The State (Ryan) v Lennon

THE STATE (AT THE PROSECUTION OF JEREMIAH RYAN AND OTHERS)

v.

CAPTAIN MICHAEL LENNON, GOVERNOR OF THE MILITARY DETENTION BARRACKS, ARBOUR HILL, DUBLIN,

COLONEL FRANK BENNETT AND OTHERS, THE MEMBERS OF THE CONSTITUTION (SPECIAL POWERS) TRIBUNAL;

AND IN THE MATTER OF THE COURTS OF JUSTICE ACT, 1924;

AND IN THE MATTER OF THE CONSTITUTION OF SAORSTÁT EIREANN

Decision of the Divisional High Court
(Before Sullivan P., Meredith and O'Byrne JJ.).

Sullivan P.
This is a motion on behalf of the prosecutors for an order that an order of habeas corpus ad subjudiciendum and of prohibition, made on the 11th June, 1934, be made absolute notwithstanding cause shown.

That order directed:— (1) An order of habeas corpus ad subjudiciendum to issue to Captain Lennon, Governor of Arbour Hill Military Detention Barracks, to have before the Court the bodies of the prosecutors, detained under his custody, together with the day and cause of their detention, to abide the order of this Court; (2), an order of prohibition to issue, directed to the Constitution (Special Powers) Tribunal, and to Colonel Frank Bennett and others, the members thereof, prohibiting them from further proceeding in the matter of a prosecution before them wherein the Attorney-General is prosecutor and the several prosecutors herein are defendants, on the grounds, as to prohibition:—


 * "(1) That the Constitution (Amendment No. 17) Act, 1931 (No. 37 of 1931), is ultra vires, unconstitutional and void in that (a) it is contrary to Art. 72 of the Constitution; (b) it is contrary to Art. 6 of the Constitution; (c) it is contrary to Art. 64 of the Constitution; (d) as an amendment of the Constitution it is contrary to Art. 50 of the Constitution as enacted, the purported amendment of which Article by the Constitution (Amendment No. 16) Act, 1929, is invalid.


 * "(2) That the said Constitution (Special Powers) Tribunal had, and has, no lawful existence, jurisdiction or authority.


 * "Unless cause shown to the contrary within ten days of the service" of the order as therein directed.

There is no dispute in the case as to any matter of fact. The prosecutors are in detention in Arbour Hill Detention Barracks awaiting their trial by the Constitution (Special Powers) Tribunal on several charges preferred against them by the Attorney-General. As justifying such imprisonment, and as authorising the proposed trial, the respondents rely upon orders made by the said Tribunal in exercise of the powers and authorities conferred upon it by the Constitution (Amendment No. 17) Act, 1931. The only matter to be determined in this case is the validity of that Act, having regard to the provisions of the Constitution. The jurisdiction of this Court to determine that matter is conferred by Art. 65 of the Constitution which declares that: "The judicial power of the High Court shall extend to the question of the validity of any law having regard to the provisions of the Constitution."

It is conceded that the Constitution (Amendment No. 17) Act, 1931, is inconsistent with the provisions of the Constitution as originally enacted. It authorises the exercise of judicial power by persons who are not judges appointed in the manner provided by the Constitution, contrary to Art. 64, and it sanctions the trial of a person on a criminal charge without a jury, contrary to Art. 72, in cases not coming within the exceptions mentioned in that Article. It follows that if the Act is valid it must be so as an "amendment" of the Constitution authorised by Art. 50. That Article provides as follows:—


 * "Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof."

In professed exercise of the power conferred by that Article, the Oireachtas has, from time to time, passed Acts purporting to amend the Constitution. The only amending Act the validity of which is directly in question in this case, apart from the Constitution (Amendment No. 17) Act, 1931, is the Constitution (Amendment No. 16) Act, 1929, which purported to amend Art. 50 of the Constitution by deleting the words "eight years" and inserting in place thereof the words "sixteen years it in that Article. As the period of eight years from the date of the coming into operation of the Constitution, within which amendments of the Constitution could be made by way of ordinary legislation under Art. 50, had expired when the Act of 1931 was passed, the validity of that Act must depend in the first instance on the validity of the Act of 1929.

The arguments addressed to us on the hearing of this motion covered a variety of topics which I have duly considered but which it is not necessary for me to discuss in this judgment. Our decision on this motion must depend on our interpretation of Art. 50 of the Constitution. The general principle applicable to the interpretation of statutes is well settled, although the language in which the principle is stated is not always identical: the words of the statute should be given their ordinary and natural meaning unless that would lead to an absurdity or inconsistency. It is, however, quite consistent with that general principle that certain statutes should receive a liberal construction while others should be strictly construed; and there is authority for the proposition that an Act such as the Constitution should be liberally interpreted. In Edwards v. Attorney-General for Canada [1930] A.C. 124 the Privy Council were called upon to interpret a section of the British North America Act, 1867 (the object of which was to grant a Constitution to Canada), and in expressing the opinion of the Board, Lord Sankey, at p. 136, said:— "Their Lordships do not conceive it to be the duty of this Board — it is certainly not their desire — to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs," and he quotes from Clement's Canadian Constitution, 3rd ed., p. 347, the statement:— "The Privy Council, indeed, has laid down that Courts of Law must treat the provisions of the British North America Act by the same methods of construction and exposition which they apply to other statutes. But there are statutes and statutes; and the strict construction deemed proper in the case, for example, of a penal or taxing statute, or one passed to regulate the affairs of an English parish, would be often subversive of Parliament's real intent if applied to an Act passed to ensure the peace, order and good government of a British Colony."

If we apply the principle I have stated to the construction of Art. 50, I think the meaning of that Article is reasonably plain. It provides that "amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas ... Any such amendment may be made within the ... period of eight years by way of ordinary legislation." I cannot accept the view that the word "amendment," when used in reference to an Act of Parliament, is, as Mr. Costello suggested, limited in its meaning to the removal of faults, corrections in matters of detail but not of substance. I think the ordinary and natural meaning of the word when so used includes alterations of any kind. It will not, I think, be disputed that where the word "amend" occurs in the title of a statute, as it so frequently does, its usual if not invariable meaning is "alter" in the widest sense of that word, and I think that we have on the face of the Constitution itself an indication that the word "amend" is used in that sense. Art. 38 enacts that: "Every Bill initiated in and passed by Dáil Éireann shall be sent to Seanad Éireann and may, unless it be a Money Bill, be amended in Seanad Éireann, and Dáil Éireann shall consider any such amendment." Art. 73 declares that: "Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State (Saorstát Éireann) at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas." It is obvious that the word "amended" in each of these Articles must be construed as equivalent to "altered," and that the word "amendment" in Art. 38 must include "alteration." We should give to the word "amendment" in Art. 50 the same meaning as it bears in other Articles of the Constitution.

I am, therefore, of opinion that Art. 50 conferred upon the Oireachtas the power to amend and alter the Constitution by way of ordinary legislation passed within a period of eight years from the date when the Constitution came into operation, and that, in the absence of any indication in the statute of an intention to the contrary, the power so conferred is unrestricted, and authorises the alteration of any Article of the Constitution, including Art. 50 itself.

I am, therefore, of opinion that the Constitution (Amendment No. 16) Act, 1929, and the Constitution (Amendment No. 17) Act, 1931, are valid amendments of the Constitution. It follows that, in my opinion, the Constitution (Special Powers) Tribunal has been lawfully established, and has the jurisdiction and authority conferred upon it by the latter Act. The cause shown in this case should be allowed and the conditional order for habeas corpus and prohibition discharged.

Meredith J.
The Constitution itself is the exclusive source from which this Court can derive any principle of law on the strength of which it has jurisdiction to declare any law to be invalid. Of course, to determine whether any law contravenes the Constitution the Court has to analyse what is contained in that law and what is contained in the Constitution, and then to determine whether the law is consistent with the Constitution; and this reasoning may, and indeed must, follow principles of construction. But these principles of legal reasoning are not principles of law constituting part of the subject-matter of the comparison involved in the question whether a law is consistent with the Constitution. So it is true to say that there are no principles of law in relation to which the validity of any law is to be tested except those enshrined in the Constitution. Our Common Law does not contain any principles of constitutional law, and Art. 73 of the Constitution did not enact by reference any principles of constitutional law, in relation to which any law could be held by this Court to be valid or invalid.

I have thought it necessary to point this out, because some of the arguments addressed to the Court by counsel for the prosecutors seemed to imply the notion that on the question of the validity of the law now under consideration it was permissible to rove at large in search of legal principles with the same freedom as would be enjoyed in an ordinary equity suit. Such excursions are unwarranted in actions under Art. 65. In particular the one argument put up against the validity of the Constitution (Amendment No. 16) Act, 1929, was the result of a raid on the law of agency. It could not be contested that the change of eight to sixteen years was in the nature of an amendment, but it was urged that it was not competent for the Oireachtas itself to enlarge the authority delegated or entrusted to it by the people. That argument asserts a legal principle, adopted in the form of a principle of constitutional law, which looks outside the four corners of the Constitution itself, and, accordingly, this Court has no authority to pay regard to it in exercising its jurisdiction under Art. 65. The power of amendment conferred by Art. 50 is, in terms, general. Power to amend Art. 50 itself could have been expressly excepted, but it was not. This Court cannot then declare an amendment of Art. 50 itself to be invalid on a principle extraneous to the Constitution. If this Court had authority to look outside the Constitution to extraneous principles of law to determine the validity of any law having "regard to the provisions of the Constitution" it could build up a body of judge-made law standing alongside the Constitution. Art. 65 gives no such authority.

The objection to the amendment of Art. 50 itself by the Oireachtas by way of ordinary legislation might also be disposed of in a few words on the following ground. The objection would obviously have no force in the case of an amendment passed after the prescribed period of eight years with the requisite majority and approved by a Referendum to the people. But the power of amendment by way of ordinary legislation during the period of eight years is (having regard to the words: "any such amendment"), expressly coextensive with the power of amendment after eight years subject to a Referendum. During the eight years the Oireachtas has the fullest power of amendment conferred by the Article.

The second branch of the argument for the prosecutors was that the purported amendment of the Constitution by the incorporation of Art. 2A into the Constitution by means of the Constitution (Amendment No. 17) Act, 1931 (No. 37 of 1931), was not a valid amendment within Art. 50, even as amended by the extension of the eight to sixteen years. The contention was that the amendment was so radical as to amount to a repeal of the Constitution. But in point of fact no single Article of the Constitution is abrogated by Art. 2A, which has no greater effect than to introduce exceptions and conditional modifications. Accordingly there is no substance in the contention that — assuming that the Oireachtas, even with the help of a Referendum, could not repeal the Constitution by constitutional means — the Act is invalid because it does not merely amend but in fact repeals the Constitution. Consequently the contention has to abate to this, that the operation of Art. 50 is confined to the modification of subsidiary Articles, or Articles of merely secondary importance, and that there are some Articles of such fundamental importance that they cannot be altered. As a provision is not usually incorporated into a Constitution unless it is regarded as of fundamental importance, this distinction between Articles of primary and secondary importance is difficult to maintain. The emphatic language of an Article and the universality of its terms are not relevant to the question of the primary or secondary importance of the Article as so worded, or to the question of its alterability. Indeed, overstatement is a natural result of the confidence and exuberance of youth, and may be what most of all necessitates, and most readily yields to, amendment as the Constitution matures. But not alone is the distinction difficult, if not impossible, to draw, but there is nothing in the language of Art. 50 to suggest that regard was paid to any such distinction. The attempt to extract a regard to the distinction from the choice of the word "amendment," which, however, is generally taken as a word of wide import when referred to legislative powers, begs the question. So, here, again the complete answer to the objection is that if any particular Articles were to be protected from the authority given by Art. 50, there was one way only of doing it, and that was by an express exception of those Articles.

Hence the only force in the attempted impeachment of the Act of 1931, incorporating Art. 2A into the Constitution, was purely rhetorical. If this Court is not to declare Art. 2A to be invalid, as undermining the Constitution, then, it was urged, there is no principle of the Constitution, however sacred, that may not be swept away. The provision in favour of proportional representation was submitted to be one of the inviolable provisions of the Constitution; and if Art. 2A was declared valid proportional representation could be abolished. What then — making an excursion into the law of contract — becomes of the sacred compact with the Proportional Representation Society, who, presumably, gave good consideration, as without their approval the Constitution could never have been established? Well, the truth must be faced, however unpalatable: there is nothing in Art. 50 to prevent the abolition of proportional representation. Such is the devastating effect of Art. 50. Equally serious, perhaps, is the fact that the entire position of the judiciary, even their jurisdiction under Art. 65, might be changed. If all this is so, then, it was argued, the whole Constitution becomes a mockery. The answer to all this is that the Court must take the Constitution as it finds it, and there is in fact a very great difference between a Legislation which can only act in accordance with its avowed principles, though it may, from time to time, alter or modify its avowals, and a Legislature which can do just as it pleases without regard to principle. If every one acted up to his professions this would be a different world; and we may not unreasonably hope that the same is true of Legislatures. Art. 50 and Art. 65 taken together secure, and cannot do more than secure, such consistency. The Legislature must be trusted to remember, before lightly passing any amending Acts sacrificing principles of the Constitution, that nothing so much inspires respect for the law and good citizenship as having a Constitution of which all citizens are entitled to feel proud, and which is observed and honoured by those in power.

For these reasons I entirely concur in the judgment of the President.

O'Byrne J.
I agree.

Counsel on behalf of the prosecutor strongly contended that our Constitution was based upon the idea of popular and not parliamentary sovereignty, and various other questions of philosophical interest were discussed during the arguments. In my opinion it is not necessary for the decision of this case to express any opinion on these interesting questions.

It is clear from, the terms of the Constitution that it was drawn up with considerable care. Certain of the provisions contained in it were obviously of a tentative and novel character, and it is only reasonable to suppose that the Assembly which enacted it contemplated the possibility that the Constitution would, or might, require to he altered or amended in the light of experience. This possibility was not overlooked, and the Constitution, as enacted, contains Art. 50, on which, in my opinion, the decision in this case turns.

Art. 50 provides that:— [Reads Art. 50.]

It will be noted that the Article as enacted contemplates all amendments to the Constitution within the terms of the Scheduled Treaty and does not exclude Art. 50 itself. It is not unusual in Constitutions to exclude from amendment the amending power itself, or to provide that it may only be altered in some special way. This was not done in the case of our Constitution, and, accordingly, I am of opinion that the power of amendment extends to Art. 50 in the same way and to the same extent as it extends to every other Article of the Constitution.

It was then argued that "amend" as used in Art. 50, meant merely to free from faults, to correct, or rectify, and that it did not include such alteration as the changing of "eight years" to "sixteen years" in Art. 50. In my opinion it is quite clear on the face of the Constitution that no such narrow interpretation was intended. The term is used in two other Articles and presumably it was used in the same sense throughout.

Art. 38 provides that: "Every Rill initiated in and passed by Dáil Éireann shall be sent to Seanad Éireann and may, unless it be a Money Bill, be amended in Seanad Éireann." In this Article it is clear that the term "amend" contemplates and includes the making of changes. Supposing the Constitution as enacted were passed as a Bill by the Dáil and sent to the Seanad, could it be suggested that the Seanad under Art. 38 could not make such an amendment as the changing of "eight years" to "sixteen years" in Art. 50? In my opinion there could be only one answer to such a question.

Art. 73 provides that:— "Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State (Saorstát Éireann) at the date of the coming into operation of this Constitution shall continue to he of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas." It is clear that the word "amended" is used here in the widest sense and includes the making of changes of the most comprehensive character. I see no reason for giving to the term a more restricted meaning in Art. 50.

It was contended by counsel on behalf of the prosecutors that under and in pursuance of the Constitution as enacted no changes or alterations of a substantial character could be made without a revolution and a resultant overthrow of the entire Constitution. This is a contention which I thoroughly and completely reject.

For these reasons I am of opinion that the Oireachtas was competent to make the amendments to the Constitution which have been in question in this case and that, accordingly, the cause shown should be allowed and the conditional order discharged.

Kennedy C.J.
This matter came before the High Court on an application by Jeremiah Ryan, Hubert Johnston, John Harty and James Cantwell, for an order of habeas corpus ad subjiciendum directed to Captain Michael Lennon, Governor Of Arbour Hill Military Detention Barracks, to have the bodies of the applicants before the High Court, they being taken and detained under his custody, and for an order of prohibition directed to the Constitution (Special Powers) Tribunal and to Colonel Frank Bennett and others the members thereof prohibiting them from further proceeding in the matter of a prosecution before them wherein the Attorney-General is prosecutor and the applicants are defendants. The grounds of the application for the order were set out as follows:—


 * "1. That the Constitution (Amendment No. 17) Act, 1931, No. 37 of 1931, is ultra vires, unconstitutional and void in that


 * "(a) It is contrary to Article 72 of the Constitution.


 * "(b) It is contrary to Article 6 of the Constitution.


 * "(c) It is contrary to Article 64 of the Constitution.


 * "(d) As an amendment of the Constitution, it is contrary to Article 50 of the Constitution as enacted, the purported amendment of which Article by the Constitution (Amendment No. 16) Act, 1929, was invalid.


 * "2. That the said Constitution (Special Powers) Tribunal had and has no lawful existence, jurisdiction or authority."

The application was grounded upon a joint affidavit sworn by the four applicants on the 11th of June, 1934, in which the following matters of fact were alleged. The applicants were, on the 22nd of April, 1934, arrested by members of the Gárda Siochána at their various residences in the vicinity of the town of Thurles. They were immediately removed to the Gárda Barracks in Thurles, where they were interrogated by two superintendents and a sergeant of the Gárda Siochána. They were then removed in custody to Limerick Gaol, where they were detained for eight days. On the 2nd of May last, they were removed in custody to Arbour Hill Military Detention Barracks, of which the Governor is Captain Michael Lennon. On the 31st of May, they were brought before the Constitution (Special Powers) Tribunal, at Collins Barracks, where the following charges were brought against them:—


 * "Conspiracy to shoot with intent to murder.


 * "Attempting to shoot with intent to murder contrary to sect. 14 of the Offences against the Person Act, 1861.


 * "Conspiracy to shoot with intent to do grievous bodily harm.


 * "Attempting to shoot with intent to do grievous bodily harm contrary to sect. 18 of the Offences against the Person Act, 1861.


 * "Being an accessory to shooting with intent contrary to sect. 47 of the Offences against the Person Act, 1861.


 * "Common assault.


 * "Being members of an unlawful association contrary to sect. 20 of Article 2A of the Constitution.


 * "Unlawful assembly.


 * "Conspiracy to obstruct and interfere with the enforcement of the law.


 * "Being in possession of a firearm without holding a firearms certificate therefor contrary to sect. 2 of the Firearms Act, 1925.


 * "Being in possession of firearms with intent contrary to sect. 15 (a) of the Firearms Act, 1925."

Each of them pleaded not guilty to the said charges and in their affidavit also they asserted their innocence. Having received information that about' ninety witnesses would be called for the prosecution and desiring time for the preparation of their defence they applied for an adjournment, which was granted until the 12th of June.

The present application was, in the first instance, made ex parte to the High Court (Mr. Justice O'Byrne) on the 11th of June last, when a conditional order of habeas corpus and prohibition was made on the grounds I have already mentioned and was directed to be served on the several members of the Constitution (Special Powers) Tribunal and upon the Registrar of the Tribunal and upon the Governor of Arbour Hill Military Detention Barracks and upon the Chief State Solicitor for the Attorney-General.

Three affidavits were filed on behalf of the Attorney-General by way of showing cause against the making absolute of the conditional order.

One was made by Captain Michael Lennon, Governor of Arbour Hill Military Detention Barracks, who stated that the applicants were detained by him, awaiting trial, under and by virtue and authority of a sealed order of the Constitution (Special Powers) Tribunal, dated the 31st of May, 1934. He received the applicants on the 2nd of May by virtue of four several committal orders made by the Minister for Defence on the 2nd of May, 1934, under Article 2A of the Constitution. He stated that Arbour Hill Prison is a place of detention and a place of imprisonment prescribed by the Minister for Defence under Article 2A of the Constitution by regulations made on the 7th of November, 1933, amended on the 16th of February, 1934. He exhibited the several orders and regulations mentioned.

The second affidavit was made by Mr. O'Connor, solicitor for the Attorney-General in the conduct of prosecutions before the Constitution (Special Powers) Tribunal. He stated that an order was made by the Executive Council of Saorstát Éireann on the 11th of August, 1933, declaring that Parts 2, 3, 4, and 5 of Article 2A of the Constitution should come into force and that these Parts of the Article had since that date continued in force. He referred also to the issue of Iris Oifigiúil of the 25th of August, 1933, containing the appointments of Colonel Francis Bennett and four others, officers of the National Army, as members of the Constitution (Special Powers) Tribunal.

The third affidavit was made by Commandant Richard J. Feely, Registrar of the Constitution (Special Powers) Tribunal. He does not contradict the statement of the facts as they appear in the applicants' affidavit but he adds the following matters. On the 1st of May, 1934, a sealed order was made by the Constitution (Special Powers) Tribunal, on the application of an Inspector of the Gardá Siochána, directing that the trial of the applicants be transferred to the Tribunal. On the hearing of that application a certificate of an Executive Minister pursuant to clause 7 of the Appendix to Article 2A of the Constitution was produced and was before the Tribunal when the order was made. A like certificate was lodged with the deponent on the 22nd of May, 1934, as was also a statement of the charges preferred against the applicants. Summaries of the evidence to be given were lodged with him on several dates mentioned and were served on the applicants. The trial of the applicants commenced on the 31st of May, 1934. After the examination of certain witnesses it was adjourned at the request of the applicants, to which the Attorney-General assented, until the 12th of June, the Tribunal directing that the applicants be detained in custody. On the 12th of June, an order was made further adjourning the trial, having regard to the order of the High Court.

The application then came before the High Court (Sullivan P., Meredith J. and O'Byrne J.) on the motion of the applicants for an order that the conditional order of habeas corpus and prohibition be made absolute note withstanding the cause shown. The Court, after a lengthy hearing, reserved judgment which was delivered on the 25th July, when an order was made that the cause shown be allowed and that the conditional order of habeas corpus and prohibition be discharged with costs. The applicants immediately lodged this appeal and, on the last day of the Trinity Sittings, requested that this Court would regard the appeal as a matter of such urgency that it should be heard as soon as possible notwithstanding the commencement of the Long Vacation on the following day. The Attorney-General attended and informed us that he was unable to assent to, and must oppose, the granting of bail to, or the release on any terms of, the applicants pending a hearing of the appeal in the normal course in the Michaelmas Sittings. Indeed, he said that he must submit that it would not be competent for the Constitution (Special Powers) Tribunal to release, on bail or on parole or otherwise, any prisoner charged before it pending his trial. We, therefore, recognising that the validity in law of the deprivation of a citizen of his liberty being in question, times fixed by the Rules of Court for sittings and vacations and considerations of personal convenience must give way, determined that this Court should reassemble forthwith and proceed with the hearing of the appeal, which we did. The case has accordingly been argued very fully, and at considerable length, in the course of which matters of more than ordinary importance and gravity, affecting the life and liberty of every citizen in this State, were presented to us for determination. At the conclusion of the lengthy argument, though, as we mentioned then, a majority of the Court inclined to the opinion that the cause shown against the order of habeas corpus ad subjiciendum was sufficient, it was felt that the questions raised were of such gravity and of such far reaching importance, as well as of such difficulty, that it was proper and, indeed, absolutely necessary, to take time for their consideration, and we accordingly reserved our opinions, to be stated in writing, and the judgment of the Court now about to be pronounced.

The net question for decision is the validity of the Constitution (Amendment No. 17) Act, 1931, No. 37 of 1931, having regard to the provisions of the Constitution (Article 65 of the Constitution). The validity of that Act, which was upheld by the High Court, depends, admittedly, on the validity of the Constitution (Amendment No. 10) Act, 1928, No. 8 of 1928, and of the Constitution (Amendment No. 16) Act, 1929, No. 10 of 1929. The question of the validity of these Acts has also been raised for decision. The decision of these questions will bring us back to the interpretation of Article 50 of the Constitution (in the form in which it was enacted) as the principal matter for our consideration and determination.

The immediate subject-matter of the application and appeal is, as I have said, the Constitution (Amendment No. 17) Act, 1931, No. 37 of 1931. This Act was passed as an Act of the Oireachtas on the 17th of October, 1931, that is to say, some eleven months after the expiry of the period of eight years mentioned in Article 50 of the Constitution (as enacted). It was not submitted to a Referendum of the people. It was described in its long title as an "Act to amend the Constitution by inserting therein an Article making better provision for safeguarding the rights of the people and containing provisions for meeting a prevalence of disorder." The discussion on this Act has taken place in what I suppose must be an almost unique situation. Counsel for the appellants has attacked it in unqualified terms as being, along with the Acts No. 8 of 1928 and No. 10 of 1929, a usurpation of the power and authority of the people and a subversion of the Constitution. Counsel on the other side, arguing in support of the acts done under the supposed authority of this Act, opened their argument by an apology and an appeal, saying that they were in the unenviable and very difficult position of having to stand over an Act which was repellent to the instincts of every lawyer, but that, nevertheless, they were confident in their ability to establish its validity under the Constitution, and they appealed to the Court to stifle the instincts naturally aroused in lawyers against the measure, and to consider only whether, in the ultimate result of a consideration of the arguments, it was a valid enactment of the Oireachtas or not. Such a reminder of what is our undoubted duty is such an exceptional procedure that a survey of the measure that could be supposed to call for it will be as interesting as it is necessary for the purposes of the case.

The operative part of the statute is short and simple. It is simply enacted that the Constitution be amended by inserting therein a new Article, to be cited as "Article 2A," immediately after Article 2 thereof. The new Article is set out in a Schedule to the Act. It is not short or simple. It is divided into five distinct Parts and contains thirty-four sections and an appendix.

Part I of the Article lays down that the other Parts of the new Article, that is to say, the effective provisions of the Article, are not to be of any force or effect unless or until the Executive Council makes an order declaring that they shall come into force, and shall then continue in force until the Executive Council makes an order declaring that they shall cease to be in force. An order may be made by the Executive Council bringing these Parts of the Article into force "Whenever the Executive Council is of opinion that circumstances exist which render it expedient" to do so. An order may be made by the Executive Council that these Parts of the Article shall cease to be in force "whenever the Executive Council is of opinion that circumstances rendering it expedient that the said Parts of this Article should be in force no longer exist."

One cannot pretend ignorance of the general use of the expression "the Public Safety Act" in references to the Act to introduce this Article into and make it a permanent part of the Constitution. Indeed, in a volume entitled "Index to the Legislation passed by the Oireachtas in the years, 1922 to 1932," issued by the Government Stationery Office within the past few weeks, a statement has been quite gratuitously inserted on page 136 that: "This Article ... is in the nature of a Public Safety Act." We, of course, must avoid the inaccuracy, carelessness or indolence of mind, or dangerous complacency, shown by slipping into the use of such an expression. Let us in this Court, at least, be clear about it. The Act purports to introduce the Article as a permanent amendment of the Constitution, giving permanently to the Executive Council authority to bring into operation, and to use, the special powers of the new Article at any time thereafter, subject only to one condition, that the Executive Council is of opinion that circumstances exist which render it expedient to do so, that is to say, in any undefined circumstances of any kind whatever in which, in their uncontrolled discretion, the Council think it expedient. Peril to "Public Safety," the existence of a state of war or armed rebellion (as stipulated by the Constitution for the suspension of certain rights of the citizen), the existence of a state of disorder or violence such as to prevent the ordinary civil Courts of the State or any of them from fulfilling their functions, terrorism, panic, over-awing of juries, none of these things existing in actual fact, nor even the opinion of the Executive Council that they exist, or that danger threatens the State or the Constitution or the Government, or general peace or order, or the citizens or any section of them, none of these is stipulated or prescribed as a condition precedent for the assumption by the Executive Council of the extraordinary powers given by this ineptly, nay dangerously, called "Public Safety Act." The only preliminary requirement is that the Executive Council for the time being, then, now, or at any time hereafter, thinks it expedient and, as it cannot be assumed that the order would be made at any time if the Executive Council of the moment did not, for some reason or another, good or bad, think it expedient, it is as much as to say, whenever the Executive Council for any reason decides that these Parts of the Act be put into operation.

Part I also contains a provision that the entire Constitution commencing with Article 3 thereof (that is to say excluding the first and second Articles) is to be read and construed subject to this now Article, which is to prevail in case of inconsistency. One consequence amongst many of this is that the provision made by the Constitution for suspension of constitutional rights of they citizen in a few cases and, in those cases, only in case of war or armed rebellion, yields to the ipse dixit of the Executive Council that it is expedient.

Let us now turn to Parts II to V to see the effect of an order bringing the Article into operation, never losing sight of the fact that such an order may be made in conditions of absolute peace, no emergency, rebellion, or disorder threatening the State or people, the ordinary civil Courts under the Constitution unembarrassed in the fulfilment of their functions. The first thing that happens on the making of the order is that there is set up, under Part II of the Article, what is called a "Tribunal" under the name of "The Constitution (Special Powers) Tribunal." This "Tribunal" is to consist of live members, of whom three are to constitute the "Tribunal" for the purposes of a "sitting," the order or act of a majority of the three who sit being made for all purposes the order or act of the "Tribunal." The only qualification required for membership of the "Tribunal" is that the member shall be an officer of the Defence Forces of Saorstát Éireann not below the rank of commandant. No one of the live is required to have any legal qualification whatever, nor any knowledge of law or legal procedure, civil or criminal, of any kind whatever. I was given to understand none of the persons now constituting the "Tribunal" has any such qualification or knowledge. All the members of the "Tribunal" are to be appointed and to be removable at will by the Governor-General acting on the advice of the Executive Council. This body is given full and absolute control of its own procedure and, in particular, in respect of the admission or exclusion of the public to or from its sittings.

Sect. 6 of the Article purports to confer jurisdiction an the "Tribunal," namely, jurisdiction to "try and to convict or acquit" all persons charged with an offence mentioned in the Appendix to the Article and brought before the "Tribunal" under the Article, and to sentence such of them as the "Tribunal" convicts of such offence. There is an express prohibition of appeal from any order, conviction, sentence or other act of the "Tribunal," and of restraint of or interference with the "Tribunal" by any "Court." The range of offences jurisdiction to "try" which is given to the "Tribunal" by the Article includes at number of named offences or classes of offence (some of the most serious character, such as offences declared by the Treasonable Offences Act, 1925, to be a treason or felony or a misdemeanour, or others of minor gravity) and finally a class thus described:— "Any offence whatsoever (whether committed before or after this Article was inserted in this Constitution or before or after sections 4 to 34 of this Article came into force) in respect of which an Executive Minister certifies in writing under his hand that to the best of his belief the act constituting such offence was done with the object of impairing or impeding the machinery of government or the administration of justice." The more one dwells on this paragraph, the more one is staggered by the contemplation of the range of its operation and the scope of the matters authorised by it. A person is charged with an "offence," however trifling, however grave, whenever alleged to have been committed, whether before or after the passing of the Amendment Act, and the charge is made post factum an offence to be "tried" by the "Tribunal" by means of a certificate under the hand of an Executive Minister, prejudging on his own sole responsibility the fact that the act constituting the alleged offence was done, and testifying his belief that it was done, with the object of impairing or impeding the machinery of government. What remains for the "Tribunal" to "try" save the validity of the Minister's certified belief, if, indeed, even that question remains open, and to exercise the jurisdiction to sentence the accused, to which I will presently refer. The provision, moreover, is in substance and practical effect repugnant to the principal and the almost universal practice which forbids retro-active penal legislation. It is within the application of the words of Alexander Hamilton, writing in The Federalist, No. LXXXIV:— "The creation of crimes after the commission of the fact or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favourite and most formidable instruments of tyranny."

The jurisdiction which this Part of the Article gives to the "Tribunal" extends also to sentences in this, even more staggering, provision, sect. 7, sub-sect. 1:— "Whenever the Tribunal finds any person guilty of an offence mentioned in the Appendix to this Article, the Tribunal may, in lieu of the punishment provided by law (other than this Article) for such offence, sentence such person to suffer any greater punishment (including the penalty of death) if in the opinion of the Tribunal such greater Punishment is necessary or expedient." The next sub-section gives the Tribunal power to direct the manner in which, and the authorities by whom, any sentence is to be carried out. It may, if it thinks it "expedient," sentence any person whom it convicts of any offence mentioned in the Appendix to death, to be executed in such manner as it directs, including even the most barbarous lethal process, should a particular "Tribunal" at some future time be overwhelmed by passion or be constituted of members of a perverted morality. Detached measuring of sentences by legal prescription is not to govern the "Tribunal." The "Tribunal" will be safe from enquiry, for the fifth sub-section prohibits a Coroner's inquest in the case of a person executed under a sentence of death by the "Tribunal," though such an inquest is held in every case of an execution under the sentence of a constitutional Court. In anticipation of what events was this provision inserted?

In general it may be said that some of the provisions to which I have been referring are the antithesis of the rule of law, and are, within their scope, the rule of anarchy.

The next section protects every member of the Tribunal from any action, prosecution or other proceeding, civil or criminal, in respect of anything done by him in his capacity as such member, whether or not it was necessary to the performance of his duties or the exercise of his powers.

This Part of the Article goes on to provide for the transfer of the trials of persons awaiting trial by the ordinary constitutional Courts of the land, the Central Criminal Court and the Circuit Court, to the "Tribunal," and that transfer is to be effected by an order of the "Tribunal" itself, on the application of a member of the Gárda Síothchána "not below the rank of inspector."

In this, shall I say, pioneer piece of constitution draftmanship, there is a quantity of detail to which it is unnecessary to refer, as I am for my present purpose concerned only with the larger matters of principle. It is, however, interesting to note that one of its pioneer achievements is the implanting in the Constitution of a group of provisions entitled "Special Powers for the Police," which constitute Part III of the Article. This embodiment of a drastic "Police" Act in a Constitution is further proof (if such be necessary) that this State can point new ways. The "Police" are the "Gárda Síochána," a body created by ordinary legislation and hitherto unknown to the Constitution as such. It is a body which has built up for itself a position high in the esteem of the general public. One had not perhaps realised how high until it was accorded, by an amendment of the Constitution, a kind of constitutional status and, not only that, but a con- stitutional certificate of character for its individual members, certain of whose statements on oath are now declared to be "conclusive evidence, incapable of being rebutted or questioned by cross-examination, rebutting evidence, or otherwise."

The same Part of the Article alters the ordinary law for the protection of the citizen in one important respect. Under the ordinary law, when a person has been arrested and is in the custody of the police he is protected from interrogation by his custodians for obvious reasons. Some time since an attempt was made to distinguish between "detention" and "arrest" for this purpose and to give evidence against a person of statements obtained from him while, as it was contended, he was only "detained" before a charge was made against him. It was held, both in this Court and in the Court of Criminal Appeal, that this was a fallacious distinction, and that "detention" by the Gárda cannot be distinguished from "arrest" by them so as to permit evidence against himself to be extracted by interrogation from a person who is in the disadvantageous position of one in custody, interrogated by his custodians without the protection of legal adviser, or magistrate, or light of day on the proceedings. Call it what you will, there is no distinction in the holding of a person in custody whether you choose to name it "in detention" or "under arrest." This Part of the new Article imports into the Constitution of the Free State an express authority for any member of the Gárda Síochána (of any rank), without limit on the number of such members, or the number of occasions, or the time of day or night, to enter the prison or other place of custody and interrogate a person in custody. Nor is any protection afforded the prisoner by requiring the presence of a Judge of any Court, or the presence of an officer of the Gárda Síochána of any rank, or the presence of a legal adviser of the prisoner (if demanded), or, indeed, of any third person whatsoever. If the prisoner fails (of which the proof may be, presumably, the sole evidence of his interrogator) to give the required information (which includes information alleged to be in his possession in relation to the commission or intended commission by another person of an offence mentioned in the Appendix), he is guilty of an "offence" triable by the "Tribunal," for which the punishment is "such punishment as the Tribunal shall think proper to inflict."

One cannot lose sight of these powers, or the acts which may be done in the use of them, when one contemplates the provision that the prisoner, who has been removed from the jurisdiction of the Courts of Justice of the State, may be held in custody, in all, for a month and seventy-two hours before he is brought before the "Tribunal" and charged with any offence.

I will refer only to one other of these provisions of the new Constitution of the Free State, in contrast with the old. An "order" to search any place or premises may be issued by an inspector of the Gárda Síochána without reference to any Court or Judge whatever. It will be within common knowledge that an attempt to introduce a similar provision in a neighbouring country failed before a public opinion aroused in defence of a treasured constitutional principle of liberty. We have to decide whether the committal of such principles to a written Constitution has secured them as effectually.

From those provisions which I have summarised it is clear that the new Article 2A is no mere amendment in, but effects a radical alteration of, the basic scheme and principles of the Constitution enacted for the Saorstát by the Constituent Assembly. The Constitution, in Article 2 (which curiously enough is expressly excepted from amendment by the Act under consideration), referring to their source, declares the division of powers, legislative, executive and judicial, for the exercise of which the instrument establishes, or provides for the establishment of, the necessary organisations proper to them respectively. The judicial power of the State is to be exercised in the public Courts, established for that purpose, by Judges appointed in manner thereby carefully prescribed. The Executive authority is conferred on an organisation thereby established to exercise it as thereby prescribed. It has often been said that it falls to the Courts of Justice of the State to stand between the citizen and the Executive and the executive departments, as the only defence of the citizen against encroachments on his rights and liberties, always in danger of such encroachments when watchfulness slackens, e.g., see per Farwell L.J. in Dyson v. Attorney-General [1911] 1 K.B. 410, p. 424.

Now let me state the effect on the Constitution of these, the outstanding provisions, which I have just summarised, of the new Article 2A inserted in the Constitution by, the Amendment Act, No. 37 of 1931 (if valid).

Power is given permanently to the Executive Council for the time being to put the new Article into operation at any time and to supersede a great part of the Constitution whenever and for so long a time as it finds it expedient to do so.

No conditions are prescribed for the exercise of that power. It is not made a condition precedent to its exercise that there must be a state of war or armed rebellion, or other danger to the public safety, or that there must be a prevalence of disorder, or that there must be circumstances such as to prevent the constitutional Courts of Justice or any of them from sitting or fulfilling their constitutional functions, or such as to interfere effectively with the constitutional right to trial by jury. An Executive Council is thereby empowered to put the Article into operation, if they think it expedient, in time of complete peace and order and of law undisturbed and unembarrassed.

When the Article is put into operation, the Executive Council takes away from the constitutional Courts of Justice the trial of certain specified offences against the ordinary law and of others not specified but to be certified (before trial) by a member of the Executive Council as having been done for a named object, whereupon the persons charged are to be "tried" without a Judge or jury by a group of non-legal persons, appointed and removable at pleasure of the Executive Council, and holding army commissions from the Executive Council. That is to say, the exercise of the judicial power of the State in a large and, to the citizen very important, respect, is in truth and effect transferred from its constitutional depositary, the Courts of Justice of the State, to the Executive Council, for though the Executive Council exercises that judicial power through a group of its own nominees acting at its pleasure and called a "Tribunal," this "Tribunal" is in truth in like case with the military tribunals to which Lord Halsbury, speaking of courts martial in time of war, referred in these terms:— "If there is war, there is the right to repel force by force, but it is found convenient and decorous, from time to time, to authorise what are called 'courts' to administer punishments, and to restrain by acts of repression the violence that is committed in time of war ... But to attempt to make these proceedings of so-called 'courts-martial,' administering summary justice under the supervision of a military commander, analogous to the regular proceedings of Courts of Justice is quite illusory: Tilonko v. Attorney-General for Natal [1907] A.C. 93, at p. 94.

The Oireachtas, to which alone and exclusively the Constituent Assembly entrusted the legislative power in respect of peace, order and good government, by this Act (if valid) has surrendered to the Executive Council power declare certain matters to be offences "triable" by the "Tribunal" by a certificate in the individual case of an Executive Minister. The Oireachtas, notwithstanding such exclusive trust, has in like manner surrendered to the Executive Council the authority to declare by the mouth of its nominees and servants at will, what shall be the punishment of any offence "tried" by the "Tribunal" "in lieu of the punishment provided by law" (sect. 7, sub-sect. 1), without check or limit on the choice or quantum of punishment, not even by a general rule governing all cases of a class or type, but by a sentence devised and declared for the individual case.

The net effect, then, is that the Oireachtas has taken judicial power from the Judiciary and handed it to the Executive and has surrendered its own trust as a Legislature to the Executive Council, in respect of the extensive area of matters covered by the Appendix to the Article. Remembering that the "Tribunal" is to consist of five persons holding commissions as commandants (or higher ranks) issued to them by, and held at the pleasure of, the Executive Council, and holding membership of the "Tribunal" at the will of the Executive Council, the result of the Article clearly is that whenever any Executive Council thinks it expedient to use the Article, that Council itself prosecutes (in pursuance of its proper executive function) a person charged by it with an offence (which may be an offence brought within the scope of the Article by an Executive Minister's certificate) and conducts the prosecution before itself, "trying" the charge by its own removable nominees, and itself convicts the accused person, by the same convenient and decorous machinery, and prescribes any sentence for the individual case it chooses through the same convenient and decorous machinery. Every act, from the arrest of the individual and the charging him with an "offence" to the sentence and its execution, is, therefore, in naked reality, the act of the Executive Council.

I am not making any criticism of, or comment upon, this resulting position. I am trying to make clear what the enactment purports to do and to show where and how it conflicts with the Constitution enacted by the Third Dáil in 1922, and the vast importance it may have at any time to the life and liberty of every citizen (if it be effective and valid) and, consequently, the awful gravity of the matters before us for determination in this, as I consider, momentous case.

Has then the Oireachtas validly and effectively, not merely amended, but consummated this root and branch altera- tion in the fundamental principles of the Constitution enacted by the Third Dáil Éireann as a Constituent Assembly in 1922? This is a question calling for most anxious, meticulous and (especially as regards our own particular trust, the judicial power of the State, now so rudely to be invaded) most jealous care: Lynham v. Butler (No. 2) [1933] I.R. 74, at pp. 96, 97. Our trust is for the people, our duty and responsibility to the people, and, while bowing inevitably to lawful amendment, when established to have been properly and duly made, we must be watchdogs to protect against unlawful encroachment and to maintain intact, so far as in us lies, the principles and provisions embodied in the Constitution for the protection of the liberties of the citizens in mass and individually.

The Constitution, or Bunreacht, is the fundamental structure upon which the State was set up by the Third Dáil Éireann sitting as a Constituent Assembly. The Dáil thereby formulated the system or principles, and created the organs, of government of the State. In its second and basic Article, a fundamental division of function was declared, for the exercise of which respectively there were thereby created distinct organs, as, for example, the Oireachtas as the organ of ordinary legislation. The Assembly also laid down in the instrument a few great traditional principles of government (for the most part prohibiting or limiting action of certain kinds, principally on the part of the executive organ), any radical breach of which would, in the common acceptation, involve either tyranny or anarchy.

Now, the first thing I should emphasise is that the Constitution was enacted by the Third Dáil, sitting as a Constituent Assembly, and not by the Oireachtas, which, in fact, it created. It ought not to be necessary to mention this — one cannot imagine such a necessity arising in any other country. A book has, however, been issued within the last few weeks by the Government Stationery Office, called "Index to the Legislation passed by the Oireachtas in the years, 1922 to 1932," in which at several places the Constitution is stated to have been enacted by the Oireachtas (see pp. 6, 75, and passim), surely an extraordinary blot on an official publication. I regret that it is, therefore, necessary to state that the Constitution was enacted as a Schedule to the Constituent Act, passed on the 25th of October, 1922, by the Third Dáil Éireann, sitting as a Constituent Assembly. It may be also necessary to recall that that Assembly was a single-chamber parlia- ment, membership of which was not restricted by, or conditioned on, any test, oath, or declaration of any kind, and which did not act in combination or association with any other chamber or body or person (Lord Lieutenant or Governor-General), and that it was the Parliament to which the then Executive or administration, including the "Provisional Government" as it was called, was responsible. The Oireachtas did not come into existence until after the Constitution itself had come into operation on the 6th of December, 1922. These historical facts are, as I will show, of no small importance in considering the questions before us.

It may be taken for granted (the contrary has not been suggested) that, if the Constituent Assembly had not conferred upon the Oireachtas, or upon some other assembly or body or bodies of persons, or upon some individual or individuals, power to alter the Constitution, it could not have been altered, whether by amendment, revision, deletion, repeal or otherwise, unless a Constituent Assembly were again convoked for that purpose, a procedure which is required in other countries. The Constituent Assembly did, however, confer on the Oireachtas such at power by Article 50, whereby it was provided that:— "Amendments of this Constitution ... may be made by the Oireachtas" - that is the only power to alter the Constitution outside action by the Constituent Assembly itself, but that power is limited and circumscribed by a number of restrictions in respect of the manner and conditions of its exercise and of the substance of the amendments permitted.

In the first place, what I may describe as an over-all limitation arises in this way. The Constituent Assembly declared in the forefront of the Constitution Act (an Act which it is not within the power of the Oireachtas to alter, or amend, or repeal), that all lawful authority comes from God to the people, and it is declared by Article 2 of the Constitution that "all powers of government and all authority, legislative, executive, and judicial, in Ireland are derived from the people of Ireland ..." It follows that every act, whether legislative, executive or judicial, in order to be lawful under the Constitution, must be capable of being justified under the authority thereby declared to be derived from God. From this it seems clear that, if any legislation of the Oireachtas (including any purported amendment of the Constitution) were to offend against that acknowledged ultimate Source from which the legislative authority has come through the people to the Oireachtas, as, for instance, if it were repugnant to the Natural Law, such legislation would be necessarily unconstitutional and invalid, and it would be, therefore, absolutely null and void and inoperative. I find it very difficult to reconcile with the Natural Law actions and conduct which would appear to be within the legalising intendment of the provisions of the new Article 2A relating to interrogation. I find it impossible to reconcile as compatible with the Natural Law the vesting, in three military servants of the Executive, power to impose as punishment for any offence within the indefinite, but certainly extensive, ambit of the Appendix, the penalty of death, whenever these three persons are of opinion that it is expedient. Finally, the judicial power has been acknowledged and declared (and the acknowledgment and declaration remain) to have come from God through the people to its appointed depositary, the Judiciary and Courts of the State. While they can fulfil that trust, dare any one say that the Natural Law permits it, or any part of it, to be transferred to the Executive or their military or other servants?

The second restriction controlling amendment of the Constitution is one imposed in express terms by the Constituent Assembly in the Constitution of the Irish Free State (Saorstát Éireann) Act itself. It is enacted in sect. 2 of that Act that:— "if any provision of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy, be absolutely void and inoperative ..." This enactment is followed by the complementary restriction in Article 50 of the Constitution : "Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas." Now, a Treaty between two countries, negotiated and concluded. Whether by authorised envoys or directly by governments, does not constitute part of the municipal law of either country, unless, and only to the extent that, such Treaty, or some part or parts of it, has been given the force of law by the legislative process of the country in question. The Anglo-Irish Treaty of 1921 (called in the Constitution the "Scheduled Treaty") was given the force of law and became part of the municipal law in Great Britain by the Irish Free State (Agreement) Act, 1922 (passed by the British Parliament on the 31st of March, 1922), and it was given the force of law and became part of the municipal law in Saorstát Éireann by the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922 (passed by the Third Dáil Éireann, on the 25th of October, 1922). Such municipal legislation, so long as it remains unrepealed, makes the treaty instrument of legal obligation, within the State so enacting it, upon the Government, the Judiciary, and the individual citizen, to the extent to which they are respectively concerned. That is, of course, an obligation having a sanction quite independently of the political and moral obligation of such Treaty internationally as an international agreement. Courts must have regard to the former obligation but have generally no concern with the latter standing alone and unsupported by municipal legislation. A Treaty, as an international agreement, may by a time limit contained in it, cease to be effective between the contracting parties by the expiry of the time limited, or it may cease to bind the contracting parties by some agreed method of abrogating it or by denunciation or some internationally recognised and accepted process of bringing its obligation to an end, or it may be modified or altered by new agreement or supplemental treaty between the contracting parties. The agreement for such abrogation or modification of a treaty between the contracting parties Would not have the effect of repealing or altering the municipal legislation enacted to give the original treaty the effect of municipal law. There must be municipal legislation for that purpose (unless perhaps anticipated and provided for in advance by the original legislation). It being in the nature of things that a treaty being simply an agreement between parties is not something fundamentally immutable in its character as a treaty but is subject to modification or termination in some of the ways I have indicated, the reference to "the Scheduled Treaty" in the Constitution Act and in Article 50 must be taken to have been made in contemplation of that position and to have a certain consequent flexibility.

In In re Reade [1927] I.R. 31, I pointed out (at p. 49) that "the Treaty itself contains the whole basis and framework of what may be called the external Constitution of the Free State," that is to say, the constitutional status and relationships assumed by Saorstát Éireann upon entering as a political unit, under the Treaty of 1921, into the Community of Nations known as the British Commonwealth of Nations as one equal member thereof. (See full discussion of this matter at pp. 46 to 49 of the report of that case.) The Treaty also contained agreements between the two countries on particular matters, some of which would be reflected in the Constitution of the Saorstát itself so long as the Treaty and the particular heads of agreement remain in force as an operative instrument between the two contracting parties, and during such time they would limit amendment of the Constitution of the Saorstát in the sense that certain amendments might constitute a breach of agreement between the two countries. But the Treaty does not of itself limit in any other way the power of the Saorstát to amend its own Constitution. The power of amendment is conferred on the Oireachtas, and the limitations on the extent and manner of exercise of that power are imposed, by the Third Dáil Éireann, as of its supreme right and authority. I need only refer, for the purposes of this case, to one of the matters made the subject of particular agreement by the Treaty. Article 16 of that instrument contains a specific agreement that the Parliament of the Irish Free State shall not make any law so as to (a) endow any religion, (b) prohibit or restrict the free exercise thereof, (c) give any preference or impose any disability on account of religious belief, or (d) divert from any religious denomination any of its property except as therein mentioned. This Article of the Treaty is reflected in Article 8 of the Constitution, which guarantees freedom of conscience and free profession and practice of religion to every citizen, and prohibits legislation of the nature mentioned in the sixteenth Article of the Treaty (though there is no reason to suppose that such a provision would not have been inserted in the Constitution by the Constituent Assembly of its own volition independently of the stipulation in the Treaty). A considerable part of Mr. Overend's argument has been addressed to the question whether the power of amendment can be read in such a way as to extend to that clause, as it certainly would if some of the contentions put forward were accepted as sound. His main contention on this matter was that, if a power of amendment of the nature and extent claimed Were held to have been conferred by Article 50, then a person who had elected for citizenship of the Saorstát under Article 3, acting on the faith of the protection given to his conscience and religion by Article 8, might find that protection swept away from him some day by an amendment deleting Article 8. The answer to that argument, however, is that his election to accept citizenship of the Saorstát under Article 3 must be taken to have been made in full view of, and subject to, any amendment which can be lawfully made under Article 50, and the question therefore remains or this, as for any other, purpose, whether the particular alteration of the Constitution is an amendment which can be made lawfully under the power of amendment in Article 50, and if it be so, Mr. Overend's citizen cannot, I fear, rely on the representation in Article 8. He can only rue his folly and bewail his fate. There is, however, another consideration which touches the same point, one relied on very strongly by Mr. Costello in his argument, and with which I now deal. It is the third limitation which, it has been contended, circumscribes and restricts the power of amendment.

In the Constitution, in addition to giving form to the Constitution proper by establishing the, organisations for the exercise of the powers of government in its threefold division of authority, the Constituent Assembly also enunciated certain propositions, containing statements of fundamental principle in the constitutional sphere so expressed as to convey clearly the intention that they are to be accepted for the purposes of the Constitution as immutable and absolute, subject only to the specific qualifications expressed in certain cases. For example, Article 2, with regard to the derivation of the powers of government and authority, is enunciated by the Constituent Assembly as a statement of fundamental principle which is not to be questioned by the Oireachtas. It is noticeable that, in the case of Article 2, that position was recognised in the Constitution (Amendment No. 17) Act, whereby that Article was excepted from the general overriding effect given to the new Article 2A over all the subsequent Articles of the Constitution. A similar declaration of principle is contained in Article 6, which lays it down that the liberty of the person is inviolable, flowing from which there follows the concrete case, "no person shall be deprived of his liberty" with the specific qualification "except in accordance with law." An enactment to the general effect that a citizen may be taken and detained in custody, without being charged with any offence known to the law but just whenever and for as long as a soldier or policeman deems it expedient, would conflict with the principle laid down in Article 6, and, in my opinion, whether purporting to be an ordinary law, or an amendment of the Constitution, would be invalid and void and could not be sustained under the power of amendments On the other hand, ordinary laws may be enacted validly specifying the cases in which, the causes for which, the times during which, and the persons by whom, a person may in accordance with the ordinary law be deprived of his liberty. The same considerations apply to Article 7, which declares that the dwelling of each citizen is inviolable. Article 8, in which freedom of conscience and the free profession and practice of religion are laid down as rights of the citizen, is in a somewhat different form. It guarantees these liberties to every citizen. So, also, the right of free expression of opinion and the right to assemble peaceably are declared in Article 9, by guaranteeing them, subject to the equally fundamental qualification that their exercise must not be for purposes opposed to public morality.

The Third Dáil Éireann has, therefore, as Constituent Assembly, of its own supreme authority, proclaimed its acceptance of and declared, in relation to the Constitution which it enacted, certain principles, and in language which shows beyond doubt that they are stated as governing principles which are fundamental and absolute (except as expressly qualified), and, so, necessarily, immutable. Can the power of amendment given to the Oireachtas be lawfully exercised in such a manner as to violate these principles which, as principles, the Oireachtas has no power to change? In my opinion there can be only one answer to that question, namely, that the Constituent Assembly cannot be supposed to have in the same breath declared certain principles to be fundamental and immutable, or conveyed that sense in other words, as by a declaration of inviolability, and at the same time to have conferred upon the Oireachtas power to violate them or to alter them. In my opinion, any amendment of the Constitution, purporting to be made under the power given by the Constituent Assembly, which would be a violation of, or be inconsistent with, any fundamental principle so declared, is necessarily outside the scope of the power and invalid and void.

I have been dealing with limitations of the power of amendment in relation to the kinds of amendment which do not fall within the scope of the power and which are excluded from it always, irrespective of the time when, i.e., within the preliminary period of eight years or after, or the process by which, the amendment is attempted. Such considerations as I have been discussing may affect a particular attempted amendment either in the whole or in part only. I now come to deal with a restriction on the exercise of the power of amendment affecting any attempted amendment as a whole.

The fourth limitation on amendment of the Constitution is that imposed in Article 50 on the method or process of amendment by these words:—


 * "but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment."

The clause then contained a special power to be exercisable during the before-mentioned period of eight years:—


 * "Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof."

The practical difference between the procedure for exercising these powers is that, after the first period of eight years, the Oireachtas is forbidden to make an amendment of the Constitution without referring it to the people by Referendum for approval; while for an initial period of eight years a Referendum was not required unless demanded in the manner provided by Article 47, thus allowing a time within which drafting of formal or other unimportant amendments could be effected without insisting on the Referendum, which, however, could always, even during such preliminary period, be demanded and insisted upon, so that the check and control of the people could at any time be exerted if a proposed amendment seemed to call for it. A moment's consideration will demonstrate that this clause was enacted in clear realisation of the relative positions of the Constituent Assembly and the Oireachtas. Membership of the Constituent Assembly, as I have mentioned already, was not restricted by any oath or other test. The Assembly therefore felt itself entitled to speak for all the people in the territory for which it was elected, and it is very clear, on the evidence of the Constitution itself which it enacted, that the Assembly intended, and, so far as it could by constitutional provision, tried to preserve intact the overriding authority of the people. The Assembly established by the Constitution a Legislature (the Oireachtas) upon membership of which the Assembly felt bound for certain reasons (and I am not called on here to discuss these reasons) to impose a test by way of an oath, the possible, even probable, effect of which might be anticipated as the exclusion of some of the people from membership of the Oireachtas. That probable effect, in limiting membership of the Oireachtas and so restricting the voice of opinion in support of or opposition to its acts, was met by making provision for the procedure known as the Referendum to the people for decision (which Was no doubt recommended to the Constituent Assembly by other considerations as well as that which I am discussing and which is obvious on the face of the document itself). The Referendum was not limited by any oath or other test. The decision of the matter submitted was to be a decision of the whole people on the basis of universal suffrage (Article 14, for which detailed provision was actually made by statute, the Electoral Act, No. 12 of 1923, Part V). Thus, the Constituent Assembly, endowing the more limited Assembly, the Oireachtas, with a power of amendment of the Constitution, reserved to the people on whose behalf it was enacting that Constitution absolute control of the exercise of that power, so that in every case after the period of eight years the decision of the people must be obtained and, during that period, such control was secured by the right to demand a Referendum.

Nevertheless, the Oireachtas has, it is contended, by means of two amendments of the Constitution within the preliminary period of eight years, namely, the Constitution (Amendment No. 10) Act, No. 8 of 1928 (passed on the 12th of July, 1928), and the Constitution (Amendment No. 16) Act, No. 10 of 1929 (passed on the 14th of May, 1929), succeeded in taking from the people the control so carefully reserved, and endowed the Oireachtas itself with power to amend the Constitution without limit or check of any kind even to the extent of an "amendment" generally over-riding the whole Constitution and depriving the people of their constitutional rights and liberties whenever and during such time as one of the limbs of government, the Executive, thinks it expedient. The first of these two amendments deleted Articles 47 and 48 from the Constitution. Those Articles gave the people a voice in ordinary legislation by means of the "Referendum" and the "Initiative." I am not concerned with the amendment here in its bearing upon ordinary legislation of the Oireachtas, in which respect it may be an entirely valid exercise of the power of amendment under Article 50. I have not to consider it in that aspect. I am now only concerned with its express, though not too strikingly prominent, extension to remove the condition annexed to the power of amendment during the preliminary period of eight years given by Article 50, namely, that it should be subject to the provisions of Article 47, i.e., the Referendum. Having thus, as it was supposed, removed all power of the people to interfere by the Referendum in amendments made during the preliminary term of eight years, and taken a free hand, the Oireachtas passed the second of these amending Acts extending by a further period of eight years the term for the exercise of the preliminary power, now freed by the previous amending Act of all reference to or control by the people. If this was lawful it can be continued indefinitely in time and scope of amendment, ultimately even to the exclusion of the people from all voice in legislation and administration and the open mockery of Article 2 of the Constitution. As against this, counsel advanced the (rather political) argument that the people were still fully protected, because, as he said, a general election is equally effective with a Referendum, and that in fact the majority which passed the amendment containing Article 2A was immediately afterwards rejected at the polls, though at the same time he admitted the answer, also perhaps political though logical, that the majority which succeeded after a general election did not repeal the statute enacting the amendment, but only suspended the operation of the amendment, and later put it again into full operation. If, however, the result of the election of which counsel spoke was a declaration of the mind of the people on the Amendment No. 17 and the Article No. 2A, thereby inserted in the Constitution, it follows that if submitted to the people by Referendum it could never have reached the Statute Book and we should not have had to consider its validity as an Act of the Oireachtas in operation as we are now engaged in doing.

Was, then, the Amendment No. 16 lawfully enacted by Act No. 10 of 1929? There are two principal grounds for impeaching its validity; the first, the taking away, whether validly or not, in any case the effective removal from use, of the Referendum and the right to demand a Referendum; the second, that the Amendment No. 16 is not within the scope of the power of amendment, and therefore the Oireachtas Was incompetent to enact it.

It has not been suggested or even hinted that, if the Constituent Assembly had not conferred a power of amendment of the Constitution, there would have been any such power in the Oireachtas or in any other body. If no such power had been given the only way in which the Constitution could have been altered or amended in any respect would have been by convoking the Constituent Assembly for that purpose. The Oireachtas, therefore, which owes its existence to the Constitution, had upon its coming into being such, and only such, power of amendment (if any) had been given it by the Constituent Assembly in the Constitution, that is to say, the express power set out in Article 50, and amendments of the Constitution could only be validly made Within the limits of that power and in the manner prescribed by that power.

Now, the power of amendment is wholly contained in a single Article, but the donee of the power and the mode of its exercise are so varied with regard to a point of time as to make it practically two separate powers, the one limited to be exercised only during the preliminary period of eight years, the other, a Wholly different and permanent power, to come into existence after the expiry of that preliminary period and so continue thereafter.

During the preliminary fixed period of eight years, power was given to the Oireachtas to make amendments of the Constitution "by way of ordinary legislation," which I understand to mean by the ordinary legislative procedure. The Oireachtas had, therefore, under this clause power to enact amendments as law during the specified period of eight years. To this power, however, there was added the condition that it "shall be subject to the provisions of Article 47," that is to say, the amendment must be submitted by Referendum to the decision of the people, if, but only if, demanded within a specified time by the Senate or by a certain proportion of the people. Thus the Constituent Assembly, even during the preliminary period, would not relax the ultimate authority of the people, and expressly reserved, to the people the right to intervene when they considered it necessary to restrain the action of the Oireachtas affecting the Constitution. The frame of this provision makes it clear to my mind that, even if, by amendment of the Constitution under the power, Article 47 might cease to apply to ordinary legislation of the Oireachtas, the provisions Of that clause were declared, deliberately, expressly and in a mandatory way, to be kept in force and operative for the purpose of amendments of the Constitution during the preliminary period of eight years.

Now, on the other hand, the permanent power of amendment, to arise at the expiry of the period of eight years, is a wholly different thing both as to the donee of the power and the manner of its exercise. Power is not given to the Oireachtas to enact amendments of the Constitution into law in any circumstances. On the con- trary, there is an express negativing of any such power. There is a prohibition, utterly unambiguous in its terms, forbidding the passing into law of any amendment which shall not have been submitted to a Referendum of the people and been approved by a specified majority of the people. In other words, the only power of amendment of the Constitution, after the 6th of December, 1930, was given by the Constituent Assembly to the two Houses of the Oireachtas and the people together. Under that power it is clearly not lawful for the Governor-General to certify the passing into law, by signifying the King's Assent, of any Bill purporting to amend the Constitution, passed by the two Houses of the Oireachtas, until the decision of the people thereon by Referendum has been declared. If that clause still confers and defines the power of amendment of the Constitution as from and after the 6th of December, 1930, the Constitution (Amendment No. 17) Act, No. 37 of 1931, stated to have been passed on the 17th of October, 1931, has never become law, and is void and inoperative, because it has admittedly never yet been submitted to a Referendum of the people, and the Oireachtas alone has not power to enact it as law. We find, then, that the only power of amendment of the Constitution given by the Constituent Assembly has not been exercised, inasmuch as it has not been exercised by the people, to whom the ultimate effective act in its exercise was reserved: that, in fact, the purported passing of the Bill into law by its presentation by the Executive Council to the Governor-General for signification of the King's Assent was in contravention of an express provision in the clause creating the power. We have then to see what authority is invoked for amendment by the Oireachtas alone and the exclusion of the decision of the people as required by the power of amendment given. The answer at the Bar is that the Oireachtas, by the Constitution (Amendment No. 16) Act, No, 10 of 1929, before the 6th of December, 1930, amended the power of amendment and changed the preliminary period of eight years prescribed by the Constituent Assembly to a period of sixteen years, i.e., a period ending the 6th of December, 1938, and thereby gave itself power to make amendments of the Constitution during a new period of eight years ending at the latter date without submission to a Referendum of the people contrary to the express prohibition in, and in defiance of the clear spirit and intention of, the clause. The authority for this far-reaching and (as we see in its fruits) most grave action is a certain interpretation of the words of Article 50 which, upon the most attentive consideration, I am of the clear opinion they do not bear.

We must now focus our attention on the Constitution (Amendment No. 16) Act, No. 10 of 1929, and determine the question of its validity. There are two grounds upon which it is impugned, the first extrinsic, in that, in consequence of the passing of Constitution (Amendment No. 10) Act, No. 8 of 1928, it is a defective execution of the preliminary power of amendment given by Article 50; the second intrinsic, in that it is an excessive execution of that power, an act purporting to do under the power something unauthorised by the power or even forbidden by it.

The Constitution (Amendment No. 10) Act, No. 8 of 1928, was, as stated in its long title, passed to remove Articles 47 and 48 from the Constitution, that is to say, to get rid of the intervention of the people by either procedure in respect of ordinary legislation of the Oireachtas. I do not stop here to discuss whether such amendment is within the express power of amendment or not. I assume for my present purpose that it was as regards ordinary legislation a valid amendment. The Act was, however, expressed to extend to "necessary consequential amendments" and, under cover of this far from correct phrase, it purported to make another amendment in the Constitution far more important and far-reaching than the expressed principal purpose of the Act and not at all consequential thereon, and to confer on the Oireachtas a licence to amend the Constitution without reference to the people during the residue of the fixed preliminary period to the 6th of December, 1930. The Constituent Assembly, when conferring on the Oireachtas a special power of amendment of the Constitution during such fixed period, attached an express requisite for the execution of that power, stipulating that it should be subject to the provisions of Article 47, that is to say, that the proposed amendment must be referred to the decision of the people by Referendum if demanded. The Oireachtas purported by including in the Constitution (Amendment No. 10) Act, No. 8 of 1928, what was quite incorrectly called a "necessary consequential amendment" (which, of course unintentionally, misleading description was certainly calculated to divert attention from what was being done), to remove from the power of amendment itself a requisite imposed on its exercise by the Constituent Assembly. In my opinion, it was not competent to use the power for the Purpose of removing from itself the requisites for its exercise attached to it in the very terms of donation of the power. That provision of the statute, No. 8 of 1928, was bad, in my opinion, as being what is called in the general law of powers "an excessive execution." It was outside the scope of the power. We have not been referred to, nor have I found, any precedent for such a use of a power. I do not believe that there can be a precedent, because it defies logic and reason. It was, therefore, invalid in my opinion. Nevertheless, inasmuch as a Referendum must be carried out in accordance with regulations made by the Oireachtas, the actual practical effect of the Act was to nullify for the future the provision that amendments should be subject to the provisions of Article 47, by making it impossible in practice to carry out those provisions. The consequence of that state of affairs was that future executions of the power of amendment during the fixed period must inevitably suffer from what is called in the general law of powers "defective execution." Therein lies the first ground of impeachment of the Constitution (Amendment No. 16) Act, No. 10 of 1929.

I pass now to the other, and, in my opinion, conclusive, ground for impeaching that Act as an invalid and ineffective attempt by the Oireachtas to assume sole and unlimited power of amendment of the Constitution. That Act, the Constitution (Amendment No. 16) Act, No. 10 of 1929, passed by the Oireachtas within the preliminary period of eight years, is entitled "An Act to amend the Constitution by extending the period within which amendments of the Constitution may be made by the Oireachtas without submission thereof to a Referendum of the people." This is effected by deleting from Article 50 the words "eight years" in each of the places where they occur and inserting in each case in lieu thereof the words "sixteen years." If this amendment is good there is no reason why the Oireachtas should not have inserted, or should not even yet insert, a very much larger term of years or, indeed, delete the whole of Article 50 from the words "by the Oireachtas" in the second line to the end of the Article.

I am dealing now with the permanent power of amendment of the Constitution given in Article 50 and exercisable at any time after the 6th of December, 1930. Most certainly that power is not given to the Oireachtas to exercise at its own will and pleasure. On the contrary, by a mandatory prohibition in the clearest and most explicit terms, it is forbidden to make any amendment of the Constitution after the specified date without the co-operation of the people, to whom alone the effective decision to make or not to make any proposed amendment is explicitly and very definitely given by the plain words of the power and sternly reserved. The attempt to take from the people this right, this exclusive power and authority, and to confer on the Oireachtas a full and uncontrolled power to amend the Constitution without reference to the people (even though for a period of years, whether it be until 1938 or Tibb's Eve, a matter of indifference in the circumstances) was described by counsel in, I think, accurate language, as a usurpation, for it was done in my opinion without legal authority.

The only argument advanced in support of this position is that the power to amend the Constitution gives power to amend the power itself. It certainly does not say so. One would expect (if it were so intended) that the power would express that intention by the insertion of a provision to that effect by some such words as:— "including amendment of this power of amendment," but no such intention is expressed and there is nothing from which it can be implied. On the contrary, the definite prohibition in the clause shows that no such amendment was contemplated and seems to me conclusive in its terms against implying such a power. It is not, in my opinion, sound to argue from the fact that because the power of amendment, though standing in a separate self-contained Article or clause, is written upon the same paper writing as the Constitution to which it applies, it must therefore come within its own operation. As well might it be said that one who lends another a pruning knife and leaves it, for the cultivator's convenience, hanging on the tree for the trimming of which it is lent, therefore authorises him to whom it is lent, by some process of inversion, to turn it upon itself, and use it to prune and amend itself into some other kind of instrument wherewith to hack down the tree.

During the argument, an analogy was suggested with a power sometimes contained in documents settling property on trusts, by which the donee of the power is authorised to revoke the trusts declared by the settlement and to declare other trusts of the property, which power, it was said, gives the donee of the power authority to revoke the power itself and substitute another power with a wholly different scope and without the requisites prescribed for the exercise of the original power. I cannot assent to that proposition as a general doctrine or rule of law. It is in every case a matter of the interpretation of the particular document. If the document, read accord- ing to the legal principles of interpretation, shows the intention of the document to be that the power of revocation should authorise revocation of the power itself and the substitution of another power, then the proposition stated follows; if however the interpretation leads to a different conclusion as to intention, then the proposition stated cannot be asserted of that case. This argument, therefore, depends upon a petitio principii. The only real analogy between the two matters is that in each case the question is one of the true interpretation of the document under consideration according to the settled rules of interpretation applicable, as for instance the rule admitting consideration of the relevant surrounding circumstances for the purpose of arriving at the true meaning and intention expressed by the written words which are to be construed. Again, in the case of a power, it is a settled rule that we may not extend its scope beyond what is expressed, or to be implied of necessity from what is expressed, in the instrument containing it and also that the requirements prescribed by the instrument for its due execution must be fulfilled.

A power of amendment is not an essential part of, or provision in, or addition to, a Constitution. The Constituent Assembly which creates and grants a Constitution need not grant any power to amend it, in which case amendment can be effected only by re-convoking the Constituent Assembly for that purpose. If it should have granted a power of amendment and an amendment outside the scope of that power should be proposed, that amendment can only be effected by again convoking the Constituent Assembly to enact it, if the Assembly think fit. A power of amending a Constitution is something outside and collateral to the Constitution itself. It may be conferred on a donee other than an authority owing its existence to the Constitution, as, for instance, on the whole body of the people, on a religious or legal hierarchy, or any other person or body that might be selected for the purpose. Again, such a power may be given by the Constituent Assembly by a separate instrument and not in the instrument containing the Constitution. In the present case, Article 50 might have been enacted by the Constituent Assembly as a separate Act or it might have been enacted as a section of the Constitution Act instead of being inserted in the Schedule containing the Constitution. No doubt the Constituent Assembly could, if it had so intended, have given a power of amendment of the power to amend the Constitution, but in that case it would seem far more likely that it would rather have conferred on the Oireachtas a general open and free power of amendment of the Constitution, unlimited in scope and without limiting and restraining requirements for its exercise, than have done the same thing indirectly by giving a. strictly limited power with power to remove the limitations. The Constituent Assembly clearly, to my mind, did not so intend. In my opinion, on the true interpretation of the power before us, upon a consideration of the express prohibition, limitations and requirements of the clause containing it, the absence of any express authority, the donation of the effective act in the exercise of the power to the people as a whole, the relevant surrounding circumstances to which I have already referred, and the documents and their tenor in their entirety, there is not here, either expressly or by necessary implication, any power to amend the power of amendment itself.

For the reasons which I have set forth, I am of opinion that the Constitution (Amendment No. 16) Act, No. 10 of 1929, is invalid and the amendment of the Constitution contained in it inoperative, null and void. It follows that, in my opinion, no amendment of the Constitution passed by both Houses of the Oireachtas after the 6th of December, 1930, could become law unless and until it had been submitted for decision to a Referendum of the people and had received the approval of the people in the manner prescribed.

It follows that, in my opinion, the Constitution (Amendment No. 17) Act, No. 37 of 1931, has never become law, and that the matters of which the applicants here complain, being acts and proceedings under that invalid statute, are all wholly illegal and indefensible in law.

I have just stated my opinion that the Act, No. 37 of 1931, as a whole enactment, has never become law. I have further to add that I am also of opinion that, for the reasons already given, parts of the amendment (the new "Article 2A") are incapable of being validly enacted under the Constitution, some as repugnant to the Natural Law and therefore repugnant to the Source of power and authority acknowledged and declared by the Constituent Assembly, others as repugnant to some of the principles postulated by the Constituent Assembly as fundamental.

Therefore, after most anxious and grave consideration of this very serious and critical case, I have arrived at the clear and deliberate opinion that the judgment of the High Court should be reversed and that the cause shown should be disallowed and the conditional order of habeas corpus and prohibition made absolute.

FitzGibbon J.
It is impossible to overestimate the importance of the questions which we have to decide on this appeal, involving as they do, on the one hand, the validity of several Acts already passed by the Oireachtas and the powers possessed by that body over future legislation, and, on the other, rights and privileges of the citizens of the Saorstát which are stated by our own Constitution to be "inviolable," or to. be "guaranteed" and which are alleged by the appellants to be "fundamental," "immutable" and incapable of being taken away by any enactment whatsoever.

The detailed analysis which has just been read by the Chief Justice, upon which I cannot hope to improve, makes it unnecessary for me to recapitulate the character and effect of the legislation which we have to consider. It is no part of my duty to express an opinion upon anything connected with that legislation except its validity under the Constitution, and I refrain from any kind of criticism of its merits.

The appellants contend that "The Constitution (Amendment No. 17) Act, 1931," No. 37 of the Acts of 1931, which I shall refer to as "Amendment No. 17," is ultra vires, unconstitutional and void, in that it is contrary to Article 72 of the Constitution, which enacts that "No person shall be tried on any criminal charge without a jury save in the case of charges in respect of minor offences triable by law before a Court of Summary Jurisdiction and in the cases of charges for offences against military law triable by Court Martial or other Military Tribunal"; to Article 6 of the Constitution which enacts that "The liberty of the person is inviolable, and no person shall be deprived of his liberty except in accordance with law ..."; and to Article 64 of the Constitution which enacts that "The judicial power of the Irish Free State (Saorstát Éireann) shall be exercised and justice administered in the public Courts established by the Oireachtas by judges appointed in manner hereinafter provided ..."

There is no doubt, and it is indeed admitted by the Attorney-General and his colleagues, that Amendment No. 17 expressly contravenes, in these and many other respects, the Constitution as originally enacted by Dáil Éireann, sitting as a Constituent Assembly, but they contend that Amendment No. 17 was a valid amendment of the Constitution by the Oireachtas under the powers conferred on the Oireachtas by Article No. 50, as amended by the Constitution (Amendment No. 16) Act, 1929 (No. 10 of 1929), and the Constitution (Amendment No. 10) Act, 1928 (No. 8 of 1928).

To this contention the appellants reply that the Acts by which the Oireachtas purported to amend Article 50 of the Constitution were themselves invalid and ultra vires of the Oireachtas, and, consequently, that any amendment of the Constitution which rests upon them must also be invalid. The validity of Amendment No. 17 is also attacked upon a substantive ground of far-reaching importance, namely, that it violates certain rights of citizenship which are alleged to be fundamental, and "inviolable" or "immutable," apparently by any legislative authority whatsoever.

It is obvious that if the Oireachtas had no power to amend Article 50 of the Constitution at all, or in the particular way in which it was amended by the Amendments No. 10 and No. 16, it will be unnecessary to consider any of the other objections to Amendment No. 17, and I shall, therefore, endeavour to deal with that objection first.

Article 50 is in these terms:— "Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof." Article 47 made provisions for the suspension, in certain events, of any Bill, for a period of ninety days, and for the submission of any Bill so suspended to the decision of the people by Referendum, if a demand should be made within the ninety days either by a resolution of Seanad Éireann, assented to by three-fifths of its members, or by a petition signed by one-twentieth of the voters on the register of voters. This Article was repealed in 1928 by Amendment No. 10, and as consequential upon that repeal the reference to the provisions of Article 47 in the last clause of Article 50 was deleted.

The first contention of the appellants is that the terms "amendments" and "amendment" in Article 50 do not connote "repeal," and they have referred us to dictionary interpretations of "amend" and "amendment" in the sense of "to improve," "to make better," and so on. There are, however, other equally common and authentic interpretations which do include the sense of "repeal," and "improvement" may quite properly be effected by addition, alteration, or omission. "Amend, v.t. 1. To correct, to rectify by expunging a mistake; as, to amend a law." "Amend 2. To change or alter, as a law, bill, motion or constitutional provision by the will of a legislative body, or by competent authority; as, to amend the Constitution" (Ogilvie's "Imperial Dictionary"). "Amendment. The act of changing a fundamental law, as of a political constitution, or any change made in it according to a prescribed mode of procedure; as, to alter the law by amendment; an amendment to the Constitution" : "Standard Dictionary," Funk and Wagnalls (1894).

In legislation, the words "amendment" and "amend" are constantly employed in the sense of "repeal" especially when reference is made to the amendment of a lengthy document, such as the Constitution or an Act of Parliament, by a repeal, total as to some provisions of the enactment, but partial when considered in relation to the document as a whole. Taking a volume of the statutes of the Imperial Parliament (Statutes, 8 Ed. VII), and opening it at random, I find, within a few pages, the following instances: Chapter 3: "An Act to amend the Prosecution of Offences Acts, 1879 and 1884." Sect. 3, sub-sect. 1: "The enactments mentioned in the schedule to this Act are hereby repealed to the extent specified in the third column of that schedule," and the schedule, of "Enactments repealed," repeals the whole of one section and parts of two others of the Act of 1879 and part of one section of the Act of 1884. Chapter 15 of the same year, "An Act to consolidate and amend the law relating to the payment of costs in criminal cases" repeals by sect. 10, sub-sect. 1, portions of twenty sections and the whole of each of thirty-two sections, in thirty-six different statutes. Chapter 8 of the same year is perhaps the most apt illustration of all: "An Act to amend section eleven of the Savings Banks Act, 1904." Sect. 1, sub-sect. 2: "Section eleven of the Savings Banks Act, 1904, shall be and is hereby repealed." These instances might, I expect, be multiplied by hundreds in English legislation, and they may be paralleled from the comparatively few enactments of our own Legislature. The usage of Parliamentary draughtsmen appears in the promiscuous interchange of the words "amend" and "repeal" in the text and marginal headings of different sections, but that of the Legislature itself may be seen in the Local Elections Postponement (Amendment) Act, 1924: "An Act to amend the Local Elections Postponement Acts, 1922 and 1923." Sect. I: "The Local Elections Postponement (Amendment) Act, 1923 (No. 48 of 1923), shall be and is hereby repealed."

Article V of the Constitution of the United States enables Congress to propose "Amendments to this Constitution" (the very expression used, with the substitution of "of" for "to," in Article 50 of our own Constitution), and "amendments" and "amendment" are the only terms employed, yet "Amendment No. 22" is in these words: "The Eighteenth Article of Amendment to the Constitution of the United States is hereby repealed. This Article shall be inoperative unless it has been ratified as an Amendment to the Constitution by Conventions in the several States as provided in the Constitution within seven years from the date of submission hereof to the States by the Congress."

A further reason, conclusive in my opinion, against the limitation of the meaning of the word "amendment" to "improvement" is to be found in Article 65, which extends the judicial power of the High Court to the "question of the validity of any law, having regard to the provisions of the Constitution." If the validity of an amendment of the Constitution were to depend upon the decision of the High Court that it was an "improvement," the Judges and not the Oireachtas would be made the authority to decide upon the advisability of any particular amendment of the Constitution, and this would involve a direct contravention of the principles by which their respective spheres are assigned to the Legislative, the Executive, and the Judicial organisations in the Irish Free State. The Executive decides that the Constitution would be improved by a particular alteration, the Oireachtas, if it approves of the alteration proposed by the Executive, embodies it in the form of an Act, and the Judiciary decides whether that Act can be and has been validly enacted, and then, and not till then, the Executive enforces it as a law upon the people at large.

For all these reasons I am quite satisfied that the power conferred upon the Oireachtas by Article 50 of the Constitution to make amendments of the Constitution includes a power to amend by alteration or repeal, and that the Oireachtas alone has the right to decide whether any particular alteration, addition, or omission, is desirable, and accordingly that neither Amendment No. 10, nor Amendment No. 16, nor Amendment No. 17, is ultra vires of the Oireachtas merely because it involves a partial repeal of the Constitution.

The next objection is that, even if there be a power to amend or repeal portions of the Constitution, this power does not extend to an amendment or repeal of all or any part of Article 50.

However undesirable it may appear to some that the Oireachtas should have power, by merely passing an amendment, to extend, as they have done, the period within which amendments to the Constitution may be made by way of ordinary legislation, or to legalise, as they have done, amendments of the Constitution without submitting them to a Referendum of the people, as contemplated by the Constitution itself, nevertheless, if this be the true construction of Article 50, the Court is bound to give effect to that construction.

It is conceded that there is no express prohibition against amendment of Article 50 to be found in the Constitution. It is not unusual to find that Constitutions or Constituent Acts impose such restrictions upon the legislative bodies set up by them, and the omission of any such restriction in regard to amendments of Article 50 is at least a negative argument that Dáil Éireann as a Constituent Assembly did not intend to impose any such restriction upon the Oireachtas. This negative argument is supported by the fact that both the Constituent Act and Article 50 itself do contain an express restriction upon the powers of the Oireachtas to amend the Constitution, and it is a legitimate inference that, when certain restrictions were expressly imposed, it was not intended that other undefined restrictions should be imposed by implication. The Constitution was enacted by Dáil Éireann, sitting as a Constituent Assembly, unfettered by any oath or test, open to all the elected representatives of the constituencies in that Irish Free State whose establishment was therein and thereby proclaimed, and it was the only act of legislation of that Constituent Assembly.

By the Constituent Act it was decreed and enacted as follows:—


 * "1. The Constitution set forth in the First Schedule hereto annexed shall be the Constitution of the Irish Free State (Saorstát Éireann).


 * "2. The said Constitution" (that is "The Constitution set forth in the First Schedule hereto annexed") "shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Second Schedule hereto annexed (hereinafter referred to as 'the Scheduled Treaty') which are hereby given the force of law, and if any provision of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy, be absolutely void and inoperative and the Parliament and the Executive Council of the Irish Free State (Saorstát Éireann) shall respectively pass such further legislation and do all such other things as may be necessary to implement the Scheduled Treaty.


 * "3. This Act may be cited for all purposes as the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922."

Then follows the

which contains eighty-three separate numbered "Articles," of which those numbered 73 to 83 inclusive are preceded by a descriptive heading "Transitory Provisions," which is, for what it may be worth, the sole indication of any intended distinction between any one Article or group of Articles and any other.

If there ever was an assembly which could claim to represent the inhabitants of Saorstát Éireann, it was that Dáil Éireann, sitting as a Constituent Assembly, which every elected representative of every constituency within the Saorstát was free to attend, unfettered by any test, and in which there was no nominated or unrepresentative element, and I am not disposed to quarrel with the statement of the Attorney-General that "the framers of the Constitution framed that instrument in accordance with doctrines of popular sovereignty, and the instrument must be construed as indicating the powers conferred upon the Oireachtas," or, subject to two modifications, with the propositions stated by Mr. Gavan Duffy as the foundation of his argument, that:— "1. The Constituent Assembly proclaimed the Constitution by virtue of its own supreme legislative authority. 2. It transmitted that authority to its successor, the Oireachtas, at least for eight years. 3. It gave the Oireachtas complete amending power for eight years, subject to checks which are merely checks voluntarily imposed by the supreme authority and removable at its will," and "4. That the Constitution was proclaimed in the name of the people by Dáil Éireann as an act of supreme authority, which it alone had the right to do, because it was the mouthpiece of the people, requiring and receiving no Royal assent."

The points in which it seems to me that Mr. Gavan Duffy has overstated the powers conferred by the Constituent Assembly upon the Oireachtas are his assertions (a) that Dáil Éireann "transmitted that authority," i.e., "supreme legislative authority" to the Oireachtas, and (b) that "it gave the Oireachtas complete amending power for eight years." An examination of the Constituent Act and of the Constitution will demonstrate that these statements exaggerate the powers of the Oireachtas. Assuming that the legislative authority of the Constituent Assembly was supreme, it expressly decreed and enacted by the Constituent Act that "the said Constitution," namely, "the Constitution set forth in the First Schedule" to the Constituent Act, "shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Second Schedule hereto annexed ... which are hereby given the force of law, and if any provision of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy, be absolutely void and inoperative."

Therefore the supreme legislative authority, speaking as the mouthpiece of the people, expressly denied to the Oireachtas the power of enacting any legislation, by way of amendment of the Constitution or otherwise, which might be "in any respect repugnant to any of the provisions of the Scheduled Treaty," and it reiterated this prohibition in Article 50, which empowered the Oireachtas to make "amendments of this Constitution within the terms of the Scheduled Treaty."

It is further to be observed that this power to make amendments is limited to "amendments of this Constitution," and that the Constituent Assembly did not confer upon the Oireachtas any power to amend the Constituent Act itself.

These express limitations, imposed by the mouthpiece of the people upon the legislative powers of the Oireachtas which it set up, support the view that the Oireachtas was intended to have full power of legislation and amendment outside the prohibited area, and, as there was no prohibition against amendment of Article 50, I am of opinion that Amendment No. 10 in 1928, and Amendment No. 16 in 1929, were within the powers conferred upon the Oireachtas by the Constituent Act.

In this connection I may add that in my opinion an amendment of Article 50 by the deletion of the words "within the terms of the Scheduled Treaty" would be totally ineffective, as effect is given to those words by the Constituent Act itself, which the Oireachtas has no power to amend.

In my opinion the object of Article 50 was to prescribe the method by which legislative sanction was to be given to those amendments of the Constitution which the Oireachtas was empowered to make, and the Oireachtas had full power during eight years, in the absence of any express prohibition, to alter, modify or repeal the method prescribed. The extension of the period of eight years to sixteen was, in the absence of any such express prohibition, an amendment within the powers conferred. I can find no sound justification for the exclusion of Article 50 from the powers of amendment, which appear to me to exist in respect of every other Article of the Constitution except those which embody provisions of the Scheduled Treaty, and in respect even of those Articles so far as the amendments made to them are not repugnant to any provision of the Scheduled Treaty.

It is by no means unusual to find in Constitutions, especially in those of States of recent formation, express restrictions upon the power of the Legislature to amend them imposed in respect of particular articles; and, in the case of the Union of South Africa, sect. 152 of the South Africa Act, 1909, which enacts that "Parliament may by law repeal or alter any of the provisions of this Act" (a declaration which appears to me indistinguishable in substance from "Amendments of this Constitution may be made by the Oireachtas within a period of eight years by way of ordinary legislation"), goes on to declare expressly "that no repeal or alteration of the provisions contained in this section ... shall be valid" unless the Bill embodying such repeal or alteration shall have been passed in a particular way and by a specified majority.

Our Constituent Assembly could in like manner have excepted Article 50 from the amending powers conferred upon the Oireachtas, but it did not do so, and in my opinion the Court has no jurisdiction to read either into the Constituent Act or into Article 50 a proviso excepting it, and it alone, from those powers.

Mr. Overend has endeavoured to support his argument on this point by analogies from the law of principal and agent, master and servant, trustee and cestui que trust, and principal and attorney. "Who," said he, "ever heard of a power of attorney by which the attorney could extend the term of his own authority?" Perhaps there has never been such an instrument, but I do not see any legal objection to the insertion in a power of attorney, given for a specified period, of a proviso authorising the attorney, by deed poll registered and executed in compliance with the law or in any specified manner, to extend the period of his authority, provided that such extension was made while the power was still in force, and did not offend against any statutory prohibition. The objections that the Oireachtas had no power to amend Article 50, that Amendment No. 17 was made after the period of eight years originally fixed by Article 50 had expired, and that it was not submitted to a Referendum of the people as provided by Article 50, therefore fail.

The next objection is founded upon the provisions of Amendment No. 17 itself.

It has been admitted, as I have already stated, that many of these provisions are directly opposed to the express enactments contained in many Articles of the Constitution, for instance, in Articles 43, 64, 65, 68, 69, 70 and 72, all of which have been abrogated in whole or in part. The most emphatic of these are probably Article 43:— "The Oireachtas shall have no power to declare acts to be infringements of the law which were not so at the date of their commission," and Article 72:— "No person shall be tried on any criminal charge without a jury save in the case of charges in respect of minor offences triable by law before a Court of Summary Jurisdiction and in the case of charges for offences against military law triable by Court Martial or other Military Tribunal."

I see no ground for holding that either of these Articles could not have been amended by the Oireachtas subject to a Referendum of the people after the period of eight years, and, if so, it follows that the same amendment, e.g., the deletion of the word "no" in Article 43, could be made "by way of ordinary legislation" within that period, or within sixteen years, after eight had been altered to sixteen.

The same reasoning which applies to the power of the Oireachtas to amend Article 50 applies with at least equal force to amendments of any other Article. Outside the area covered by the provisions of the Scheduled Treaty, no limit was imposed by the Constituent Assembly upon the power of the Oireachtas to amend the Constitution.

In many other Constitutions there are Articles, laws or. provisions, which are specifically described as "Fundamental," e.g., Sweden, or "Constitutional," e.g., Austria, Czechoslovakia and France, in respect of which the Constitution expressly restricts the power of amendment, but in the Constitution of the Saorstát there is no such segregation, and the power of amendment which applies to any Article appears to me to be equally applicable to all others, subject, of course, to the restriction in respect of the Scheduled Treaty. In Article 6 it is declared that "the liberty of the person is inviolable," but that is not a law of universal application, for the Article proceeds: "and no person shall be deprived of his liberty except in accordance with law." The law may, therefore, make provisions in accordance with which a person may be deprived of his liberty. It is for the Legislature to prescribe those provisions, and for the Courts to enforce them, and even if, under Amendment No. 17, a person has been deprived of his liberty by the mere caprice of an Executive Minister (sect. 24, sub-sect. 2, and Appendix, clause 7), or the unfounded suspicion, "incapable of being rebutted or questioned by cross-examination, rebutting evidence, or otherwise," "of any member of the Gárda Síochána" (seats. 13 and 29), "or of the Defence Forces of Saorstát Éireann" (sect. 13), such a deprivation would be "in accordance with law," and the prisoner would have no redress.

The particular method of amendment adopted, by enacting that every Article of the Constitution subsequent to Article 2 shall be subject to the provisions of Amendment 17, and that the provisions of that Amendment shall prevail whenever there is any inconsistency between them and any subsequent Article of the Constitution, is unquestionably very inconvenient, and throws almost insuperable obstacles in the way of any citizen or Judge whose duty it is to ascertain the actual law of the Constitution, but an Act of the Legislature is not ultra vires or invalid because it is difficult to construe, and amendments of the Constitution which might be made clearly and one at a time are not invalidated because they have been enacted en masse in a manner calculated to create the utmost uncertainty and inconvenience. It is our duty to ascertain and declare the law to the best of our ability, and we are not concerned with either the wisdom or the propriety of the acts of the Legislature.

Since the argument I have come across a passage in an opinion of Chief Justice John Marshall, who was for thirty-four years Chief Justice of the Supreme Court of the United States during a period when that Court was engaged in settling questions of fundamental importance which arose upon the interpretation of the recently adopted Constitution, which seems to me to have a bearing upon more than one aspect of the present case, Providence Bank v. Billings et al. 4 Peters 514, at pp. 562-3: "The proposition is that a power which is in itself capable of being exerted to the total destruction of the grant is inconsistent with the grant; and is therefore impliedly relinquished by the granter, though the language of the instrument contains no allusion to the subject. If this be an abstract truth, it may be supposed universal. But it is not universal, and therefore its truth cannot be admitted, in these broad terms, in any case. We must look for the exemption in the language of the instrument, and if we do not find it there, it would be going very far to insert it by construction. The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic. This is an original principle which has its foundation in society itself. It is granted by all for the benefit of all. ... This vital power may be abused, but the Constitution of the United States was not intended to furnish the correction for every abuse of power which may be committed by the State Governments. The interest, wisdom, and justice of the representative body, and its relations with its constituents, furnish the only security, where there is no express contract, against unjust and excessive taxation, as well as against unwise legislation generally."

In my opinion the repeals, alterations, and modifications of the Constitution enacted by Amendment No. 17, so far, as they have been discussed before us upon this appeal, do not exceed the powers of amendment conferred upon the Oireachtas by Article 50, as amended in 1928 and 1929; and, as it has not been suggested that they are in any respect repugnant to the Scheduled Treaty, I hold that they are valid amendments of the Constitution.

There is, however, a broader ground upon which Mr. Costello and Mr. Overend have endeavoured to found an argument. They assert that there are certain rights, inherent in every individual, which are so sacred that no Legislature has authority to deprive him of them. It is useless to speculate upon the origin of a doctrine which may be found in the writings of Rousseau, Thomas Paine, William Godwin, and other philosophical writers, but we have not to decide between their theories and those of Delolme and Burke, not to mention Bentham and Locke, upon what Leslie Stephen describes as "a problem which has not yet been solved, nor are even the appropriate methods definitively agreed upon," as we are concerned, not with the principles which might or ought to have been adopted by the framers of our Constitution, but with the powers which have actually been entrusted by it to the Legislature and Executive which it set up.


 * "The Declaration of the Rights of Man and of Citizens" by the National Assembly of France on October 5th, 1789, that "liberty, property. security, and resistance of oppression are the natural and imprescriptible rights of man," cannot be invoked to overrule the provisions of a statute enacted in accordance with the provisions of a written Constitution.

When a written Constitution declares that "the liberty of the person is inviolable," but goes on to provide that "no person shall be deprived of his liberty except in accordance with law," then, if a law is passed that a citizen may be imprisoned indefinitely upon a lettre de cachet signed by a Minister or, as we have seen, even by a Minister's clerk: The State (Quinlan and Others) v. Kavanagh and Others, post p. 249, the citizen may be deprived of his "inviolable" liberty, but, as the deprivation will have been "in accordance with law," he will be as devoid of redress as he would have been under the regime of a French or Neapolitan Bourbon.

Nations and Constituent Assemblies are not agreed as to the rights and privileges which have been variously described in different Constitutions as "inalienable," "inviolable," "fundamental," "constitutional," or "guaranteed." For instance, among the "repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States," which the signatories of the American Declaration of Independence published as "Facts submitted to a candid world," in justification of their rebellion, were the following acts of George III (Declaration of Independence, July 4th, 1776): "He has dissolved Representative Houses for opposing with manly firmness his invasions on the rights of the people," "He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries." "He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance." "He has affected to render the Military independent of and superior to the Civil Power." "He has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws, giving his Assent to their Acts of pretended Legislation: For quartering large bodies of armed troops among us; For protecting them by a mock Trial from punishment for any Murders which they should commit on the inhabitants of these States; For cutting off our trade with all parts of the World; For depriving us in many cases of the benefits of Trial by Jury; For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the forms of our Governments ... A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people." These rights, of which "the People of these Colonies" had been deprived, were claimed by them, not as inalienable rights of all mankind, but by virtue of their former status as British Colonists, but when the American Colonists set to work to frame a Democratic and Republican Constitution for themselves they realised the danger of merely substituting the will of a majority for that of a single individual, probably because many of the framers of the Constitution of the United States had suffered from the tyranny of a political or religious majority. The States of Connecticut, Rhode Island, and New Hampshire were founded by refugees driven out from Massachusetts; that of Delaware by refugees from New York; and that of Pennsylvania by Quakers in search of freedom; and they were resolved to impose constitutional restraints upon the power of the majority in the new Legislature of the Confederation. In their Constitution, accordingly, they embodied the English, or Anglo-Saxon, principles of trial by jury, an independent judiciary, habeas corpus, and other safeguards of liberty derived from Magna Charta, the English Bill of Rights and the Act of Settlement, and they imposed severe restrictions upon the power of the Legislature, and placed almost insuperable obstacles in the path of amendments to the Constitution. They sought to bind within the limitations of the Constitution, as framed by them, not only the Executive but the Legislature itself. "An elective Despotism," said Jefferson, "was not the government for which we fought." "A group of tyrants would be less manageable than one." "In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." To the same effect is the opinion of the Supreme Court of the United States, delivered a century later in a case in which the Legislature of a State had attempted to appropriate private property under the guise of the imposition of a tax: Loan Association v. Topeka 20 Wall. 655:— "It must be conceded that there are private rights in every free government beyond the control of the State. A Government which recognised no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if at man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many. The theory of our Governments, State and National, is opposed to the deposit of unlimited power anywhere."

But that is only the Anglo-Saxon, or American, conception of constitutional liberty. Another view was taken by Rousseau, who declared that:— "Each of us puts his person and all his power in common under the supreme direction of the General Will," that is, of the majority, and this appears to have been adopted by the French Constitution makers. I can find no justification for the inference which the counsel for the appellants ask us to draw from the provisions of the American Declaration of Independence and the Constitution founded thereon, or from the fact that some of these provisions have been embodied in other Constitutions, including our own, that the rights thereby secured are universal and inalienable rights of all citizens in all countries or even in the Saorstát, which, we have been assured, was, or is, or ought to be, Gaelic and Catholic, attributes to either of which few other States can assert a title, while there is no other which can even suggest a claim to both. There is no ground for surprise, therefore, that this State should, as the Chief Justice has said, "point new ways" in its "pioneer Constitution draftsmanship," or that it should prefer to secure liberty and justice to its citizens by the simple processes of Amendment No. 17 in preference to the complicated British and American machinery of an independent judiciary, trial by jury, and habeas corpus.

I cannot presume, either, that rights and privileges which the inhabitants of England have always enjoyed, either is by virtue of their common law (which was only introduced into Ireland bit by bit between the last years of the twelfth century and the beginning of the seventeenth), or under the provisions of special statutes, are also indigenous to the citizens of this Gaelic and Catholic State, in the sense in which the American Colonists claimed them as their birthright by virtue of their status as British subjects — a status which I understand to be repudiated by our legislators — or that our national conceptions of liberty and justice must necessarily coincide with those of the citizens of any other State.

Two extracts from Fathers of American Independence will suffice to show, if there be any doubt, the source from which the principles embodied in their Constitution were derived. "What is the subject of our controversy with the mother country? It is this: Whether we shall preserve that security in our lives and properties which the law of nature, the genius of the British Constitution, and our charters afford us; or whether we shall resign them into the hands of the British House of Commons, which is no more privileged to dispose of them than the Great Mogul?" (Works of Alexander Hamilton, vol. 2, p. 4.) "No constitution of government has appeared in the world so admirably adapted to these great purposes" (liberty and knowledge, civil and religious) "as that of Great Britain. Every British subject in America is, of common right, entitled to all the essential privileges of Britons." (James Otis. Hutchinson's History of Massachusetts, vol. 3, pp. 101-2.)

Unless, therefore, these rights appear plainly from the express provisions of our Constitution to be inalienable, and incapable of being modified or taken away by any legislative act, I cannot accede to the argument that the Oireachtas cannot alter, modify, or repeal them. The framers of our Constitution may have intended "to bind man down from mischief by the chains of the Constitution," but if they did, they defeated their object by handing him the key of the padlock in Article 50.

Other Constitutions, e.g., that of the Kingdom of Serbs, Croats and Slovenes, and those of the Republics of Austria, Poland, Esthonia and Czechoslovakia, have esteemed all or some of these rights and privileges so highly as to declare them to be "fundamental," or "constitutional," or " guaranteed," and the Republic of Mexico has provided in its Constitution a unique and very remarkable judicial safeguard for affording immediate redress by the decree of an Independent Federal Tribunal when any of the fundamental rights of man secured by its Constitution have been infringed by any authority whatsoever, and for excusing the obedience of a law or decree which is ultra vires of the enacting Legislature or Judiciary. The "personal guarantees" so protected include ten relating to criminal trials; no arrest except upon a previous charge founded upon evidence, or in cases flagranti delicto; no search of private houses except on a warrant issued by a Judge specifying the place to he searched, the persons to be arrested and the objects sought; and an express proviso that "No one shall be tried according to private laws or by special tribunals. Military Tribunals shall in no case and for no reason extend their jurisdiction over persons not belonging to the army."

But the fact that the Constitutions of other countries prohibit such invasions of the rights of liberty and property, and such extraordinary innovations in the methods of administering justice in criminal cases as have been introduced into our Constitution by Amendment No. 17, affords no ground for condemning as unconstitutional in this country, or as contrary to any inalienable rights of an Irish citizen, an enactment which appears to have received the almost unanimous support of the Oireachtas, for we have been told that those of our legislators by whom it was opposed most vehemently as unconstitutional and oppressive, when it was first introduced, have since completely changed their opinions, and now accord it their unqualified approval. It is true that even a unanimous vote of the Legislature does not decide the validity of a law, but it is some evidence that none of those whose duty it is to make the laws see anything in it which they regard as exceptionally iniquitous, or as derogating from the standard of civilisation which they deem adequate for Saorstát Éireann. Indeed, it is possible that our Constituent Assembly may have followed too slavishly the constitutional models of other nationalities, and that, just as the constitutional safeguards of Freedom of Speech, Trial by Jury, Security of Person and Property, with others, were only introduced into the Constitution of the United States by way of amendment a year after the original Constitution had been adopted, so the amendments of our Constitution which have been enacted during recent years, whereby these and similar safeguards have been minimised or abrogated, more truly represent our national ideals. If this be so, we find the Briton's conceptions of liberty and justice set forth in his Magna Charta and his Bill of Rights; those of the American in his Declaration of Independence and his Constitution; while those of the Gael are enshrined in Amendment No, 17 (which is to prevail, in case of inconsistency, over everything in the Constitution except Articles 1 and 2), and subsequent amendments. However this may be, I can find no justification for a declaration that there was some "spirit" embodied in our original Constitution which is so sacrosanct and immutable that nothing antagonistic to it may be enacted by the Oireachtas. This Court has no jurisdiction to express an opinion upon any questions other than the constitutionality of the amendments before us, and their correct interpretation, once the Legislature has thought fit to enact them. Perhaps I may be permitted again to refer to a couple of American decisions upon similar questions. "Courts cannot nullify an Act of the State Legislature on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the Constitution where neither the terms nor the implications of the instrument disclose any such restriction": Walker v. Cincinnati 21 Ohio 41. "Such a power is denied to the Courts, because to concede it would be to make the Courts sovereign over both the Constitution and the people, and convert the government into a judicial despotism": Golden v. Prince 3 Wash. C.C. 313.

The last contention of Mr. Overend, that every person who accepted citizenship of the Irish Free State when it was first established, or at any subsequent date, did so upon the faith of an undertaking, express or implied, on the part of the State, embodied in the Constitution, that no alteration of the Constitution to his detriment would thereafter be made, is so manifestly untenable upon any ground of law or principle, that I mention it only to show that it has not been overlooked.

Equally unfounded is the suggestion that the power of amendment introduced in Article 50 should be treated by analogy to a proviso in small print at the end of a fraudulent prospectus, or to a condition on the back of a railway ticket handed to an illiterate traveller. Such arguments show the desperate straits to which the appellants have been reduced. Article 50 seems to me to occupy its appropriate place, at the end of the group of clauses which deal with the creation, composition, and powers of the Legislature, and every person who became a citizen must be presumed to have been aware of the existence of Article 50, and to have accepted citizenship upon the terms therein set forth.

Fortunately it can never again be suggested that the Saorstát has obtained citizens by false pretences, now that the Oireachtas has promulgated urbi et orbi, to the Czechoslovak and the Mexican, to our kinsmen in the United States of America and throughout the British Commonwealth of Nations, and, above all, to our fellow countrymen in Northern Ireland, whose co-operation we profess to desire, as well as to all those who seek, or acquire, or have thrust upon them, rights under our new Irish Nationality and Citizenship Act, Amendment No. 17 as an integral part of our Constitution, setting forth in the clearest language, in the forefront of that document, the conditions under which liberty is enjoyed and justice may be administered in "this other Eden demi-Paradise, this precious stone, set in the silver sea, this blessed plot, this earth, this realm, this" Saor Stát.

Murnaghan J.
The appellants before the Court on this appeal contend that they are held in unlawful custody, and state that they are about to be brought to trial before a tribunal which has no legal authority to try them.

On these grounds they seek to obtain orders of habeas corpus and of prohibition.

There is no dispute about the facts, and the legal issues in controversy have, by the arguments, been limited to two matters, which, however, raise considerations of very grave moment.

The appellants are held in custody under the provisions of an Act of the Oireachtas styled "the Constitution (Amendment No. 17) Act" (No. 37 of 1931), and it is not disputed in this case that, if this Act has been validly passed into law, the detention of the appellants is in accordance with law.

The appellants take their stand on the position that the Oireachtas, when it passed this Act in 1931. exceeded the powers given to it by the Constitution, and that it had no power to make the amendment of the Constitution which it purported by that Act to make. This Court has neither the power nor the responsibility of saying whether the circumstances of the time justified the Oireachtas in adopting the provisions of the Act in question, but it is the function and the duty of the Court to determine whether the Oireachtas in passing this Act had power under the Constitution to pass the Act which it did pass.

The extreme rigour of the Act in question is such that its provisions pass far beyond anything having the semblance of legal procedure, and the judicial mind is staggered at the very complete departure from legal methods in use in these Courts. The Oireachtas, which passed this Act in November, 1931, recognised that the provisions of the Act contravened many of the Articles of the Constitution, and the Act itself is professedly declared to be an amendment of the Constitution. Sect. 2 of the Schedule to this Act, setting up the Special Powers Tribunal, enacts as follows:— "Article 3 and every subsequent Article of this Constitution shall be read and construed subject to the provisions of this Article, and in the case of any inconsistency between this Article and the said Article 3 or any subsequent Article, this Article shall prevail." As a matter merely of drafting I do not consider such a method of amending the Constitution an elegant one; and it is highly inconvenient to be obliged to determine what the Constitution really is from the study of conflicting documents. The drafting of the Act in this form was evidently motived by a desire to secure at all cost that none of the provisions should be held to be contrary to the Constitution, but the meaning and intention is quite clear. The Article set forth in the Schedule to the Act of 1931 is declared to be an Article of the Constitution, and Article 3 and all subsequent Articles of the Constitution are declared to be amended in so far as any provisions of the Constitution are inconsistent with those of the said Article set out in the Schedule to the Act of 1931.

When the Constitution of Saorstát Éireann was adopted in 1922 it was a question of great importance to what extent and in what manner this Constitution might be altered. I think that it is not necessary here to recapitulate the steps that led to the adoption of the Constitution. It is sufficient to quote Article 83 of the Constitution itself, which reads:—


 * "The passing and adoption of this Constitution by the Constituent Assembly and the British Parliament shall be announced as soon as may be, and not later than the sixth day of December, Nineteen hundred and twenty-two, by Proclamation of His Majesty, and this Constitution shall come into operation on the issue of such Proclamation."

It must, therefore, have been foreseen that difficulty in the future would be avoided by a clear statement as to how and to what extent the Constitution might be amended. At all events we find in the Constitution a special Article — 50 — which deals with the power of amendment, and which finds its place naturally amongst the powers of the Oireachtas. Article 50 is as follows:—


 * "Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof."

This Article may be summarised as providing that, during the eight years after the coming into operation of the Constitution, amendments of the Constitution under the Article might be made by way of ordinary legislation which were valid without a Referendum unless specially demanded by the persons, and in the manner, specified in Article 47, but that amendments made after that period had in every case to be approved by a Referendum of the people with the prescribed majority.

As I have already stated the amendment of the Constitution with which we are concerned in this case was not made within the period of eight years from 6th December, 1922, the date of coming into operation of the Constitution, but was made in November, 1931, under an amendment of the Constitution made in July 1929 inside the eight year period, which, if valid, amended Article 50 by substituting a period of sixteen years for the period of eight years mentioned in the original Article 50. Owing to this amendment so made the Act of 1931 (Amendment (No. 17) was not submitted to a Referendum.

The appellants on this appeal have put forward two lines of argument against the validity of the Act setting up Special Powers Tribunal. In one line of argument it is said that the alterations made in the Constitution by the Act of 1931 are outside the scope of the amendments authorised by Article 50 of the Constitution. In this argument it is sought to be established that many Articles of the Constitution are so fundamental as to be incapable of alteration, and that the true meaning of the word "amendment" in Article 50 of the Constitution does not authorise any change in these fundamental Articles or doctrines. It has to be admitted that the Constitution itself does not segregate as fundamental specified Articles or doctrines, nor does it in terms make any distinction between the different classes of Articles. At most, certain Articles such as Article 8, by which freedom of conscience is guaranteed, and Article 9, by which the right of public meeting is guaranteed subject to certain safeguards, may be said to seek to secure what may, in the sphere of ethics and politics, be regarded as fundamental rights. These Articles are not, however, those which have been said to have been weakened; and, in reference to other Articles which are alleged to be fundamental, the only criteria which the appellants can suggest is that the Court should undertake the responsibility of deciding in any set of circumstances which Articles should be held to be fundamental. Before the Court should seek to assume such a power it is, in my opinion, necessary that the Court should find a very stable foundation for such an exercise of jurisdiction. If we regard closely the substance of the matter it is plain that, after the eight years period, proposed amendments of the Constitution were to be submitted to the people for approval, and were to become law only if they had been accepted by the requisite majority of the voters entitled to vote. This direct consultation of the people's will does indicate that all matters, however fundamental, might be the subject of amendment. On the other hand the view contended for by the appellants must go to this extreme point, viz., that certain Articles or doctrines of the Constitution are utterly incapable of alteration at any time, even if demanded by an absolute majority of the voters.

Much has been said in the argument concerning the nature and special sanctity of the Constituent Act. A Constituent Act is an Act which sets up a new Constitution, and, as such, must be a document of the first importance. But there is no necessary reason why the members of the Constituent Assembly should seek to set bounds to the march of the nation in the future. As a matter of construction of Article 50 I do not see any ground for limiting the meaning of the word "amendment" as used in that Article in the manner suggested by the appellants. They seek to construe this word as being limited to alteration or improvement of details as distinct from principles. This construction would draw a line which must necessarily be a very indefinite one and would lead to difficulties even greater than is caused in some Con- tinental systems by a distinction between partial and general revision of the Constitution. But in truth lawyers are familiar with the use of the word amendment as applied to the Legislature. As so used, amendment frequently includes the repeal of sections or groups of sections of an Act as well as modification of the underlying principle of the Act itself. Although the complete abolition of the Constitution without any substituted provision might not properly be called in law an "amendment," in my opinion the word "amendment" is wide enough to allow of the repeal of a number of Articles, however important in substance they may be. The only limitation specified in the text of Article 50 itself is that the amendment of the Constitution must be within the terms of the Scheduled Treaty. This limitation is emphasized by the Constituent Act itself, which provides that if any amendment of the Constitution is in any respect repugnant to any of the provisions of the Scheduled Treaty it shall to the extent only of such repugnancy be absolutely void and inoperative. This conception of the power of amendment as entertained by the framers of the Constitution does not at all accord with the limitation now attempted to be put forward. As a matter of construction I am satisfied that the power of amendment extends to any limits other than those specified in the Article and in the Constituent Act, and it is not argued that the Act of 1931 is in any way inconsistent with the Scheduled Treaty.

I think it right to add that the view which I have expressed is that stated by O'Connor M.R. in passages relied upon taken from the unreported cases of R. (Cooney) v. Clinton and R. (O'Connell) v. Military Governor of Hare Park Camp (The judgments are set out post, p. 245 et seq). The passages in these cases, read by the Attorney-General, state the opinion of the late Master of the Rolls that any part of the Constitution might be altered so long as the alteration should not be contrary to the terms of the Scheduled Treaty. T can find nothing in Article 50, and I know of no rule of construction outside this Article, which would justify this Court in annulling any amendment within the terms of the Scheduled Treaty passed by the Oireachtas and approved of by a Referendum supported by an absolute majority of the voters on the register.

Article V of the Constitution of the United States allows amendments to that Constitution to be made and although the same word "amendment" is used in that Article it has not been shown to have received the limited meaning which the appellants contend for.

During the argument a number of cases decided in the Courts in England have been referred to. I have considered these cases and while some of them are valuable as illustrations of general principles of construction yet they do not require examination as authorities upon the questions involved in this appeal. I shall refer to the case of Attorney-General for New South Wales v. Trethowan [1932] A.C. 526 only for the purpose of remarking that the decision in that case turned upon the provisions of the Colonial Laws Validity Act, which have no application to the facts of the case before us.

The Constitution has entrusted to the Court the power and duty of seeing that the Legislature shall not exceed its legislative power by passing enactments which are contrary to the Constitution. But the Constitution has also given a power to the Legislature, subject in some cases to a Referendum of the people, to amend the Constitution itself. In cases where the Legislature professes to amend the Constitution itself, the only function of the Court is to see that the proposed amendment is within the scope of the power granted by the Constitution and that the requisite forms insisted upon by the Constitution shall have been duly observed. it has not been disputed that within the period of eight years mentioned the Oireachtas could have made by way of ordinary legislation any amendment which might after the period of eight years be made by the Oireachtas with the approval of the people consulted directly in a Referendum. For the reasons which I have stated in detail I am of opinion that the Amendment No. 17, if made by the Oireachtas within the specified period of eight years, would have been within the power of amendment contained in Article 50 of the Constitution.

The second question which has been the subject of argument is whether the amendment made in 1929, substituting a period of sixteen years for that of eight years mentioned in Article 50 during which amendments of the Constitution might be made by way of ordinary legislation, is in itself a valid amendment. If the Oireachtas had allowed the period of eight years to expire without seeking to alter Article 50 in this respect, amendments of the Constitution would in every case require approval by a Referendum. In the Electoral Act of 1923 provision was made for the holding of a Referendum, and the machinery was available, but the Oireachtas appears to have been disinclined to allow this method of consulting the people to be put into practical operation. On 12th July, 1928, the Constitution (Amendment No. 10) Act was passed, deleting from the Constitution Article 47, which provided for a Referendum on certain conditions in respect of ordinary legislation, and Article 50 was amended by the deletion of the words "and as such shall be subject to the provisions of Article 47 hereof." The result of the Constitution (Amendment No. 10) Act was that ordinary legislation was no longer subject to the conditional Referendum nor was any constitutional amendment, made within the eight years period, subject to the conditional Referendum either. As matters thus stood there would, however, have been a compulsory Referendum in the case of every amends ment of the Constitution made after the expiration of the eight years period. But, by the Constitution (Amendment No. 16) Act passed on 14th May, 1929, the Oireachtas, by way of ordinary legislation within the eight year period, made an amendment of Article 50 as already mentioned, and extended the power of amendment by way of ordinary legislation to a period of sixteen years.

Whether this Constitution (Amendment No. 16) Act was validly made is the second question which has been argued, and the question is purely one of juristic construction of Article 50 of the Constitution. Where the result aimed at by the framers of Article 50 appears to be that constitutional amendments made after the eight years period should be confirmed by a Referendum of the people, it may seem a strange result that the power to make amendments by way of ordinary legislation during the specified period should be capable of being utilised to extend the period itself during which such amendments might be made by way of ordinary legislation. It has been forcibly argued that a construction of Article 50 which enables this to be done would put it in the power of the Legislature to extend its own power of constitutional amendment from time to time and thus do away in practice with the control sought to be achieved through a Referendum. But the meaning of Article 50 must he ascertained from the actual words used in the Article. The words are "Amendments of this Constitution within the terms of the Scheduled Treaty may be made ..." which identical subject-matter is again referred to as "such amendments." By the Constituent Act the Constitution is defined to be the Constitution set forth in the First Schedule thereto. This First Schedule contains 83 Articles, of which Article 50 is one, and accordingly the words of Article 50 in their natural and ordinary meaning must allow of the amendment of each and every Article of the Constitution provided that the amendment is within the terms of the Scheduled Treaty. It must, therefore, be asked upon what principle of construction the power of amendment so given should not extend to Article 50 itself? It has been sought on behalf of the appellants to limit the power of the Oireachtas during the eight year period by introducing analogies derived from the law of principal and agent. Reference is made to the rule of law by which an agent cannot himself extend the scope of the authority given to him by the principal and it is said that the Oireachtas is in the position of an agent towards the people. I agree that if the analogy could be substantiated it would follow, on similar lines of reasoning, that a limited agency in the Oireachtas to amend the Constitution could not be resorted to in order to extend the limits of the agency. But in legal language the terms of principal and agent have definite legal meanings, and it is not in the sense of this meaning that we can speak of the Oireachtas as the agent of the people. Perhaps a more close analogy might be suggested in the donee of a power of revocation and new appointment. In such a case: if the power is wide enough, the entire settlement can be revoked and new provisions can be substituted even to the extent of a new mode of revocation. But in truth neither of these analogies can safely be applied to the matter before the Court and the case must depend upon the construction of Article 50 of the Constitution.

The consequences of a decision in favour of the extension of the period during which amendments of the Constitution may be made by way of ordinary legislation alone are grave and far reaching but it is the duty of the Court upon a point of construction to arrive at a conclusion irrespective of the consequences of the decision. I am ready to conjecture that when Article 50 was framed it was not considered probable that any such use of the power would be made as has been made, but the terms in which Article 50 is framed does authorise the amendment made and there is not in the Article any express limitation which excludes Article 50 itself from the power of amendment. I cannot, therefore, find any ground upon which the suggested limitation can be properly based. It must also be remembered that in this country the Referendum was an untried political experiment and it cannot be assumed that the Referendum should be incapable of alteration or removal. I feel bound by the words of Article 50, which allows amendment of the Constitution as a whole, of which Article 50 is declared to be a part.

I am, therefore, of opinion that power was given to amend Article 50 and that consequently the period during which the Constitution may be amended by way of ordinary legislation has been validly extended to a period of sixteen years from the date of coming into operation of the Constitution.

In my opinion the appeal should be dismissed.

I have already made some observations upon the manner in which the Constitution has been amended by the Constitution (Amendment No. 17) Act, 1931. The power of amendment is not a power of temporary suspension and as the Act of 1931 has been put into operation the Constitution must, I should imagine, be considered as amended so as not to be inconsistent with the provisions of the Act of 1931. To discover what the provisions of the amended Constitution now are is a matter of no small difficulty; and if the Act of 1931 should in the future cease to remain in force I fear that grave doubts will arise as to what the Constitution really is. It is, therefore, highly desirable that amendments of the Constitution should be made either by way of repeal of specific Articles or by the substitution of amended Articles instead of those which it is desired to alter.

Appended Decisions
[e.d. - The following judgements which were delivered by the Irish Court of Appeal on 23 May 1924 were referred in the course of the above decision. They were reported in the same edition of the Irish Reports as The State (Ryan) v. Lennon and are consequently also reported here.]

R (Cooney) v Clinton

 * O'CONNOR M.R.:

This is an appeal from the judgment of the King's Bench Division refusing the application for a writ of habeas corpus directed to Captain John Clinton, Military Governor of the Military Hospital, Curragh Camp, to have before the Court the body of Sean F. Cooney, who is in his custody.

This prisoner was arrested on the 12th December, 1922, and when arrested was in possession without authority of a Lee Enfield rifle and 50 rounds of ammunition. He was charged with this offence on the 6th April, 1923, before a Committee of officers of the Irish Free State Army and on the 9th of April, 1923, they forwarded a report of their investigation to the Army Council. That report was received by the Council on the 9th of April, 1923, and on consideration thereof the Council sentenced the prisoner to 10 years' penal servitude.

These events happened during a period when a state of war was in existence.

It is common case that the state of war had come to an end on the 1st August, 1923, and it was not contended that the sentence passed by the military authority would have any binding force after the restoration of peace unless there was some valid statutory enactment validating what had been done.

The Irish Free State authority says that there was such an enactment and relies upon the Indemnity Act, 1923 (No. 31 of 1923).

By sect. 3, sub-sect. 1, of that Act:— "Every military court or committee or tribunal (in this section called a military tribunal) established since the 27th day of June, 1922, and before the passing of this Act by the Military Authorities of the Provisional Government or the Government of Saorstát Éireann for enquiry into the cases of or for the trial of persons taken prisoner as military captives by the military forces of the Provisional Government or persons charged with offences shall be deemed to be and always to have been a validly established tribunal, and every sentence passed, judgment given, or order made before the passing of this Act by any such military tribunal shall be deemed to be and always to have been valid and to be and always to have been within the lawful jurisdiction of the tribunal."

This enactment, if valid, affords a complete answer to the application for the writ, but it was contended by they applicant (and indeed this was the only argument addressed to us) that the enactment is invalid on the ground that it is a violation of the Constitution of the Irish Free State.

Reliance was placed on Articles 6, 70 and 72 of the Constitution. These Articles declare the inviolability of the subject except in accordance with law; provide that no one shall be tried save in due course of law and that extraordinary courts shall not be established; and that military courts shall not have jurisdiction over the civil population save in time of war.

This may raise a grave constitutional question, but I am far from saying that under the Constitution as it stood at the date of the passing of the Indemnity Act there was not power in the Oireachtas to pass such an Act without any amendment of the Constitution. It is, however, quite unnecessary to consider any such question, having regard to the power conferred on the Oireachtas by Article 50 to amend the Constitution. This Article says that amendments of the Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas. It then says that no such amendment shall be made after the expiration of eight years unless it is submitted to a Referendum of the people as therein provided, and it goes on to say that "any such amendment may be made within the said period of eight years by way of ordinary legislation." It is difficult to see how, during the period of eight years, any Act passed by the Oireachtas can be impeached as ultra vires so long as it is within the terms of the Scheduled Treaty.

It was urged that any Act of Parliament purporting to amend the Constitution should declare that it was so intended, but I cannot accede to that argument in view of the express provision that any amendment made within the period may be made by ordinary legislation.

Neither can I find anything in the Indemnity Act which is opposed to the terms of the Treaty, which seems to me to impose no limitation on domestic legislation save that which is contained in Article 16, which prohibits the endowment of any religion or the restriction of the free exercise thereof.

For these reasons I am of opinion that the appeal fails. In coming to this conclusion I am glad to observe that if the prisoner has any just cause of complaint on account of the sentence passed on him by the military tribunal he has at right to appeal to the Board of Commissioners provided for by sub-seats. 2 and 3 of sect. 3 of the Indemnity Act, which gives power to the Commissioners to review the sentence imposed.


 * RONAN L.J.:

I entirely agree.


 * O'CONNOR L.J.:

I also concur.


 * O'CONNOR M.R.:

The same reasons apply to the other two cases, R. (Corcoran) v. Clinton and R. (O'Connell) v. Military Governor of Hare Park Camp.

R. (O'Connell) v. Military Governor of Hare Park Camp

 * O'CONNOR M.R.:

This is an appeal from the order of the King's Bench Division ([1924] 2 I.R. 104) refusing an application for a writ of habeas corpus directed to the Military Governor of Hare Park Internment Camp to have before the Court the body of John Daniel O'Connell who is in his custody.

The prisoner was arrested on the 26th February, 1923, by military troops of the Irish Free State during a state of war. He has not been tried or sentenced by any tribunal, but he is still a prisoner under the order of the Executive Government.

The state of war has determined and undoubtedly there is no right to detain him in custody under the ordinary law. But the Executive Government relies upon the right conferred by the Public Safety (Powers of Arrest and Detention) Temporary Act, 1924, by the fourth section of Which:— "Every person who is now detained in military custody or held as a military prisoner or captive and has not before the passing of this Act been sentenced to a term of imprisonment or penal servitude by any tribunal established by the military authorities, may be detained in custody under this Act under an order of an Executive Minister if such Minister if of opinion that the public safety would be endangered by such person being set at liberty." This is no doubt drastic legislation but its meaning is quite clear and must be observed if it came within the powers of the Oireachtas.

As in Cooney's Case, the validity of the Act has been challenged but, for the same reasons as were given in the judgments just pronounced, we must hold that the Act is intra vires and binding in this Court.

The only remedy open to the prisoner is that given to him by sect. 5 which gives him the right to demand an enquiry by the Appeal Council therein mentioned.

This appeal must be refused.