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BRITISH INVOLVEMENT IN THE CREATION OF THE
FIRST IRISH CONSTITUTION
Thomas Mohr
School of Law, University College Dublin
School of Law
Roebuck Castle
University College Dublin
Belfield
Dublin 14
Ireland
00 353 1 716 8765
Words in text: 8, 753
Words in footnotes: 1,442
1
ABSTRACT
Existing accounts of the British contribution to the drafting of the first Irish Constitution
tend to focus exclusively on matters relating to the Anglo Irish Treaty of 1921. This
article examines the advice given by the British government on the provisions of the 1922
Constitution that were not directly connected to the demands of the Treaty. The British
provided their less experienced Irish counterparts with constructive advice on such
diverse matters as the composition of the Irish cabinet, the dissolution of the Dáil, the
granting of titles of honour, the use of terminology in the Irish language and on the
winding up of the “Dáil courts”. This article notes that many of the amendments made in
these areas were replicated in the present Irish Constitution of 1937. It concludes that
this aspect of the British involvement in the drafting of the first Irish Constitution has
proved more durable than concerns over many of the symbols of sovereignty that loomed
so large in 1922.
2
BRITISH INVOLVEMENT IN THE CREATION OF THE
FIRST IRISH CONSTITUTION
Thomas Mohr
INTRODUCTION.
No account of the creation of the first Irish Constitution can ignore its Anglo-Irish
dimension. This Constitution was drafted in the aftermath of the signing of the “Articles
of Agreement for a Treaty between Great Britain and Ireland”. The “Articles of
Agreement”, known in Ireland as “the Treaty”, were signed on 6 December 1921 after a
series of long and emotionally fraught negotiations. Signing the Treaty brought a vicious
Anglo-Irish conflict to a close by offering the twenty-six counties of the south and west
of Ireland the status of a Dominion within the British Empire. The resulting Constitution
of 1922, a product of the settlement brought about by the Treaty, is no longer in force. It
was replaced by a new Constitution in 1937 under the stewardship of Eamon de Valera.
De Valera hoped that a new Constitution would help to reconcile opponents of the Treaty,
which included himself, to the infant Irish state. Nevertheless, many provisions of the
Constitution of 1922 were replicated to a certain extent in the text of its successor. The
3
focus of this article is on the first Constitution. This was the Constitution of the “Irish
Free State” which came into force on 6 December 1922, exactly a year after the signing
of the Treaty, by a proclamation of King George V.1
Although the creation of the original drafts of the Constitution of 1922 was an
exclusively Irish affair, it is well known that an extensive redrafting took place at the
instigation of the British government. This redrafting was completed in London during
the summer of 1922 at a conference between representatives of the British and Irish
governments. Existing accounts of this redrafting process tend to focus exclusively on
the issues relating to the Treaty that pre-occupied the first half of this conference. These
issues included the place of the Crown in the Irish Constitution, the role of the Governor-
General, the appeal to the Judicial Committee of the Privy Council from the Irish courts
and, most contentious of all, whether a parliamentary oath that made reference to King
George V should appear in the text of this first Irish Constitution.2
The purpose of this article is not to give an account of the negotiations concerning
the Treaty or of those concerning the guarantees given to the southern unionist
community in the embryonic Irish Free State. There is no disputing the obvious
importance of these issues to Irish history. Nevertheless, their shadow has tended to
obscure the events of the latter half of this London conference. It should be noted that the
1 It might be argued that the “Constitution of Dáil Éireann” adopted by the rebel Irish parliament or “Dáil” in 1919 be considered the first Irish Constitution. However, it is also possible to argue that this document was only a Constitution for the Dáil itself. This is apparent from the title given to this document as well as from the fact that it only consisted of five short articles all of which dealt with the functioning of the rebel assembly. This document seems to have been ignored by the Irish Constitution Committee and Constituent Assembly in 1922 as it has by most textbooks on Irish constitutional law that have been published since that date. For contrasting conclusions on the significance of the “Dáil Constitution” see Brian Farrell “A Note on the Dáil Constitution 1919” (1969) 4 Irish Jurist 127.2 For example see Brian Farrell, “The Drafting of the Irish Free State Constitution” (1970) 5 Irish Jurist 115, 343 and (1971) 6 Irish Jurist 111, 345; Joseph M. Curran, The Birth of the Irish Free State, 1921-1923 (Alabama, 1980) and D.H. Akenson and J.F. Fallin “The Irish Civil War and the Drafting of the Free State Constitution” Eire-Ireland, 5:1 (Spring 1970), 10, 5:2, (Summer 1970), 42 and 5:4 (Winter 1970), 28.
4
discussions on the draft Constitution changed considerably after the Irish agreed to a
redraft. The political tensions eased to a considerable extent once the major issues
pertaining to sovereignty had been resolved. British ministers could then afford to
examine the document on its merits and offer constructive advice to their less
experienced Irish counterparts. The advice given by British ministers altered a number of
important aspects of the Irish Constitution of 1922 that have largely survived in the text
of the present Constitution of 1937. This article attempts to give an account of the
redrafting of those articles of the 1922 Constitution that did not concern matters directly
connected to the Treaty. It will chart the advice given by British ministers on such diverse
matters as the composition of the Irish cabinet, the dissolution of the lower house of the
Irish parliament, the granting of titles of honour, the use of terminology in the Irish
language and the final fate of the Irish rebel courts, better known to history as the “Dáil
courts”. Many of the amendments made at this stage of the London conference were
replicated in the present Irish Constitution and, thus, have proved more durable than the
matters of sovereignty that loomed so large in 1922.
DRAFTING THE CONSTITUTION.
Dáil Éireann ratified the “Articles of Agreement for a Treaty between Great Britain and
Ireland” on 7 January 1922 and the Irish Provisional Government was brought into
existence a week later. These events ensured that Michael Collins, chairman of the Irish
Provisional Government, was free to consider the composition of the committee that
would draft the Constitution of the embryonic Irish Free State. The resulting
5
“Constitution Committee” began work on 24 January. On 27 May Michael Collins and
Arthur Griffith, founder of Sinn Féin and now President of Dáil Éireann, brought their
chosen draft to London in order to give British ministers a confidential preview.
The draft brought to London by the Irish Provisional Government gave little more
than token recognition to the Crown and the role of its representative within the Irish Free
State. The parliamentary oath that made reference to King George V was omitted and the
appeal to the Judicial Committee of the Privy Council was prohibited by an article that
stressed the finality of decisions of the Irish Supreme Court. As far as the British were
concerned the Crown, parliamentary oath and Privy Council appeal were vital pillars of
Dominion status. The reaction of British ministers was entirely predictable. Lloyd George
came to the conclusion that this was not the Constitution of a British Dominion, as the
Irish Free State had been defined under the Treaty, but that of “a Republic with a thin
veneer”.3 The result was a serious rise in tensions that threatened to destabilize the entire
Treaty settlement. This threat only dissipated on 2 June 1922 when the Irish acquiesced to
a major redrafting of the document they had brought to London.
The prominent place given the Crown, Governor-General and parliamentary oath
in the amended text ensured that the resulting Constitution was not one that could be
accepted by Eamon de Valera and other moderate opponents of the Treaty. Consequently,
most historians tend to treat the redrafting of the 1922 Constitution in the context of being
one of a number of fateful steps that led down the path to the Irish civil war.4 When
placed in this context, it is hardly surprising that existing accounts of the conference that
led to the redrafting of the Constitution of the Irish Free State focus almost exclusively on
3 The National Archives: Public Record Office (TNA-PRO) CAB 43/1 22/N/148(3) and CAB 43/7 22/N/162.4 See fn. 2.
6
matters relating to the Treaty. While this emphasis is certainly understandable, it has also
led to the neglect of number of matters that may be of some importance to the field of
legal history. Leaving aside matters pertaining to the Treaty, what did the British actually
think of the proposed Constitution? The draft Constitution brought to London was an
innovative document that reflected aspirations that were, in many cases, alien to the
system familiar to British ministers. How did these ministers react to a document that
threatened to be the greatest departure by a common law jurisdiction from the British
constitutional model since the creation of the United States of America?
There was little doubt in Whitehall that the Irish were in need of advice in drafting
their Constitution. A memorandum on the projected Irish Constitution, written by Lionel
Curtis a mere four days after the Treaty was signed, emphasized that the Irish required
guidance externally and were in need of a political education internally. Curtis was an
authority of some note on the affairs of the British Commonwealth and in 1921 was
serving as a civil servant in the colonial office. Soon after the signature of the Treaty he
reflected on the kind of Constitution that the Irish were likely to present to the British
government. Curtis noted that the Irish Home Rule MPs, who had been deeply imbued
with British constitutional practice, had vanished from the political stage. He felt that the
“new Ireland” that had taken their place was devoid of constitutional experience or
tradition. Curtis was unlikely to have been impressed by arguments relating to the
administrative experience gained during the lifetime of the first Dáil Éireann. His
conclusion that the present Irish leadership was “saturated with American ideas” was not
intended as a compliment. Curtis had absolute confidence in the superiority of the British
7
constitutional model, an attitude that seems to have been shared by the British ministers
who would later critically assess the draft version of the Irish Constitution of 1922. 5
Curtis’ memorandum of 10 December 1921 used the background to the creation
of the South African Constitution of 1910 as a good example for the misguided idealism
the British were likely to expect from the Irish. It recounted how the Boers had come to
power in the Transvaal filled with ideas of having a president directly elected by the
people. Yet, according to Curtis, a few weeks of responsible government had converted
the likes of Botha and Smuts to a system under which ministers were responsible to and
removable by the legislature and in which a titular head of state stood apart from politics.
Curtis claimed that the Afrikaners would hear of nothing else when the time came, two
years later, to frame the Union Constitution. This experience had not, however, warned
them against another rash innovation. This was the introduction of elected executives, in
accordance with the Swiss model, for the provincial governments. Curtis noted with
apparent satisfaction, that this initiative had led to deadlocks and was an admitted failure.
He concluded that the best course of action, with respect to Ireland, was to ensure that the
Irish got some experience of responsible government before drafting their Constitution.
This, he felt, would help to preclude the British from being presented with “wild-cat
proposals”.6
5 TNA-PRO CAB 43/2 SFB 40. 6 Ibid.
8
THE CONSTITUTION COMMITTEE.
The committee appointed by the Irish Provisional Government to draft a Constitution has
been unkindly described as a collection of “theorists who were without practical
experience”.7 In fact, there was no shortage of legal and administrative talent on the
Constitution Committee. It might be added that previous experience is a qualification that
is seldom available when selecting individuals to frame a Constitution for a new state. In
addition to Michael Collins as chairman and Darrell Figgis as vice-chairman, the
membership of the Constitution Committee included four lawyers, Hugh Kennedy, John
O’Byrne, Kevin O’Shiel and Clement J. France; a businessman, James Douglas; a former
civil servant, James McNeill and two academics, Professor Alfred O’Rahilly and
Professor James Murnaghan.8 Three civil servants also assisted the committee. These
were E.M. Stephens, R.J.P. Mortished, and P.A. O’Toole.
Although Michael Collins was titular chairman of the committee, the formidable
demands on his time ensured that practical responsibility devolved onto Darrell Figgis.
Figgis was a literary figure of some renown in Dublin. His red beard earned him the
nickname of “an fear féasógach” or “the bearded man”. The poor relations that existed
between Figgis and Collins are well known. Figgis began his work by engaging rooms for
the use of the committee in Dublin’s Shelbourne Hotel, a venue deplored by Collins as a
needless extravagance.9 Collins also held Figgis responsible for many of the breaches of
secrecy that accompanied the work of the committee.10
7 D.W. Harkness, The Restless Dominion (New York, 1969), p. 23.8 Murnaghan, as Professor of Jurisprudence and Roman Law at University College Dublin, was an academic in 1922 although he would later be appointed a judge of the Supreme Court. 9 National Archives of Ireland (NAI) Department of the Taoiseach, Constitution Committee, S3. 10 Ibid.
9
Although the very existence of the Constitution Committee was supposed to be a
secret it was one that proved extremely short-lived. Just two days after the opening
session a journalist from the Freeman’s Journal called on Darrell Figgis asking for
information on the committee. Figgis denied all knowledge of any such body but
immediately undermined this denial by appealing to the journalist’s, and his editor’s,
feelings of patriotism and asking them to refrain from printing any such speculations.11
The Freeman’s Journal ran the story the very next day.12 This forced Collins to publicly
admit the existence of the committee together with the names of the persons who sat on
it.13 The matter did not end here and Collins and Figgis exchanged sharp letters on the
source of the leak. Figgis protested at the difficulty of keeping the secret when he
received letters from the Provisional Government that were openly addressed to him as
“Chairman of the Constitution Committee”.14 Difficulties in maintaining secrecy were to
dog the Constitution Committee throughout its short existence.
The Constitution Committee proved more productive than expected. It produced
no less than three draft Constitutions known as Drafts A, B and C. The Provisional
Government chose Draft B which formed the basis of the draft Constitution that was
brought to London in May 1922. The marginal position given to the Crown and the lack
of any reference to the parliamentary oath, which so inflamed the British government,
11 NAI Department of the Taoiseach, S8952.12 Freeman’s Journal, 27 Jan. 1922. 13 Freeman’s Journal, 31 Jan. 1922. C.P. France’s name was omitted from the list of members. France was an American lawyer who had come to Ireland on behalf of the American Committee for Relief in Ireland. As a result of the fact that he was not a citizen of Ireland he declined to be a formal member of the Constitution Committee. For this reason his name was not mentioned when the membership of the committee was made public on 31 January 1922. Nevertheless, he attended committee meetings and was a signatory of Draft B. 14 NAI Department of the Taoiseach, Constitution Committee, S3.
10
cannot be ascribed to the naivety of the Constitution Committee. In this respect they were
doing no more than following the instructions given to them by Collins.15
Given that the Constitution had to be ready for the Irish elections of 16 June 1922,
the redrafting that followed in London proceeded at a brisk pace. Much of the practical
work involved was done in a series of one-to-one meetings between Lord Hewart and
Hugh Kennedy. Hewart had been Attorney General at the time of the Treaty negotiations
but had since been appointed Lord Chief Justice, a position he would hold for over two
decades. Kennedy would soon become the very first Irish Attorney General and later
became the first Chief Justice of the Irish Supreme Court. The two men seemed to get on
well and shared a common interest in classical civilisation. During the Treaty
negotiations Lloyd George came across the pair late at night talking animatedly. “How
are things progressing?” the Prime Minister asked affably. “Oh” said Hewart “we haven’t
started to discuss the matter yet. We’re still discussing the classics!”. 16 In later years
Hewart stated his intention to write an account of his part in negotiating the Irish
settlement. Reluctance to retire from the bench followed by a number of years of
dwindling health ensured that he never wrote this account. His diaries were lost in the
upheaval of the second world war.17
Hewart and Kennedy made rapid progress in redrafting the Constitution. After a
week most of the most contentious aspects of the draft Constitution had been settled.
Once the redrafting had entrenched both Crown and oath into the text, the British
ministers could examine the handiwork of the Constitution Committee with a more
dispassionate eye.
15 NAI Department of the Taoiseach, S8952. 16 Robert Jackson, The Chief: the Biography of Gordon Hewart (London, 1959), p. 117.17 Ibid. at p. 119.
11
OPENING PROVISIONS.
The opening clauses of the Constitution caused consternation among British ministers.
Article 1
The Nation’s sovereignty extends not only to all the men and women of the
Nation, but to all the material possessions of the Nation, the Nation’s soil and
all its resources and all the wealth and wealth-producing processes within the
Nation; and all right to private property is subordinated to the public right and
welfare of the Nation.
Article 2
It is the duty of every man and woman to give allegiance and service to the
commonwealth, and it is the duty of the Nation to insure that every citizen
shall have opportunity to spend his or her strength and faculties in the service
of the people.
Aside from sustained emphasis on Irish sovereignty, the British were shocked by
what Austen Chamberlain, then Lord Privy Seal, called the “Soviet character” of these
articles.18 “Suppose the Irish Parliament passes a law that no-one should have more than
500 acres of land?” queried Chamberlain “They could do it under Article 1”.
18 Winston Churchill also remarked on the “Bolshevik character” of the draft Irish Constitution. In spite of this, the provisions for the holding of referenda appealed to him. Churchill was also astute enough to see the influence of the Swiss Constitution on the text. TNA-PRO CAB 21/257.
12
Chamberlain went as far as suggesting that the British parliament retain the power to
compel the payment of compensation in such instances. 19 The dismay of British ministers
at the sight of such provisions would have been amplified had they been aware that these
opening provisions had been derived from a pamphlet entitled “The Sovereign People”
written by Patrick Pearse.20 By including this clause, the drafters had hoped to provide the
Constitution of the Irish Free State with a link to the events of Easter 1916 and also to
Dáil Éireann’s “democratic programme” of 1919 which had also used these words. In
spite of these considerations, Hugh Kennedy did not seem to attach much importance to
them.21 He may even have shared the reservations expressed by Austen Chamberlain. On
the first day of redrafting he was more than happy to trade them in and secure in their
place a declaration of the co-equal status of the Irish Free State with the other members of
the British Commonwealth.22
Kennedy proved stubborn when the British sought to remove Article 3 which
declared that:
19 TNA-PRO CAB 43/1 22/N/148(3). 20 NAI Department of the Taoiseach, S8955. This pamphlet is reproduced in Collected Works of Padraic H. Pearse: Political Writings and Speeches (Dublin, 1922), pp 335-372. 21 Kennedy justified the removal of these two articles to the cabinet by stating that “they would be spoiled by the proposed amendments and in any case the first of them is involved in the new Article, and the second is I think, an unnecessary declaration”. NAI Department of the Taoiseach, S8955.22 NAI Department of the Taoiseach, S8955. This declaration of co-equality within the British Commonwealth became Article 1 of the Constitution of the Irish Free State. It represents the first occasion on which the term “British Commonwealth”, as opposed to “British Empire”, was used in a Dominion Constitution. The preceding Irish Free State (Agreement) Act, 1922 represents the first occasion that the term “Commonwealth” was ever used in British statute law. It is also contended that this measure represents the first occasion in which the term “British Government” was used to distinguish the government of the United Kingdom from those of the British Dominions. See TNA-PRO HO 45/20028, Memorandum No. V in Report of Inter-Imperial Relations Committee of June 4th 1930: Technical Phraseology in Official Documents.
13
All powers of government are derived from the people of Ireland. All persons
who exercise the authority of Saorstát Éireann, whether legislative, executive
or judicial, do so by virtue of the power conferred on them by the people.
Hewart reported to British ministers on 9 June that he had failed to secure the
removal or substantive amendment of this important provision. Nevertheless, he
remained optimistic and concluded that he was not without hope that this troublesome
article might eventually be deleted.23 Kennedy remained obstinate and it remained in
place at the end of the negotiations.24 The primacy of popular sovereignty remains a
central feature of Irish constitutional law to this day.
23 TNA-PRO CAB 43/1 SFB 28th Conclusions.24 This draft article became Article 2 of the Constitution of the Irish Free State.
14
EXTERNAL MINISTERS.
The genesis of the “external ministers” scheme can be traced to a proposal made on 2
February 1922 by James Douglas, a member of the Constitution Committee. Douglas
proposed that the executive should be composed of a core of ministers elected by the
Dáil, who would carry responsibility for government policy, and a number of outsiders,
who would be appointed as ministers on the basis of their technical abilities. The proposal
that the Irish executive should include “external ministers” was, in many respects,
influenced by the provisions of the Swiss Constitution. The scheme split the Constitution
Committee, a division that proved to be permanent. In the end the committee presented
the Provisional Government with a Draft A, excluding any provision for external
ministers, and a Draft B, which provided that as many as eight out of twelve members of
the executive could be external ministers.25 The option provided by Draft B was accepted
and was eventually included in the draft Constitution that was brought to London.26
The relative enthusiasm for the external ministers proposal was largely motivated
by a desire to avoid many of the evils associated with the Westminster cabinet system.
An important theme in discussions relating to external ministers was the attitude
displayed by many members of the Provisional Government and the Constitution
Committee toward political parties. Many of these people assumed that the introduction
of proportional representation voting, a concession granted to ensure some representation
for southern unionist interests, would result in a multiplicity of small parties that would in
turn necessitate adjustments being made to the Westminster style of appointing an
25 Article 52 of Draft B.26 Article 48 of the draft brought to London.
15
executive. Aside from such practical concerns, there was also a general hostility to
British-style party politics and a desire to forestall such a development in Ireland. It is
difficult to pin down the origins of this hostility, although the experience of having seen
the issue of Irish home rule being tossed and torn in the tussle between two large British
political parties must be considered a likely source. Notwithstanding such
preoccupations, those who promoted the introduction of external ministers were keen to
point out the flaws in the Westminster system. Was it right that the cabinet be composed
almost exclusively of members of the governing party? Should party considerations
always be placed before ability or practical experience of a given field? Those who
supported the introduction of external experts into the executive also sought to reform the
doctrine of collective cabinet responsibility. The possibility of an entire ministry falling
on the basis of a single issue was seen as ensuring a lack of continuity and promoting a
pendulum swing of different extremes of policy. The Constitution Committee also
desired to moderate the cabinet grip on the lower house of parliament. It was felt that the
tightness of this grasp was such as to inhibit the independence and powers of initiative of
individual TDs. Ironically, tight party discipline, directed by the Provisional Government,
would be used some months later to ensure that the draft Constitution passed through the
Dáil without major amendment.
Idealism aside, there was also a more immediate reason for favouring the
inclusion of external ministers in the Irish government. External ministers would not have
to take the parliamentary oath that made reference to the King, as was required of elected
members under Article 4 of the Treaty. Nor would external ministers be required to
signify their acceptance of the Treaty in writing, as was required by Article 17 of that
16
instrument. In addition, these external ministers would not be associated with external
policy, which would be considered the exclusive domain of ministers elected from the
Dáil. These considerations offered the potential of drawing Eamon de Valera and other
moderate opponents of the Treaty into government and diminishing the threat of civil
war. It is likely that such considerations were at the forefront of Michael Collins’ mind
when he selected Draft B, with its provisions for external ministers, to form the basis of
the Irish Constitution.
The potential offered by the appointment of external ministers in facilitating the
creation of a coalition with opponents of the Treaty was also recognized in London. The
proposal was immediately condemned as a subterfuge that sought to evade adherence to
Articles 4 and 17 of the Treaty. The British insisted on amending the draft Constitution so
as to ensure that external ministers were obliged to take the oath and signify their
acceptance of the Treaty. 27 According to Winston Churchill, then Colonial Secretary, this
ensured that “[a] pernicious duality in the Executive was thus avoided”.28 Unfortunately,
these amendments ended the prospect of creating a coalition government between
supporters and opponents of the Treaty and also inched Ireland closer to the precipice of
civil war.
Now that the main objections had been removed, the British could afford to look
at the external ministers proposal with a more detached eye. They did not like what they
saw. The British frowned on the diminution of collective ministerial responsibility that
was inherent in the scheme. The British were also uncomfortable with the provision that
ensured that external ministers would not lose their briefs as a result of a change of
27 NAI Department of the Taoiseach, S8955. 28 Winston S. Churchill, The World Crisis, 1918-1928: The Aftermath (New York, 1929), pp 358-359.
17
government and the fall from power of their elected colleagues. It was concluded that
tendency of entire scheme would be to create a permanent oligarchy in the Irish Free
State. In the end the British decided not to raise this matter with their Irish colleagues as a
definite objection. They had already insisted on major amendments to the proposal on
external ministers to ensure compliance with Articles 4 and 17 of the Treaty. Despite
their misgivings the British seemed reluctant to press for even more amendments based
on purely practical considerations. It was concluded that “as this was a matter of internal
government, the British government were not concerned”. Nevertheless, many Irish
people shared the concerns raised by the British government. These included Arthur
Griffith who had always been hostile to the entire proposal on external ministers. 29
Sufficient members of the Dáil agreed with the British assessment of the scheme to
ensure that by the time the Constitution came into force the proposal had been diluted out
of all recognition.
TITLES OF HONOUR.
The granting of titles of honour was a deeply emotive issue in Ireland in the early part of
the twentieth century. The attitude of Irish nationalists to this question is well illustrated
in Irish Freedom Explained, a book designed to explain the new order to Irish school
children:
29 Griffith pencilled the words “against all precedent” beside many of the innovative provisions and wrote “impossible” beside the provisions dealing with external ministers. NAI Department of the Taoiseach, S8953.
18
You are well accustomed to hear of Lord So-and-So or Sir Something-
Something in your parish, and many of you will have been brought up to think
the holders of such titles must be very high and powerful people who have
been rewarded for doing some great service to the country.
Sometimes that was so, but sometimes the owner has inherited the title from
his father and perhaps his father or some long dead ancestor has been given
his title by the English king for doing some harm to the Irish people.
For many years past no loyal Irishman would accept a title of honour from the
English king however he may have deserved it by working hard for Ireland.
Not one of the men and women who took part in the last war with England
had an English title. Many good men accepted titles, but Irishmen believed
that most of these “honours” were given and taken as rewards for doing some
evil thing or as bribes to get men to do more evil things.30
The “evil thing” most associated in the Irish psyche with the granting of
hereditary titles was the enactment of the Act of Union by the Irish parliament in Dublin
in 1800. The passage of this statute through the Dublin parliament, which created a
political framework that would dominate the next 120 years of Irish history, was only
achieved after the distribution of considerable largesse in the form of money, property
and hereditary titles. It was a historical precedent that continued to prey on the minds of
Irish nationalists in the 1920s and, when added to a long-established antipathy to the 30 Robert N. Tweedy, Irish Freedom Explained: The Constitution of Saorstát Éireann (Dublin, 1923), pp 56-7.
19
forms of an aristocracy that was perceived to be foreign in origin, convinced them that
the granting of hereditary titles could not be tolerated in any future Irish state. Article 5 of
the draft Constitution brought to London in May 1922 declared that “No title of honour
may be conferred by the State on any citizen of Saorstát Éireann”.31 If this provision
shocked members of the British government, they and the remnants of the old Anglo-
Irish ascendancy would have been appalled to learn that the original versions of this
article had provided for the eventual phasing out of all existing hereditary titles.32 This
aspect of Article 5 had been removed by the Provisional Government, which was
undoubtedly aware of the opposition such a measure would receive from Lord Midleton,
Lord Donoughmore and other southern unionist leaders. Nevertheless, the remaining ban
on the granting of any new titles was unacceptable to the British government. The British
felt that this prohibition was a blatant denial of the Crown prerogative to grant such
honours.
Lord Hewart managed to relax the absolute nature of this ban by adding the words
“except with the approval or upon the advice of the Executive Council of the State”. In
spite of this, British ministers remained dissatisfied with this article arguing that the Irish
government should not be able to limit the power of the King to honour Irishmen such as
Lord French and Admiral Sir John Beatty who had left Ireland and rendered service to the
Empire.33 The Irish initially refused to contemplate any such concession. Arthur Griffith
argued that such a measure would be seen in Ireland as mechanism to suborn Irishmen to
betray their country, as had occurred with the Act of Union. Lloyd George attempted to
sooth such fears by agreeing that the events leading up to the Act of Union were “an 31 Article 6 of the draft brought to London.32 Articles 5 of Drafts A and B and Article 46 of Draft C created by the Constitution Committee had provided for the phased abolition of hereditary titles.33 NAI Department of the Taoiseach, S8955.
20
historical scandal”. Nevertheless, he emphasized that there were some two million Irish
people living in Great Britain. It was impossible to require that the Crown should consult
the government of the Irish Free State when it wished to honour these people for services
rendered to Great Britain.34
In the end, the Irish agreed to redraft Article 5 of the Constitution in order to
allow Irish citizens to be honoured by the Crown for services rendered outside or
unrelated to the Irish Free State. Those who rendered services in or in relation to the Irish
Free State could also be honoured, provided that the approval or advice of the Irish
government had first been obtained. This compromise exposed the Provisional
Government to bitter criticism at home. Members of the Provisional Government were
themselves accused of harbouring ambitions to acquire titles. It was prophesized that the
Irish people could one day see a “Lord Blythe”, “Baron O’Higgins” or even a “Viscount
Cosgrave”.35 When pressed on the matter, Kevin O’Higgins, then Minister for Home
Affairs, was forced to defend this provision by pointing out that an absolute prohibition in
the text of Constitution over the granting of such honours would be seen as a denial of a
prerogative of the Crown and, as such, a violation of the Treaty.36
This matter also received considerable attention at Westminster. British critics of
the provision failed to appreciate the moderate stance assumed by the Irish on this highly
symbolic matter. In Canada, the Dominion to which the Irish Free State was
constitutionally linked under the Article 2 of the Treaty, matters had been taken much
further in this respect. An address to the Crown had been made in 1919 asking that
34 TNA-PRO CAB 43/6 22/N/60(9).35 Dáil Debates vol. 1, col. 680-1, 25 September 1922. The individuals mentioned are Ernest Blythe, Minister for Local Government, Kevin O’Higgins, Minister for Home Affairs and William T. Cosgrave, President of the Dáil and Chairman of the Provisional Government.36 Dáil Debates, vol. 1, 683, 25 September 1922.
21
appropriate action be taken, by legislation or otherwise, to ensure the extinction of
hereditary titles held by Canadians, a position that was far more extreme than that
claimed by the Irish Constitution.37
In spite of the deluge of criticism it endured, the compromise achieved in 1922
had the distinction of surviving the Irish Constitution of 1922 and now appears in Article
40.2.2 of its successor. The 1937 Constitution does not, however, distinguish between
titles awarded for services rendered outside or unrelated to the state and those awarded
for services rendered in or in relation to the state. The prior approval of the Irish
government is required in all cases.
DISSOLUTION OF THE LOWER HOUSE OF THE IRISH
PARLIAMENT.
The draft Constitution that was brought to London by the Provisional Government made
the following provision with respect to the proposed Irish legislature:
The Dáil may not at any time be dissolved except on its own motion and with
the assent of a majority of its members.38
This was at variance with British constitutional practice where the decision to ask
for a dissolution of Parliament rests with the Prime Minister. This divergence from
British practice reflected the Irish desire to promote the strength and independence of the
37 University College Dublin Archives, Kennedy Papers P4/343. 38 Article 27 of the draft brought to London.
22
legislature. In this context it should be recalled that the drafters anticipated a multiplicity
of political parties as a consequence of proportional representation voting. It is likely that
the drafters hoped that this measure would ensure that it would not be necessary to have
an election every time there was a realignment of parties in a voting bloc which resulted
in a change of government. It was clear, at any rate, that the scheme would strengthen the
Dáil at the expense of the executive. This was readily apparent to British ministers and
law officers who did not approve of the provision.
The initial concern of the British government was to ensure that the Irish
Governor-General also possessed the nominal power to summon and dissolve the Dáil.39
After the Irish conceded this position, the British considered the remainder of the
provision. Hewart felt that dissolution by the Governor-General with the assent of a
majority in the Dáil could be made to work together.40 Nevertheless, the Lord Chief
Justice saw the potential for serious practical difficulties if an Irish government was faced
by a hostile Dáil that refused to dissolve.
The Irish delegates argued that they wished to protect the autonomy of the Dáil
and desired above all things to ensure its stability and continuity irrespective of changes
of government. They reaffirmed that they did not anticipate that the type of party politics
that existed in Great Britain would dominate the Irish political scene. Such idealism did
not impress the British who advised the Irish to amend this provision. On this occasion
the British did not push for adherence to British practice and put forward a compromise
option. Rather than placing the decision to ask for dissolution in the hands of the Irish
equivalent to the Prime Minister, the British proposed that it be a collective decision of
39 TNA-PRO CAB 43/7 22/N/167 (158).40 TNA-PRO CAB 43/1 SFB 28th.
23
the executive as a whole. Compromise or not, it was a complete reversal of the power
structure envisaged by the drafters of the document brought to London.
The Irish continued to defend their draft article on the ground that they wanted to
make the Dáil its own master irrespective of what happened to the executive council. The
British agreed that, since this question did not concern the Treaty, it was not a matter that
they could insist upon. Nevertheless, they did not feel themselves precluded from giving
their Irish counterparts some fraternal advice on this point. At a meeting between the two
delegations on 10 June 1922 the British delegation made their case. Cabinet documents
record that the Irish were “advised in a friendly way to reconsider the provision of Art. 27
that the chamber could not be dissolved except on its own motion and with the assent of a
majority of members”.41 The British argued that self-interest would ensure that the Dáil
was unlikely to dissolve without some form of compulsion. Such a position could lead to
all sorts of complications including the threat of parliamentary deadlock. Lloyd George
put to Griffith that, in the aftermath of the forthcoming election, he might find himself
with an unworkable Dáil but might have to put up with the ensuing chaos for a further
four years. The British Prime Minister even appealed to the reverence in which the Irish
held the concept of popular sovereignty. What would happen if there were a conflict
between the government and the Dáil over an issue on which popular opinion supported
the government? If the Dáil refused to dissolve and the Dáil placed another
administration in power then the will of the people might be thwarted.
Arthur Griffith argued that the proposed system was used in other countries. This
did not impress the British. Did the Irish Free State want to end up like France, a country
that had just had two governments in as many years? Indeed, a succession of short-lived
41 TNA-PRO CAB 43/1 SFB 29th and CAB 43/7 22/N/163.
24
governments would prove to be an enduring feature of inter-war France. Lloyd George
attributed this unhappy position to the circumscribed powers of the French executive to
dissolve the French parliament. He maintained that the French house of representatives
would be more quiescent if they knew that the power of dissolution hung over them.42
As has been noted, the British proposal involved a complete reversal of the desire
of the Irish Constitution Committee to strengthen the powers of the legislature at the
expense of the executive. Nevertheless, after a period of initial resistance the British had
little difficulty in convincing Griffith to make the change. The British did not know that
they were pushing at a door that was already half open. Griffith had greeted many of the
innovative aspects of the draft Irish Constitution with a distinct lack of enthusiasm. The
provision dealing with the dissolution of the Dáil was just one of many which he had
privately condemned as being “against all precedent”.43 When Griffith finally admitted
that he saw “the force of the argument” put forward by the British on 10 June he may
have been referring to his own views rather than to the persuasive powers of his British
counterparts.44
Dissolution of the Dáil was duly placed in the hands of the executive under
Article 28 of the final version of the 1922 Constitution. The provisions of the 1937
Constitution adhere even closer to the British model by ensuring that “Dáil Éireann shall
be summoned and dissolved by the President on the advice of the Taoiseach” under
Article 13.2.1.
42 TNA-PRO CAB 43/6 22/N/60(9).43 NAI Department of the Taoiseach, S8953. 44 TNA-PRO CAB 43/6 22/N/60(9).
25
IRISH LANGUAGE TERMINOLOGY IN THE CONSTITUTION.
One of the more curious amendments made to the text of the draft Constitution was the
British removal of all the terminology that had been originally given in the Irish
language. On seeing the document Lord Hewart had raised an eyebrow at the profusion of
“Erse” terminology scattered throughout the text.45 For example, according to the draft
submitted by the Provisional Government the Irish executive would be known as the
“Aireacht”. The “Aireacht” would be made up of “Airí” (ministers) who would be headed
by an “Uachtarán” (president) who would in turn would have a “Tánaist” as his deputy.
The superior courts of the new state would consist of an “Árd Chúirt”, meaning High
Court, and “Cúirt Uachtarach”, meaning Supreme Court.
The Irish language was not always held in high esteem in British governmental
and parliamentary circles. The word “Erse”, when used to describe the Irish language,
was itself considered to be a pejorative term in Ireland. When mocking references were
made to the language in the House of Commons, Winston Churchill felt moved to make a
strangely philosophical defence:
It [the Irish language] may look very uncouth to English eyes, or unusual, but
perhaps our language looks equally uncouth to Irish eyes. One never does
know how one’s self appears to others, and perhaps that is one of the things
one learns as one gets on in life. One cannot always be quite sure that the
45 TNA-PRO CAB 43/1 22/N/148(4).
26
inward vision of one’s own presentment is in every respect coincident with
external opinion … .46
Not all of Churchill’s colleagues were so philosophical when it came to dealing
with a language that was considered to be crude and uncivilized. This, after all, was
supposed to be the Constitution of a British Dominion. Members of the British cabinet
struggled with the pronunciation of this alien tongue. According to Kevin O’Higgins,
“Dáil Éireann” the lower house of the Irish parliament, came out as something akin to
“Dial Iran”.47
Hewart persuaded his Irish counterparts to replace all of the apparently offensive
Irish terms with their English equivalents. The process of translation was not, however,
without its difficulties. Hugh Kennedy described how the alteration of “Uachtarán” to
“President” proved to be too suggestive of a republic to the “panicky minds” of British
ministers.48 As such, it had to be amended to “President of the Council” and later the
“President of the Executive Council”.49 In time the Irish delegation regretted the loss of
the Irish terms and the Welsh-speaking Prime Minister consented to their restoration on
the condition that they were placed side by side with the English translation.50 This
arrangement was found to be too cumbersome and many of the Irish terms were removed
again before the draft came before the Dáil sitting as a constituent assembly. An
exception to this process of deletion was the name of the state which was awkwardly
46 Parliamentary Debates, Series 5, vol. 151, col. 1364-5, 8 March 1922 (House of Commons).47 Dáil Debates, vol. 1, col. 1723, 18 October 1922.48 NAI Department of the Taoiseach, S8955.49 The “President” had been renamed the “President of the Council” in the first and second redrafts before the title “President of the Executive Council” was finally adopted in the third redraft. NAI Department of the Taoiseach, S8955.50 TNA-PRO CAB 43/1 22/N/148(4).
27
given as the “Irish Free State (Saorstát Éireann)”. Only such staples as “Oireachtas”,
“Dáil Éireann” and “Seanad Éireann” proved sufficiently robust to survive this linguistic
purge and have lived on to grace the text of the 1922 Constitution’s successor.51
O’Higgins acknowledged that, in time, British ministers became quite adept at their
proper pronunciation.52
51 The Irish terms used in Drafts A and B and in the final version of the Constitution of the Irish Free State were contributed by Risteard O Foghladha (Fiachra Éilgheach) after consultation with Tadg O Donnchadha (Tórna), an tAthair O Duinnin and Padhraic O Domhnalláin. The Irish terms in Draft C were independently produced. NAI Department of the Taoiseach, S8953. 52 Dáil Debates, vol. 1, col. 1723, 18 October 1922.
28
THE FATE OF THE DÁIL COURTS.
A matter of particular delicacy was raised when it came to dealing with the
administration of justice during the transitional period that would precede the formal
enactment of the Constitution. The British were anxious that this be vested in the existing
Crown courts and that this remain the case until such time as the Irish Free State had set
up a court system of their own. The motivation behind this British initiative was to avoid
a hiatus that would serve to solidify the position of the Dáil courts that had been in
existence since 1919. After considerable discussion, Griffith acquiesced to the wishes of
the British government on 10 June and an article providing for the continuance of the
Crown courts was placed in the transitory provisions of the draft Constitution.53 Kennedy
was apprehensive as to the impact that this provision would have in Ireland and secured
agreement that a number of the transitory provisions, including those dealing with the
courts and the manner in which the Constitution was to be brought into force, be held
back from publication until after the Irish election had been held.54 This incident sounded
the death-knell for the Dáil courts although existing accounts of their abolition do not
make reference to it. Formal abolition came on a staged basis with the Provisional
Government withdrawing the authority of the last remaining Dáil courts on 30 October
1922.55
53 This became Article 75 of the transitory provisions of the Constitution of the Irish Free State 54 The provisions held back from publication were Articles 73, 74, 75, 76 and 79 of the draft that returned from London or Articles 75, 76, 77, 78, 80 and 83 of the final version of the Constitution. TNA-PRO CAB 43/1 SFB 29th, CAB 43/7 22/N/163, CAB 43/6 22/N/60(9) and CAB 43/3 SFC 37.55 See Cahir Davitt, “The Civil Jurisdiction of the Courts of Justice of the Irish Republic” Irish Jurist (n.s.), 3 (1968) 112, James Casey, “Republican Courts in Ireland 1919-1922”, Irish Jurist (n.s.), 5 (1970), 321, Mary Kotsonouris, Retreat from Revolution: The Dáil Courts, 1920-24 (Dublin, 1994) and Mary Kotsonouris, The Winding up of the Dáil Courts, 1922-1925 (Dublin, 2004).
29
REACTION TO THE REDRAFTED CONSTITUTION.
On 16 June, the day of the Irish election, the draft Constitution appeared in the morning
papers. It is easy to impute an element of bad faith on the part of the Provisional
Government in relation to this eleventh hour publication. The historian Dorothy Macardle
would later claim that voters outside Dublin did not see it before going to the poll and
“tens of thousands voted with the promise of a Republican Constitution still in their
minds”.56 The reality was that publication was impossible until the deliberations of the
London conference on the draft Irish Constitution had been completed. These
negotiations continued right up to the last moment. Final agreement was only reached
between the delegations on 15 June, the day before the Irish election. Lloyd George
actually authorized the publication of the draft before the British cabinet had formally
approved it in order to accommodate the Irish in this matter.57 In fact, Griffith queried, at
one point in the discussions with the British, whether Irish opponents of the Treaty would
really keep him to his promise to publish the Constitution before the election. Lloyd
George advised Griffith that it was probable that he would be charged with a breach of
faith if this promise were not kept.58 Given the level of controversy generated by the
publication of the draft Constitution on the morning of the election it is fortunate that
Griffith was dissuaded from withholding it until after the poll had already taken place.
The counsel offered by Lloyd George on this subject may represent the best piece of 56 Dorothy Macardle, The Irish Republic (Dublin, 1951), p. 722.57 TNA-PRO CAB 43/3 SFC 37 and CAB 23/30, CAB 35(22). The British had raised the issue of postponing the election at the beginning of the Conference but this had been refused by the Irish delegates. Griffith feared that such a postponement would reveal to the public that there had been a divergence of opinion between Dublin and London in relation to the draft Constitution. CAB 43/7 22/N/163. Dominion sensitivities proved to be an important factor in convincing the British not to interfere with the date set for the Irish election. Thomas Jones, Whitehall Diary, vol. III (London, 1971), p. 202. 58 TNA-PRO CAB 43/6 22/N/60(9).
30
advice given by the British government during the entire redrafting of the Irish
Constitution.
More accurate accusations of bad faith could have been levelled against the
decision to withhold publication of a number of the draft Constitution’s “transitory
provisions”. This was not a British initiative, but had been done at the instigation of Hugh
Kennedy, legal adviser to the Provisional Government. Kennedy expected a negative
reaction to the provision that the administration of justice in the transitional period would
be carried out by the established Crown courts in place of the republican “Dáil courts”.
He also feared the reaction to the provision giving the British parliament a role in the
creation of the Irish Constitution which was similarly withheld from immediate
publication.59
Given what has been stated above, what conclusions can be drawn from the
performance of the various parties at the London conference on the draft Irish
Constitution? The British signatories of the Treaty seemed to have been largely satisfied
by the draft Constitution that emerged from the negotiations. Although Austen
Chamberlain raised the possibility of drafting an entirely new Irish constitution in place
of the unsatisfactory draft that had been originally presented by the Irish, there is no
evidence that the British ever seriously considered this option.60 To have taken this
extreme course would have meant the cancellation of the Irish elections which had
already been arranged to take place on 16 June 1922. In any case, the British appeared
satisfied to simply adapt the text placed before them by means of a major redraft.
59 See fn. 53.60 TNA-PRO CAB 43/1 22/N/148(3).
31
The primary British objective during the London conference was to produce a
constitution that was, recognisably, that of a British Dominion. This meant redrafting the
Constitution in order that it reflect what the British saw as the demands of the Treaty.
This was always the priority. Beyond this, the British had a common interest with the
Provisional Government in ensuring that the new Irish state had stable institutions. While
the advice given on matters of internal government were a secondary feature of the
British approach to the Irish Constitution, it is ironic that this aspect of the Anglo Irish
negotiations of 1922 has proved far more enduring than the amendments relating to the
Treaty. As mentioned above, many of the provisions that emerged from these
negotiations are reflected in the text of the current Constitution of 1937.
Ramsay MacDonald, a future British Prime Minister, declared, when the draft
Irish Constitution came before Westminster, that he was impressed by the number of
experiments in the name of democratic ideals that were contained within its text. He
concluded that these would be instructive to all students of democratic governance.61
Other MPs observed that the Irish Free State Constitution offered full adult suffrage and
an elected upper house and it was queried when such reforms would be introduced in the
United Kingdom.62 In this context, it should be noted that, with the single exception of the
proposal for external ministers, the British government never questioned the democratic
credentials of the Irish Constitution. Nevertheless, it is fair to conclude that the
divergences from the Westminster model, especially those influenced by the
constitutional traditions of other countries, were not greeted with any enthusiasm by the
61 Parliamentary Debates, Series 5, vol. 159, col. 332-3, 27 November 1922 (House of Commons). 62 Ibid. at col. 552-3.
32
British government. There was a general consensus among British ministers that the Irish
would be better off sticking to the conventions of the British Constitution.
As events transpired, the Irish Constitution of 1922 was not as radical a break
from the British model as had been originally envisaged. In this context, it should,
however, be noted that the conservative view taken by the British government was not
without its advocates in Ireland. The most notable of these was Arthur Griffith who had
never been enthusiastic about many of the innovations contained in the draft brought to
London. Griffith had opposed a proposal made by the Constitution Committee to lower
the voting age from twenty-one to twenty. He frequently scribbled the word “against all
precedent” against the innovative provisions of a draft sent for his perusal. These words
were written opposite the provisions dealing with the dissolution of the Dáil and also
beside those dealing with external ministers. In fact, Griffith also wrote the word
“impossible” opposite the provisions dealing with the external ministers scheme.63
Ironically, it was Griffith who was later placed in the position of having to defend many
of these provisions. To what extent Griffith’s own views influenced the fate of these
innovations is open to speculation.
The British were sceptical of Irish attempts to minimize the influence of political
parties which was reflected in the decision to introduce Swiss-style external ministers.
With the benefit of hindsight it is possible to conclude that there was a strong element of
naivety in Irish hopes that large and powerful political parties would not dominate the
political life of the Irish Free State. A few months after the London conference, the
Provisional Government had to rely on rigid party discipline to push the unpopular
63 NAI Department of the Taoiseach, S8953.
33
aspects of the draft Constitution through the Dáil. Party politics have dominated the Irish
political scene ever since.
A BRITISH IMPOSITION?
There is, however, one final conclusion that must be mentioned in assessing the impact of
the redrafting of the 1922 Constitution in London. When the Provisional Government
brought the new draft back from London they were obliged to argue that this draft
represented the most favourable interpretation of the Treaty that could be achieved.
However, although the details were not known, leaks made during the drafting of the
Constitution ensured that public opinion was well aware that the Provisional Government
had presented the British with a draft Constitution that was very different in many
respects from the draft that returned from London.
Shortly after the return of the Irish delegation from London the anti-Treaty press
launched a bitter assault on the draft Constitution. The anti-Treaty reaction to the
document was summed up in a cartoon published on 25 June in the Plain People. This
showed the Constitution as a knock-kneed old donkey with a small crown perched
comically between its over-sized ears. The caption read that the unfortunate animal had
been “Entered for the Irish race (but not expected to win)” and proceeded to give a mock
racing form. This read “‘Constitution,’ by ‘Bluff,’ out of ‘Ambition.’ Owner- John Bull.
Trainer- D. Ll. George”. The jockey was none other than a diminutive Arthur Griffith
decked out in union jack colours. He was shown desperately kicking the “Constitution”,
34
in a frantic effort to get the miserable creature to start, while whipping it with a switch in
each hand. All this proved to be in vain. The wretched beast was unable to move.
This biting satire was largely provoked by the references to the Crown, Governor-
General, parliamentary oath and Privy Council appeal that now appeared in the draft
Constitution. The insertion of these provisions by the British government during the
negotiations in London has been excluded from the scope of this article. Nevertheless, it
should be noted that the mere fact that the draft Constitution had been sent to London
before being made public had, in itself, already tainted the document in the eyes of many
Irish people. Some weeks before the draft Constitution was taken to London, the anti-
Treaty press wrote resentfully of “the necessity of asking a foreign nation to frank an
Irish Constitution”.64 Bitter complaints were made by opponents of the Treaty at the
Provisional Government’s decision to present the draft Constitution to the British before
showing it to the Irish people. The Labour Party, which had actually supported the
Treaty, made similar complaints.65
The Republic of Ireland, a weekly anti-Treaty newspaper edited by Robert
Erskine Childers, noted on 4 May 1922 that the British had already insisted that the final
text of the Constitution would have to be passed in a Westminster statute. It was noted
that this condition ensured that the British would consider that the Irish Constitution
derived its sole validity from that British statute. This condition was, in itself, seen by the
anti-Treaty press as a fatal blow to the supposed independence of the Irish Free State. The
Republic of Ireland noted that “A free nation does not accept its Constitution from a
foreign Parliament”.66 The same newspaper made clear its hopes that the talks in London
64 Republic of Ireland, 18 May 1922.65 Ibid. 22 June 1922.66 Ibid. 4 May 1922.
35
would end in failure. The talks did not fail and the Republic of Ireland greeted the agreed
draft that returned from London with the headline “Abject Surrender”.67
The frequent leaks that occurred during the drafting process overseen by the
Constitution Committee now returned to haunt the Provisional Government. They
provided opponents, and even some supporters, of the Treaty with a considerable amount
of ammunition to use against the Provisional Government. The Provisional Government
was challenged to show the public the text of the draft Constitution that had originally
been presented to the British to see how closely it corresponded with the text that
returned.
As events transpired, the original Drafts A, B and C and the draft Constitution that
was taken to London were not made available to the public until the 1970s.68 The Irish
participants in the redrafting process avoided revealing the nature of the yawning gap that
had separated the draft brought to London and the draft that had returned. Nevertheless,
although the details remained buried, the very knowledge that the London conference on
the draft Constitution had taken place, coupled with the deeply held suspicion that the
British had insisted on major alterations, had a profound effect on the perception of the
Constitution in Ireland.69 These suspicions had the effect of stigmatising the 1922
Constitution with the mark of being a British imposition. This was a blemish that the
Constitution of the Irish Free State would never escape. Eventually, this stain would settle
its fate.
67 Ibid. 22 June 1922.68 Professor Alfred O’Rahilly was refused permission to publish Draft C in the journal Studies in 1922. He later threatened that, unless his views “as embodied in Draft C” where not placed before the constituent assembly, he would publish the draft himself. He did not carry out this threat. J. Anthony Gaughan, Alfred O’Rahilly- II: Public Figure (Dublin, 1989), p. 161 and pp 187-191. In 1936 he revealed portions of his suppressed draft in an article in Studies. See Alfred O’Rahilly “The Constitution and the Senate” Studies 25:97 (March 1936), 1.69 For example see Dáil Debates, vol. 39, col. 2345, 17 July 1931.
36