I beg to move as an amendment to insert after Article 44 the following Article:—
"The laws of the Parliament/Oireachtas shall, save where otherwise provided in any Act, be in force throughout the territory and the territorial waters of the Free State/Saorstát Eireann, and all ships registered in the Free State/Saorstát Eireann; and, save where expressly so provided in any Act, they shall be binding on Irish citizens, when beyond the limits of the Free State/Saorstát Eireann, or on ships not registered in the Free State/Saorstát Eireann."
I had expected that an amendment dealing somewhat with this point, which I first moved when the Bill was in Committee, would have found its way in among the amendments now before us on the Report stage. It was argued against the previous amendment that it was not necessary, inasmuch as its insertion would be redundant, since the subject matter was covered by an earlier amendment. Had I shared that view I would not have proposed the amendment. It certainly cannot be said that the subject matter of this amendment has been met or covered by an earlier amendment; yet I suggest that the subject matter is one that should be embodied in the Constitution. The subject is one that it is not very easy to make clear in such a body as this, inasmuch as it deals with the very vexed aspect of international law. It deals with what is known as extra territoriality, and it is quite possible that that may become a very vexed question. Indeed, it has become a very vexed question in Canada, where Canadian citizens, once they leave Canadian territory, leave the influence and authority of Canadian laws behind them. I have a letter from Professor Berriedale Keith dealing with the matter, and he gives a number of instances where it is proved that Canadian citizens have gone into the United States to evade the Canadian marriage laws, and on returning after a marriage that would have been considered as bigamous, they nevertheless claim the protection of the Canadian law, and receive that protection. This question of extra territorial legislation is a very vexed one, and one that it is not easy to make clear in this Dáil; it is not easy to draft an Article for it at all, as I stated clearly in this Dáil when this Bill was in Committee, and for that reason I asked Professor Berriedale Keith if he would be good enough to help me to draft an Article such as I would be able to propose, and the Article here is one that he himself has drafted. I have his permission to make a quotation from his letter. He says, "The precise wording can be manipulated to suit the terminology of your draft generally, but you should, I think, make clear the three essential points:—(1) the Laws of the Parliament shall normally throughout the territory of the Irish Free State, include the territorial waters. There has been a good deal of discussion—most of it fruitless, as to the real status of the territorial waters of the Dominions, e.g., Canada, and you should prevent any possibility of doubt in the case of Ireland by mentioning these waters expressly. The extent of these waters you cannot well define as the matter is one for international law to decide. (2) The Laws of the Free State should apply to the full extent to every ship registered in the Free State, wherever that ship may happen to be. Otherwise, the law applicable would probably be held by the British Courts to be English law, though the point is not without doubt. (3) The Parliament should have power when it desires to bind Irish citizens even beyond territorial waters, and when on non-Irish ships. To take a simple example—it should be possible to punish an Irishman who, e.g., marries a second wife in the lifetime of his first wife. Such powers, of course, should be exercised sparingly, both because of considerations of international law and of the disadvantage of imposing penalties on things which may not be criminal by the law of the place where the person acting is resident, but the powers plainly necessary for the discipline forces or aeroplanes beyond the territorial limits of the Free State, and soforth. Irish laws, however, should have such effect only when expressly inactive in this sense.”
All these matters, unless power is taken in the Constitution already, will be excluded. We had the Latin tag quoted yesterday, that if you mention one thing you may exclude another, but if we do not include this in the Constitution, we exclude it, and what happens actually in that case is, that the laws of the Irish Free State will not be binding upon any Irish citizen, except that he is in the territory of Ireland, and the law that will bind him outside Irish territory will be English law and not Irish, and inasmuch we desire that with respect to the legislation of Oireachtas we should hold co-equality with the other nations, it is necessary that the law binding upon Irish citizens in its full force and effect should be Irish law and not English law.