I cannot understand what the Senator really means? What is the position? I do not want to go into this controversy about divorce, because it is a side issue. As I said, I would have given the same decision if the right taken away had been the right of personal liberty, the right of trial by jury, or any other right you wish to mention. You only drag a herring across the trail if you want to get this discussion to hang round divorce. Divorce is only an illustration of the principle. What I am simply pointing out as a proposition that is incapable of contradiction is, that throughout the whole history of the British Constitution, the Canadian Constitution, and the American Constitution, there has never been a case in which they attempted to legislate by resolution, and there has never been a case in which they attempted to take away an existing right by a Standing Order.
As Senator Sir Thomas Esmonde has asked me whether this right was not gone—that is the right of bringing in a Private Bill for divorce—let me point out that, so far from it having been gone, the Government of this country recognised its existence three years ago and set up a Joint Standing Committee to devise Standing Orders to give facilities for these Private Bills, thereby recognising their existence, recognising the fact that they were still part of our Constitution. Otherwise, their action in setting up a Joint Committee to provide machinery for facilitating these Bills would have been a childish action upon their part. Therefore it is beyond controversy—and President Cosgrave himself plainly and frankly admitted it—that this right of Private Bill legislation is part and parcel of our Constitution. He said so. It is because they want to limit one particular portion of that right, namely, this divorce a vinculo, that the resolution of the Dáil was passed.
Leaving out the question of divorce, as I say it all comes back to this: where is there any trace of authority to be found for the position that you can substitute a resolution for legislation and that you can kill the existing constitutional right by a mere Standing Order? Why, we have examples here of Bills sent up to us of the most trifling character, making the most trifling alterations in existing laws. That has to be done because by the constitutional practice and tradition of centuries the only way Parliament can proceed is by legislation. The very idea and essence of Parliament is that it does its work by Bills, by legislation, and the moment you substitute for that, and put in its place, a mere resolution, passed at a single sitting, perhaps without notice, or with a few days notice, you upset the whole Constitution and, as I say, you nullify and destroy at least one half of the clauses in your Constitution.
Let me just give one or two illustrations, because this is not the first time this question has arisen. I have had to rule on questions that involved the interpretation of the Constitution before now, and on each occasion that I did make the ruling it was accepted with approval and acclamation by the Seanad. Why? I am afraid to say that it was because they were anxious that the ruling should be on the lines on which I gave it. It did not conflict with their own views; it fell in with their views, and I was a Solomon on these occasions. Now, because I have made a similar ruling in a matter in which they feel very strongly themselves, I am anathema.
Let me illustrate that. There was a Bill brought in dealing with the fishery laws and an amendment was moved in the Seanad restricting the power of the Executive to remit penalties. The Executive took power in the Bill to remit penalties imposed, and one of the Senators—I think it was Senator Sir J. Keane—moved an amendment restricting the power of the Executive. It was carried by a large majority. That went back to the Dáil, and in the Dáil the Attorney-General attacked it and said it was an illegal act on the part of the Seanad, because they were interfering with the Crown's prerogative of mercy; that they had no right by any amendment of theirs to encroach on the Crown's prerogative of mercy. It came back to the Seanad and they naturally asked me: "What do you say to this?" I said: "That is all wrong; there has been a mistake on the part of the Attorney-General as regards what the law is." The law has been settled and is known now to be settled for the last two hundred years to this effect: that the Crown had no prerogative of mercy where the penalties go to private individuals, because otherwise it would interfere with private individuals' rights. They have the prerogative of mercy where the fine is payable to the Crown, as the Crown can remit its own fine. Under the licensing laws, the fishery laws, the taxing laws, the income tax laws and the smuggling laws, all these penalties are earmarked, some for the complainant, some for the boards of conservators, some for other people; and the law always has been that as regards them the Crown has no prerogative and has no rights except what Parliament confers upon it, and that Parliament, in conferring those rights, may limit them in any way they wish. On that occasion—I am not saying this by way of boasting but simply by way of illustration—I saved for all time for this House the right to intervene and put limits upon the Executive's claim to remit penalties. If I had not intervened the precedent would have been established and the right lost for them. What is to happen in future if Senator Bennett's motion is carried? Will I be at liberty to intervene? Certainly I shall not, because it would be said I was interpreting the Constitution.
Let me give you two more illustrations which I think should bring the matter, perhaps, even more closely home to the Seanad. When the Public Safety Bill was brought into the Seanad there was a provision in it enabling District Justices to convict summarily up to eighteen months' imprisonment. Senator O'Farrell denounced this as a violation of the Constitution, because the Constitution says that all but minor offences should be dealt with by a jury, whereas in this emergency Bill, District Justices were given power to impose eighteen months' imprisonment for certain offences without a jury. Senator O'Farrell's point was that this was a violation of the Constitution. The Attorney-General was present, and when the point was put to me by Senator O'Farrell I said that in my opinion he was right, and that it would be essential in order to put this right that a clause should be put in providing that they were only to have this power in any case which they judged was a minor offence. The Attorney-General who, I am bound to say, was always amenable in these matters, at once admitted that I was right. He gave in and made an alteration in the Bill. Once this motion of Senator Bennett's is carried I cannot do that. My hands are tied. Who is going to call attention to it? Who is going to correct it?
I come to a final illustration, and it is a very important one, because it is identical almost with the ruling that I gave on the occasion of the divorce resolution. In the Judiciary Bill the Dáil put the salaries of the District Justices on the annual Estimates, whereas they made the salaries of the High Court Judges and the Circuit Judges a charge on the Central Fund. Some Senators may not realise the difference that that means. If the salaries are charged on the Central Fund they are voted automatically and cannot be disputed. If they are voted from year to year and put on the annual Vote the Vote can be challenged every year. That was the position when the Bill came to the Seanad. Some Senator said: "This is not right. It is putting the District Justices in a false and invidious position." An amendment was moved transferring their salaries also to the Central Fund. The Attorney-General was not present when that was done in Committee, but when it came up on Report he was in his place and challeneged the jurisdiction of the Seanad to make this amendment. He did so on two grounds. First he said that a resolution had been already passed by the Dáil appropriating the moneys in this way. That is to say, appropriating portion as a charge on the Central Fund for the High Court Judges and making the salaries of the District Justices an annual Vote on the Estimates. "Therefore," he said, "that resolution is binding upon this House and you cannot go behind it."
He also suggested that although it was not a Money Bill, yet, as this was a financial clause, the Seanad had no power to interfere with it. That raised two very important questions that went to the very root of the power of the Seanad in matters of finance, and after most careful consideration I ruled that the resolution in no way bound the Seanad, because the Constitution says that the money is to be appropriated by the Oireachtas and to be appropriated by law, and that the resolution was not law. I also said that under the Constitution the Seanad was at liberty to make any amendment it liked to any Bill other than a Money Bill and that as this was not a Money Bill they were entitled to amend the financial clauses. I said: "These are very important matters; it is a big responsibility to be asking me to determine them and I would suggest that you should refer them to a strong small select committee and ask them to report on it for you." Accordingly, they appointed Senators Douglas, Brown, and O'Farrell, along with myself, to go into this question. I have that report in my hand, but it is sufficient to say that the committee unanimously upheld my ruling in every point and particularly emphasised the fact that you could not legislate by resolution; that the resolution appropriating money was no good, and was ineffective because the Constitution said it was to be done by law, and that you can only act by law by legislation and not by resolution. The report containing that statement was brought up before the Seanad and was unanimously adopted.
Now my powers are to be taken from me, because a similar case having arisen, I acted loyally in accordance with that report and carried out the directions given me by the Seanad that unanimously adopted it. I do not say this for the purpose of recrimination or to try and make a debating point over Senator Bennett or Senator Sir Thomas Esmonde. I am doing it solely, believe me, in my heartfelt interest in the future welfare of the Seanad and the regularity of its proceedings. I have no other interest to serve. I do not care a fig about this divorce resolution. I do care for the honour of the Seanad. I do care for the dignity and utility of whoever is to fill my place. I say that unless you provide somebody—I do not care who, be it your Chairman or anyone you wish—to guide and direct you as to whether matters are or are not outside or inside the Constitution, your whole proceedings will be reduced to a state of hopeless chaos.
I have nothing to add except to say, in conclusion, and I say it with full honesty and frankness, that personally I should be glad to be relieved of the responsibility of deciding these questions. If the House were to determine at this moment to give me the benefit of a strong but small committee whom I should consult on these matters and whose decision I should loyally and implicitly follow, I should be pleased. I think that would be an advantage to me and to the Seanad, but do not leave the Seanad in the position that you are going to have no one responsible for making decisions on law and order so that when a Senator gets up when a Bill is going through the House and asks, "Would I be in order, Mr. Chairman, in moving the following amendment," for the future I will have to say, "I cannot answer you. That is a matter that involves an interpretation of the Constitution and I cannot answer you."
What did Senator Sir Thomas Esmonde say? I thoroughly and heartily agree with his sentiment. He said this House had no right to limit in any way its power to legislate. What would it have done if it had passed that divorce resolution? It would have prevented itself legislating upon divorce Private Bills because it would have excluded them from its legislative powers altogether, so that it would have deliberately reduced its own powers of legislation conferred upon it under the Constitution.
That is the whole position as it seems to me. If you are not satisfied with present conditions, give me the benefit of a small but strong committee and I will welcome it. Let my decision be subject to their approval. If they approve of my decision, let it stand. If they disapprove, let the Seanad decide. In your own interest and as trustees of the rights, dignities and powers of this House, I implore you to see to it that you do not leave it in the position that any motion can be discussed and passed and that any Senator can move anything at his sweet will, even though on the face of it it is a palpable invasion of the Constitution or even of the Treaty itself. You would be stultifying yourselves, betraying your trust, and above all, may I respectfully say, in my opinion, you would be betraying your oath, because each of you has sworn that you will bear true faith and allegiance to the Constitution. You put yourself in the position that you must sit down and tamely listen to motions and discussions that are absolutely and plainly out of order. I now leave the matter in the hands of the Seanad.
