 1925 that it would have been possible for the Parliament of any member of the British Commonwealth of Nations to pass on its own mere motion and of its own volition, legislation in any way dealing with the Crown or a section of the Crown, that would have been regarded not merely as a constitutional heresy but as something approaching high treason."

Why were we in a position to do that? Why were we in a position to take the course in relation to the Bill that, according to Deputy Costello, would have been regarded as something approaching high treason? Because the Fianna Fáil Administration in the year 1932 had set itself, of deliberate policy, to eviscerate that Constitution, to cut out of it every significant element in it that bound us up with British constitutional practice. If it had not been for the fact that, despite the opposition, against the opposition of Fine Gael on the preceding day, we had removed the King and every iota of British association from that Constitution, except Article 1, we would not have been in the position to take action which Deputy Costello held would have been regarded by British constitutional lawyers in other days as something approaching high treason.

Proceeding later in the course of his speech, Deputy Costello—I must try to make quite clear that I am speaking now of the Taoiseach, not as holding his present office, but as a leading member of the Opposition, and, with your indulgence, Sir, and with his permission, I will continue henceforward to refer to the Taoiseach as Deputy Costello, for the purpose of making quite clear the capacity in which he was speaking—said, on 12th December, 1936:—

"Section 3 is a most extraordinary section...."

It is a pity that the members of Clann na Poblachta are not here to listen to this, because they have been the principal propagators of the falsehood that the King was enshrined in our Constitution, of the lie that we had brought the King back and that this country, by virtue of the External Relations Act, had been made subject to Great Britain. There is not one of those who sent men to death on that hypothesis here to listen to this exposition of the constitutional position by Deputy Costello. He said:

"Section 3 is a most extraordinary section and I am not at all sure that on its strict legal construction, it may not have the effect which would, I am sure, be very welcome to some members of the Fianna Fáil Party and some of their supporters throughout the country. In fact, the effect of this Bill"—

and here we see where an epigram was coined—

"which is to give us half a Crown is that it gives no Crown at all..."

The Minister for Defence, on the Second Reading of the Bill, was talking about a crown on the brow and a half-crown on the brow, and he thought that Ireland would be better with no Crown at all. His colleague sitting on the front Fine Gael Bench in 1936 thought the effect of the External Relations Act of that year was to give us no Crown at all, so what was all the pother about when the Minister for Defence was speaking? If the purpose, the avowed purpose, of the repeal of this Act is to give us no Crown at all, we had reached that position on 12th December, 1936, according to Deputy Costello, now Taoiseach. He gave his reason for that conclusion:

"...for the phrase in Section 3 (1) which purports to confer functions on the King in external affairs may in fact have the effect of there being no King at all in this country because the authority that is conferred upon the Crown by Section 3 (1) subsists only so long as the King, represented by these nations, namely, Australia, Canada, Great Britain, New Zealand and South Africa as the symbol of their co-operation, continues to act on behalf of each of those nations."

Here is where Deputy Costello brought in his favourite hypothesis and I think there is a great deal in it, because, remember, as we have been told, the phrase "symbol of their co-operation" was deliberately chosen.

"We are only authorising the King to act on our behalf so long as the nations of the Commonwealth recognise the King as their symbol of co-operation."

He then went on to point out that the King, as he had long argued on the previous day, was not their symbol of co-operation, but their symbol of association. He continued:—

"We propose solemnly to pass an Act of this Dáil stating that we will allow the King to act for us in external affairs so long as the other nations recognise him as the symbol of their co-operation. But they do not recognise the King as a symbol of their co-operation."

Here was his conclusion, the conclusion of the man who is now Taoiseach, the man who had helped to draft constitutions, who had helped to smash constitutions and therefore a lawyer whose opinion must carry a great deal of weight in constitutional affairs:

"Therefore, this Act never can come into effective operation and, therefore, the King cannot act at all in external affairs with the authority of this Bill, when it becomes an Act."

That is the answer which the Taoiseach gave 12 years ago almost to a day—12 years ago to 12 days, as we are now discussing this Bill on 1st December, 1948. Twelve years ago, on 12th December, 1936, the Taoiseach scoffed at the argument which has been submitted to this House by his Minister for External Affairs. He sneered at it and he told Deputy Norton, his present Tánaiste, that he was talking nonsense when he said that we were then, in a hurried fashion, electing the British King as King of Ireland. It seems to me that that canard has been disposed of, at any rate. There was never any substance in it. So far from electing the King of Great Britain as King of Ireland, we were taking some monarch—and he was not the King of Great Britain; he was a functionary, if you like, who was recognised by five nations as the symbol of their association, they said; we had another phrase for the relationship—the effect of which may very well have been that which Deputy Costello so emphatically expressed 12 years ago—"the symbol of their co-operation". But the King to be used was not the King of Great Britain per se, nor the King of Canada nor the King of Australia per se. He was the King who was recognised by these States as the symbol of their co-operation, and we did not bring him back here into Ireland, nor did we elect him King of Ireland. We used him merely as an organ or instrument for giving effect to Irish Government policy. We used him in the same way as we might use a lawyer, if we retained him and asked him to act for us, or as we might use a builder, or a scribe, and indeed as one might use a rubber stamp. That is precisely the position the King was in under this External Relations Act and there was nothing that infringed Irish sovereignty, either in internal or external affairs, in any provision of that Act.

Now we are going to repeal the External Relations Act. What did that Act do internally? It did to a certain extent, by the will of this Parliament, impose conditions upon the Government in relation to the exercise of the powers given to the Government by sub-article 4 of Article 29 of the Constitution. I do not know whether any of the Deputies who are pretending to be greatly concerned with the External Relations Act have read that Article or not. I advise them to read it and study it and study it very carefully. Sub-clause 2 of Clause 4 of Article 29 reads:—

"For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent"—

and here is a very important phrase—

"...and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern."

The critical words, I think, in that Article are: "Subject to such conditions, if any, as may be determined by law". At the present moment the only law which prescribes the conditions of the exercise of that power is the External Relations Act. Repeal that Act, as you are doing, and the Government can use whoever they like, outside the State or inside it, without qualification. I say that on the assumption that Section 3 of the Bill will become law. If Section 3 and the Bill as a whole become law, without any significant amendment, the position will be that the Government under the Constitution may use anyone they like for the purpose of exercising any executive authority of the State in connection with its external relations. That opens up a fairly wide range of possibility. Of course somebody will say that they are limited to some extent by Clause 5 of the Article which reads:—

"Every international agreement to which the State becomes a party shall be laid before the Dáil."

but I think the Government can be considered apart from the State. The Government is a separate, corporate personality. The Government can be changed or overthrown; the State remains the same; the State is not overthrown.

It would be quite possible, at least I think it would be arguable, that the Government could enter into an agreement which would bind its members in honour and in conscience. Remember, we had a civil war fought, with ten years of domestic turmoil, because men felt that they were bound in honour by the letter of the Treaty and by the Constitution which flowed from the Treaty. It is possible therefore, for the Government composed of such men —I think all Governments should be composed of men who regard their word as their bond—to enter into an arrangement whereby some other person, some person external to this State, would act for them in external affairs. It seems to me it is possible and as I have said it opens up a wide range for apprehension and fear.

I have wondered why it was that the Government decided, apparently so suddenly, to repeal this External Relations Act. I have ventured to express an opinion as to what did happen. I may have been right and I may have been wrong but I see nothing to allay my suspicions in relation to the matter. I certainly see nothing to explain away the statement of the present Minister for External Affairs that no mandate had been given by the country to repeal this Act. That appeared to be the view taken by the Minister for External Affairs and the other Parties to the Coalition of the 18th February of this year. Apparently a change took place, a change which has not yet been explained to the public. I think it is not without significance that that change should first have been bruited or mooted in this House at the end of August by the Tánaiste, the Minister for Social Welfare. Perhaps I might not be permitted by the Chair to express the significance I attach to it, but those who know what I have been saying about the relations between the Tánaiste and other members of the House——

An Leas-Cheann Comhairle

It is not relevant to the debate.

Mr. Davin

It is a pity he would not be allowed to repeat himself.

Mr. MacEntee

Whether I am allowed to express the opinion which I formed in relation to that matter or not, it is, I think, curious, very curious, that the Government should embark on a policy for which one of its leading members, the member perhaps responsible for all I know, admitted he had received no mandate.

An Leas-Cheann Comhairle

The Deputy is now discussing policy, which may not be discussed on this stage of the Bill. The question of policy was decided on the Second Reading. The effects that the repeal of certain provisions may have may be discussed but policy was definitely decided on the Second Reading.

Mr. MacEntee

No, Sir. One votes for a Bill on Second Reading, not for any particular provision in the Bill but for the Bill as a whole. I must say that I would be prepared to vote for this Bill, perhaps more for Section 2 and for Section 3 than for Section 1.

An Leas-Cheann Comhairle

I am not trying to prevent the Deputy speaking about certain provisions, but when he talks about the general policy of the Bill, clearly that was enshrined in the Bill, as read on Second Reading. The principle of the Bill was decided on Second Reading.

Mr. MacEntee

I do not want to argue with the Chair in a matter of this sort but this Bill is not what you might describe as a homogeneous measure. It contains three operative sections and each one of them may fall——

An Leas-Cheann Comhairle

The policy of the Bill definitely may not be debated on the Committee Stage.

Mr. MacEntee

I am accepting your ruling. I only just want to ask, and I think I am entitled to ask, why it has been decided to repeal the External Relations Act in view of what the Taoiseach said 12 years ago and of what the Minister for External Affairs said on the 18th February. What is going to be the effect, under Article 29 of the Constitution? In future the power and authority of the Government—not of the State, because the State is bound by Clause 5—is not to be determined or limited by law. The executive functions in external relations can be discharged by any person they choose. They can use any person they like to perform their executive functions in relation to external affairs. They could, for instance, select the chairman of the Politbureau of the Soviet Union to express their views at the United Nations Organisation.

Captain Cowan

Or yourself.

Mr. MacEntee

They could choose the British Secretary of State for Foreign Affairs to express their views there. Under the Constitution, as it stands, the Government could choose anyone because they are now removing the one factor that made certain that the people would know who, if not the Government, was going to do certain things in relation to external affairs. I think we shall find when this Bill becomes law, as no doubt it will become law, that it will be necessary for Parliament, in order to protect itself and the people, to insist that a Bill shall be brought in to determine the conditions under which the Government may exercise this power under Article 29. It may be essential that that should be done. I think that when we do bring it in, some of the people who are thinking that this External Relations Act infringed the sovereignty of the Irish people will get a salutary disillusionment. They will realise that, so far from affecting the sovereignty of the Irish people, the External Relations Act made the authority of this Parliament unchallenged, that it prevented the exercise of the executive function in external affairs from being abused by a Government that might be inclined, behind the backs of the Irish people, to enter into such commitments with other Governments as would fetter the discretion and prevent the free exercise of judgment by that Government should a crisis arise.

Question put and agreed to.

SECTION 2

Captain Cowan

If it will help the situation, I will move the amendment that is down in the names of Deputies Con Lehane and Timoney:—

Section 2.

1. In line 28, before the word "the" to insert the words "Poblacht na hÉireann or in the English language."

Alt 2.

Na focail "nó sa tSacs-Bhéarla the Republic of Ireland" a chur i líne 27 roimh an bhfocal "is."

The Taoiseach

The amendment that was put down was not precisely in the form that I said it had been my intention to introduce by way of official amendment on the Committee Stage. I had intended to put down an amendment providing that Section 2 should read:

"It is hereby declared that the description of the State shall be, in the Irish language, ‘Poblacht na hÉireann' and, in the English language, ‘The Republic of Ireland.'"

That is not quite the same as the form of the amendment that Deputy Lehane has down. It is very near it but there is rather a significant change. In the amendment put down by Deputy Lehane he has not the words that I had "in the Irish language" before the words "Poblacht na hÉireann." Having taken advice on this matter from the Attorney General and the Draftsman, I was advised that it would not be proper to put down the words in the amendment. The point that I wished to cover was that when you were speaking English you would refer to the description of the State as "the Republic of Ireland" and when you were speaking Irish you would refer to it as "Poblacht na hEireann." I wanted to see that the kind of malicious jokes that have been made on the subject of Eire and the other matters that I referred to on the Second Stage of this Bill should not be possible by reference to the description of this State as "Poblacht na hEireann."

The draftsman and the AttorneyGeneral have advised me and the Government that, by reason of the fact that this Bill is being enacted in both languages, it might cause confusion, would be tautological and, in any event, it ought not to be done; that in addition to that, it would be a departure from the pattern that has been followed in the Constitution which is enacted in Irish and English and that, accordingly, it should not be done for that reason also.

If Deputies will refer, for instance, to Article 25 (5) they will find that in a Bill of this kind which is enacted in both languages, both texts are conclusive evidence, so that when you look at the Irish text you have the Irish description of the State, as Poblacht na hÉireann, and when you look at the English text you have "the Republic of Ireland". In other words, you are doing scientifically and in accordance with the pattern adopted in the Constitution and other articles what I had intended to do by the amendment I was thinking of putting down. Article 25 (5) provides that where the President has signed the text of such law in each of the official languages both texts shall be conclusive evidence of the provisions of such law. It is only in case of conflict that the Irish language prevails. There can be no conflict in this because they are both describing the same. Conflict connotes a different meaning but the two texts we propose to pass have the same meaning. Therefore, if you do anything like this, you are only introducing confusion.

That is what I am advised would be the effect of this and, if Deputies look at some of the other Articles, they will see that that was what was done in the Constitution. Article 34 (4) 1º, for instance, deals with the courts and deals with the name of the courts and in the Irish version the title of the Court of Final Appeal is given in the Irish language as "An Cuirt Uachtarach". In the English language it is "the Supreme Court". So that you have the English version, "the Supreme Court" and the Irish version, "An Cuirt Uachtarach". If this amendment was followed out in this pattern you would have to call the Court of Appeal "An Cuirt Uachtarach" or in the English language the Supreme Court. There are several other Articles in which the same design is followed and, accordingly, I was convinced that the scheme as settled in the Bill at the moment being enacted both in the Irish language and English language is the proper one to adopt. People outside this country who may be disposed to jeer at our State, as they have done before in connection with the word "Éire", will look at this and see that in the English text—which is the only one they can understand—of this statute, when it is a statute, the description of the State is "the Republic of Ireland" and that is what they are to call it. I want to stop any further nonsense.

Mr. de Valera

I was of Deputy Lehane's opinion at the start, and that is why when the Taoiseach mentioned the other thing that I said to him that he did not quite catch my point. A reason for this would be if one wanted to bring in the use of the name Poblacht na hÉireann into ordinary speech, as the words "Taoiseach", "Oireachtas", "Dáil Éireann" have been brought into ordinary speech. Although I would like to see as many Irish words as possible come into the institutions of our State, I came to the conclusion that the Taoiseach is taking a better view. I think it is better for us in this case not to bring the Irish word into the English text; it is better to keep the English appellation, the English description, in the English text for some of the reasons the Taoiseach has mentioned. I am afraid that nothing we can do will prevent enemies from jibing at us. Jibing is a very convenient substitute for arguments of various kinds and even when we have done this we will have to face jibes. This is simply a description of the State and declaring that the State shall be described in a particular manner and I think it is better to leave the English text standing as it stands and have the Irish text with the Irish term in it as the two are being enacted simultaneously. Therefore, I would be against the amendment.

Mr. C. Lehane

The amendment was dictated by the desire to give the sanction of law to the appellation or description Poblacht na Eireann. It was with that end in view the amendment was put down. At the stage when the amendment was put down, I understood that there might be some technical difficulty in the way of preparing for the Committee Stage of the Bill the Irish translation, and of passing the Bill through both Houses of the Oireachtas in the Irish language. As the Government have decided to pass the Bill through both Houses of the Oireachtas in the Irish language and inasmuch as that will give the force of law and legal sanction to the words Poblacht na hEireann, I do not propose to persist in this amendment.

Amendment, by leave, withdrawn.

Mr. de Valera

On the section, I want to say that here we are simply declaring what is a fact. That is my opinion. We are declaring that the description of the State shall be the Republic of Ireland. I am voting for this in the belief that we are doing nothing more than declaring that this is the true description of the State, a description which I am glad we are all now agreed on. Others may approach this matter from a different point of view but I am supporting it because I am of the opinion that it is an existing fact. It is a description of the State as it exists. It is not proclaiming a new State or anything of that sort and I am in favour of it on that account.

Mr. A.P. Byrne

I do not wish at this stage to oppose the Bill or any part of it any further, but I must say that this section left me very puzzled. I think that the better view is that of Deputy de Valera, that what we are proposing to do here is to describe a republic which exists. If we are to accept the Constitution of 1937, Article 5 of which says that Ireland is a sovereign democratic State, then we have a constitutional declaration that Ireland is a republic. Why we should want to put it into an Act as well as into the Constitution I do not know. I do not know what the effect of it is. I would like to hear the Taoiseach's views on this question. I would have thought that if we wanted to establish the fact of the republic in this way, a better thing would have been to bring in a short Bill to amend the Constitution, Article 5, to read: "Ireland is a republic."

The Taoiseach

I want to put on record by way of intervention—I am intervening only for the purpose of the record—that I do not accept the view of Deputy de Valera, that we are only doing something which declares an existing state of facts. I disagree entirely with Deputy Byrne that the better opinion is what Deputy de Valera says. I fundamentally disagree with both views, but we are going to pass this and so let us not talk about it any more.

Mr. de Valera

Is this a point in the Constitution or is it not? If this State is not capable by its characteristics of being described as a republic, you cannot, by a simple declaration here, make it so. By the Constitution, this is either a republican State or it is not. If it is not, you cannot describe it to be such. If it is, you simply make a declaration in the most formal way you can make a declaration. I am taking that one is correct and you could not do it if it were not. With regard to the question of description and name, personally I have no doubt.

The Taoiseach

Perhaps it might solve Deputy de Valera's lay-lawyer's mind if I tell him that once the King is gone, whatever functions he had under the External Relations Act, the Constitution is republican in form completely.

Mr. de Valera

We have always held that. The only difference is——

The Taoiseach

Does that not go some way with Deputy de Valera?

Mr. de Valera

The point I hold is one which I believe can be held and is the right view. I have no political axe to grind in this connection. If I were inclined to play politics, it is a different line I would take. I am simply out to see that the view held here and as a result of which action has been taken by this State on a certain assumption goes on record as our view. I believe that we are a republic and that you are doing nothing now that will constitute the State more a republic than it was. I want to put on record that I am voting for this because I believe it to be a declaration in accordance with fact. My only regret is that we are doing this when the work is only half done. I wish that this declaration, this clarification of the position, had come when our work was completed.

From a constitutional point of view the question was raised whether description and name are the same. They are quite distinct in my mind. A name is a name. Pat Murphy is Pat Murphy. It is his name. He may be a big man or he may be a small man but his name is the distinction I make in my mind. I would be greatly surprised if any common-sense individuals were going to declare it to be otherwise. From that point of view I have no doubt of it and from the other point of view I believe it is constitutional, because it is in accord with the position as it is.

Mr. A.P. Byrne

Probably both the Taoiseach and Deputy de Valera are agreed that the Constitution sets out the name of the State and that this Bill when passed will purport to set out the description of the State. What is the difference between the two enactments, the Constitution enactment and this one?

The Taoiseach

The Deputy's name is Byrne and he is a lawyer. The name of the State is Eire and the description of it is a republic.

Mr. A.P. Byrne

Why put the name into the Constitution and not the description?

The Taoiseach

Do not ask me. Ask Deputy de Valera.

Mr. A.P. Byrne

Is it not necessary to put in the description?

Mr. de Valera

The Deputy was baptised but that would not be sufficient to enable us to say what sort of a person he is if we wanted to do it.

Mr. MacBride

All I want to say in reply to Deputy de Valera and Deputy Byrne is that Dáil Éireann has only got to repeal the External Relations Act, 1936, and you have a complete republic in fact for this part of Ireland. In saying that, I am saying exactly what Deputy de Valera said in the year 1938. I accepted his view then; I do not accept his view to-day.

Mr. de Valera

Perhaps the Minister would accept my view if he said that what we are doing now is the thing that I would like to have done then, and that is, to clarify the situation so that we would not have rows about it, because there was quite a good deal of talk, some based on lawyers' views and some by no means based on lawyers' views but on other considerations altogether. There was a situation existing and I was, so to speak, thinking aloud and saying that it might be a very good thing if there were no talk about our status and if there were a declaration. That is why I am voting for the Bill, but we are very anxious for it to be clear on what grounds we are voting for it—for quite different reasons.

Mr. MacEntee

I should like to address myself to the proposition which has been put forward by the Taoiseach that the enactment of Section 2 of this Bill is going to introduce a new characteristic into the existing State which will make it in fact a republic. If the contention were true, we should be faced with this extraordinary situation: that the greatest democratic State in the world, the exemplar, so to speak, of republican States, the United States of America, does not in its Constitution declare itself to be a republic.

The Taoiseach

That was for historic reasons and I do not suppose you know them.

Mr. MacEntee

I suppose then Ireland dropped out of history. For whatever reason it was, the United States of America has always been taken to be a republic. Why? Because it has all the essential marks of a republic. If it is contended that this State at this moment, before this Bill is enacted, is not a republic, perhaps I might be permitted, with the indulgence of the Chair, to show, by contrast with what preceded it, that it has every attribute of a republic, that it has every appearance of a republic, that it is a republic in form and a republic in character; that it is essentially a republican State and cannot be, by any process of reasoning, put under any other category.

There is not a standard form of republic. France is a republic. But the various organs of Government in the present Republic of France do not conform in any way to the American model. The Confederation of Switzerland is a republic and differs radically both from the United States of America and the French Republic, and our State no doubt does, in accidental features, but not in essentials, differ from all these.

What are the marks of a republican State? First of all, in order that it should be a State at all, it should be sovereign and it should be independent; it should be democratic; and whoever is the symbol of the State should be chosen by some body of electors who are responsible to the general body of the citizens. That is to say, that in a republic as we understand it to-day the first citizen, the person who in the minds of the people symbolises the sovereignty and authority of the State, is chosen directly by the people or indirectly by the people through some agents given power to act on their behalf. In the case of this country, the head of the State is directly chosen by the people.

In the case of the United States, the head of the State, in theory at any rate, though I grant you the practice has become very different, is chosen by a College of Electors representing, not the people immediately, but the States which return electors to that college. But the essential feature is that the head of the State is chosen and derives his authority, and his prestige, and his status, and his precedence directly or indirectly from the people.

That is the position under our Constitution. Article 13 of our Constitution prescribes:—

"There shall be a President of Ireland, hereinafter called the President, who shall take precedence over all other persons in the State and who shall exercise and perform the powers and functions conferred on the President by this Constitution and by law."

If we want to know how radically different our Constitution is, say, from a monarchial constitution or a constitution which derives from a monarchy or enshrines the monarchial principle, all we have to do is to turn to Article 60 of the Constitution of 1922 and there we shall see this:—

"There shall be a representative of the Crown in Ireland who shall be styled the Governor-General of the Irish Free State and shall be appointed in like manner as the Governor-General of Canada and in accordance with the practice of making such appointment."

Perhaps I might better illustrate what I am saying by turning to Article 12 of the old Constitution which is a very important Article.

The Taoiseach

On a point of order. I respectfully submit that this is entirely irrelevant and should not be discussed.

Mr. MacEntee

The issue has been raised by the Taoiseach.

The Taoiseach

I raised no such issue.

Mr. MacEntee

The issue has been raised by the Taoiseach that Section 2 of the Bill is making some significant change.

An Leas-Cheann Comhairle

What is before the House is Section 2 of the Bill, which sets out that the description of the State shall be "The Republic of Ireland". What was omitted in an earlier Constitution is not relevant on this.

Mr. MacEntee

Except——

An Leas-Cheann Comhairle

Except that it is not relevant, and the Deputy must pass from it.

Mr. MacEntee

If I must pass it, then I must, but I am sorry that the Taoiseach is so tender on this point.

An Leas-Cheann Comhairle

The Chair is not concerned with the tenderness of anybody. It is solely concerned with relevancy.

The Taoiseach

My only concern is that I am bored by the Deputy's irrelevancies.

Mr. MacEntee

I am endeavouring to show what the ordinary plain man in the country knows, that what the Taoiseach has said is not correct.

Mr. Keane

I want to draw the attention of the Chair to the fact that Deputy Vivion de Valera has walked into the House without paying due tribute to the Chair.

An Leas-Cheann Comhairle

The Chair does not accept it that there was any discourtesy intended.

Major de Valera

I apologise. There was no discourtesy intended.

An Leas-Cheann Comhairle

I accept that.

Mr. MacEntee

May I now pass on to consider what is the position of the President in relation to the law-making assembly?

The Taoiseach

The Deputy is again becoming irrelevant on this section. He is merely wasting time.

Mr. MacEntee

I do not think so. Is the Taoiseach afraid to face an issue which he himself raised? I did not speak on this until the Taoiseach spoke.

The Taoiseach

I am not afraid to face any issue that the Deputy can raise.

Mr. MacEntee

If he is afraid I would like to satisfy the people whom he intends to mislead. This is, in fact, a republican State, and I wish to calm his fears. If I am allowed I shall prove that and prove it beyond contradiction.

Mr. S. Collins

On a point of order, if the Deputy were to prove the contention that he says he is about to prove, how would that be relevant on the section?

An Leas-Cheann Comhairle

The Chair must first hear what the Deputy has to say before it can give any ruling.

Mr. MacEntee

The next characteristic that we might consider is the relationship between the head of a State, the chief functionary in a State, and the Legislature. In America, the President is the Chief Executive. He cannot make laws and he cannot introduce legislative proposals to Congress. He can merely recommend them. In France, I think, as it stands at the moment, the President can neither make laws nor recommend them. In our case, we have a President who is in precisely that position. He cannot make laws and he cannot recommend any legislative proposals to the Legislature. In Great Britain, the head of the State there—a monarch—does, in theory at any rate, indicate that his advisors have convinced him that it would be desirable to submit to Parliament, from time to time, certain legislative proposals. In America, the President, I think, is not a member of Congress. Neither is the President of the Republic of France a member of the legislative Assembly. In Great Britain, of course, the King is a constituent part of the Parliament. In our Constitution we have this statement:

"The National Parliament shall be called and known, and is in this Constitution generally referred to, as the Oireachtas.

The Oireachtas shall consist of the President and two Houses, viz.: a House of representatives to be called Dáil Éireann and a Seanad to be called Seanad Éireann."

That is a feature of our Constitution. Our President has certain functions in the Oireachtas, but let me repeat again, not the function of making or recommending legislative proposals.

An Leas-Cheann Comhairle

I suggest to the Deputy that he is going very far from the question before the Committee with this dissertation on constitutional law. He is going very far from what might be considered relevant to the section. I have allowed him to proceed to a certain point in regard to similarities between the Constitution of this State and the United States to show that this State is a republic. Surely, he is not going to tell us about the attributes or characteristics of every State.

Mr. MacEntee

I think a very good illustration of a republican State is to show what its antithesis is.

An Leas-Cheann Comhairle

The Deputy cannot contrast every conceivable form of State with this State.

Mr. MacEntee

I could if the Chair would permit me. The Chair has already debarred me from following that line. I think I could contrast it with an example with which we are all familiar, with the State which existed here in the period 1922 to 1932.

An Leas-Cheann Comhairle

I am not going to allow the Deputy to go back on that.

Mr. MacEntee

Therefore I am not going to pursue that line. Take again the question of executive power. There is no general formula except that, in monarchies, executive power is generally vested in the monarch. In this State, Clause 2 of Article 28 of the Constitution reads:—

"The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government."

Clause 4 of Article 29 reads:—

"The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government."

That is our position here. In virtually every monarchial State the executive power is vested in Parliament or in the Government responsible to Parliament, but in theory at any rate, it is vested in the monarch as Head of the State.

Here under Article 13 the Head of the Government is appointed by the President of the State. Clause 1 of Article 13 reads:—

"The President shall, on the nomination of Dáil Éireann, appoint the Taoiseach, that is, the Head of the Government or Prime Minister."

In monarchial States the Prime Minister, whoever he may be, is appointed by the sovereign, whose prerogative, in theory, is to appoint the person who shall be responsible to the Parliament for the exercise of executive powers. In this State of ours he is appointed by the President elected by the people. In other States which differ greatly from ours, which are of quite a different character from ours, he is appointed by the monarch. The actual right of selection even may rest in the monarch and in certain cases it is the jealously guarded prerogative of the monarch.

An Leas-Cheann Comhairle

We are not discussing any State in which there is a monarch.

Mr. Aiken

On a point of order. The Ministers of this Government have been trotting around the world discussing this Bill with representatives of Britain, Australia, New Zealand and South Africa. Surely on a Bill of this kind there should be a little bit of latitude allowed.

Mr. S. Collins

The Deputy did a fair bit of flying himself.

The Taoiseach

That is not a point of order.

An Leas-Cheann Comhairle

That is not a point of order. There has been a good deal of latitude and the Chair has given a good deal of latitude to Deputy MacEntee.

Mr. Aiken

I do not think so.

Mr. MacEntee

The next feature of this State which, I think, we ought to consider is how the proposed legislation is dealt with when it has been passed by both Houses of the Oireachtas. That is covered by Article 24.

The Taoiseach

I would suggest that this is a pure waste of time and entirely irrelevant. I would draw the attention of the Leader of the Opposition to the fact that it was agreed that we would get all stages of this Bill to-day.

Mr. de Valera

I am afraid I probably indicated that I understood that it was desirable, for reasons mentioned by the Taoiseach, to get through this Bill to-day. However, I think at the same time that it is an important Bill and it should be discussed.

The Taoiseach

I agree that it is an important Bill, but time should not be wasted.

Mr. MacEntee

I do not think so. It is quite clear that the Taoiseach does not know the sort of State of which he is the chief executive officer. Is that not the difficulty? If the Taoiseach had been content to accept what the Leader of the Opposition had said in relation to this matter it would not be necessary for me to make this speech.

The Taoiseach

I accept that the Constitution is a republican Constitution. The Deputy is pushing an open door as hard as he can.

Mr. MacEntee

I am doing a little more than that. The Taoiseach is taking up the attitude that he has made a significant change in the character of this State. I have already said on the Second Reading of this Bill that this State remains precisely the same after the passing of this Bill in form and in character as it is now. All that the Taoiseach is doing is equivalent to sticking a poster on the Parnell monument in order that Deputies, like some of those who came into the House recently may know where they are; that is all. Article 25 provides that: "As soon as any Bill ... shall have been passed or deemed to have been passed by both Houses of the Oireachtas, the Taoiseach shall..."—

Mr. MacBride

Surely the Deputies are familiar with the Articles of the Constitution.

An Leas-Cheann Comhairle

I was going to point that out. The Constitution is the law and everybody is supposed to know the law.

Mr. Keane

Deputy MacEntee does not know it.

Mr. de Valera

You are going to appeal to the Constitution if you are going to indicate the character of the State. I was trying to do so otherwise and we were jibed at as being a dictionary republic.

An Leas-Cheann Comhairle

I have given Deputy MacEntee a good deal of latitude. He has been trying to bring in every article of the Constitution and contrast it with the provisions of this Bill. I suggest that that is not necessary. Everybody knows what the Constitution is.

Mr. Aiken

On that point. A number of young men were urged to fight against this State because of its Constitution and they killed a lot of Guards and some of them got themselves killed.

Mr. S. Collins

Keep your hair on.

The Taoiseach

Is this in order?

Mr. Aiken

They did not know what the Constitution was.

Mr. Fitzpatrick

They trained some of those men to fight for the republic and then ran away.

Mr. Aiken

That is what you did.

Mr. de Valera

You have a republic to-day because we stuck to it and used practical means to get it.

Mr. Fitzpatrick

What about 1937?

The Taoiseach

I think this should be——

Mr. de Valera

We were here in 1937.

Mr. Fitzpatrick

You said very little about the republic.

An Leas-Cheann Comhairle

Has Deputy MacEntee concluded?

Mr. MacEntee

No, Sir.

Mr. S. Collins

You did a lot about the republic.

Mr. de Valera

We did, and we worked, too.

Mr. MacEntee

I have not finished, but I would have been finished by now were it not for the interruptions. I fought the general election of 1937 on the question of the republic.

An Leas-Cheann Comhairle

I am not going to allow that. Deputy MacEntee is going to indicate whether he is for or against this section, not whether the Constitution is a republican form of constitution or not. I have already allowed him a good deal of latitude. He must now come to the point or discontinue.

Mr. MacEntee

I am going to indicate why I am going to support this section of the Bill. I am going to support it—but I do not want any person to take my simple word for it—because the description is an accurate one. I propose to show, if I may, why I regard the statement "the description of the State shall be the Republic of Ireland" as an accurate one. I should hate that anybody would be under any misapprehension as to why I am voting for it. I would not vote for it if I did not believe that statement. I want to show the grounds on which that belief is based. I was saying that if a Bill——

An Leas-Cheann Comhairle

I am not going to allow the Deputy to proceed on that line.

Mr. MacEntee

Then I cannot justify my vote on this section, if I am called upon to vote for it, to my constituents or to anybody else unless you permit me to proceed on that line.

An Leas-Cheann Comhairle

The Deputy has gone over the whole Constitution.

Mr. MacEntee

I submit that that does not matter. After all, I am representing my constituents in this House. I am responsible to them for what I do in this House. I am entitled to give to other members of this House, my colleagues and those who are opposed to me and my constituents, the reasons why I feel called upon to vote for Section 2 of this Bill. That is my attitude. I can only stand up for it and proceed upon the lines which I have already taken. This is a democratic Assembly, I understand. I understand we come here to express our views and to give reasons for our views and for what we do. I am entitled to give reasons for the view I take that Section 2 of this Bill is a section that should be supported by my vote. But apparently that attitude does not meet with the acceptance of certain members of this democratic Assembly.

Mr. M.J. O'Higgins

Of the Chair.

Mr. MacEntee

You can shout me down after saying that. I have not said that. Some people would like to put the Chair in that position.

Mr. M.J. O'Higgins

That is not a fact.

Mr. Aiken

Some people would like to put the Chair in the position Deputy Norton was in when he refused to allow Deputy MacEntee to speak at a meeting in Dublin. That is a fact.

Mr. S. Collins

Keep your hair on.

Mr. Aiken

You do not want to let him speak at all.

Mr. MacEntee

I am not suggesting that. I was dealing with the reasons why I think this is a republican State. I was referring to the fact that no law here can become——

An Leas-Cheann Comhairle

I indicated to the Deputy that I would not allow him to proceed on that line.

Mr. MacEntee

Without any disrespect to you, Sir, I do not intend to discontinue my speech of my own volition. I intend to justify my support of this provision and I intend to justify it on the grounds that it is a true description, but I must prove it to be a true description of the State.

An Leas-Cheann Comhairle

I take it that that is an indication that the Deputy does not intend to obey the Chair.

Mr. MacEntee

Do you require me, Sir, to sit down if I proceed on that line?

An Leas-Cheann Comhairle

If the Deputy follows the line which he is pursuing at the moment I shall have to ask him to sit down.

Mr. MacEntee

Very well, Sir. Then you had better ask me to sit down.

An Leas-Cheann Comhairle

The Deputy may take it that he has been asked to do so.

Mr. MacEntee

Very well, Sir. You are telling me that I must sit down.

Mr. Keane

Hear, hear.

Mr. de Valera

I do not think there is any reason to shout "Hear, hear".

Mr. Aiken

If Deputy MacEntee is not permitted to speak let the man from Cork speak, anyway.

Mr. Keane

I want to make a very small contribution to this debate. In the first place, as a 1916 man I never said anywhere, at courts-martial or anywhere else, anything that would cast a reflection on the Irish race. In the second place, we in Cork feel that one man's name has not been mentioned enough in this debate. That is Michael Collins.

An Leas-Cheann Comhairle

What has this got to do with Section 2 of the Bill?

Mr. Keane

If I am wrong I will withdraw. I would like you to put me on the right road.

An Leas-Cheann Comhairle

It is not the duty of the Chair to put anybody on the right road.

Mr. Keane

We shall forge a certain legislative instrument here this evening. Let us hope that with that instrument in our hands we will move forward towards the time when we shall take in with us those counties that are divorced from us at the moment.

Mr. Corry

I wish to welcome this Bill. This is a memorable time of the year for me. About this time 25 years ago the Minister for External Affairs and I were in an internment camp in Newbridge enjoying the hospitality of General Mulcahy, now Minister for Education, for endeavouring to prevent the overthrow of this republic that is being re-established to-day.

Mr. MacEntee

It has been re-established.

Mr. Corry

For a couple of years after that I did not hear from the Minister for External Affairs. In 1926 a general order was given for the capture of Garda barracks. We in Cork did our bit. We captured two barracks. When we looked at the papers subsequently in jail we discovered we were the only fools in the country; no one else moved, even the General had forgotten to take his own barrack. I joined the Irish Volunteers in September, 1914. After this I had to make up my mind as to whether I would or would not continue the fight.

An Leas-Cheann Comhairle

What has this to do with Section 2 of the Bill?

Mr. Corry

When the total strength of the I.R.A. in 1926 was the capture of two Civic Guard barracks it has everything to do with it, as I shall prove very quickly. I had to decide for myself then whether I would continue along that road or try to find another one. I went before the people and told them that I was coming to Dáil Éireann as part of an experiment.

Mr. Keane

And codded them.

Mr. Corry

I was coming here as part of an experiment to see if we could achieve our object by constitutional means. That was the 32-county republic for which our comrades had laid down their lives. I was elected. I came here and I was told I could not come into this House unless I took what they described as an oath of allegiance to the King you are pretending to abolish here to-night.

A Deputy

Hear, hear!

Mr. Cosgrave

You have ruined the Opposition Front Bench case.

Mr. S. Collins

Your seniors are upset.

An Leas-Cheann Comhairle

Order!

Mr. Corry

And we found that that was not correct——

An Leas-Cheann Comhairle

Will the Deputy please wait for the Chair? Since Deputy Corry started he has not spoken one word relevant to the section. He will now either come to the section or discontinue his speech.

Mr. Corry

I think I am coming to the section and the meaning of the section very quickly.

An Leas-Cheann Comhairle

The Deputy will come to the section now.

Mr. Corry

I cannot see what this section is for, and I intend to prove that statement very quickly, perhaps to the advantage of the Leas-Cheann Comhairle. We got a majority in this House. We abolished the Oath of Allegiance and the Governor-General.

An Leas-Cheann Comhairle

The Deputy will come to the section. I will not listen to any more introductory remarks of that kind. The Deputy will come to the section.

Mr. MacEntee

Would it be in order to argue that Section 2 does not correctly describe the State?

An Leas-Cheann Comhairle

Deputy Corry is not arguing any such point.

Mr. MacEntee

But would it be in order to do that?

An Leas-Cheann Comhairle

I am not going to answer a hypothetical question.

Mr. Corry

The section states the description of the State will be the "Republic of Ireland". I intend to prove that this republic was established in 1937, or even 1936. We had abolished the Oath of Allegiance to the King of England. We had abolished the Governor-General. We had enacted a Constitution which the Taoiseach told us last Wednesday put us out of the Commonwealth. What were we if we were not a republic? I think there is no necessity for this Bill. All the Deputies opposite tramped the country in 1937 asking the people to vote against that Constitution, including the Labour Party.

An Ceann Comhairle

The Deputy will please sit down. On the Second Stage of this Bill there was a long discussion on the Constitution. There was another to-day. I am not going to permit a third. Will the Deputy read the section which is under discussion?

Mr. Corry

I am reading it and I do not intend to transgress further along that line.

An Ceann Comhairle

Will the Deputy read the section?

Mr. Corry

"It is hereby declared that the description of the State shall be the Republic of Ireland."

An Ceann Comhairle

It deals with the description of the State.

Mr. Corry

I wish to welcome into the fold, back to the republic, without any hard feelings, all the black sheep. According to the Bible it is customary when the prodigal son comes home to kill the fatted calf. If the fatted calf is to take the shape of the Republic of Ireland Bill, in God's name, let us give it to them.

Mr. Butler

With regard to this section, I would like to say a few words, a very few words, indeed. The discussion has been very restricted here, on this section at least. I hope I may be allowed to explain why I will vote for this section. I do so, not with any enthusiasm or excitement, because in the last analysis all that is being done here to-night is the nailing up of a nameplate on an edifice built between the years 1932 and 1947. I should like to express myself on this measure because I think there is a certain untimeliness about it, a certain unseemliness about it and possibly a certain lack of morality about it. This name plate—and it is nothing more—is distasteful to some small section of the people, but that small section has been the main support of the Fine Gael Party. I refer to the ex-Unionists in this country. I think it was rather mean of Fine Gael to keep that name plate hidden in the folds of their Commonwealth mantle and then to produce it surreptitiously—at least to produce it in Canada rather than in Dáil Éireann for the first time.

An Ceann Comhairle

We had all that on the Second Stage.

Mr. Butler

I am saying that in putting up this name plate there is a certain lack of taste.

Captain Cowan

This is shocking humbug.

Mr. Butler

I would say the whole procedure is rather unseemly.

Mr. S. Collins

The Deputy is doing the heavy school teacher.

Mr. Butler

This name was produced out of the folds of the Commonwealth mantle and it came as a terrific surprise to the people who voted for the members of the Fine Gael Party.

Captain Cowan

Is the Deputy correct? My experience over past years is that the Unionist vote was responsible for putting the Fianna Fáil Party into office.

An Ceann Comhairle

I shall have to leave it between Deputies and Parties. It is not relevant now.

Mr. Butler

I do not wish to discuss Parties.

Mr. MacBride

What is the Deputy doing, then?

Mr. Butler

I am not discussing Parties at all. I say that the Government are about to nail up a name plate on this edifice built by us, on which they previously spat and to the erection of which they did not as a Party contribute a single brick. They have now discovered that it is a magnificent edifice and they are claiming not only the name plate but the edifice itself. It is an edifice to which they did not contribute one brick in the building and to which they have not added one brick since they came into office.

Members of Fianna Fáil, at any rate, are realists. They believe in the substance. They do not worry too much about words and that is why they gave the people the substance, the real thing—in a word, the republic. We are not offering any resistance to this section or this measure as a whole. Who can blame us for a lack of enthusiasm and excitement? Who can blame the people for their lack of interest? I do not want to be a party to putting over on the people that something is here and now being done over and above what was done in 1936 and 1937.

Mr. Davern

We did not get much support from the Deputies who are now on the Government Benches.

Mr. Butler

The edifice we erected is now being claimed by all Parties. It is spacious enough to house all the people of the 32 Counties, but there are six vacant rooms, six blinded windows in that edifice. That is the chief reason why we hesitated to put up the name plate on the edifice. However, it will do no harm. I hope it is not premature. I am not voting against the measure, but I think there is a certain bad taste about the whole procedure. A want of faith has been shown.

Mr. MacBride

By you.

Sir John Esmonde

As one who first entered public life in this country in the year 1915, as one who has since that date taken a more or less detached view of the events that have occurred, as one who has looked on the growth of this State and its institutions, and speaking as one of the few survivors of the Irish Parliamentary Party, I am glad to have seen this day.

An Ceann Comhairle

I am putting the section, which covers the Irish as well as the English version.

Mr. de Valera

I am sorry to interrupt, but I do not understand the procedure with regard to the Irish version. There are a few things in it to which I should like to call attention. I thought we would deal with the Irish version when the English one was finished. I understood we would then talk about the Irish text, and go over the sections. For instance, I see a few printers' errors, but I am sure these will be made all right.

An Ceann Comhairle

Trouble would arise if we got one version through and the other was defeated. Then we would be in a very strange position.

Mr. de Valera

It would be a strange position.

An Ceann Comhairle

Any mistakes in grammar will be looked into.

Mr. de Valera

The first thing that would occur to me would be the Title. You know the old dispute as to the genitive case. Of course, I have full confidence in the Translation Staff.

An Ceann Comhairle

I am quite sure that if the Bill were through Committee, or even at the end of the Fifth Stage, the House would be quite willing to hear any remarks on the Irish version.

Mr. de Valera

That is what I thought. I see the Chair's difficulty, but I thought that would be the procedure.

An Ceann Comhairle

The Deputy appreciates the difficulty?

Mr. de Valera

I do, but it did not occur to me.

Question put and agreed to.

SECTION 3.

Captain Cowan

I move amendment No. 2:—

Before Section 3 to insert a new section as follows:—

(1) The power to appoint diplomatic representatives of Ireland in other countries is hereby conferred on the President.

(2) The power to appoint consular representatives of Ireland in other countries is hereby conferred on the President.

Alt nua mar leanas a chur roimh alt 3:—

(1) Bheirtear leis seo don Uachtarán an chumhacht chun ionadaithe taidhleoireachta ó Éirinn i dtíortha eile a cheapadh.

(2) Bheirtear leis seo don Uachtarán an chumhacht chun ionadaithe consalachta ó Éirinn i dtíortha eile a cheapadh.

An Ceann Comhairle

Amendment No. 3 and, of course, amendments Nos. 6 and 7, are consequential on amendment No. 2.

Captain Cowan

I hope there will be more relevancy on this section than we had on the previous section. I move this amendment, as well as the other amendments, for a number of reasons.

An Ceann Comhairle

I take it the Deputy is debating amendments Nos. 2 and 3?

Captain Cowan

Yes. They all hang together. One of the objectionable features of the Act which we are proposing to abolish was the power it contained to have our representatives abroad appointed by the British King. It was stated, and I think it is the intention of the Government, that that position will be remedied and the power given to the President. I feel that the Bill as drafted and submitted does not contain that power explicitly. Article 13 of the Constitution prescribes the President's powers and sub-Article 10 of that Article says that additional powers and functions may be conferred on the President by law. The Bill, in Section 3, provides that the President, on the authority and on the advice of the Government, may exercise the executive power or any executive function of the State in or in connection with its external relations. Substantially, that is the power given by the Constitution to the Government. Article 29 (4) (i) says:

"The executive power of the State in or in connection with its external relations, shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government."

The Constitution gives to the Government that power, and, if Section 3 were passed as it is, we would purport or endeavour to transfer these powers to the President, admitting, of course, that the President must exercise his functions in accordance with the advice and on the authority of the Government.

I am anxious that this Bill should be a Bill to give specific powers to the President in accordance with Article 13 of the Constitution. Accordingly, I have provided that the power to appoint diplomatic representatives of Ireland in other countries and the power to appoint consular representatives of Ireland in other countries are hereby conferred on the President. I believe it is necessary to provide in the statute specifically that the power is conferred on the President, so that these powers will be valid powers in accordance with Article 13. Article 13 (11) provides that no power or function conferred on the President by law shall be exercisable or performable by him save only on the advice of the Government, so that if the President is given the powers I have set out in the amendment, these are not autocratic powers but powers in accordance with the Constitution which can be exercised by him only on the advice of the Government. I hope the amendment will be accepted by the Government, because I think it right, when we have changed this power of appointing representatives, that it should be very clearly written into this measure that the power is now vested in the President and will be exercised by him on the advice of the Government.

The Taoiseach

The Government cannot accept these amendments because they are advised that each of these amendments would be unconstitutional. Accordingly, I must ask the House to reject them, or persuade Deputy Cowan, if I can do so, to withdraw them. The particular Section 3 of this Bill was drafted with very great care and with the relevant provisions of the Constitution very strictly in front of the draftsman and other advisers. It could possibly be said with truth that there are certain words in the section which are tautological. The words "on the advice of the Government" might not necessarily be there, because Article 13 of the Constitution would operate on the section without those words being specifically inserted, but the view was taken that, as people reading this Bill might not be so familiar with the details of the Constitution, and particularly as it is a new Bill, there should appear on the face of the document what would be implicitly there in any event.

Apart from that aspect of the case, the amendments put down by Deputy Cowan do not take any cognisance of the distinction which appears throughout the Constitution between powers and functions. Furthermore, the amendments appear to be in definite conflict with Article 28 (2) of the Constitution which Article is repeated and applied expressly to the executive power of the State in reference to external affairs by Article 29 (4). The Government has been advised by the Attorney-General that the proposed amendments would conflict with those Articles. I think everything that Deputy Cowan wishes to achieve by his amendments is achieved in fact by the provisions of Section 3 as drafted. The powers must, of course, be conferred expressly upon the President. That is what Section 3 proposes to do, but it proposes to do it safeguarding the constitutional requirements of the authority and power being vested in the Government and exercisable on their authority and advice in appropriate cases.

In addition to that, there is this practical difficulty in facing the amendments put down by Deputy Cowan, that in accordance with international usage, certain of the diplomatic representatives are not appointed by a head of State. There is also the case of treaties. The normal practice at the moment in international affairs is not to have heads of State treaties. The old practice which subsisted in the days before the two world wars rather favoured heads of State treaties. Modern international practice favours inter-Governmental treaties. Trade treaties are entered into and trade agreements are negotiated and concluded between Governments and not between heads of State. The effect of Deputy Cowan's proposals would be to make every international act exercisable by the head of the State, which is not in accordance with international usage.

Ambassadors, Ministers and Consuls-General are appointed by the Head of the State and it is intended that that practice shall be continued. Consular Officials, Chargés d'Affaires, officials of that kind, are appointed by the Minister for External Affairs and it is proposed that that practice, which is a well recognised international practice, should be continued.

For the reasons I have stated, practical reasons connected with international practice, and above all from the point of view of constitutional requirements, the amendments could not be accepted.

Captain Cowan

The position of the Taoiseach clearly is that he is advised by the Attorney-General that this is unconstitutional and certainly I am not going to press it, but it does seem to me on Section 3—I endeavoured to get over the difficulties in Section 2—that the same objection arises. Section 3 says:—

"The President, on the authority and on the advice of the Government, may exercise the executive power or any executive function of the State in or in connection with its external relations."

That seems to contain the same defects as the particular amendment that I put down. I hoped that, having disposed of His Britannic Majesty, we would have availed of this Bill to give clearly to the President those powers that were given to the British King.

An Ceann Comhairle

The Deputy would require an express Act for that purpose, to change the Constitution.

Captain Cowan

No, I do not want to change the Constitution. I think it can be done within the Constitution.

The Taoiseach

This section is doing what can be done within the Constitution. The section is carefully framed for that purpose.

Captain Cowan

I do not know whether it has achieved its purpose.

The Taoiseach

It has achieved it as far as the Constitution provisions will allow us to do it.

Amendment No. 2, by leave, withdrawn.

An Ceann Comhairle

Amendments Nos. 3, 6 and 7 fall consequentially.

Amendment No. 3 not moved.

Question proposed: "That Section 3 stand part of the Bill."

Mr. MacEntee

Apparently, from the speech which Deputy Cowan has made, he thinks that Section 3 is necessary because in some way something we have done has disposed of his Britannic Majesty. Nothing in this Bill has disposed of his Britannic Majesty. All this Bill has done is two things—to declare that the description of the State shall be The Republic of Ireland and to free the hands of the Government in relation to its conduct of external affairs. The Government did not need to repeal any existing statute in order to get rid of His Britannic Majesty. His Britannic Majesty was never there.

Mr. MacBride

What was the Act for?

Mr. MacEntee

The Dáil gave to the Government permission, and only permission, to utilise, not His Britannic Majesty but a King for some purposes, for a limited number of purposes. It did not direct the Government to do that. If the Government did it, it did so of its own volition, because it thought it advisable, in the circumstances of the time, to do it. There was no question of His Britannic Majesty. In fact, he has never been in the Constitution of 1937.

An Ceann Comhairle

That was argued on the Second Stage and also for long enough to-day.

Mr. MacEntee

Yes, but apparently——

An Ceann Comhairle

Deputy Cowan did not state when His Majesty disappeared. This only deals with the power of the President.

Mr. Cosgrave

Deputy Corry let the cat out of the bag.

Mr. MacEntee

I want to clear up any doubts Deputy Cowan may have.

An Ceann Comhairle

Our purpose is to deal with the section and not to clear up any doubts of that kind.

Mr. MacEntee

If it were not for the doubts he might not vote for this section and I would hate him to be guilty of voting for a thing on wrong principles. I would like a man to vote and give effect to the principles in him, but if Deputy Cowan is voting for this for a reason which, in fact, does not exist, has not existed and should not justify his resolve in this respect, I would endeavour to prevent him being guilty of that bêtise.

Major de Valera

I take it that this section is to make the President function in the way the Government wants him to function and the wording appears to me to be apt.

The Taoiseach

He functions as the Head of the State.

Major de Valera

And it will depend on the Government to implement that.

The Taoiseach

Yes.

Mr. de Valera

I think it is directly in accordance with the Constitution.

The Taoiseach

It was intended to be in accordance with the Constitution.

Mr. de Valera

We are in agreement then.

The Taoiseach

We had a little bit of difficulty in getting to that agreement.

Question put and agreed to.

SECTION 4.

Captain Cowan

I move amendment No. 4:—

In Section 4, line 32, to delete all words after the word "on" to the end of the section and substitute therefor "the 21st day of January, 1949."

In Alt 4, líne 32, na focail uile i ndiaidh na bhfocal "i ngníomh" go dtí deireadh an ailt a scrios agus "an 21ú lá d'Eanáir, 1949" a chur ina n-ionad.

I note that Deputy Fitzpatrick has a similar amendment down.

It has been stated on the Second Reading that the 21st January, 1949, would be an appropriate date for this Act to come into operation. I gathered from the Taoiseach that there were some little technical difficulties in the way. If the Taoiseach can indicate that these technical difficulties will be removed before that date and that the Government will endeavour to bring the Act into operation on that date, I would not wish to press the amendment at all.

The Taoiseach

In answer to Deputy Cowan, I would like to assure the House that it is the earnest desire of the Government to have this Bill in full operation at the earliest possible date. There may be certain points arising which will require legislation in the British Parliament, as possibly here also. I mentioned one item to Deputy Cowan the other day outside—reference to "His Majesty's Dominions" and things of that kind. There may be other more fundamental ones, not of any serious import but which have a practical bearing upon the new situation here. These things will have to be examined and it is a question whether legislation can be got through in the British Parliament before the 21st January or not. We are endeavouring to the best of our ability to hurry up matters so as to get this Bill into immediate operation and prevent any suggestion being made that we are not doing what should be done and also allay any possible uneasiness that may arise by reason of delay. I assure the Deputy that this Act will come into operation at the earliest possible moment. We cannot say whether it will be the 21st January or any other specific date. The Minister for External Affairs has been in touch with the British Government, with a view to expediting matters and getting the Act into operation.

Mr. Fitzpatrick

May I say, as my name is also to this amendment, that I was anxious that the 21st January, if at all possible, should be the date fixed for bringing this Bill into operation. I would still appeal to the Government to try to have the Bill brought into operation on that date in view of the fact that so many claims have been put forward during the debate as to the individuals or sections responsible for bringing the republic into being. There have been so many dates mentioned in our life-time as those on which the republic was declared, or attempted to be declared, that it would be a pity if we handed on to posterity all this confusion as to the date to be recognised as that on which the republic was declared. We have heard of 1916 and 1919. Then there was a date mentioned in 1937 and now we have dates mentioned in 1948 and 1949. I would appeal to the Government if at all possible to bring the Bill into operation on the 21st January next, that is the 30th Anniversary of the declaration of the republic.

Mr. de Valera

I also suggested the 21st January as an appropriate date but I have been thinking about the matter since and, if there is any suggestion of making the day a public holiday, I think that that would be a very bad time. It is desirable in this case if possible to choose a date which would be a holiday for other reasons also. If you grant a further holiday, it may lead to all sorts of difficulties in regard to stoppage of work and matters of that kind, and to declare the 21st January a holiday may be a difficult thing.

It is a bad time of the year for a holiday and I was wondering whether the alternative date suggested, Easter Monday, might not be a better date. That goes back to the Proclamation of 1916. The choice of that date would indicate that it was the day on which the republic was originally proclaimed. Our view was—and I think it was shared by other Parties in the House— that there was a declaration of the republic in 1916, and that what was done in 1919 was to ratify, by the votes of the people—a very important event in itself—the Proclamation of 1916. It is, therefore, a choice between the date which I would generally refer to if I were speaking about Independence Day, the 21st January, and Easter Monday. I am assuming that there is no immediate urgency about the matter.

The Taoiseach

I am very glad to have the Deputy's views on it.

Mr. de Valera

I at first thought that we should have an early date and that if the Act were going through, the sooner it was brought into operation the better and that January 21st was not too distant. I felt that there were certain adjustments that would have to be made of one kind or another. So far as the other date, Easter Monday, is concerned, that would not offer any difficulty for the Government in regard to making the day a holiday. Somebody may say that we are depriving people of an extra holiday. School children, for instance, may have some views of that kind, but I think this will have to be dealt with on a different basis. You cannot introduce State holidays at will. Many considerations have to be remembered in regard to these things, and, on reconsideration of the whole matter, if I had to vote now I would vote for Easter Monday. If the Government cannot bring it into operation on the 21st January and if they are inclined to choose some other date, I would be in favour of selecting Easter Monday.

Mr. MacEntee

I am going to make a suggestion which I think has not yet been offered in the course of the debate. I must confess that, while I am glad that Section 2 is enshrined in the Bill and while I know it is based, in theory, upon Article 2 of the Constitution which declares that "the national territory consists of the whole island of Ireland, its island and its territorial seas", I cannot shut my eyes to the fact that the city in which I was born, where some of my relatives still live, and other parts of the national territory, are not under the sovereignty of this Parliament. While I am accepting the declaration enshrined in Section 2 of the Bill, I must accept it with the reservations that a realistic man feels when faced with facts. For that reason, I am inclined to think that the date mentioned by the Leader of the Opposition and the other dates which have been mentioned do not quite meet the case.

The Dáil which met in January, 1919, and affirmed or ratified the proclamation of the Republic of 1916, was a Dáil which contained representatives of counties which were cut off by the operation of certain provisions of the Treaty of 1921. In that Dáil there sat representatives of South Down, South Armagh, Tyrone and Fermanagh, and I think if it had not been for certain untoward circumstances prior to the election of 1918, we might have had representatives from the City of Belfast and from Derry City also. However, that is the position. The Dáil of January, 1919, was much more representative of the Irish people as a whole than the present Dáil is. We cannot disguise the fact that, so far as we are here by the election of the people, we represent the people of the Twenty-Six Counties. Therefore, I would suggest that we would reserve the date, January, 1919, or Monday of Easter Week, for the day to which we are all looking forward, when we shall have representatives of the whole of the 32 counties sitting in the Parliament of the Republic of Ireland. I think, moreover, that something is due to the people of the Twenty-Six Counties because, in fact, what we are doing by Section 2 of the Bill——

An Ceann Comhairle

We are at Section 4.

Mr. MacEntee

But surely it has a bearing on Section 2?

Mr. Aiken

We are on an amendment.

An Ceann Comhairle

Amendment 4, Section 4.

Mr. MacEntee

Yes, I am on the amendment which asks us——

An Ceann Comhairle

The amendment has been withdrawn.

Mr. MacEntee

The amendment has been withdrawn, but I heard Deputy Fitzpatrick talk about his amendment, which is to insert a new section.

An Ceann Comhairle

We are not on that yet.

Mr. MacEntee

We are, therefore, on Section 4, which says that the Act shall come into operation on such day as the Government may by order appoint. I thought the matter under discussion was what particular date would be most suitable for appointment. I understand that is the question we are discussing and I am endeavouring to give the reasons why a date, which I have not yet mentioned, should be the date rather than any of those which so far have been suggested. I have already pointed out how this Dáil differs from the Dáil which met in January, 1919. Now I am going to say that, while we are all here by choice of the people whom we represent and while we owe a bigger debt than we can possibly pay to the men who first proclaimed the republic and to the men who in a Parliamentary Assembly representing the entire people reaffirmed that proclamation——

Mr. S. Collins

Will the Deputy cut the cackle and tell us the date?

Mr. MacEntee

May I ask whether the Chair is going to extend to me the protection which I think I deserve on an occasion of this sort or whether Deputy Collins is going to be permitted to interrupt me in the disorderly way in which he has! May I proceed, Sir? I was saying that while we owe a very great debt to the people who died for the republic and the people who reaffirmed it, we also owe something to the people of the Twenty-Six Counties who, despite a very large section of their representatives, despite all the arguments that were used to intimidate and deter them, despite the fact that when the issue was before them they were being subjected to British economic sanctions, despite the fact that the kingdoms of the world, if I may use the phrase, were held up to them in order that they might adore false gods, despite the fact that they were told that, if they did not accept this Constitution of 1937 and did not enact this Constitution, they would have all the benefits and advantages that flow from association with the British Commonwealth, nevertheless turned down all those inducements, refused to yield to the attempts to intimidate them and enacted this Constitution on the 1st day of July, 1937.

I think in view of the debate which has taken place here on this Bill, in view of everything that was said on the Second Reading and everything that has been said on the preceding sections of this Bill, that the 1st day of July, 1947, is a day that is worthy of commemoration in our annals; and, looking at the fact that it was the people of the Twenty-Six Counties who enacted this Constitution, having regard to the fact that our Legislature does not yet embrace representatives from the other portions of Ireland and looking, too, to the fact that we hope that one day they will sit here with us and that on that day, the day on which they do sit here, we may more fittingly commemorate January, 1919 or April, 1916, and remembering that in so far as we are doing anything here in regard to this Bill, we do it because of what the people of Ireland—of the Twenty-Six Counties—did on 1st July, 1937, I am going to suggest to the Taoiseach that if this Bill is to be brought into operation on any particular day—I am not suggesting that it should be deferred to this particular day—but if any day is going to be described as "Independence Day" under this Constitution, it should be the 1st July, 1937.

Amendment, by leave, withdrawn.

Section 4 put and agreed to.

SECTION 5.

Mr. Fitzpatrick

I move amendment No. 5:—

Before Section 5 to insert a new section as follows:—

The day on which this Act comes into operation shall henceforth be called Independence Day, and shall be declared a national holiday.

Alt nua mar leanas a chur roimh Alt 5:—

Gairmfear feasta Lá na Saoirse den lá a thiocfas an tAcht seo i ngníomh, agus dearbhófar ina Lá Saoire Náisiúnta é.

I put down this amendment because I attach great importance to this Bill. To the ordinary people of the country the question of the republic means a great deal more than the actual meaning of the word "republic." I believe they are looking forward with hope in view of the fact that their elected representatives from all Parties have at last agreed on something that is very definite. The people should get an opportunity of rejoicing now that this has come about. The final enactment of this Bill should not be behind closed doors in Leinster House. I appeal to the Government to declare the day that this Bill becomes law Independence Day, and to make it a national holiday for the people. There may be many difficulties and I, putting down an amendment, am giving my own view, but I am prepared to accept the considered views of the Government. I have brought the matter before them. As I have said, the people are entitled to rejoice with us on this momentous occasion when the elected representatives of all Parties agree upon something that is very definite.

Major de Valera

Whereas I agree with the last Deputy that it is a matter of considerable consequence that the republic again is recognised as it is, still I think we are losing sight of the fact that there is one consequence of the Treaty still there and——

Mr. MacBride

I thought the amendment was withdrawn.

An Ceann Comhairle

No, and it cannot be without the unanimous leave of the House.

Major de Valera

I merely want to say that there is one consequence of the Treaty still undone, that the country is partitioned, that there are very few republicans who will feel that there is cause for real congratulation or final congratulation, at any rate, until the republic is a fact over the whole of the island, and my suggestion would be that, whereas some such date should be picked out at the moment and every effort should be made to relate this Act to the declarations of the republic in the past, all widespread celebration should be postponed, and it should be a day for taking stock and tightening our harness about us to drive together to the ultimate goal so that the Irish Republic can be a reality over the whole 32 counties of Ireland.

Mr. Dockrell

If, in fact, any day is declared a national holiday, let us not have it in the winter time. Eventually it will be a day on which people will not be working, and, on behalf of city dwellers, I suggest it is very important that they should be able to get out and enjoy themselves in the fresh air and sunshine. So, if any day is chosen, I hope it will be a day in the summer time, not in the depths of winter.

Mr. Allen

I suggest to the Government that they should very carefully consider the matter of declaring any day a national holiday or Independence Day pending the reintegration of the country. Unless there were full enthusiasm of all the people behind it, it would do an immense amount of damage. It is my feeling, and it is the feeling of a great many people in the country, that this is really a minor matter and should be treated as such. When the day comes, which we hope will be in a very short time, that the whole country can be declared a republic, then let us have Independence Day and a national holiday. That is my feeling.

Dr. Maguire

In my opinion, there is absolutely no reason for rejoicing on the day this Bill becomes law. On behalf of those people along the Border who have lived for so long in the shadow of the Calvary of this country, I would ask those people along the Border, and I would particularly ask the Ministers of this Government, not to sit back on their oars and imagine that just because they are repealing this Act or just because they have removed the shadow of our imperial connection while leaving the substance of our imperial connection, namely, Partition, unremoved, that everything is done. We along the Border can never look upon a republic for 26 counties as an Irish Republic, and we see no reason for the recognition of the day on which it comes into force.

Progress reported, Committee to sit again.

Mr. A.P. Byrne

May we know if there is any question on the adjournment?

An Ceann Comhairle

Yes, it is a question of oats, not votes.