Dáil Éireann díospóireacht -
Wednesday, 11 Feb 1925

Vol. 10 No. 2

PRIVATE BILLS FOR DIVORCE.

The PRESIDENT

I move:—

Go n-iarrtar ar Chó-Choiste namBuan-Orduithe a bhaineas le Gnó-Príobháideach Buan-Orduithe breisedo chur isteach chun regleáil dodhéanamh ar an nós-imeachta a lean- far maidir le Billí Príobháideacha a bhaineas le cúrsaí Pósa agus nách Billí Eadarscara a vinculo matri- monii iad, agus atharuithe ar na Buan-Orduithe do thairisgint, pé atharuithe a chuirfidh cose le Billí Eadarscara a vinculo matrimonii do thabhairt isteach.

That the Joint Committee on Standing Orders relative to Private Business be requested to submit additional Standing Orders regulating the procedure to be adopted in con nection with Private Bills relating to Matrimonial matters other than Bills of Divorce a vinculo matrimonii, and to propose such alterations in the Standing Orders as will prevent the introduction of Bills of Divorce a vinculo matrimonii.

In moving the motion before the House it is necessary that I should examine to some extent the history of the subject, both in this country and in England, and explain the present position in the Saorstát. This has already been done to a very considerable extent in the careful report of the Joint Committee on Standing Orders dealing with this matter.

In England prior to the year 1857 the Courts had no power to dissolve the Sacrament of Marriage. The Ecclesiastical Courts, as then existing, had a limited jurisdiction in connection with matrimonial matters. They could grant decrees for divorce a mensa et thoro, and give declarations of nullity of marriage on the grounds of impotence in one or other of the parties, existing at the date of the marriage. The Courts had certain other powers in connection with matrimonial matters, such as the granting of Orders for the restitution of conjugal rights, to which it is not necessary for me to refer. A decree for divorce a mensa et thoro was merely a decree for separation from bed and board. It did not dissolve the bond of matrimony, and did not entitle persons so separated to re-marry. The only way in which the bond of matrimony could be dissolved was by Act of Parliament, and a great many Acts of this nature were, in fact, passed.

In 1857 a statute was passed known as the Matrimonial Cause Act, 1857. which applied only to England. It established a Court known as the Court for Divorce and Matrimonial Causes, and transferred to that Court the jurisdiction previously exercised by the Ecclesiastical Courts in respect of divorce a mensa et thoro, and other matrimonial causes. It further gave the new Court jurisdiction on the grounds mentioned in the Act, to pronounce a decree declaring the marriage to be dissolved, and gave power to the Court to make provision in its decree with respect to the custody, maintenance and education of the children of the marriage, and with respect to the settlement of property, for the benefit of the innocent party and of the children. This Act obviated in England all necessity for having recourse to Parliament in matrimonial causes.

The Ecclesiastical Courts continued to function in Ireland until the year 1870, when the Matrimonial Causes Marriage Law (Ireland) Amendment Act, 1870, was passed. That Act established a new court for Ireland, known as the Court for Matrimonial Causes and Matters, and transferred to that Court the jurisdiction then vested in the Ecclesiastical Courts in respect of divorce, a mensa et thoro, suits of nullity of marriage, and other matrimonial matters. It did not in any way enlarge the pre-existing jurisdiction of the Ecclesiastical Courts, but, on the contrary, provided that the new court should proceed to act and give relief on principles and rules which should be as nearly as possible conformable to the principles and rules on which the Ecclesiastical Courts had theretofore acted, and given relief. That jurisdiction was subsequently transferred to the King's Bench Division (Probate and Matrimonial) of the High Court of Justice in Ireland, and is now vested, so far as the Saorstát is concerned, in the High Court set up by the Courts of Justice Act, 1924.

As I stated before, the jurisdiction of the Ecclesiastical Courts was not in any way enlarged, and the courts in Ireland had no power to grant a decree for divorce a vinculo matrimonii, or, in other words, to dissolve the bond of matrimony, nor had it power to make any orders in connection with the settlement of property, or in respect of the maintenance, education and custody of children save in so far as the children were made wards of court. Persons desiring a divorce a vinculo matrimonii, or relief with reference to property or custody of children were compelled to promote a private Bill in Parliament. Such Bills were passed in the Irish Parliament down to the Act of Union, and subsequently in the Parliament at Westminster down to the establishment of the Saorstát. The Standing Orders of the British Parliament dealing with divorce provided that before such a Bill could be presented the person claiming such relief should have proved his right thereto in court, and obtained from the court a decree of divorce a mensa et thoro.

At the present time there are no Standing Orders in the Saorstát relating to matrimonial matters. This does not prevent the introduction of Private Bills dealing with such matters. On the contrary, it leaves it open to persons to introduce such Bills without complying with the formalities and safeguards which such Standing Orders would require. It is, therefore, essential that Standing Orders on this subject should be prepared. In order to enable the Joint Committee satisfactorily to prepare the necessary Standing Orders, it is necessary that the House should come to a decision on the question of divorce a vinculo matrimonii. On this subject there are different points of view, but I have no doubt but that I am right in saying that the majority of people of this country regard the bond of marriage as a sacramental bond which is incapable of being dissolved. I personally hold this view. I consider that the whole fabric of our social organisation is based upon the sanctity of the marriage bond and that anything that tends to weaken the binding efficacy of that bond to that extent strikes at the root of our social life. For these reasons I move the motion in the form in which it appears upon the Orders of the Day.

It may be that in the future, and possibly the near future, legislation may be introduced to confer upon the Courts jurisdiction when granting decrees of divorce a mensa et thoro, to make provision for the children of the marriage and in respect of property. Such legislation would probably have the effect of relieving the Oireachtas of all matrimonial business, but it would not obviate the necessity for some Standing Orders to provide for cases in which such decrees are given from the date of the establishment of the Saorstát down to the date when such legislation may come into effect.

A well-known periodical recently stated that:—"A Joint Committee of the Seanad and Dáil was set up to advise what facilities should be granted for divorce, and failed to agree on any recommendation." The Joint Committee which made the report was not a committee set up specially to consider divorce, but is the Joint Committee on Standing Orders (Private Business). This committee did not set out to consider what facilities should be granted for divorce. The object which they had in view was to put the issue as to divorce in as concrete a form as possible before both Houses— distinguishing types of Private Bills, coming under the title of Bills for Matrimonial Matters, and for which Standing Orders would be required; setting out the history and state of the law with regard to such Bills in Great Britain and Ireland, both before the Treaty and since, and finally asking a definite decision as to whether the introduction of Bills of divorce a vinculo matrimonii was to be permitted.

Professor THRIFT

I rise with very great reluctance indeed to speak on this motion, but I feel it a personal duty to express my own views about it. Further, at a meeting yesterday, at which some Independent members came together to talk over the matter, it was decided that one of them should express the views of those members, and, unfortunately, the lot fell upon me. I feel the responsibility attaching to that, and can only set against it, if I may take that position, that there will certainly be more consideration paid to what I say than if I were expressing my own feelings. Personally, with reference to the actual question of divorce. I would like to make my own feelings quite clear. I would personally hold, I think, just as strong views as the President as to the sanctity of marriage, and my own inclination would, undoubtedly, go against the setting up of any facilities to obtain divorce, but there are very hard cases, and I do not feel that in a matter of conscience of that kind it would be permissible for me personally to say what view other persons ought to take on that question of divorce. As I have said, my inclinations are in favour of the motion, but we feel—certainly I feel—that this motion opens up wider questions.

I have the greatest reluctance to utter any word in this House which can be interpreted as having anything of a religious character, but I fear I cannot avoid saying that I regard this motion as one which will have the effect of imposing on the whole population the religious views, in respect of divorce, of the majority of the population. I have often said in this House, and I have a strong conviction that fair treatment of all sections of the community was the wish and aim and actual action of the present Government. I may, perhaps, be allowed to say, expressing my own opinion for what it is worth, that I think they have acted up to the words, which I may be allowed to quote, of Arthur Griffith. They were great words. He was referring to his action in discussing with those who were then called "Southern Unionists" a solution of the problems that were then before them. I might make a long quotation, but I will content myself with quoting a few words from that speech. Probably members of the House will recollect it. It was made when the Dáil of that time was debating the Treaty in January, 1922. He said:—"If we are to start as an Irish Nation, we want to start on these lines of obliterating all that kept us apart before. If we are to have different parties in the Irish nation we do not want those parties ranged on the lines of pro-English versus pro-Irish. We want them ranged on national lines, and the person who thinks that you can make an Irish nation, and make it successfully function, with eight hundred thousand of our countrymen in the North up against us and four hundred thousand of our countrymen in the South opposed to us, is living in a fool's paradise. You want every Irishman in this Irish nation. You want all of them, and the way we are going to get them is to ensure for them absolute justice and fair play in the Irish nation." These were great words. I believe that the Government have endeavoured to act up to them.

I would like to supplement them by recalling to the minds of Deputies words which they probably read only last week in a speech delivered by the Most Rev. Archbishop O'Donnell, a speech for which I have nothing but admiration. I will ask the House to pardon me if I make two quotations from that speech. They are worth quoting. "Love of Ireland is not the perquisite of any one section of Irishmen. It is a universal possession among them. By Ireland I mean the people even more than the island. Governments have special obligations to protect the rights of minorities within their borders. That obligation holds in respect of the sparse minority in the twenty-six counties, and it holds similarly in respect of a large minority in the six counties. It is the duty of the Government in both parts of the country to see that the minority has fair play in education, local government, and public life." Whilst I have believed, and I hope to continue to believe, that the Government desire to carry these principles into effect, I cannot but feel that in this motion I see the first sign, I will not say that it is a prelude to others, of what is not fair play to all sections of the community. It is imposing on a section, in a way which I contend is not permissible, the views of the majority of the population. By our presence here since the Dáil met, having accepted the Treaty, I think we have shown that we have accepted to the full the principle that majority rule must prevail in all matters, civil and political. Into the extension of that principle to matters, whether appertaining to matters of religion or the rights of conscience, I cannot go.

I take my stand in all such matters, wherever a matter of conscience comes in, and I think Independent members wish me to say so on their behalf, that on such matters an individual cannot submit to control by the majority, but must obey the dictates of his own conscience. In this case, that conscience of the majority proposes that divorce is not to be allowed in any circumstances whatever. I admit that, but I say you cannot extend that and say that that feeling, as a matter of conscience on the part of the majority, has any effect whatever upon the conscience of any individual of the Saorstát. So far as my own conscience goes, I believe that I would have just as strong feeling as the President on this matter, but whether I would have that, or whether he would have that, or whether every person but one in the Saorstát would have that, I say that it would not interfere in the slightest with the conscience of a single individual living in the Saorstát. I do not think that we can be too strong on that point. It is one of the essential principles of our Constitution—I will quote from Article 8, which, I think I cannot be too strong in referring to —that freedom of conscience and the free profession and practice of religion are guaranteed to every citizen. It has been the case in the past that those whose conscience permitted them to take advantage of such privileges as there were, were able to do so by a certain bye-law in accordance with the civil law and were able, in a perfectly legal way, to obtain power to re-marry. I do not want to discuss the question as to whether that is right or wrong, but, I say that if we pass any motion which will remove that privilege from the power of any person whose conscience will permit him to do that, we are encroaching on his rights as a citizen. I wish to lay my principal stress on liberty of thought and independence of conscience. I think it is also a matter for consideration what the effect of this motion will be, if it is passed.

I cannot pretend to put before the Dáil all the facts, but I would like certainly to mention some of them. One would be that if a man is rich enough, if he is a citizen of the Free State, if he considers himself entitled to divorce according to his own conscience, he will be able to leave the Free State, set up or obtain a domicile elsewhere and, after a certain short time has elapsed, he will be able to secure divorce outside the boundaries of the Free State. The first point in that connection that would occur to me is this: that we are putting outside the sphere of action of the Free State the determination as to what such a person ought or ought not be permitted to do. All he has to do is to go and live outside the Free State, put himself under the control of someone else, and, if his conscience allows him, get a divorce. That is to say, we are leaving it to other people to settle as to whether a person of this State is or is not entitled to the divorce he claims. Supposing he does domicile himself elsewhere and obtains a divorce, if he ever returns to this State as an unmarried man, or if he marries abroad and returns as a married man, has it been considered what his position will be and also that of his children, if any? How would that marriage abroad stand in relation to the laws of the Free State? I think very grave legal questions will arise if this motion is passed into law. Further, the fact that a man can go and obtain a domicile abroad puts him into a different position from that of a woman. An aggrieved woman could not obtain a domicile abroad without her husband's consent, so that she would be put under a disability as compared with the man. A man will have to have plenty of money, but, if he had enough of money, he could do what I have stated. A woman could not do so, as, without the husband's consent, she would not be able to domicile herself abroad. I contend that is putting one citizen in an unfavourable position as compared with another.

The passing of this motion will raise up one more barrier against a possible union between the north of Ireland and the south of Ireland, not because, I believe, they are more disposed to divorce than we are—as I am glad to say there are very few cases of divorce in Ireland. There are, however, a few, and it is not really a question of divorce or not. It is a question as to whether the passing of this motion will, or will not, leave the individual the liberty of conscience which our Constitution gives. I have spoken with the feeling that a strong protest against this motion was necessary. Whether that protest will have any effect or not I cannot say. Even at this stage, I hope the President will see sufficient force in the arguments I have put before the Dáil to, at any rate, reconsider this matter, which I regard as an exceedingly grave one, and fraught with very serious consequences to the freedom of the individual in this State.

Mr. WOLFE

Although I do not worship at the same altar as the majority—I believe I belong to the same denomination as Deputy Thrift—the late Established Church here—I hold with the majority of my fellow-countrymen that the tie of marriage should be considered more than a legal one, as binding, and as meaning something higher. Deputy Thrift stated that there are very few dissolutions of marriage in this country. To a great extent I put that down to the fact that there have not been facilities for getting divorce. In other words, the difficulty of getting a Bill through Parliament was so great that many people who would have sought divorce thought better of it, made up their differences, and the cases were not brought before the public, thus saving a great deal of scandal and unpleasantness.

In other countries divorce is only too common, such as in England or America, where the result has been to loosen the tie of marriage. In England, before the law with regard to marriage had become as loose as it is at present, applications for dissolution of marriage were not a tithe of what they are now. In many cases, since the war, they have had to put on extra judges to hear an accumulation of scandals that come before the courts. America is even a worse example. In different States there are different laws, one possibly looser than the other, giving facilities for the dissolution of marriage.

In my opinion that can have nothing but the most deleterious effect on the social and, I might say, the economic life of any country in which looseness of the marriage tie prevails. Deputy Thrift says it is a curbing of freedom to prevent people having facilities to get divorce in this country. I say that freedom may degenerate into licence. I am not one of those who, although I recognise the hardness of many cases, would, for two or three cases, subject the country to a looseness of the marriage tie, which, after all, is a national safeguard. It concerns not only the present generation but future generations and their status. I, certainly, will not vote for any law that would loosen the marriage tie. Let us look at England. There we see hundreds and thousands of those cases going on and ever increasing, whereas in Ireland such a thing is practically unknown. We may take it that it is the giving of facilities for loosening the marriage tie which has increased the demand for dissolution of marriage. I will never give a hand in that. Ireland has been almost completely free from anything of this sort. We have still got the power of judicial separation, which is what is ordinarily meant by divorce in this country and that, I think, is sufficient for anyone who holds anything approaching Christian principles Of course, I recognise that there are extremely hard cases of habitual drunkenness, of insanity and of physical incapacity and I have always held that in a case of that kind the marriage per se ought to be annulled. It is not a legal marriage. Where it is shown clearly that these three incapacities existed before marriage, and that after marriage those incapacities or defects were hereditary, the marriage should be dissolved, but for no other reason. I hold that marriage is a sacrament and should be held as such, and that no accident or disease that may occur after marriage should be used as a means to dissolve what is meant for life and should be held for life. When a marriage takes place it is for better or for worse. It seems to me that in many countries that is not held. I hope it will never be the same in this country. If it should be, I hold the country will go down just as those other countries have.

There are certain legal questions that have to be settled, which might be held as a nullification of marriage, but that is another question. The question of children, and all that sort of thing, are matters that can be settled by the law. The question before us is the question of dissolution of marriage, which I hold to be sacred, and which cannot be dissolved. As I said before, I hope that will never be the case in this country. Deputy Thrift says that if we adopt this resolution, the North will never come in. He assumes that the people of the North as a body are in favour of divorce.

Professor THRIFT

No.

Mr. WOLFE

Otherwise I do not see what the Deputy's argument is. They will, he said, consider it as one more injustice. I think, from what I have seen of Northern people, that a big number of them are as much against divorce as we are, and I hold that it is not a matter that will prevent us from coming together. In any event, I think, notwithstanding what other countries may do, that we should do what we consider right and best, not only for the people here to-day, but for the generations that are to come. Marriage in this country should be held to be indissoluble, and I hope that will always be so, no matter what other countries may do.

Mr. JOHNSON

I suppose this question is for a layman or non-theologian about the most difficult question he could speak on. But I think it is necessary for me to say a word or two entirely for myself, and to say that I do not, on several grounds, agree with the arguments which Deputy Thrift put forward. I cannot understand the argument of conscience in this matter. We are in fact dealing with a state of things which means that there is no law at the present time in force in this country allowing for the dissolution of marriage. Deputy Thrift's argument, I think, really would be valid as an argument for the enactment of a divorce law, but it is hardly valid when he quotes conscience in a case where the question is to allow Bills for enactment to be brought into the Legislature.

The President has indicated the history of this question. He has shown— I think we are generally aware of it— that there is no law operating at present, which allows dissolution of marriage. It has been suggested that it should be made possible here as it has been possible hitherto for the Legislature to enact special laws to deal with separate contracts, each separate case to be dealt with on its merits, and a special enactment to be passed by Private Bill legislation to deal with those cases.

It is obvious that in the consideration of this question in that light, the only point is the legal contract—the contract that has been entered into between two parties of a legal, civil character. It is proposed to allow legislation to dissolve and abrogate that contract, and to make legal certain consequences of that contract. I am afraid I have to look with a little cynicism on this question, and I feel there can be no question of conscience in respect of a person being deprived of an opportunity to get a special Act passed for himself through the Legislature to annual what is to him a civil contract. That is not a question of conscience. Would the individual conscience not come into play, nay, to a very much greater degree would it not be more sincerely and honestly a matter of conscience to the persons who were asked to consent to that enactment being passed? Would the aggrieved person be benefited—would his conscience be in any way relieved if he were allowed to come to the Parliament of the nation and ask for a special enactment on his behalf and it was refused on the grounds of conscience? I cannot see that conscience comes in, and I cannot see that there is an abrogation or act contrary to Article 8 of the Constitution in the proposition of the President. I said I am afraid I had to be a little cynical in this matter, and I feel the issue is not a question of conscience, but a question of property and the inheritance of property. In matters relating to property rights, I am inclined very strongly to the view that the general will of the community has to prevail. Where you have 95 per cent. of the people of a clear opinion, and as against that perhaps .01 per cent. of the other 5 per cent. of the contrary opinion, the vast body of opinion of the community must prevail. We should not run the risk, for the sake of that .01 per cent. who may feel aggrieved, of alienating 95 per cent. If it were a question of conscience I would put .01 against 99 odd per cent., and let conscience stand against the world, but I say this is not a question of conscience at all. There is nothing in the law to prevent a man who has sought a divorce if he wishes to go and live with another woman, from going to live with her, only you do not legalise it, and you do not legalise the offspring. That is what is sought apparently by those who advocate the enlargement of the powers of divorce.

I want to raise an objection to this resolution on quite different grounds. I think it has been badly devised and I think it may have consequences which the President has not foreseen. If he has foreseen them, and despite that foresight proceeds with the resolution, I think he is going in a direction which he may have grounds to regret at a future time. It seems to me that if we adopt this resolution as it at present stands we are seeking by the resolution of one House of the Oireachtas to insert a prohibitory clause in the Constitution. We have not in the Constitution deprived the Oireachtas of the right to legislate on any matter in respect of matrimony. The President is now seeking that we shall pass a resolution instructing the officials of the Oireachtas to refuse to receive a Bill dealing with a legislative matter. Thereby I say we are tying our hands and depriving the Oireachtas of certain authority which it has under the Constitution. The procedure that is referred to in the motion deals with Standing Orders relating to private business, Private Bills relating to matrimony, but the distinction between Private and Public Bills is more a matter of convenience than anything else. They become Acts of the Oireachtas whether they have gone through the Private Bill procedure or the Public Bill procedure. We have adopted Standing Orders which say that every Bill promoted for the particular interests or benefit of any person shall be treated as a Private Bill. That is a matter of convenience for the Oireachtas and does not alter the character of the Bill when it becomes an Act. I think, you, sir, have laid it down publicly more than once that you would not rule whether a motion brought to the Dáil was within the Constitution or outside the Constitution. I think you have ruled rightly. That is not a matter for you to decide upon. What we are doing now, if we pass this motion in its present form is to say, not to the Ceann Comhairle, but to the Clerk, that he shall not receive the proposed enactments for consideration by the Oireachtas. You are placing it in the power of the Clerk or official to say: "This is a matter I will not present." We are tying our hands by this form of resolution in respect of what, so far as the Constitution goes, we have a perfect right to do—to deal with a matter of law relating to matrimony. It may be and I think is desirable that we should not make divorce easy or this complete divorce, spoken of, possible. I am quite prepared to support that proposition, but I am distinctly against a motion which deprives the Oireachtas of power to legislate in connection with any matter affecting the peace, order and good government of this country.

Let me illustrate the point in another way. It is within the knowledge of Deputies that when the Constitution was being considered, there were proposals made respecting water-power and the retention of water-power by the State; not to allow—to make constitutional provision against allowing— the leasing-out of water-power for any extended period to private companies.

That was not embodied in the Constitution. Supposing we were to pass a resolution saying to the officer who has to deal with Private Bills that he must not receive any Bill of a private nature that proposes to take over water-power, we would be doing, by resolution, what the Constitution refuses to insert. There is, in Article 11 a proposal regarding lands and waters and public rights—natural resources— and it winds up by saying: "provided no such lease or licence may be made over a term exceeding ninety-nine years." If the President's proposition is taken as a precedent, the Dáil or Seanad might pass a resolution instructing that no private measure exceeding in existence twenty-five years should be brought forward. It could not then come before the Dáil or Seanad. It would be amending the Constitution by means of a resolution of either House. That is a bad and a wrong course to adopt, and I am sure the majority of the Dáil would not like to see it brought into effect. To what I am saying it may be retorted that this proposal only deals with Private Bill legislation and that we are not depriving ourselves of the right or authority to deal with the law relating to matrimony by legislation. If that is suggested in reply to my criticism, I would suggest that we ought to insert in this motion some words to the effect that this would be without prejudice to the authority of the Oireachtas to legislate by the method of Public Bills in respect to any, or a particular, matter affecting peace, order or good government.

AN CEANN COMHAIRLE

This motion only purports to be an instruction to the Joint Committee. It is only the beginning of a series of actions which will result in a certain thing happening.

Mr. JOHNSON

But we are instructing the Joint Committee to propose such alterations in the Standing Orders as would prevent the introduction of certain legislation. We are instructing the Joint Committee to devise ways and means to tie our hands, deprive us of the rights the Constitution gives us, and deprive us also of the responsibility the Constitution imposes upon us.

AN CEANN COMHAIRLE

The concurrence of the Seanad will be required in order to have any instruction given to the Joint Committee. This matter will also be considered by the Seanad. The Joint Committee will only make Standing Orders; they cannot make anything else. They will make proposals for Standing Orders, and the proposed Standing Orders will be submitted to both Houses. If they are agreed to, then they will become our Standing Orders. The Standing Orders made in this matter will not tie our hands any more than the Standing Orders in regard to any other matters tie our hands. They can be cancelled or altered by resolution.

Mr. JOHNSON

I quite understand that; but, nevertheless, if we pass a resolution which instructs the Joint Committee to do certain things—in this case to prevent the introduction of certain legislation—I submit that, if the Dáil is of the same mind when that proposition comes back from the Joint Committee in effective form, we shall be bound to adopt those Standing Orders which will, in effect, amend the Constitution in a prohibitive way by means of a resolution of the House, or the Houses, if you like. I approve of the general purpose outlined in the President's motion, but I would rather that the rights of the citizen should be exercised, with the sure and certain expectation, if not hope, that any such Bill of Divorce would be inevitably defeated. I would take the risk of allowing the citizen who wanted to promote such a Bill to run that risk, rather than that we should, by a deliberate act, endeavour to prevent the Oireachtas from legislating on any matter within our competence.

Mr. BLYTHE

It seems to me that to talk of liberty of conscience in connection with this matter is, as has been indicated by other speakers, a misuse of terms. It does not help us to consider the matter to talk in any extreme language on the points we are dealing with. For my part, I would like to deal only with the social side of the question and to look upon the matter as a social problem. I think few people will deny that in modern times the extension of divorce facilities has become a great evil in many countries. It is clear, too, that where divorce facilities exist, there is a steady pressure for their extension; that is, a pressure which has failed to meet with success in few countries. On the other hand, I think it will be admitted that the extension of divorce facilities has not led to any social benefit or any greater happiness amongst people; it has really brought about unsettlement, instability and unhappiness. Leaving out the religious question altogether, I would be prepared, looking at the matter merely as a social question, to say that the State, legislating for good government and for prosperity and happiness amongst the people, ought to arrange that facilities for divorce would not exist. That might hit individuals hard, but it would be better that individuals should suffer than that greater suffering should fall upon the whole community. Any suffering that might fall upon individuals through failure to get divorce from the bonds of matrimony, as distinct from the limited type of divorce available, would not, in reality, be a serious matter. Deputy Thrift dealt with certain minor aspects of the effects of this resolution. I think the passing of the resolution will make very little change. It will not prevent anybody who would have got divorce before from getting divorce now.

I think it is certain that no Bill would be passed in the Dáil if the consciences of Deputies were opposed to it. I believe Deputies would be opposed to such a measure. They would vote against any Bill of that sort, and consequently no Bill would be passed. Even if such Bills were to be passed, we could not prevent the rich from seeking domicile outside the country, and getting divorces through courts elsewhere, if they felt that would be a cheaper and more satisfactory way than by getting it by means of a Bill in this House. I think the difficulties that Deputy Thrift anticipates will arise from this resolution, are no greater than the difficulties that would have arisen otherwise. I do not believe, as somebody has suggested, that this is going to make partition permanent. That is trying to lift the matter into a question of high politics— trying to make it a big political question, as distinct from a social or religious question, as it was looked upon before. I do not believe there is any great body of opinion in favour of it. I believe, as Deputy Johnson has pointed out, that there was no sort of constitutional right to divorce. Even if there were, it is, and can be, regarded by any Parliament as a social matter with which it is well within its competence to deal. I do not believe there is much in the point Deputy Johnson raised. It is better there should be no facilities for bringing in certain Bills than that people should be put to the expense of introducing Bills which are sure to be defeated. This resolution will avoid having people, perhaps in extreme cases, using all sorts of special efforts to get Bills through somehow. In the circumstances, I believe it is better to have this resolution, although there is a sort of general validity in the argument Deputy Johnson put forward.

Mr. JOHNSON

Will the Minister agree when certain amendments to the Constitution are being proposed, to make this rather a constitutional matter than a matter for the Standing Orders Committee?

Mr. BLYTHE

That could be considered then, but, in the meantime, I think it is most undesirable that people should be allowed to entertain a hope of getting a Bill passed when there is no chance of its being passed, and they should not be encouraged to incur expenses in bringing such measures forward.

Mr. O'HIGGINS

I have very little to say on this motion. As the seconder of the motion, I would like to put very briefly my own point of view with regard to it. It seems to me that it raises one issue only, and it raises that issue quite clearly, and that is whether or not this Dáil believes that it is within its competence to consider a Bill which purports to dissolve the marriage tie so that the parties will be free to re-marry. Now, as one member of the Dáil I do not believe that. I believe that the great majority of the Dáil does not believe that. I believe that if that is so, that it is a proper thing for the Dáil, by means of this resolution, or by some such means, to make that clear. To put it no higher, it is a saving of the time of the Oireachtas. It is better that we should spend some little time in discussion and consideration of a resolution like this than that Bills should be coming before the Dáil of a nature that the majority of the Dáil would believe that they were not competent to consider, and were not entitled to pass. I have been trying to visualise here while this discussion was proceeding what the position would be if we passed any such resolution, and if, in fact, Bills of divorce a vinculo matrimonii were to come before the Dáil. You would have one section of the Dáil discussing Bills of that kind on their merits, and taking it that the decision was to turn on an examination of the facts, and another section, as I believe the majority, holding the view that they were not entitled to consider cases of the kind on their merits at all, or entitled to advert to what the attendant facts were, but that they were in conscience debarred from the consideration of such a Bill. They would not hold that the Dáil was competent to dissolve marriage in a way that would leave the parties free to re-marry. Now, if I am right that there is in this present Dáil a majority of Deputies who hold the view that they are debarred from considering the merits of any such Bill or considering the facts of the case with which they purported to deal, then, I think it is much better that we should take a matter like this in the abstract by means of a resolution of this kind, rather than simply leave things alone and have a farce perpetrated from time to time. The issue is raised here, and Deputies who believe that we are in conscience excluded from considering Divorce Bills of the particular kind mentioned here, will have an opportunity of recording their views on the matter.

To act otherwise and to allow Bills of that kind to go before the Dáil, would seem to be open to the interpretation that the fate of any such Bill would be a matter of the merits of any particular case, and would turn upon the examination and investigation of the facts in a particular case. As I see it, with the majority of us that is not the position. Our view would be, simply, that this is a matter outside the competence of the Dáil, a matter that the majority of the Dáil would be excluded in conscience from considering. That issue comes up clearly in this resolution. I do not quite understand Deputy Johnson's point. It does seem to me that if the complexion of the Dáil were to alter, and if a Dáil were to come into existence containing a majority of members who did not feel that they were excluded from considering Bills of this kind on their merits, with advertence to the attendant facts and circumstances, all that would be required to meet that situation would be an alteration in the form of the Standing Orders.

Surely it is simply a commonsense matter, if this present Dáil contains a majority of members who feel that it is not merely a question of the merits of particular cases, but a question of conscience with them, and that they are not free to consider Bills of a particular nature, that it is better that the matter should be disposed of in the way in which the President proposes to dispose of it, by test on a resolution of this kind. We would then be saved the farce and anomaly of some members of the Dáil purporting to discuss a Bill on its merits, while others, probably the majority, would simply feel that, utterly apart from the facts or merits or circumstances of the case, there was a consideration which debarred them from supporting such a Bill.

Mr. DAVIN

Deputy Thrift, speaking, as he said, for the first time, I think, on behalf of a united independent party, made a very moving speech in opposition to this motion. I have no doubt that Deputy Thrift was speaking on behalf of people who have good and well-founded conscientious objections to this motion. But Deputy Thrift appears to overlook the fact that if unlimited facilities are given to people to loosen the bond of marriage, it is the people who have no conscience who will be in the majority in looking for such liberty and freedom, and not the very few that the Deputy, I have no doubt, speaks on behalf of. Deputies could make very moving appeals on behalf of their constituents, or any particular section of the community, or individuals who have conscientious objections to this, that or the other. I can imagine, for instance, a citizen foolishly thinking that his conscience compelled him to object to every law that is made in a Parliamentary institution of this kind. I could not imagine Deputy Thrift in a case of that kind coming forward and saying that he felt that the law should ignore and overlook a citizen of that type. I would rather he inclined to think that Deputy Thrift in a case of that kind would say that the individual concerned should take the consequences of his foolish thinking.

Perhaps I can regard myself as one who has rather an elastic conscience, but I feel in a matter of this kind that I can vote for the motion although the wording of it appears to be undesirable and such as may create a very undesirable precedent. From what I have read of divorce cases across the channel they appear to be brought by people who have no conscience of any kind. I feel, therefore, that we should not follow the example on the other side of the channel and create unlimited facilities for a section of the citizens who would follow in the footsteps of people in other countries.

Deputy Thrift made some serious statements—although the Minister for Finance appears to regard them as minor statements—with regard to the likely effects of the passing of this resolution. He indicated that its passing would, in his opinion, mean that there was going to be no unity with the Six Counties. I am not able to visualise the price which we may eventually be called upon to pay for the friendship and co-operation of the Six Counties, but I would rather not purchase that co-operation and friendship at the risk, as the Deputy's view would indicate, of national dishonour. Deputy Thrift correctly stated that there are many cases of hardship which would disappear if the law was loose enough. These cases of general hardship to which he refers are not peculiar to any section of the community. I would like that the young men and women of this country who are looking forward to marriage would look upon marriage as a journey, limited or unlimited, for which no return tickets are issued, and that when people decide, taking financial and other risks, to undertake that journey, they should undertake it at owner's-risk rate and conditions.

I did not intend to speak on this matter only that I rather inferred from the speech of Deputy Thrift that the passing of this resolution would convey to him the feeling that the majority of people who happen to hold certain religious views are trying to impose their views upon a minority, who are not in agreement with them. That is the very last thing I would like to be accused of doing. It is immaterial to me as an individual what altar a man worships at, and I would not, under any circumstances, like to be accused of imposing my religious views upon any other man, who might think fit to disagree with me. I hope that the Deputy has exaggerated his view as to the likely effect of the resolution, particularly as regards the Six Counties, as we all look forward in the near future to some kind of a working arrangement with the people there. I take to the inference in the Deputy's statement that by voting for this motion I would be endeavouring to force my religious views upon the people for whom he speaks.

Professor O'SULLIVAN

I wish to say one or two words in order to make my position quite clear, because of one issue that has been raised, namely, interference with the liberty of the individual. I had hoped that issue would not be raised, but as it has been raised, I wish to say a few words on it. As the Minister for Justice has pointed out, it is a question, not so much of the constitutional competence of this Dáil to pass legislation of this kind, as of the moral competence, so far as individual Deputies represent the moral conscience of the Dáil. I do not exaggerate when I put it this way. Constitutionally I presume it would be in the competence of the Dáil to pass legislation that all red-headed men should be beheaded, but I do not think it is within the moral competence of the Dáil to pass legislation of that kind. So far as I am expressing my own view, and the views not merely of my co-religionists, but, I believe, also of a large number of those that differ with me on this particular matter, I do not believe it is any more within the competence of the Dáil, or any government, or legislature, to pass legislation for the dissolution of the marriage tie than it is to pass legislation for the beheading of red-headed men. That is so far as the question of passing general laws legalising divorce is concerned. I do not think this Dáil can give to judges, by means of general laws, power that I do not believe this legislature morally has.

The other view of the question is a matter which this particular resolution tries to guard against. When an individual Bill of Divorce comes before this House, if you read one of these Bills you will see that if you and I take it upon us to vote for the Bill, then we, as members of the Dáil, declare that that particular bond of matrimony is dissolvable. Remember that we are not compelling others to do things that they think they are not to do. What is the argument that is now being used? Is it fair to persuade the majority of the Dáil to take on themselves responsibility for dissolving a particular marriage, say, between A and B? How a person who does not believe in divorce can take upon himself the responsibility of taking that step of dissolving a marriage, I cannot see, because remember that it is the individual who votes for it dissolves the marriage according to the form of the Bill. I think the one liberty that is in question is the liberty of conscience of the individual member of the Dáil. That is the reason I want to deal with that particular point. The general question has been dealt with by the Minister for Finance and other Ministers.

There is very little demand for this Bill. I would be sorry to think that there is any Article in the Constitution which prevents the Dáil from deciding what I believe to be one of the most fundamental questions as regards the moral future of the country. That there is an Article in the Constitution that would prevent the Dáil from dealing with an issue that affects the whole moral welfare of the country is a matter I do not believe. I do not believe that that is in the particular Article of the Constitution referred to by Deputy Thrift. Let me put it in another way. There may be some people who believe in polygamy. Does it follow because of that that the Dáil ought to legalise polygamy? There may be a certain number of people who believe that private property should not exist. Is it because a number of individuals believe in that that the Dáil should abolish private property? I do not think so. Remember that there is a very large number of people whose conscience makes them believe that divorce a vinculo matrimonii is simply a step, and if followed by subsequent re-marriage is polygamy. I do not think there is any Article in the Constitution which compels the Dáil to legalise polygamy.

Mr. ALTON

I had no intention of taking part in this discussion, and I do not speak with any pleasure on this subject. I can assure the Dáil that I am opposed to divorce, or rather to re-marriage. I have as strong views as any of my colleagues in the Dáil on the subject of the sanctity of marriage. Still, I hold that there are two voices on the Government side in supporting this motion. The Minister for Finance asked us to discuss it from the social aspect only. That I would gladly do as a matter of fact, and could speak at length on it. On the other hand, the Minister for Justice said that there was no use in discussing it from that point of view at all, because to the majority this was a matter of morals, of dogma, and conscience.

I am not going into the religious aspect of the matter—I do not like even to mention it—but I would like to stress the point that I think was at the back of Deputy Thrift's mind. There is for the majority of the citizens of the 26 Counties no possibility of the annulment of the sacrament of marriage, but for the very small minority who would choose to take advantage of it, there was the possibility of a dissolution of marriage a vinculo. Now, by this proposal of ours, it seems to me to be putting that small minority under a disability from which there is no escape. Sometimes, somehow, tragedies do occur, and I do not take it upon myself to judge in these matters, from the religious point of view, but I cannot help saying that the sacrament was not there, and that there was no real marriage. I do not wish to be taken as urging that a Bill for divorce should be brought in. I would make divorce difficult and almost impossible in this country, so convinced am I of the sanctity of marriage, and of the fact that the social fabric of the country is built up on the sanctity of marriage. I do not see from what point we are to discuss this motion. The Minister for Finance says it should be discussed from the social point of view.

Mr. BLYTHE

On a point of explanation, there were various speakers, but they had not spoken from the social point of view, and I said I wished to discuss it from that point of view.

Mr. ALTON

I am glad to hear that. I will take it from the social point of view. I hold that there is one chance in a million, one chance in 10 millions, that a case will arise in which it may be perfectly reasonable and conformable, at least to my conscience, that a divorce should be given. By this motion we are precluding ourselves from giving to the minority the opportunity of redress they at present possess.

Mr. GOREY

As a vote may be taken on this question, I want to give our point of view on these benches. We approach the matter from an absolutely disinterested standpoint. We are not personally interested. As I understand the position, we are no worse situated now than we were before the Constitution was drawn up, except that before the Treaty those who had plenty of money in this country could go to the British House of Lords and promote a Bill for divorce. That, to my mind, was a luxury for the very wealthy, and it did not reach the mass of the people Deputy Thrift has spoken about.

By allowing matrimonial Bills to come before this Dáil it would still be a luxury for the few. It would be no use at all for the mass of the people except you go so far as the English, or even so far as the American model. I do not want to treat this from the religious point of view, but from the purely civic point of view. Do we want the American model, I ask. We are unanimous that we do not want the American model, but if you start once on the road for divorce, who can give us a guarantee as to where we are going to end? America started on the road, and they are not ended even yet, and God knows, from our point of view, I think they might at least end at their present position. I think that when this thing does not affect most of the people, we should not introduce facilities for purely wealthy people alone. As I say, if you once start upon this road you do not know where you are going to end. It would destroy society absolutely. I believe it has destroyed society in America, where there is no sense of civic responsibility. I heard of a man who went through his eleventh marriage in America—one every month. He told a friend once that he would introduce him to one of his weddings some time. I say this is an evil from the civic point of view, and should not be encouraged, and I say that once you start on the road you do not know where you will end. You may end in the same fashion as the monkeys on the trees.

The PRESIDENT

I should like, if I may, to ask the Dáil to allow me to amend this motion by adding at the end of it the words "and that a Message be sent to the Seanad requesting its concurrence in this resolution."

AN CEANN COMHAIRLE

The President asks leave to add at the end of the resolution the words, "and that a Message be sent to the Seanad requesting its concurrence in this resolution."

Question put, and agreed to.

Question—"That the resolution, as amended, be agreed to"—put and declared carried.

AN CEANN COMHAIRLE

A Message will be sent to the Seanad accordingly.