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

thomas.mohr@ucd.ie

00 353 1 716 8765

Words in text: 8, 753

Words in footnotes: 1,442

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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.

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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of 1922, a product of the settlement brought about by the Treaty, is no longer in force.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

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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.

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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

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“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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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).

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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.

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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).

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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.

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