I approached this question from a standpoint somewhat different from some others who have spoken in favour of the Bill. I am one of those who gave allegiance, if one may use the word, to the revolutionary Government which preceded the signing of the Treaty, and acknowledged the validity of the resolution which was passed approving of the Treaty, and which, in my view, gave the Treaty the force of law. I feel that this Bill, so far from violating the Treaty, fulfils the Treaty and vindicates the attitude of those who stood as I did for the acceptance of the obligations of the Treaty as passed by the democratic Parliament of Dáil Eireann in the early session of January, 1922. But I acknowledge now, as I asserted in the course of the Constitution debates in 1922, that the Constitution fell far short of the Treaty, that it was a declension from the Treaty and placed this country in a position inferior to that which the Treaty established. Hearing the discussions, and reading the debates that took place, I am forced to the conclusion that the critics of this Bill are not criticising this Bill; they are criticising a Bill which they expect to follow this Bill —some future Bill—of which they believe this is the prelude. I wonder whether the assertion is that this Bill breaks the Treaty, or that this future Bill is going to break the Treaty. Which is the inviolable document? Is it the Treaty or some agreement subsequent to the Treaty?
I read, and re-read, the Treaty many times, and cannot find any undertaking making it obligatory to include in the Constitution any section which provides that before taking their seats members of the Oireachtas shall take the prescribed Oath. Nor can I find in the Treaty any agreement which lays it down that any amendment of the Constitution or of any amendment thereof or of any law made thereunder is to be void and to have no effect if it is repugnant to the Treaty. As to the claim that this is an International Treaty, and that it recognises that both parties are of equal status, free and sovereign in their territory when the Treaty was made—and this was the claim of the late Government and the advocates of the Treaty in 1921 and 1922—the limiting clauses of the Constitution, and the Constitution Act, deny the principle of sovereignty deny free growth and development.
If it is held, as the British held, that this country was not of equal status, not free and sovereign in 1921 and 1922, that before the Treaty we were a rebellious province, and that when the Free State was established whatever limitation applied to the British Dominions applied to this country, that constitutional rights and powers had been granted by British Acts of Parliament, then I claim that by new agreements, by later interpretations of status under the Treaty, this Bill is justified and necessary to make the law conform to political facts. I agree with Senator Bagwell that the circumstances under which the Treaty was made are involved when discussing this Bill. I think the first important thing to take into account is that the Treaty contained what one might call the over-riding provision which says, in effect, that Ireland, with a Parliament having powers to make laws for the peace, order, and good government of Ireland, is to have the same constitutional status in the community of nations known as the British Empire, as the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand and the Union of South Africa, and shall be styled, and known, as the Irish Free State. I emphasise the words "with a Parliament having powers to make laws for the peace, order and good government of Ireland," which was confirmed by the relative clause of the Constitution which was later adopted and which stated:
All powers of government and all authority legislative, executive and judicial in Ireland, are derived from the people, and the same shall be exercised in the Irish Free State (Saorstát Eireann) through the organisations established by or under, and in accord, with this Constitution.
The important thing to my mind in relation to this Bill is that the Parliament that was established had power to make laws for the peace, order and good government of Ireland. It is known, of course, to everyone of adult age that there were differences of interpretation as to what the Treaty meant. Claims were made by the advocates of the Treaty in December, 1921, and January, 1922, and contrary claims and declarations were made in the British Parliament as to what the Treaty meant and as to what were to be the powers of the Irish people and the representatives of the Irish people in regard to the Constitution. This Bill is directly confined, as far as I can read it, to amending the Constitution and the Constitution Act. It does not make any reference to altering the Treaty in any way, manner or form.
I am afraid I shall have to ask the House to bear with me while I make a few quotations, because this matter has assumed an importance that we did not think it deserved. In the course of the discussions on the Treaty in the Dáil we had various statements as to the position that was achieved by the signing and acceptance of the Treaty. It was pointed out, I think fairly, that as the joint signatories signed the document it was a recognition of the Republican Government of Ireland, a revolutionary government. The Treaty was signed on behalf of the British delegation, obviously and clearly a delegation from the British Executive, and on behalf of the Irish delegation, delegated by whom and from what? Obviously and clearly from Dáil Eireann. There was a recognition there of the position of Dáil Eireann and the Dáil, by agreeing to that Treaty, accepted a certain climb down from the position which had been claimed and asserted. We had Mr. Kevin O'Higgins, for instance, saying:
It is true that by the provisions of the Treaty, Ireland is included in the system known as the British Empire, and the most objectionable aspect of the Treaty is that the threat of force has been used to influence Ireland to a decision to enter this miniature league of nations. It has been called a league of free nations. I admit in practice it is so; but it is unwise and unstatesmanlike to attempt to bind any such league by any ties other than purely voluntary ties. I believe the evolution of this group must be towards a condition, not merely of individual freedom but also of equality of status. I quite admit in the case of Ireland the tie is not voluntary, and in the case of Ireland the status is not equal. Herein lie the defects of the Treaty. But face the facts that they are defects which the English representatives insisted upon with threats of war, terrible and immediate.
I draw attention to Mr. O'Higgin's view at that time, that the position under the Treaty was not that of a voluntary entry into the league of nations known as the British Empire, that the status was not equal. I call attention also to a recent declaration of Deputy McGilligan in regard to status:
But I did go across to Conferences over and over again to make sure that the status we claimed as inherent in the Treaty settlement was definitely shown to be there. I claim to have succeeded in that. But whatever I desired to achieve at those Conferences was limited by this, that there was no question of attempting to break the Treaty. The Treaty was accepted, but there were certain clauses subject to different interpretations founded upon the point of status which we recognised as a growing thing. We wanted to see that the full fruit should be got from the Treaty.
The status was a growing thing. Mr. O'Higgins clearly saw that it was not a case of equality of status in 1921, and it is claimed now that, as a result of considerable pressure, agitation, negotiation if you like, there has been a different interpretation placed upon the Treaty, and the position now is recognised to be what some of us believed was the position in 1921, if we had asserted and maintained our assertions, that the new interpretation of the meaning of the Treaty has been freely recognised by the various conferences and ultimately acknowledged, I might say, in the Statute of Westminster. But it is argued that we are not to take any notice of that recognition of the different interpretations, that we are not to assume that that is the effect of a new agreement and, as I said a few minutes ago, we are driven almost to the question: what is the Treaty that is supposed to be broken by this Bill? The Bill deals only with the Constitution. Is it some agreement, made after the signing of the Treaty, which led to the settlement of the Constitution in the form as it was passed in September in this country and in December in Britain? Is it some agreement regarding that that is alleged to be broken? If it is I can quote very good reasons why we should not take too much notice of it, first that any such agreement has not been made explicit and laid before the people of this country, and second, that Britain had already bound herself to register any such agreement with the secretariat of the League of Nations, and that any such Treaty or agreement which was not so registered would not be binding until so registered. The promises that we made to the Dáil in 1921 in regard to the making of the Constitution have some considerable relevance to this question. Deputy Hogan at the time, for instance, said during the Treaty debates:
.... so far as the relationship between Ireland and Great Britain is regulated by that Oath, Ireland is an equal under the letter of that Treaty with England, and if England is a sovereign State so is Ireland under the letter of that Treaty; I believe that to be good constitutional law.
Professor Hayes in the same argument said:
..... the Constitution of the new State is to be drawn up by the Irish Government, and I trust that Government and I trust the Irish people to see that it will be drawn up properly. In this connection much has been made of the words "subject to the provisions of the Treaty." But why did we go to make a Treaty at all if we object to the words "Provisions of a Treaty" occurring in it? The provisions of this Treaty make no restrictions on the Irish Constitution. The Irish Constitution will derive, not from this Treaty, not from any Act of the British Parliament, but from the Irish people.
Professor MacNeill arguing on 22nd December said:
The Minister for Local Government read a certain number of contrasts between what was so according to law or according to constitution, and what was so according to facts. Now the facts are there—and even if anyone should dispute them, I say it is the standpoint of an Irishman not to dispute them but to insist upon them—the facts are there, that the component parts of the community of nations which is described in one part of the Treaty as the British Commonwealth of Nations— the status of these different component parts is this, that they are with regard to each other in a position of complete equality, and also with regard to each of them to itself —each of them is a sovereign State in its own domain; and if it fell upon me, supposing this Treaty to be ratified in future, to declare the terms, to declare the manner in which these provisions ought be and must be interpreted and applied, I should say beforehand—taking the standpoint of an Irishman, and not regarding myself as an Attorney-General for the British Government —I should claim on the facts, and not on some antiquated theory, for Ireland's equality of status with all the other members of that community and for the right of complete national sovereignty in our domain; and I would hold that every provision, every article, every term, every word of that Treaty should be understood subject to these principles; and I believe that in placing that construction upon the Treaty we should have the support—if not of Imperialists in Great Britain—we should certainly have the support of South Africa, Canada, Australia, and New Zealand, for it is to their selfish interest that that construction, and that construction only, should be placed upon these terms; and I would bear in mind that the status of Canada has been declared in what now amounts to a constitutional definition—the status of Canada has been declared to include the right of secession.
Those were the arguments that were used to the Dáil as to who would formulate and decide upon the articles which were to constitute the Constitution. A month or two later writing to myself as Secretary to the Irish Labour Party and Trade Union Congress, Mr. Arthur Griffith, in his capacity as head of the Republican Government after the Treaty had been signed and approved, replied to a letter I had written to him conveying a decision of the Irish Trade Union Congress in these words:
The opinion of the Congress, strongly held, is that before any Constitution for Ireland can command the allegiance of the people it must be submitted to a thorough discussion by an Assembly in which all parties have had an opportunity to secure representation.
Mr. Griffith concluded his reply to that by stating:
As for the Constitution, this will be placed by us before the electors. The candidates returned at the election will act as a Constituent Assembly to pass and prescribe the Constitution. This Assembly will be a sovereign body, and no one recognises more clearly than I that it is not for us to bind or diminish its sovereignty in advance. Clearly, an Assembly empowered to pass and prescribe the Constitution has also title to pass and prescribe it in the form most agreeable to itself.
On the other side of the water, while these discussions were taking place, the Premier, Mr. Lloyd George, on the 14th December, 1921, said, dealing with the question of the machinery for transferring governmental power from Britain to Ireland:
With regard to the permanent arrangements, these must be formulated by the Irish representatives themselves. Here we are going to follow the example which has been set in the granting of every Constitution throughout the Empire. The Constitution is drafted and decided by the Dominion, the Imperial Parliament taking such steps as may be necessary to legalise the position. Any proposal in contravention of this agreement will beultra vires, The position of the Crown must therefore be assured. Relationship to the Empire must be established, the rights of Ulster safeguarded, and likewise provisions for the protection of religious minorities must be incorporated. Within these limits, Ireland herself determines the Constitution of her own Government.
Senator Douglas referred on the last occasion of our meeting to the Committee which, at the request of the Provisional Government, had formulated the Constitution, having regard to the Treaty and its requirements, and no doubt having in mind what people on both sides of the water had said about the Treaty. That Committee formulated a Constitution which, I am quite certain, assured the position of the Crown, assured the establishment of the relationship to the Empire, that the rights of Ulster were safeguarded, and that religious minorities were protected. Those are the conditions which Mr. Lloyd George, as Prime Minister of Britain said having been secured and made right, the rest was absolutely within the powers of the Irish Assembly. Note what Mr. Lloyd George said about following the example which had been set in the granting of every Constitution throughout the Empire. Lord Bryce on the following day, the 15th December, said in the House of Lords:
The process to be followed will be that the new Constitution will be drafted by Irishmen in Ireland, by those in fact with whom we have made the so-called Treaty. That was the process which was followed in the case of Canada and Australia. The Canadian Constitution was drafted by a Committee of Canadian Statesmen in conjunction with the Colonial Office, and was then enacted by us by the Act of 1867. Similarly, after much longer discussion, the Constitution of the Commonwealth of Australia, prepared by two Conventions which sat there, was ultimately enacted in this House by the Statute of 1900.
Lord Curzon, on the 14th December similarly told the House of Lords:—
The first duty of this Provisional Government, when it is instituted, will be to draw up the new Constitution within the lines laid down by the Articles of Agreement. The Constitution will be limited by these boundaries; it will not fall short of them. Now in drawing up that final Constitution....
The Marquess of Salisbury: Does the Noble Marquess say that the Constitution will be drawn up by the Irish Provisional Government and not by the Government here?
Lord Curzon: Yes. The draft, at any rate, will be drawn up by the Provisional Government that is set up.
While we note a conflict even at that early stage as to the interpretation of the Treaty and as to the understandings that had been arrived at between the parties to the Treaty, we come to the Constitution draft prepared by the Committee which had been set up by the Provisional Government, a Committee which, let us bear in mind and never forget, was composed probably of the most expert and authoritative people that could be found in this country, one of whom has been, for some years, the Chief Justice, two others, judges who are now on the Bench, Senator Douglas, and a Secretariat which was exceptionally able in such matters. That Committee drew up a Constitution within the limits of the Treaty, containing all the safeguards that were required by Mr. Lloyd George, and undoubtedly, I make bold to say, satisfying the requirements of the Treaty as it might have been interpreted by any impartial or reasonable interpreter.
Circumstances developed after the signing of the Treaty, which made the position of the backers of that draft Constitution very difficult. They were the beginnings of a civil war, resistance to the Treaty was showing itself in many forms, a very large proportion of those who had been associated with the Republican movement violently dissented from the Treaty, and prepared themselves to resist it by force of arms; and it was under these circumstances that the Constitution as drafted in accordance with the terms of the Treaty by the Constitution Committee was submitted to the British Ministry. Why it was submitted to them, I do not know. But no doubt their position was a very difficult one. On the 21st September, 1922, during the Second Reading of the Constitution proposals Mr. Kevin O'Higgins said:
I hold that we would not have been acting up to our full duties or acting up to our full responsibilities if we placed this country in a position where there was even a chance of the Treaty being lost if we could help it.
There was a chance of the Treaty being lost if the Provisional Government had insisted upon the Treaty being interpreted in the way that had been promised, in the way that the Constitution Committee had decided was a legal interpretation, a reasonable interpretation, an Irish interpretation. I quote from the Dáil debates of the 21st September, 1922. Mr. Kevin O'Higgins said:
Try to remember that when we went across to London the Truce had been broken, grievously broken, frequently broken here. Try to remember that British soldiers and British ex-policemen who were covered by the terms of the amnesty that had been issued were being shot almost daily, almost as a matter of routine. Try to remember that certain people differing from the majority in religion, and perhaps also, and I am not sure of that, even in political outlook, were driven from their homes and from their positions in greater numbers than I was aware of until quite recently; and do not let us say that because things happened elsewhere, that it was right they should happen in the territory over which we have theoretical jurisdiction. It is not right. And it was in that atmosphere and in these conditions, in which any day or any week might have brought back the British power, that we found ourselves in the position of having to produce for the country before the elections, a Constitution which it was agreed should be in its final form—a Constitution for which we were prepared absolutely to stand. The Constitution was discussed with the British representatives. I hold that we would not have been acting up to our full duties or acting up to our full responsibilities if we placed this country in a position where there was even a chance of the Treaty being lost if we could help it.
One can read into that very clearly that the draft Constitution prepared by a committee of eminent authorities in accordance with the Treaty was not satisfactory to the British Government. And they decided that new clauses should be inserted and that a different class of Constitution should be enacted. It was not the Constitution which was to emanate from the Irish people but a Constitution which was to be built up upon a skeleton no doubt prepared by the Constitution Committee but containing provisions which the Constitution Committee would never have agreed to put in, and I am tempted to think that it is that agreement that is held to be sacred, not the Treaty but the agreement between the two Governments which said that this was the Constitution that they were going to enact and the Constitution that they had agreed to. I want to know from the following speakers if anybody can speak on behalf of those who formulated that Constitution or agreed to that formulation, whether that is the agreement which is now held to be sacred and inviolable.
The question has been raised as to the position of the Constitution in relation to British legislation; as to whether it clearly gives the Oireachtas of the Irish Free State when established the powers that we claimed, and which we believe this country is entitled to. Quite appropriate to this comes the letter with which Senator Douglas is familiar. On the publication of the Constitution, which, as I have indicated, was promised to be laid before the electors and which was published on the morning of the election as a broadsheet supplement to theFreeman's Journal, that Constitution was the subject of a letter in The Times by Professor Berriedale Keith. Berriedale Keith has been a very useful authority in this country in his frequent comments upon the powers and authority of the Irish Free State legislature. He said in the course of that letter: “The Constitution vests legislative power in the Irish Parliament but it is ineffective as it stands to exclude the predominance of Imperial legislation and the application of the Colonial Laws Validity Act, 1865, which applies to all British possessions abroad save where specially excluded. It will be necessary to confer sole and exclusive power on the Irish Parliament; the Imperial Act approving the Constitution will then operate as a renunciation of Imperial legislative supremacy.”
That is the view of Professor Berriedale Keith, but the phrase "sole and exclusive power" did not appear in the final Constitution as drafted and the purpose of Professor Berriedale Keith's language in that particular paragraph has not been recognised, certainly by British authority until within the last year or so, if even now. If this "sole and exclusive authority" is assumed to have been granted to the Free State Parliament, can it be said that the powers of the Irish Parliament are being wrongly exercised in passing this Bill? I look upon Article 4 of the Treaty in this way: That is the Article which prescribes the form of oath. The Treaty arose out of two situations—the setting up of the revolutionary Government, the Republic of Ireland on the one hand, and the passing of the Government of Ireland, Act, 1920, following the Government of Ireland Act, 1914, on the other hand. Parliament was to be set up with power under the Treaty, Article 1, provided that its relationship to the Imperial Parliament and Government should be that of the Dominion of Canada and the other British Dominions. Then the question arose as to what was to be the form of oath. Was it to be a Republican Oath? The Parliament which had been established under the revolutionary Government had had an Oath, the Oath of loyalty to the Republic. The Parliament which had been established under the Government of Ireland Act, 1920, had an oath of allegiance to the King. The Government of Ireland Act, Section 18, sub-section (2) reads as follows: "The law for the time being in force relating to the qualification of the members of the Commons House of Parliament of the United Kingdom and the taking of any oath required to be taken by a member of that House shall, save as otherwise provided by this Act, apply to the members of the Senate and the House of Commons of Southern Ireland, and the members of the Senate and members of the House of Commons of Northern Ireland."
That sub-section was included in the Government of Ireland Act amongst a series of sections relating to the qualification of members and so on of the several Houses of Parliament, and when we read that the Oath to be taken by the members of the Parliament "shall be in the following form," I read that to be not in the form of loyalty to the Republic, not in the form of allegiance as enacted in the British statutes, but in the form set out; that if the people of Ireland and the representatives of Ireland, in making a Constitution, were prepared to include amongst the qualifications of the members of Parliament those who had taken a particular form of Oath, then the form to be taken was prescribed. That must have been in the view of Senator Douglas and the Constitution Committee because they assumed that the form of Oath, as he said last week, would be prescribed in the Standing Orders of Parliament, and, obviously, if anything could be called domestic and internal it is the requirement as to the qualifications of the members of Parliament.
I said that a great deal depended upon whether the alleged breach of the Treaty or agreement was in relation to the Treaty signed on December 6th, 1921, or some subsequent agreement, and I took a note of the definition of what is a treaty, repeated twice in the Dáil by Deputy Finlay. I do not know to what degree Deputy Finlay is an authority on constitutional law, but I think probably he is as good an authority as there is in that House. It would be a good thing to know if this definition is in accord with the accepted doctrine on constitutional matters. Speaking on the Second Reading debate on this Bill in the Dáil, Deputy Finlay said, as reported, cols. 831/832 of the Debates for April 28th, 1932: "Any contract or agreement between two States or countries, irrespective of the form, is a treaty and is binding on both the contracting countries until they mutually agree to rescind or vary it, and cannot be rescinded or varied by the action of one party without the consent of the other..." And on the Report Stage of this Bill, on the 19th May, as reported in col. 2066 of the Dáil Debates, Deputy Finlay said:
That a Treaty is a contract between two States not depending on its mere form but de pending on its substance by which the two contracting States are bound ...the fact that one of the contracting States at the time the treaty was entered into was not a recognised Government did not convert the document which they executed into anything but a treaty. You had here in 1921 functioning in this country ade facto Government which claimed international recognition; that they went forward and negotiated this Treaty and a Treaty it became when approved by the people of both countries.
If that is a fair interpretation of what is a treaty, I presume that Deputy Finlay meant it to cover these subsequent agreements which Senators Brown and Douglas last week referred to when they said: "It was incumbent upon the partners in the British Commonwealth to confer and negotiate before they made any alteration in the law as regarded matters of common concern."