Friday, 17 October 1924
Seanad Éireann Debate
AN CATHAOIRLEACH: I have considered it very carefully. Undoubtedly you have a precedent. I do not think it is a very wise precedent, and it is the first occasion on which it is sought to establish it—I mean in another place. I am satisfied the resolution is not in order, at least in our deliberations, and I am reluctantly compelled to rule it out.
Mr. O'FARRELL: So much has been said on the subject-matter of this Bill, it is pretty nigh impossible to say anything further that would be in the least way original or helpful. The whole problem seems now to bristle with deliberately-created difficulties and complexities. Moreover, the position has not been simplified by the torrents of burning words that have been showered upon us during the past couple of months. It seems strange that this question could not have been discussed in quarters outside the Saorstát in a sane and businesslike way without recourse to threats of violence and bloodshed and defiance of the Acts of Parliament to which the people making the threats vow undying loyalty and devotion.
The mere contemplation of what, at one time, at all events, seemed an exceedingly simple, or comparatively simple, question, has sent certain otherwise apparently sane gentlemen on both sides of the Irish Sea into a veritable frenzy. Would-be warriors, and even war-time pacifists, have taken to soldiering. Eloquent Dempseys with Cockney accents have come across to the Border with open minds, mar eadh! to educate themselves on the question in a perfectly impartial way, we are told. Further, it would seem as if the wine of local oratory got to their heads, because before many days of impartial investigation the stolid Saxons were conducting themselves like intoxicated parrots. There was at least one honourable exception, and that was Dr. Haden Guest—the only Labour M.P. who formed part of the troupe. Then almost everybody outside the Saorstát has taken to expounding Constitutional Law, none more assiduously than those who have vowed that they will break any and every law with which they do not happen to agree.
Well-intentioned amateurs, learned attorneys, and eminent political lawyers have each and all given their interpretation of Article XII, unsolicited, and amazing to relate, even without a fee. It just shows that in certain circumstances even a lawyer will do  work for the love of it. Their ability, in the profession, to misinterpret law is, of course, too well known to need any comment. There is another eminent politician within the Saorstát, evidently a disciple of Professor Coué, who professes to solve the problem by auto-suggestion. He says: “Keep on saying there is no boundary; that there never has been one, and you will find there is none.” In short, the Boundary question seems to be a fight in which anybody can take part, and the less one knows upon the subject the more competent he is to intervene, because then he need place no boundary to the extravagance of his nature, or the violence of his threats. In my opinion, there is no justification for all the heat and noise and threats of blood that have been generated. If those who have been talking of bloodshed, of heaps of dead bodies, of wrapping themselves fore and aft in the Union Jack, and dyeing it with the richest blood, could only see themselves at a distance, they would hardly fail to laugh at themselves for being a ridiculous lot of serio-comedians. The whole thing must appear to foreigners as savouring of the narrowest form of parochialism—a thing exceedingly funny, without the actors being aware of the fact.
The slippery antics of the British signatories show them to be politicians more or less of the three-card-trick type, capable of bringing any States for which they act down to the lowest depths of national dishonour. Each of the signatories on the English side is supposed to be a gentleman of England whose word is his bond. If the signatories are types of English gentlemen, then Britain should be grateful for having a Labour Government of ordinary men. Too much importance may be attached to the vapourings of out-of-office politicians of this type. Of course, it is possible that they may, to a certain extent, prejudice the decision of the Commission. To my mind, what is more important is the fact that the Labour Government of the day has in this question acted in a perfectly straight and honourable way. If that were all that was necessary to settle  the Boundary problem, there would be no cause for anxiety.
Unfortunately, I am afraid this is not going to be the case. We are told that before the Commission can even ascertain the wishes of the inhabitants of the disputed territory that further legislation in the British Parliament and in the Oireachtas will be necessary. I do not know if this is so. Certain lawyers say it is. I hope they are wrong, because otherwise there is great danger of the whole question degenerating into a series of thrilling episodes bordering on the grotesque. In this democratic age it seems strange for anybody to question the right of homogeneous communities freely selecting the Governments under which they are to live. Seeing that the object of the Boundary Commission is to give effect to the principle of self-determination, there can be no objection to it except objections which are directly subversive of freedom and which certainly will not bear even the most elementary test of democratic principles, as understood in these days.
Whatever the results, there are grave doubts at present in the minds of the majority that the Commission will be able to function in a fair and impartial way because of the discreditable attempts of the British signatories to influence its findings. Moreover, we have, as already pointed out, the unique spectacle of one party to the arbitration declaring that they will only abide by the findings of the Commission if they give them all that they require. Personally, I have no quarrel with the Saorstát Government in agreeing to abide by the findings because no other policy would, in my opinion, be consistent with the demand that the Boundary Commission should be set up, and any other attitude would justify the defenders of the present boundary in the indefensible attitude which they have adopted. It will be the duty, I believe, of the British Government to give effect to the findings as far as Northern Ireland is concerned. If they fail in this respect, any turmoil or trouble which may ensue can hardly be laid at the doors of the Free State Government. But while saying this, I do not believe, personally, that the  Free State Government or the Northern Government will benefit by the findings of the Commission. No matter what the results, partition, with all its evils, will remain. The declared object of every true friend of Ireland is ultimate national unity in all matters affecting the country as a whole. Such union, to be of any use, will have to come, needless to say, by mutual consent. But such agreement is impossible until there is created on both sides of the Border, between the respective people of the two Governments, a spirit of goodwill and of mutual accommodation. Now, the creation of such an atmosphere will be extremely difficult, and in my opinion impossible, while the Boundary Commission remains in its present uncertain position. Interested politicians will make use of of the situation in order to keep up an atmosphere of hatred, bigotry and distrust. In the past, professional politicians in the North utilised Home Rule and the Pope to keep alive the fires of religious bigotry and political animosity. In later days the Boundary question has furnished the necessary material. If we remove this question out of the region of controversy, the professional politician will find himself, like Othello, with his occupation gone. It was his object in the past to get the Presbyterian of the North to look upon his Catholic fellow-countrymen as the inveterate enemies of his mortal body as well as of his immortal soul.
Therefore, for that reason, and because I hope that the result of the work of this Commission will be to remove that question out of the region of controversy, and, thereby, give a chance for an atmosphere of goodwill, I feel personally justified in voting for the Bill, although I believe that its findings will not satisfy the requirements of justice. We ourselves can help to bring about a state of affairs in which real patriotism and goodwill can get a chance for the first time for generations. We can help to do that by not looking upon our Orange fellow-countrymen as devils incarnate, as they certainly look upon many of us. They have been the victims of an extraordinary  set of political circumstances, and they have been the tools of political intriguers, who have fed them with all sorts of religious and political bigotries and narrowmindedness. These are largely responsible for the fact that these two sections of the community have never coalesced. Materials upon which the Orange Grand Masters worked in the past having been removed, their power for evil will have departed, and there will then be an opportunity of some sort of an agreed arrangement being decided upon, which will be at least the equivalent of National unity. Personally I see no reasons why we should put on our coats and fold our arms until such time as there is a National Parliament. We are not going to foster the idea of ultimate unity by sitting idle until the Orangemen and the Nationalists throw themselves into each others arms. I believe that if the worst happened and National unity was never achieved, that it would yet be possible to have a happy and prosperous Free State if the citizens of the Free State willed that it should be. Anything that would tend to divert the minds of our own people into channels of a constructive and progressive character would be a blessing. Hitherto, and even at the present time, we find that the biggest crowd generally follow the man with the loudest voice and the most dramatic gestures. They are constantly told that there is no earthly use in working or performing their ordinary avocations of daily life until some scheme, generally unattainable, of his own feverish imagination is accomplished. And he will hint then that even after that it will not be necessary to work, because there will be such a state of affairs as will pave the streets with penny loaves and thatch the houses with pancakes.
Denmark had her two richest provinces torn from her by Germany. She did not throw up her hands in despair and wait for National development until these provinces were restored. On the contrary, she proceeded to try to make up for the loss by making all the more use of what remained of her territory. She succeeded. Consequently, I believe that whatever the ultimate solution of the Boundary problem is  going to be, that our own social, economic and political destiny rests in our own hands, and that the less gunmen and professional politicians have to do with the matter, the better for the nation as a whole.
Mr. McLOUGHLIN: I do not see that I can do anything but support this Bill, as the attitude of the Craig Government has been so impossible up to the present as to leave our Government no other alternative but to press for their rights under Article XII. Whilst taking up this position, I am, of course, aware that the Boundary Commission is by no means a satisfactory solution of the Ulster difficulty. No matter what is done, it will leave behind it bitterness, disappointment, difficulties, and may so embitter the existing position, bad as it is, as to render all hopes of Irish unity incapable of realisation in our generation. That is a result which all thoughtful Irishmen would deplore and which all patriotic Irishmen must do their very utmost to avert. Accordingly, one must be careful in discussing this matter not to say anything likely to engender bitterness. I will, therefore, try to discuss it as dispassionately as possible, notwithstanding the malicious propaganda that is being broadcasted in England and in Ulster in regard to what is described as the unreasonable attitude of the Free State in the matter of the Boundary. From the amount of organised clamour and clap-trap that has been going on for the past six months, one would think that President Cosgrave was some wildly unreasonable man—some kind of “Nowater Slim,” who wanted to “rodeo” or lasso into his territory all the peace-loving loyalists of the Six Counties. We know that President Cosgrave wants to do nothing of the kind and we know that nothing could be more reasonable or could be fairer than the position that he and his Government take up. They say: “We are prepared to deal, if you will have it so, on the basis that Ulster men are not to be coerced, and so we have asked for an independent Tribunal, before which can appear those Ulster men who want to be freed from a yoke which they detest,  and who desire to be united with the majority of their own fellow-countrymen under the government of the Free State.” What could be fairer than that? What simpler application of the great principle of Self-Determination for which the war is supposed to have been fought?
But if the Belfast Government contends that the application of the principle in their case would leave them such a small governmental area as to render their position untenable, we could meet them on another basis. We could say to them: “Keep your territories undiminished and all the powers vested in you at present, and join with us in a federal scheme, under which a common Irish Council will control the services at present reserved in your case and all the services common to the whole country.” Under such a scheme, Sir James Craig's Government would actually have more power than it has at present, because, in addition to exercising its present powers over its own area, it would in the common Council have an equal voice with the representatives of the Saorstát in the control of the reserved services of the whole country.
I am in favour of making the representation from the Six Counties equal to that from the rest of Ireland, always provided that the members are chosen according to the principle of proportional representation. What could be fairer than this offer? It involves an injustice to our own people in Tyrone, Fermanagh, Derry City and elsewhere who have shown their anxiety to be governed by this Oireachtas. But for the sake of national unity, I am certain that they would sacrifice their feelings in the matter and allow themselves to be governed by a Parliament in Belfast, provided that the Parliament was a member of the federalised Irish Free State. As a sop to Ulster sentiment, and to meet the objection of the Belfast Die-hards, to whom the word “Dublin” means all sorts of unspeakable horrors, I would suggest that the Government should agree to the Council of Ireland having its location in the City of Armagh, the Ecclesiastical Capital of Ireland,  which could be neutralised for the purpose. One result of the adoption of such a scheme would be that we would at once get rid of the land customs frontier which is such a barrier to Ulster trade and which is at present —and I know what I am talking about —strangling the economic life of Derry City.
I am convinced that if the plain people of Ulster, Protestant and Catholic, had an opportunity of giving their independent opinions on such a scheme it would be accepted with alacrity. I am myself an Ulster business man, and I am in daily contact with Ulster business men of all shades of thought, and I say deliberately that the mass of my fellow-provincials are most anxious for a reasonable settlement, and are especially anxious for the abolition of the Customs cordon which is the result of Partition. If Sir James Craig, or any outstanding Northern politician, had the courage to come out with a strong lead for peace and to disregard the shrieks of bigoted fanatics, I am certain he would get a great backing from the mass of his own people, who know quite well that the problem of peace can only be solved, finally and satisfactorily along these lines.
I am aware that there are some who are sincerely anxious for Irish unity, who are genuine friends of the Free State and who consider that the interests of Ireland as a whole, would be best served by the adjournment of the Boundary Commission for two, or three, or five years. I am a believer in the healing influence of time, and I recognise that, at present, too many passions have been inflamed to render the time opportune for the deliberations of such an ex-judicial body as the Boundary Commission should be. It must be remembered, however, that the Northern Government by their shortsighted, stupid and narrow policy forced the Boundary question to a head. Had they shown even-handed justice in their area, there would not have been the overwhelming demand that exists to-day for the setting up of the Commission. That demand is so passionate and insistent that no Irish Government  could resist it and survive. If, therefore, the healing effect of time is to be given a fair trial, the Belfast Government would first have to remove the causes that made this question so pressing. They would have to give securities for the lives, and liberties, and rights of our people in the Six Counties. These securities would have to be real ones and not mere paper guarantees. We have seen too much of the shameless gerrymandering tactics of the Northern Government in the last year or two to trust to its sense of honour or of fair play. All over the Six Counties Nationalist majorities in the local councils, where such majorities existed, were transformed into minorities by the simple device of treating one Unionist vote as the equal of two, and sometimes seven or eight Nationalist ones. Catholic teachers, including priests and nuns, have been compelled to swear an abject oath not only to the king, but to his Government of Northern Ireland as well. Imagine the outcry that would take place in England, if Mr. Ramsay MacDonald forced the Archbishop of Canterbury, on peril of being deprived of his emoluments, to swear allegiance not merely to King George, but also to their Imperial Highnesses Messrs “Jimmy” Thomas, Clynes, Wheatley, Henderson and himself.
These are only some of the indignities that have been heaped on Northern Catholics, and flesh and blood will not stand such treatment for long. So that we would have to get real guarantees, and the first and most obvious would be the restoration of Proportional Representation, or at least the fixing of constituencies on a strictly democratic basis by an outside authority. Besides, we would require safeguards for education and, of course, the political prisoners held by Sir James Craig's gaolers would have to be released. There should also be as much co-operation as possible between the two Governments on matters of common interest.
In the absence of any indication of willingness on the part of the Belfast Government to give these guarantees, I cannot see how we could consent to the adjournment of the Commission,  although I know that, with peace and fair play guaranteed to the Catholics of the Six Counties, with good government, sound sense, and straight dealing prevailing in the Twenty-six Counties, the Boundary problem would soon solve itself, and a path would be opened for the ultimate attainment of Irish unity.
Therefore, if Sir James Craig and his colleagues display the least goodwill or give the least earnest of their desire for peace, I am sure President Cosgrave and his colleagues will go to the very limit of reasonableness for an amicable settlement. But if Sir James Craig, while expressing his willingness to go into a conference, keeps on talking about “mere rectification,” which will only make the position worse, and unsettle a lot of people who have accepted the existing position—if he persists in his “not an inch” attitude— it will be plain that his object in resisting the setting up of the Commission is to be able to hold in subjection the unfortunate Catholics whose rights are being trampled on in so barefaced a manner. In that event the only thing for the Government to do is to push on with all possible speed its preparations for the setting up of the Commission. A fair and impartial Commission will at least reduce the evil that is wrought by the intolerance of the Belfast Government.
A disgraceful attempt has been made in England to ensure that the Commission will be neither fair, nor impartial. Mr. Justice Feetham has been practically drenched with “Rectification.” In last Tuesday's Daily Mail an article appeared which was a most flagrant attempt to pre-determine the decisions of the Commission. This article purported to convey the intensity of the feeling among the inhabitants of Donegal for inclusion in Northern territory —chiefly on account of the vexatious restrictions of the Customs barrier and the 6d. duty on parcels. It professed great sympathy for the wives of farmers and farm-workers in Donegal in their sad fate, which left them outside the beneficent rule of the Northern Government, under which they were just dying to come. It proceeded to give no less than two “forgone conclusions” which the Boundary Commission must find.
This is what Americans call “throwing the bull.” Whether that is the game or not, when the proper time comes, Donegal will have something to say about these “foregone conclusions.” In the meantime, they do not perturb us in the least, but just give us some idea of the width and depth of the false propaganda that is being put in circulation. One does not wonder at the Daily Mail or Morning Post descending to such tactics, but it startles one to find that the cream of England's proud nobility have not scrupled to attempt to intimidate Mr. Justice Feetham — to prejudice his Commission in advance, and to bully it into regarding as a mere scrap of paper the solemn Treaty to which the representatives of England put their hands, and which was formally adopted thereafter by the King, Lords and Commons of England. Most of us remember the plot in England that encompassed the destruction of the Boer Republics. The same gang are now plotting against the Free State. They then regarded Majuba as a humiliation for England, and they now regard the Treaty as another Majuba. They are backing up Craig in his unreasonableness; they are doing their utmost to ensure that if the Boundary Commission is ever set up it will return a partisan verdict; they are encouraging fools in this country to believe that England will wink at the establishment of a Republic in the Twenty-six Counties—all in the hope that we will do something that will involve us in irreparable disaster. “In vain is the net spread in sight of any bird.” If the attempt to prejudice the Boundary Commission were to succeed and the Commission were to find against the evidence and against facts —which is, I hope, a very remote contingency—I would still be hopeful that this country, profiting by bitter experience, would not be tempted into the paths of folly which her enemies are so  eagerly pointing out to her. I am confident that the counsels of wisdom would prevail and that nothing would be done to jeopardise the great measure of freedom already won. Ireland will not play the game for her enemies on this occasion. But as a State internationally recognised — as a member of the League of Nations and a co-equal of the other States forming the Commonwealth of Nations—she will realise her strength and know how to deal with any breach of faith or any tampering with her rights.
I have spoken frankly, as I consider the time has come when every man should speak out his mind frankly and honestly on this matter, which is fraught with such tremendous consequences to our country. It may be that some of my friends in the Six Counties who, exasperated by their treatment, demand that there should be no compromise or no settlement except through the Boundary Commission, may consider what I have said as the views and suggestions of a defeatist. They are the views formed after a very long and close study of the problem on the spot and brought to a head by the very remarkable letter written by John Devoy on the eve of his departure for America. Nobody could, I think, accuse John Devoy of being a defeatist, or of even lacking courage in the cause of Irish independence. At any rate, I have put forward these views and suggestions without consulting anyone, with a sincere desire for peace, regardless of whom they may please or whom they may offend. Most of you who know your Bible history much better than I do recall an occasion when St. Paul was asked to declare himself. He said he was for Christ. I hope I may say, without irreverence on this occasion and on the question of the Boundary: “I am for Ireland.”
Colonel MOORE: I think that on this occasion there would not be much necessity for speaking at all if the matter had been treated with the common decency with which all these great matters ought to be treated, or if this Bill you are now asked to pass were likely to be the last on this matter. But that  does not seem to be likely. As Lord Carson said in the House of Lords, the Commission has no power to hand over territory or to hold censuses or anything of the sort, and before any of these things can be done properly other Bills will have to be passed. We do not know who will be in power then. Of course, we all regret any question of a Boundary in Ireland, but it is a corollary of the Act of 1920 to which no Irishman had anything to say whatsoever. A very shameful and treacherous Act was passed on that occasion by English Members without the vote of a single Irish Member.
I do not know what authority members of the English House of Commons had to hand over territory in this country or to divide it in this way. Ireland was an undivided country long before the historical period. It was an undivided country before Hengist and Horsa landed in Kent, and 500 years before Edgar was made head of the Heptarchy. Whatever may be said of the Act of Union, Ireland was an undivided country at that time, and the Treaty of Union was between two independent nations. At no time was the right of the English Parliament to divide Ireland recognised. In my opinion, the Act of 1920 was an unconstitutional Act and a breach of the Act of Union. We are faced with this difficulty now, and we must consider between ourselves what is the best plan to get out of it. The Act of 1920 was passed so that England might be enabled to get over some of her difficulties. It was done deliberately and treacherously for the purpose of dividing Ireland. The English Government was in a difficult situation at the time, and they had to do something. What they did was to divide Ireland in order to conquer, and in order that, when leaving, they might leave a bone of contention between the two parts of a divided country. They did that so that they might be enabled to step in again whenever they thought well to do so. That, as far as I can see, is the only reason they had for making the division under the 1920 Act Lord Carson said at the time that the Act was passed in order to give England a jumping-off ground in the North to attack Southern Ireland whenever it suited her to do so.  Now we are asked to engage in a new Treaty. What we ought to consider is, whether we should make Treaties with people who are not trustworthy or with a Government which does not keep its Treaties.
Deputy Johnson, in the Dáil, pointed out very properly that, if what the English signatories to the Treaty say now is true, there was no common basis of understanding between the Irish signatories and the English signatories. The Deputy quoted certain judicial authorities to show that, if the two parties looked upon Article XII. of the Treaty from an entirely different point of view, the Treaty is invalid. With a great many of the statements made by the last Senator I entirely disagree. He has enunciated all sorts of propositions as to how we can make peace, and lays down certain conditions which are all very fine to state in fluent language, but there is not a single one of them with which Sir James Craig will agree. What, I ask, is the good of talking about a compromise and a settlement with people who will make no agreement? Another point about these compromises and settlements is: Who is to make them? As far as I see we cannot make them. The only people to make them are the Government, and I have some hesitation, I must say, in trusting the Government to make these arrangements.
The Government has not always been very strong in these matters. The Government gave away absolutely the Council of Ireland without, as far as I know, anything being gained instead. The Council of Ireland was the last slender link between the two parties in the North and the South. Under the Council of Ireland the railways could be governed, and probably many other things as well, but the Government suspended the Council of Ireland for five years. What their object was in doing so I confess I cannot see. The Minister for Justice, in the Dáil the other day, made a slight attempt to defend it by saying that the Council of Ireland was no good. If it was no good, why, I ask, was it suspended? To my mind, and to the minds of other people, it was a matter of very great importance to keep some sort of a link between the  North and the South. When we come to the other new Bills that are to be brought forward, how, I ask, are we to trust that we will be treated with any more honour than we have been in respect of this one by England?
Lord Grey stated publicly that England was in a great difficulty and he hoped the Commission would get her out of it by voting his way. Lord Birkenhead stated that only a lunatic would have any other opinion except his. Everything possible is being done to intimidate and bully the unfortunate Commission. The curious part of it is that the English signatories to the Treaty are the very people who made exactly opposite statements at the time the Treaty was signed. Now they go back on these statements. Lord Carson said they did it just for duplicity, in order they might gain an object at the moment. Their object was to get the Treaty through, and that being over, they are doing their best now to twist this and to turn it around. This, unfortunately, is not a new thing in English diplomacy. I will read a passage from Burke where, speaking about India, he says:—
“To satisfy the Marattas, he agreed that an Article should be inserted to admit Hyder Ali to accede to the pacification, but in the instructions for the drawing-up of the Treaty he desires him (that is, the person drawing up the Treaty) to insert a vague article in favour of Hyder Ali. Evasion and fraud were the declared basis of the Treaty. These vague articles intended for a more vague performance are the things which have damned our reputation in India. Hardly was this vague article inserted than a negotiation was entered into for the partition of this Prince's territory.”
I think events tend very much towards a repetition of the same thing with regard to the people of Ireland. On no single occasion has the English Government behaved in a straight way towards Ireland. A Senator on the opposite side spoke words of great praise of the present Government in England. It passed this Bill, no doubt, because it suited its purpose to do so, but I care very little whether it is a  Labour, a Liberal or a Tory Government that is in power in England, they are all much of the same kind and they will do certainly what suits themselves. Law or anything else is a matter of indifference to them. That has always been the case.
“First I say that from the Himalayas, on the Northern frontier of India, to Cape Comarin in the South, there is not a single Prince, State or Potentate, great or small, in India with whom we have come into contact whom we have not sold. I say sold, though sometimes we have not been able to deliver according to our bargain. Secondly, I say that there is not a single Treaty we have ever made, which we have not broken. Thirdly, I say that there is not a single Prince or State who ever put any trust in us who is not utterly ruined, and that none are in any degree secure or flourishing, but in the exact proportion to their settled distrust and irreconcilable enmity to this nation.”
Our President has stated on a few occasions that he places great trust in the English Government, and that he is quite sure that they will behave honourably. I would call his attention to what happened to men of much more experience in politics than he, men of great ability whom we always reckoned as our leaders. Every one of these men was betrayed.
The PRESIDENT: May I intervene to put the Senator right. My statement was that the British Government had kept faith with us since we made that Treaty. I adhere to that statement, all other people to the contrary notwithstanding.
Colonel MOORE: I do not wish to contradict the President, and no doubt what he says is perfectly true. If he limits himself to that I shall be perfectly satisfied. But I fear he may do what I know other Irish statesmen did before—John Redmond and O'Connell  and men of that stamp. They placed their trust in the English Government, and every one of them were betrayed, and I would like the President to be careful before he places any trust in them in the future or gives away anything that he could avoid giving away. Of course, we must pass this Bill. I suppose there is no help for it. We must do the best we can, and, as Senator McLoughlin said—and I believe has was quite correct in saying it—there are a great many people in the North of Ireland—sedate, quiet people like ourselves, who are perfectly willing to come to an agreement with us. I was in Derry City in 1914, when there was worse feeling and more trouble than there is at the present time. I met Senator McLoughlin there, and I met a good many Unionists there, and they told me that the last thing they wanted was trouble, and they were quite ready and willing to come in and work with us. I only wish to say that we are only at the beginning of a very difficult time. The Act that we are passing to-day will not be the last on this subject; there will be many more and we will have to keep up all our courage for the future.
Mr. KENNY: I think we are in honour bound to abide by whatever conclusion or decision the Boundary Commission may arrive at. Of course we are very much concerned with anything that might affect that decision. When this Commission is set up, its members will be confronted with the duty of interpreting Clause XII. and much of what will follow and ensue from their deliberations will hinge upon the interpretation that will be put upon that clause. There are factors mentioned in the clause that they will have to take into account. They have to take into account the will of the people in particular areas, small or large—the size is not defined. But machinery can be set up. They have to take into account economic considerations and geographical considerations. As to what weight they will decide to attach to these factors, we have no guide or lead. That procedure is left entirely to themselves. The clause, as it is worded, is very open, very  vague, and very loose. It is open to a variety of interpretations. Reference has been made here to the opinions expressed by the signatories to the Articles of Agreement subsequent to the implementing of the Treaty. I do not think we are concerned at all with those opinions; they do not affect the position. The signatories were not the contracting parties; they only came to a certain general agreement as to certain headings on which the Treaty was based. The contracting parties were the two Parliaments—the Parliament of Great Britain and the Parliament of Ireland, representing respectively the British and the Irish peoples.
Now to any student of the time, following the deliberations of both Parliaments and the very exhaustive discussions that took place both in the one Parliament and in the other leading up to the passing of the Act, there seems to have been undoubted unanimity and agreement as to the whole intention of the Treaty at that time and as to the interpretation of every clause of the Treaty. Deputy Johnson, whom I had the pleasure of hearing a night or two ago in the Dáil, quoted from a learned and high authority the definition of a binding contract, and he instanced a certain essential condition that rendered such contract binding. That condition was that the parties to the contract must be of the same mind; they must be in agreement as to the interpretation of the language used, and they must have the same intent. What was the signatories' intent? So far as the signatories acted, they agreed as to the text of the Articles of Agreement; they were concerned in the wording of it and there was no dissent, seemingly, in any of their minds. And I presume that in the conferences that took place they looked at every line and every clause from every angle. But, subsequently, some of the signatories discovered that they had some mental reservation even at the time of signing, although it was unexpressed at that time. Well, according to this learned definition, if the signatories were parties to the contract, there might be something to be said as to the invalidation of it. But it passed away from the Signatories to the Parliaments who  were the contracting parties, and again in the whole range of the discussion in these Parliaments there was not a single note of dissent or want of unanimity as to any line or clause or word in the whole of the Treaty as finally decided upon and ratified as an Act of Parliament.
Now, what is the point at which I wish to arrive? I have said that much will depend on the interpretation put upon this clause. Our hopes in the immediate future and for the far distant future are entirely centred and concerned with that interpretation. Inevitably the Commission will, at the outset of their proceedings, consider this interpretation, and as there is no guide given to them by the legislatures concerned as to what weight they are to attach to the relative factors I have already mentioned, they must of necessity look round them and try to arrive at some decision as to what was in the mind of Parliament at the time. Where there is any ambiguity in an Act of Parliament, if we take the procedure of the courts, the learned judges try to understand the law and try to read between the lines of the Act in the endeavour to see what was present to the minds of the Legislature when it was passing the Act.
They do their best to arrive at what was in the mind of the Legislature. That is the only reference they can make, and the only means they have of dispensing justice as it should be dispensed. These men must inevitably fall back upon something. They must go outside the text, go back to the source of the thing. What will they find? They will find that signatories on one side have given expression to opinions and interpretations of a certain clause diametrically opposite to the signatories on the other side. If the Parliament of one of the contracting parties—Great Britain—or if this Parliament has subsequently expressed disagreement with the interpretation, that would be a matter which would have a bearing upon their interpretation of the clause. The House of Lords —I submit very indecently—added a rider to its decision with regard to the Bill. Nothing has been expressed by  the House of Commons or by any authoritative person in the Government of Great Britain repudiating that rider or what it connotes.
It is on record; we cannot blot it out or obliterate it. It was an indecent, contemptible thing to do and without precedent as you, sir, said. But it is there and it is only human to suppose that these Commissioners will be affected in coming to a decision as to the interpretation of that Clause by what is on record. I say that irregular and all as it was, and a bad precedent which you, Sir, say we should not follow here —I think you had some doubt as to whether you should allow a certain resolution or not—we are at a disadvantage in this whole matter if we do not off-set the effect of what has been done by the House of Lords by way of passing a resolution. We occupy a position analogous to the House of Lords as we are the Second Chamber and we should pass a resolution to off-set or minimise the effect of that expression of opinion of the House of Lords, which certainly places us at disadvantage when it comes to the interpretation of this Clause. I do not see that we will be stultified or compromised in any way, even though we may follow their irregular procedure. I think that our people and our Government are entitled to try and minimise it. We cannot undo what has been done, but we should, at any rate, try to minimise as far as we possibly can, the effect of that irregular procedure.
|Last Updated: 16/05/2011 18:42:38||Page of 7|