I should like to begin by apologising to the Leader of the House for interrupting him when he was speaking. Normally I should have been in a more somnolent condition at this time of the day but his eloquence unfortunately disturbed me into the interruption which was disorderly, even though it was based on a correct view of the history which he was relating.
With regard to the matter which is our concern today, I should like to express the sense that, in so far as the removal of these sections of this Article of the Constitution is designed to remove an obstacle to the unity of Ireland and the unity of Irishmen— when speaking of unity I prefer to think more of the unity of Irishmen than of the unity of Ireland—we may have the wrong accused in the box. I would not be prepared to accept the view that the chief obstacle to the unity of Irishmen in this country is the influence of the Catholic Church, the Holy Catholic and Apostolic and Roman Church, or whatever way it is described in the Constitution. If that influence was greater than it is and has been over the last few years, there would have been less murder, less maiming and less arson. The only Protestants in this world which I dislike are the Protestants within the Irish Roman Catholic Church who take the doctrines they wish and the comforts they want and reject the disciplines they dislike and the moral precepts which they choose to regard as inapplicable.
If there is to be an accused in the dock as an obstacle to the attainment of the unity of Irishmen. I think that accused, if it is to be found in the form of an ideology, is not going to be found in any Christain form but in the form of the introverted, violent, extreme nationalism which is the expression of the majority here which is causing the disturbance, in so far as the majority here are causing the disturbance. I do not take a simplistic view of this historical and geographical problem—a problem, perhaps, which may not be solved simply by being defined. One of the things which people who concern themselves with political affairs should remind themselves of—and every politician in this House who has had to concern himself with political matters realises this also—is that there are in political affairs, as there are in biological circumstances, incurable diseases. There are problems which will not go away. There are cases which cannot be settled. You can only get something which approximates to a solution by breaking out into a new dimension of the terms in which the problem must be faced.
When we talk about the natural unity of Ireland I am not satisfied that we have sufficiently recognised the reality of the problem in these islands. Let me remind the House that geography is a very poor base on which to erect a political structure. We will not solve our problems here overall by a simple regard even to the context of the whole island of Ireland. This, perhaps viewed in larger terms, is a very big western European problem. What greater western European problem have we had since the civil war in Spain than that which now bedevils the two islands, Britain and Ireland? We have here to get a solution which will be expressed in terms which do not merely concern themselves with the problems of the people but the problems of our people in Britain and the British People in Ireland. When we debate a Bill of this kind which is directed towards the removal of a statement of fact, as Senator Ó Maoláin has properly said, that is, the special position of the Catholic Church, we cannot even begin to reach a solution of our problems until we take the overall view of our position.
With regard to that particular Article, the objection to it is the lack of generosity one never expects to find in a legal document. In the proposals for the Constitution in 1937, I remember resenting this and feeling that it seemed to imply that a Catholic Irishman had some right superior to that of a non-Roman Catholic Irishman.
Purely in terms of social relations I objected to it then. It was taken, of course, from the Napoleonic Concordat. Even if it is not established historically that it was expressly copied from it, the echoes of that Concordat were in the mind of some draftsman before it was finally drafted. That Concordat dealt with an entirely different situation from the Irish situation. Perhaps we should remind ourselves that the Napoleonic Concordat was made by a Catholic Church in France which was monarchical, aristocratic and loyalist in tradition with the Revolution, whereas the extraordinary and unique achievement of the Irish Catholics is that they were the first Catholics to become democratic. In European terms Daniel O'Connell was a very great man no matter what they may say about him in relation to his judgments in particular matters here. There was moved in 1973 out of the French situation into the Irish situation what was, and has been proved to have been, an unnecessary and offensive Article.
Historians will be interested in what the Leader of the House has said here today. It is interesting. If I understood what seemed to be implied in what he said in so far as he was directing himself to a discussion of the Articles it is now proposed to remove, he seemed to be saying this was put in because the Constitution would be easier to carry if it was put in. It was put in because the Church was not getting on so well with Fianna Fáil in 1973. As someone interested in historical matters that seems very important because Senator Ó Maoláin had direct evidence to give on that point.
It is good to see this Article being removed. I should like to join with other Senators who expressed the opinion that if we are proposing this amendment to the people let us see that it is carried. Nothing would be worse than if this amendment were put forward and rejected through lack of enthusiasm, through lack of understanding or through the type of fears which Senator O'Higgins expressed, and which I share, as to the possible consequences of its removal.
Let us look at this Article. It has given Ireland, to some extent, a had name. People have made the point that the Roman Catholic Church is not the established church of Ireland. It is true to say that the Church of England is the established church of England. It is important that we understand why that always seems to be such a weak debating point for anyone to make. We often hear it said: "They have got their established church, we have not got an established church and yet they are saying that they are more liberal than we are." The point is that what is established in England is the State in the Church, not the Church in the State. It is important to realise that. In so far as we have got a bad press out of this it is possible for people throughout the world to believe that in some way there has been unequal treatment meted out by our courts to people who do not belong to the church whose special position was recognised. I do not think there is any evidence whatever of that.
I have looked at the cases in which reference has been made to this Article. The position of charitable gift contemplaive orders was changed in 1943 by a decision of Judge Gavan Duffy who reversed the prevailing English law on the matter which had been enacted in 1871, which would have been the law in this country until 1943, not on the basis of this Article but on the basis of the Preamble to the Constitution. I believe his reversal of that decision was right but that is a view which I should have to develop further if it were relevant here.
In 1945 the only single case I found where there was an actual change of law affected by the dynamo of this Article was where the confession made to a priest was held, by Judge Gavan Duffy, to be entitled to the privilege of the courts, thus changing a whole trend of decisions. If that was not a decision open to him to reach on any other ground, it was a right decision for him to have reached on some ground and I believe that the Supreme Court now having held that it is entitled to reverse itself would have reversed the previous decisions on this matter. If it was a matter in any difficulty it should have been a matter of statute law.
The Tilson case is frequently referred to as having been brought about by the operation of this Article. This is not true. The Tilson case was not decided on the basis of Article 44. The Tilson case was decided by the Supreme Court, with Mr. Justice Black dissenting, on the basis of the rights of the parents, in the plural. The Supreme Court held that the constitutional expression of this entitled them to depart from what had been the previous law, that was that the father would determine the religion of the children.
There are views of lawyers, Catholic lawyers as well as non-Catholic lawyers, to the effect that that decision was not a right one on the fundamental ground that the promises of husbands and wives are not sealed with seals and sealing waxes and, therefore, are not to be enforceable in the courts. There is a fundamental institution involved in matrimony and private exchanges between the parties should not be cognisable in the law courts. The point I wish to make is that the famous Tilson case was not decided by virtue of this Article. In so far as any of these decisions are reached there is no question of treating Protestants or Catholics differently by virtue of it. It is of some importance to make that point clear.
In the other House there was reference to the Ne Temere decree and its operation prior to the recent changes. This is absolutely irrelevant to any discussion of the behaviour of the Irish State which has nothing whatever to do with Ne Temere unless it is to be invited to have a head on conflict with the church of the majority of the people and to rule this as being contrary to public policy and illegal. That is a major proposition, to say the least, be of it, and people who talk about Ne Temere in relation to the behaviour of the Irish State should, at least, be clear as to what they are requiring of the Irish State. They are requiring of the Irish State to take on the church of the majority of the people, fight it and without necessarily having any great conviction that it was right in doing so. At any rate, it is not a matter that is in any way dependent upon the decision of the politicians.
With regard to the politicians in this country and their responsibilities and duties—and I presume it is permissible to speak of the responsibilities and duties of Christain politicians with regard to such matters as those which we are now debating—render to Caesar the things that are Caesar's is not a diktat or a decree of Caesar. It is a Christain principle and to me it very clearly implies that if a Christian finds himself, as a politician does, in the ranks of Caesar, it is his duty to exact what Caesar is entitled to get. It is his duty to withstand institutional pressures, institutional influences which do not persuade him that what is proposed to be done is right. He should act with simple regard to what his job is, the job of Caesar, the job of running the country, which is a secular job and not specifically a Christian job.
It is the burden of the Christian politician from time to time to stand up to the Church in its institutional aspect—any of the churches in their institutional aspects—and to say: "This may be your opinion, but this is my judgement as to what now should be done. It is my right to make that judgement, and your right to say I am wrong, but it is my right to make it and it would be a usurpation by you to endeavour to intervene in what is my definite sphere, a sphere recognised by you in your principles, and by me in my acceptance of them."
With regard to the Church's influence as such, let us take such a matter as divorce. At this time I could not inform the House what my judgement would be as to what would be the right and desirable thing to do with regard to divorce. I am not speaking of the abolition of the restriction of divorce in the Constitution, but rather of the enactment of provision for divorce. There is a liberal wing of theologians that take the view that our Constitution should be secular. I should like to say to them: "This is a view permissible for you to have and it is well that you should express it. It is not something that I, as a politician, think in my judgement about Irish affairs at this moment, and not something that I need necessarily accept or reject. It is my duty to judge what is best for Ireland at this time."
One of the problems we have in Ireland, which is a little difficult to express, is that of Caesar, on the one hand, Christ on the other. The Minister may be surprised to hear me say that I think it is arguable that in Irish circumstances and in Irish terms and for Irish needs, Caesar is not strong enough, that secular power is not strong enough. A part of the problem that we are faced with and part of the blame that gets cast on the Church, is that Caesar—the Government, the State—does not do its duty sufficiently and is perhaps not able to do so. There is no tradition of respect for Government. There is no sense of authority. We never had Rome in Ireland. There is no presidential glory such as attaches to the presidency of the United States of America, which means that the atmosphere wholly changes merely by the intervention of the institution of the presidency. Here, we have a secular power which is not reputable, at least not reputable enough. It is divided and weak and in relation to the matter which I have in mind, which are these fundamental matters of general justice, is not able to do all that it should do.
For example, I should like to refer to my very first point when I talked about who should be accused. It is the failure to prevent men who describe themselves as the leaders of armed forces from walking the streets of Dublin and from walking into public meetings that does much more damage to Irish unity than any special position the Catholic Church might have acknowledged to it in a written document. The standing and reputation of the State is not strong enough to withstand this long tradition which has attacked from the beginning the legitimacy of this State, and which continues to be attacked, even when we use the words "this unnaturally divided Ireland". If it is unnaturally divided, there are two institutions under threat: not merely Stormont, which is gone, but Dáil Éireann, which remains. If it is an artificial division, and there is something illegitimate about one of them, there is something illegitimate about the other. Today we had figures quoted by a university Senator which, lamenably, I thought—supported the proposition that in some fashion the people of this State were not free to enact a Constitution by appropriate majority voting, which they did in 1937, by producing percentages based upon what would have happened if you had taken in the Thirty-two Counties of Ireland. Why have this sort of approach which questions the legitimacy of the authority in both Northern Ireland and here?
I said that I liked what Senator O'Higgins said and I shared his anxiety with regard to the effect of the removal. It is one thing to put it in, it is another thing to take it out. What does the taking out of a reference to particular religious institutions mean? Does it mean that there is to be a general message that religious life is to be regarded by the wisacres of Leinster House as less important than it was? I liked what was quite new for me, that is the idea that the notion of special position should have been extended to include the other described religions, and that all religions would have a special status and be recognised to have such.
We are insufficiently straightforward in saying that we do not want unity with the people in the Six Counties however artificially created that entity was, without their consent. We do not want it achieved by immoral means. There is a continual doubt in any Christian's mind when he is faced with the proposition that he should take up arms to kill people unless there is a proper authority requiring him to do so. I am judging them objectively. Any subjective judgment about them is their affair. That is the decision of all those who are engaged in or who are in any way attempting to force Northern Ireland to do their bidding. It is ludicrous to think that we have the greater force, but assuming that we have, it would not even be the honourable force that would be wielded by our Government issuing lawfully authorised directions: it would be dishonourable and the result of our inability to control our own people. What kind of Ireland would there be then?
After the dissolving of Stormont people said that Leinster House would follow and they meant what they said. We have been overpleased with the destruction of the power of Stormont but it is a poor political objective. I was never tempted by plausible reasoning on the part of my colleagues in Fine Gael over the years to say that Fianna Fáil were being finished. Though temporarily this would be pleasing to all of us, I never thought it would be a good thing to have them finished forever. The objective of destruction is not a good one and we have not fully savoured all the consequences of the fall of Stormont. If loyalties of passionate men are set footloose it raises questions as to where they are going to be fastened.
There are also those who attacked the Orange lodges. I know little about them, but I know a lot about the equivalent of Orange lodges. There is a lot of it harmless, side by side with their political activities. The destruction of the Orange lodges should not go out from this parliamentary institution as an objective. It is wrong to destroy something without having a clear idea of what you are proposing to substitute for it. A substitute for Stormont seems to be on the way.
In the Ireland of the future there must be a place for the Orange lodge loyalists, the republican loyalists and other various kinds of people who have different traditions. The consequences of the attainment of unity by immoral means would lead, in my judgment, to a moral degeneration of the whole Irish situation, therefore something that we should be deeply concerned to avoid and prevent. I will quote from Lecky at some length, if I am permitted:
History is never more valuable than when it enables us, standing as on a height, to look beyond the smoke and turmoil of our petty quarrels and to detect in the slow developments of the past the great permanent forces that are steadily bearing nations onwards to improvement or decay.
The strongest of these forces are the moral ones. Mistakes in state-manship, military triumphs or disasters, no doubt affect materially the prosperity of nations, but their permanent political well-being is essentially the outcome of their moral state. Its foundations is laid in pure domestic life, in commercial integrity, in a high standard of moral worth and of public spirit, in simple habits, in courage, uprightness, and self-sacrifice, in a certain soundness and moderation of judgment, which springs quite as much from character as from intellect. If you would form a wise judgment of the future of a nation, observe carefully whether these qualities are increasing or decaying. Observe especially what qualities count for most in public life. Is character becoming of greater or less importance? Are the men who obtain the highest posts in the nation men of whom in private life and irrespective of party competent judges speak with genuine respect? Are they men of sincere convictions, sound judgment, consistent lives, indisputable integrity, or are they men who have won this position by the arts of a demagogue or an intriguer; men of nimble tongue and not earnest beliefs—skilful above all things, in spreading their sails to each passing breeze of popularity?
Such considerations as these are apt to be forgotten in the fierce excitement of a party contest; but if history has any meaning, it is such considerations that affect most vitally the permanent well-being of communities, and it is by observing the moral current that you can best cast the horoscope of a nation.
I hope that quotation was of some interest. It seems right to me to remove these sections from this Article not merely because of the Northern problem, though it may be of some significance there. It would be significant to the Northern situation if we failed to do what we set out to do and if there is any feeling such as has been expressed over the years with regard to its being capable of misrepresenting our situation.
In conclusion, I should like to say that this may be the first of many amendments. The Articles relative to the national territory, and the manner in which the Article relative to the Irish language is expressed, are unlikely to be of any moral or certainly of any religious contention. If we are to say "yes" to divorce we should all be thinking ahead as to the basis for saying "no" to abortion. If we say "yes" to divorce, on what basis are we saying "no" to consenting adults and on what basis are we saying "no" to the control of pornography, which is a prime modern capitalist weakness, a frightful exploitation of human beings, and even if it is impossible to prove that people are corrupted by pornography, certainly the pornographers are, or they could not produce what they are producing?
We must think about the question of the right of the majority to stand by what they regard as objectively right for everybody, even if their view as to what is right is not acceptable by the minority. When we have made up our minds on that, we must make a stand. To take a simple matter like abortion, which is easy for me, taking the view of life I do, it would seem to me that the majority should not be put in a worse position than they would if they were in a minority when they would be fighting to change the law and would have a moral duty to do so. If they would have a right as a minority to fight to change the law they should have a right as a majority to maintain the law. There is this large question of divorce and it can only be considered in international terms having regard to the perjurous kind of activities which are operated by people getting divorced.
The main objective of public policy here must be, not unity, but peace. Peace may involve unity, but peace above all. If peace is to be got by some alteration of the law regarding divorce it may well be that this would be a justifiable reason for making that change. I strongly recommend this Bill.
