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Published online by Cambridge University Press: 02 September 2013
Under terms of the Treaty of 1921 between Great Britain and Ireland, it was agreed that: “Ireland shall have the same constitutional status in the Community of Nations known as the British Empire as the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, and the Union of South Africa, with a Parliament having powers to make laws for the peace, order and good government of Ireland and an Executive responsible to that Parliament, and shall be styled and known as the Irish Free State.” The status of the Irish Free State was further defined by this language: “Subject to the provisions hereinafter set out, the position of the Irish Free State in relation to the Imperial Parliament and Government and otherwise shall be that of the Dominion of Canada, and the law, practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State.” The Imperial Government gave this treaty the force of law by the Irish Free State (Agreement) Act of March 31, 1922. To implement the treaty, Dáil Eireann, sitting as a constituent assembly, enacted a constitution for the Irish Free State in 1922. This constitution declared: “The Irish Free State (otherwise hereinafter called or sometimes called Saorstát Eireann) is a co-equal member of the Community of Nations forming the British Commonwealth of Nations.” It was given the force of law by the Imperial Government in the Irish Free State Constitution Act of December 5, 1922.
1 Articles of Agreement for a Treaty between Great Britain and Ireland, 1921, Art. I; 12 Geo. 5, chap. 4.
2 Ibid., Art. II. The treaty provided further that the representative of the Crown in Ireland be appointed in like manner as the governor-general of Canada [Art. III]. Members of the Parliament of the Irish Free State were required to take the following oath: “I … do solemnly swear true faith and allegiance to the Constitution of the Irish Free State as by law established and that I will be faithful to H. M. King George V., his heirs and successors by law, in virtue of the common citizenship of Ireland with Great Britain and her adherence to and membership of the group of nations forming the British Commonwealth of Nations.” [Art. IV.]
3 12 Geo. 5, chap. 4.
4 Constitution of the Irish Free State, Art. I.
5 13 Geo. 5, Sess. 2, chap. 1. The constitution was put into operation by proclamation on December 6, 1922, as prescribed in Art. LXXXIII. Northern Ireland promptly exercised its option under the treaty to remain within the United Kingdom.
6 According to his plan, Ireland was to be associated with the “states of the British Commonwealth” for the purposes of “common concern.” When acting as an associate, the rights, status, and privileges of Ireland were to be “in no respect less than those enjoyed by any of the component states of the British Commonwealth.” He defined matters of “common concern” to include defence, peace and war, political treaties, and all matters then treated as of common concern by the states of the British Commonwealth. In matters of “common concern” there should be “such concerted action founded on consultation as the several governments may determine.” For the purposes of the Association, de Valera was willing that Ireland should recognize “His Britannic Majesty as head of the Association.” Document No. 2, secs. 2–6.
7 Keith, A. B., The Governments of the British Empire (1935), pp. 33–34Google Scholar.
8 22 Geo. 5, chap. 4, sec. 1.
9 Ibid., sec. 2, par. 2.
10 Ibid., sec. 3.
11 Ibid., sec. 4.
12 See Mansergh, Nicholas, The Irish Free State (1934), pp. 254, 280–281, 287Google Scholar.
13 Harrison, Henry, Ireland and the British Empire (1937), pp. 37–38Google Scholar.
14 See supra, note 2.
15 22 and 23 Geo. 5, chap. 30.
16 Statutory Rules and Orders, 1932, No. 905.
17 Election Manifesto of de Valera, Jan. 20, 1933, as printed in The Irish Press, June 15, 1937.
18 Constitution (Removal of Oath) Act, 1933, sec. 3; also known as Act of the Oireachtas, No. 6, of 1933.
19 Moore v. Attorney-General for the Irish Free State (June 6, 1935), 51 The Times Law Reports 504, 507.
20 Ibid., p. 506. In this view the Judicial Committee followed the earlier opinion rendered in Performing Right Society v. Bray Urban District Council (1930), 46 The Times Law Reports 359.
21 Moore v. Attorney-General for the Irish Free State (June 6, 1935), 51 The Times Law Reports 504, 507.
22 The Governments of the British Empire (1935), pp. VI–VIIGoogle Scholar.
23 Ireland and the British Empire (1937), p. 196Google Scholar. For further discussion of this issue, see post., pp. 860–861.
24 22 Geo. 5, chap. 4.
25 At the time the Seanad had been abolished, and under the terms of Article L the Dáil could amend the constitution. Constitution (Amendment No. 27) Bill was introduced and passed in the course of a seven and one-half hour session.
26 The president of the Council was elected by Dáil Eireann. He nominated a vice-president. He appointed the other ministers with the assent of Dáil Eireann. [Art. LIII.]
27 Figures given are those reported in The Irish Press, July 17, 1937.
28 The Irish Press, May 26 1937.
28a However, Article XXIX stipulates that every international agreement to which Éire becomes a party shall be laid before Dáil Eireann. Éire shall not be bound by any such agreement involving a charge upon public funds unless the terms have been approved by the Dáil. These limitations do not apply to agreements or conventions of a technical and administrative character. No international agreement shall be part of the domestic law of Eire save as may be determined by the Oireachtas.
29 The Irish Press, May 26, 1937.
30 Later, Mr. Cosgrave, as leader of the Fine Gael opposition, made a public statement explaining the failure of Fine Gael to vote for Mr. MacDermot's amendment. The amendment, according to Cosgrave, was framed to assert a principle contrary to the adopted practice governing the relationship of the Crown to the members of the British Commonwealth. The Crown was, according to the preamble of the Statute of Westminster, the symbol of the free association of the members of the Commonwealth. Any change in the royal style or titles could be made only after agreement among the member-states of the Commonwealth. The MacDermot amendment did not propose to recognize the Crown as the symbol of free association. It recognized George VI as the king of Ireland. Fine Gael took its stand on the treaty and the agreements reached by Imperial Conferences with respect to the definition of the Crown in relation to the members of the British Commonwealth (The Irish Press, June 7, 1937). This technical and ingenious explanation aside, it is obvious that Fine Gael was in an unfortunate dilemma. Had Fine Gael voted for the amendment, it would have been open to pro-British charges in the ensuing Irish election. By failing to vote for the amendment, Fine Gael was open to charges of insincerity in its stand for the Commonwealth connection.
31 The Irish Press, June 7, 1937.
32 Ibid., June 15, 1937.
33 Keith, A. B., The Governments of the British Empire, (1935), pp. 121–122Google Scholar.
34 For arguments against the right of dissociation under the Statute of Westminster, see the views advanced by Keith, A. B., in reviewing Harrison's, HenryIreland and the British Empire (1937)Google Scholar, in the Manchester Guardian, April 27, 1937. On the controversy between the United Kingdom and the Irish Free State over the registration of the treaty in 1924, see Baker, P. J. Noel, The Present Juridical Status of the British Dominions in International Law (1929), pp. 305–307Google Scholar.
