Draft Constitution Clarification


Clarification on the Draft Constitution between the Prime Minister and Mr. Arthur Griffith.

Letter from the Prime Minister to Mir. A. Griffith.

10, Downing Street.

1st June, 1922.

Dear Mr. Griffith,

His Majesty’s Government have carefully considered the character of the draft Irish Constitution submitted to them and the very grave situation which it creates. On their behalf I desire here to state their views upon the issues which have been raised.

For reasons with which you are already acquainted, and which are clearly set forth in the enclosed document, the draft Constitution submitted to us is wholly inconsistent with the Treaty signed by the Irish Plenipotentiaries and endorsed by
their Parliament.

That Treaty was based upon principles which have enabled the free self-governing nations united in the British Commonwealth under the Crown to develop, each in its own way, their ideals of political, eoonomic and social welfare. These principles we claim, are not based on theory but on experience, and as Ireland no less under the Treaty than before is a member of the Community of Nations known as the British Empire, the other members of that Community cannot permit her to adopt a Constitution that is out of harmony with that under which those members of the Commonwealth enjoy the fullest measure of freedom and security.

This is the policy embodied in the Treaty; and from the Treaty, to which the Representatives of Ireland as well as of Great Britain have attached their signatures, we do not propose to depart, we earnestly trust that on their side the Irish people will see that in carrying out their share in the arrangement they are serving the highest interests of peace, prosperity, and true patriotism,

We therefore find it necessary very earnestly to press upon the representatives of Ireland the view that the matter has how reached a stage at which further delay is impossible. The British Government and people are entitled to be expressly informed where Ireland stands in relation to the Treaty and they are entitled to be informed at once.

His Majesty’s Government must therefore press for an early
and explicit declaration that the Draft Constitution will be amondec’. so as to conform vvith the Treaty in the several particulars in which as shown in the Memorandum the present Draft differs from it, and in particular for a clear answer to each of the following questions:­

(1) Is it intended by the Irish representatives that the I.F.S. shall be within the empire on the basis of common citizenship, or merely associated with it?

(2) Is the position of the Crown, to be the same in Ireland as it is in Canada, Australia, New Zealand and South Africa?

(3) Is the Treaty making power of the I.F.S0 to be the same as that of Canada?

(4) Are the coutrts of the Iu Fa S. to stand in the same relation to the Xtag in Council (The Judicial Committee of the Privy Council) as do the oourts of the Dominion of Canada?

(5) Is the oath set forth in the (Treaty to be incorporated in the Constitution as the oath required of members of the free State Parliament?

(6) Will all members of the Irish Provisional Government be required to sign the declaration under Article 17 of the Treatyi

Yours faithfully,

(Sgd.) Dv Lloyd George.



2nd June, 1922.

Dear Mr. Lloyd George,
I have received your letter of yesterday’s date written on behalf of His Majesty’s Government, and I have carefully considered it in conference with those of my colleagues who are now in London.

I take your letter as stating the essentials of the issues raised and in that sense I now reply to it pending discussion of the detailed memorandum and the suggested amendments of the draft Constitution which we have submitted to the British Government0

Before taking up the specific questions you have put, I think that, in view of the atmosphere which seems to have gathered from the course, of events, there is one thing I should make perfectly clear. The draft Constitution which we have submitted was prepared wholly by a Committee of persons appointed for the purpose by the provisional Government. Every member of that Committee was an actual supporter of the Treaty, – some of them had written publicly in advocacy of the Treaty settlement. The only instructions which the provisional Government gave to the constitutional Committee – were printed copies of the Treaty and a request to prepare a draft Constitution for Ireland within
the Treaty and to have such drafts ready before the end of February. A draft, In all substantial particulars in the form now presented, was completed and sent to the Provisional Government in the first week of March. The Provisional Government had not in the meantime held any communication with the Committee. I mention this to show that the matters which His Majesty7 s Government have raised on the drafts are not matters which are in any way connected with recent political events and that the draft represents the work of an independent Committee acting upon their and own independent interpretation of the Treaty and approaching it with minds unbiassed in its favour.

I will now take your six questions seriatin and answer them to the best of my ability.

Your first question is – “is it intended by the Irish representatives that the Irish Free State shall be within the Empire on the basis of common citizenship or merely associated with it?”

My answer is “that it is intended that the Irish Free State shall be, not merely associated with, but a member of and within the Community of nations known as the British Empire and on the basis of common oitizenship as explicitly provided by the Treaty”,

Your second question – “is the position of the Crown to be the same in Ireland as it is in Canada,. Australia, New Zealand, and South Africa?” – raises the issue upon which some difference of view has appeared. This difference is a difference of interpretation of the document between two parties both equally desirous that the document shall be carried out in the letter and the spirit according to its true interpretation as it stands without the alteration of any detail.

Let me reduce the difference to which I refer to its precise dimensions, and I do so gladly because I believe the area of difference to be small and not in any matter of vital intrinsic importance, whatever other importance it may have.

Let me therefore say that in all matters in which the Crown is constitutionally effective (and consideration shows these to be matters arising out of the relationship of the community of Nations), the position of the Crown is beyond question to be the same in Ireland as it is in Canada, Australia, New Zealand and South Africa. Thus common citizenship will express itself through the Crown in relation to Peace and War, Neutrality and Treaties. Again, the Kingf s assent to Bills passed by the Irish Legislature is involved in the right, that will inevitably flow from such relationship, to reserve for the Kingf’s assent in person any legislation affecting matters, not being matters of the internal government of the Irish Free State. There is at this stage of history no question but that the King’s representative would be bound to distinguish such legislation when presented to him for the Royal assent,, and that he would be bound to signify the Klng’s assent to Bills duly passed which are concerned with purely Irish internal affairs.

Your third question – “Is the Treaty making power of the
 Irish Free State to be the same as that of Canada?” ­
is capable of a simple answer, namely, that it is.  We should be glad to have it pointed out to us in what respect we are supposed to have exceeded that position.- We do not seek to do so.

Your fourth question – “Are the Courts’of the Irish Free State to stand In the same relation to the King in Council (the Judicial Committee of the Privy Council) as do the Courts of the Dominion of Canada?” – raises a matter of no small delicacy in Ireland.

I need not remind you that the question of continuing the carrying of appeals to this Tribunal is one that has been raised and is being actively canvassed throughout the Dominions. ‘ It is now held by many that this particular appeal will be abolished In the near future. I may refer you on this matter to numerous public utterances of leading statesmen of the Dominions, men of the position of Sir R. Borden, Mr. Hughes, General Smuts, and many ethers of similar calibre, and also to the most recent literature on the “matter, particularly the authoritative writings of Professor Berriedale Keith, Mr.Duncan Hall, and others.
In addition to the reasons urged by these statesmen and authorities, there are in Ireland particular reasons for the objection widely entertained to the idea of taking appeals to the Judicial Committee. One regrets tc have to refer to Judges personally, but the inclusion In the body from which the personnel of the Judicial Committee is drawn of persons who have used for party political purposes hostile to the Irish people, the position to which they have been elevated for the administration of justice, has aroused keen indignation and antipathy to the Tribunal of which they are members. This Is a matter of active public interest in Ireland, and I must ask what guarantees can be given that the impartiality of the Court in question can he secured0

There is another aspect of this matter of particular interest in Ireland. It should be borne in mind that the great volume of Irish litigation is concerned with very small money interests. The litigants are not as a body people of large means able to stand expensive litigation, the loser in such an appeal may well be completely ruined. It is a rich man?s appeal which may well be used to the destruction of a man not well off.

We did not think that this appeal was a necessary incident of the Treaty position. I do not quite gather from your letter whether you believe this to be the case or not and if so whether it is regarded as in any way vital, or in what form you may consider that it is to be insisted upon.

Your fifth question – “Is the oath set forth in the Treaty to be incorporated in the Constitution as the oath required of members of the Free State Parliament?” – does not present any difficulty. If your Government is not satisfied that the oath is sufficiently incorporated in the Constitution by the fact that the Constitution will enshrine the Treaty in FS law, the oath will be expressly set forth in the Constitution as the oath required of the members of the Parliament.

You are entitled to an affirmative answer to your sixth question – “Will all members of the Irish Provisional Government be required to sign the declaration under Article 17 of the Treaty?”

In so far as it can be shown that the draft Constitution is in conflict with the Treaty, we are prepared to insert such amendments as.will reconcile its terms with those of the Treaty.

I am,
Yours sincerely,