Irish Free State The Historic Background The Governmental And

1 The historic background

The Easter Rising of 1916, and in particular the decision of the British military authorities to execute many of its leaders after courts martial generated sympathy for the republican cause in Ireland. But, crucially, it was the republicans who led opposition to the idea of compulsory military service for Irish men in the conscription crisis of early 1918. The crisis saw the pro-War Irish National League discredited and the result was that in the November 1918 election the majority of Irish seats in the Westminster parliament of the United Kingdom of Great Britain and Ireland were won (mainly without contests) by Sinn Féin, a previously monarchist party that under Eamon de Valera's leadership from 1917 had campaigned for an Irish republic.

In January 1919, Sinn Féin MPs (or TDs as they became known in Gaelic) assembled in Dublin and formed a single chamber Irish parliament called Dáil Éireann (Assembly of Ireland). It affirmed the creation of an Irish Republic and passed a Declaration of Independence. However no international state recognised the validity of the Irish Republic, nor was it accepted by the overwhelming mass of Irish people. (Recent calculations of Sinn Féin support in 1918, based on actual electoral battles at national and local level puts party support at in the region of 45–48%, less than a majority!) The Irish War of Independence was fought between the army of the Republic, the Irish Republican Army (known to distinguish from later claimants to the title as the 'Old IRA') and the British Army. In 1921, a truce was declared between both sides. At the end of that year, two negotiating teams, under British Prime Minister David Lloyd George and Arthur Griffith, who headed the Irish Republic's delegation.

In reality that these negotiations would produce a form of Irish government short of the independence theorised by republicans was not in doubt. For Britain could not offer a republican form of government without risking demands for something similar throughout the Empire. Furthermore, as one of the negotiators Michael Collins later admitted (and he was in a position to know, given his role in the independence war), the IRA at the point of the Truce was weeks if not days from collapse, with falling morale and a chronic shortage of bullets. "Frankly, we thought they were mad", Collins said of the sudden British offer of a Truce. The President of the Republic. Eamon de Valera, himself realised that a republic was not on offer. He decided not to be a part of the Treaty delegation and so be tainted with what some more militant republicans were guaranteed to call a 'sell out'.

The Treaty as expected explicitly ruled out republican status. What it offered was dominion status, as a state of the British Commonwealth (now called the Commonwealth of Nations), equal to Canada, Australia and New Zealand. Though less than expected by the Sinn Féin leadership of 1919– 22, it was substantially more than the form of home rule within the United Kingdom sought by Charles Stewart Parnell and Irish nationalist leaders in the period from the 1880s to 1918.

1 The governmental and constitutional structures of the Irish Free State

The structures of the new Free State were laid out in the Treaty and in the Irish Free State Constitution Act. It provided for a constitutional monarchy, with a three tier parliament, called the Oireachtas, made up of the King and two houses, Dáil Éireann and Seanad Éireann (the Irish Senate). Executive authority was vested in the King, and exercised by a cabinet called the Executive Council, presided over by a prime minister called the President of the Executive Council.

1.1 The Representative of the Crown

The King in Ireland was represented by a Governor-General of the Irish Free State, The office replaced the previous Lord Lieutenant, who had headed English and British administrations in Ireland since the Middle Ages.

1.2 The Oath of Allegiance

As with all dominions, provision was made for an Oath of Allegiance. Within dominions, such oaths were taken by parliamentarians personally towards the monarch. The Irish Oath of Allegiance was fundamentally different. It had two elements; the first, a oath to the Free State, as by law established, the second part a promise of fidelity, to His Majesty, King George V, his heirs and successors. That second fidelity element, however, was qualified in two ways. It was to the King in Ireland, not specifically to the British King. Secondly, it was to the King explicitly in his role as part of the Treaty settlement, not in terms of pre-1922 British rule. The Oath itself came from a combination of three sources, and was largely the work of Michael Collins in the Treaty negotiations. It came in part from a draft oath suggested prior to the negotiations by President de Valera. Other sections was taken by Collins directly from the Oath of the Irish Republican Brotherhood, of which he was the secret head. In its structure, it was also partially based on the form and structure used in the Dominion of Canada.

Though controversially moderate by other dominion standards, and notably indirect in its reference to the monarchy (and hence widely criticised by unionists and other dominions), it was criticised by nationalists and republicans for making any reference to the Crown, the claim being that it was a direct oath to the Crown, a fact demonstably incorrect by an examination of its wording. But in 1922 Ireland and beyond, it was the perception, not the reality, that influenced public debate on the issue. Had its original author, Michael Collins, survived, he might have been able to clarify its actual meaning, but with his assassination in 1922, no major negotiator to the Oath's creation on the Irish side was still alive, available or pro-Treaty. (The leader of the Irish delegation, Arthur Griffith had died also in August 1922). The Oath became a key issue in the resulting Irish Civil War that divided the pro- and anti-treaty sides in 1922–23.

2 Northern Ireland

The Treaty provided for an all-Ireland thirty-two county state, subject to the proviso that the six Northern Ireland counties, which had their own government under the Government of Ireland Act 1920, could formally opt out of the Free State, which they duly did. (Had it remained, Northern Ireland would have been a self-governing province of the Irish Free State, with its own parliament and government as before.) Northern Ireland thus remained part of the renamed United Kingdom of Great Britain and Northern Ireland. The Treaty also allowed Britain to retain naval use of four Free State ports.

3 The Irish Civil War

The compromise contained in the agreement contributed to the civil war in the 26 counties in June 1922-April 1923, in which the "Free Staters" defeated the anti-Treaty Republicans nominally led by Eamon de Valera, who had resigned as president of the Republic on its ratification, to the fury of some of his own supporters, notably Sean T. O'Kelly. On resigning, he then sought re-election in an attempt to wreck the treaty. However his ploy failed and Arthur Griffith became President. Michael Collins was chosen by the House of Commons of Southern Ireland (a body set up under the Government of Ireland Act 1920 and to which the Provisional Government was nominally answerable to) to become Provisional Prime Minister. As both the House of Commons and the Dáil had almost identical members, it became increasingly difficult to work out which body was meeting. In reality, both Griffith's republican administration and Collins' Crown-appointed government merged with the deaths of both men, their respective offices being held by the same man, W.T. Cosgrave.

4 The Irish Free State in reality

4.1 Governance

Two political Parties governed the Irish Free State between 1922 and 1937.

Cumann na nGaedhael under W.T. Cosgrave (1922–32)
Fianna Fáil under Eamon de Valera (1932–37)

4.2 Constitutional evolution

Michael Collins described the Treaty as 'the freedom to achieve freedom'. In practice, the Treaty offered most of symbols, powers and functions of independence, including a functioning parliamentary democracy, executive, judiciary, a written constitution which could be changed by the Free State, etc. However in theory, a number of limits existed;

The British king remained king in Ireland;
The British Government had a continued role in Irish governance. Though officially the representative of the King, the Governor-General also received instructions from the British Government on his use of the Royal Assent, namely would a Bill passed by the Dáil and Seanad be Granted Assent (signed into law), Withheld (not signed, pending later approval) or denied (ie, vetoed). Letters Patent to the first Governor-General Tim Healy had named Bills that if passed were to be blocked, namely an attempt to abolish the Oath, etc. In reality no such Bills were ever introduced, so the issue never arose.
The Irish Free State, like all Dominions, had an inferior status to the United Kingdom, which meant, in theory, it could not have its own citizenship (merely a shared Commonwealth citizenship), could not have direct access to the monarch except through a British minister, and had to use the British state's Great Seal of the Realm on all of state documents, again symbolising its inferior status to Britain within the Commonwealth.

All this changed in the 1920s. A reform of the King's title, under a Commonwealth Conference decision and given effect by the 1927 Royal and Parliamentary Titles Act, changed the King's role in each dominion. No more was he King in Ireland, Australia, New Zealand, etc. Instead he became King of Ireland, Australia, etc. So from that change, embodied in the Royal Titles Act, the British king had no role whatsoever in each dominion. His only role was as each dominion's own king, advised in each dominion's affairs by the dominion, not by Britain. Furthermore, the British government lost any role in either the selection of a governor-general or in advising him. So Britain lost the ability to influence internal dominion legislation.

The Free State went further. It 'accepted' credentials from international ambassadors to Ireland, something no other dominion up to then had done. It registered the treaty with the League of Nations as an international document, to the fury of Britain who saw it as a mere internal document between a dominion and Britain. Most dramatically of all. the Statute of Westminster, again embodying a decision of a Commonwealth Conference, enabled each dominion to enact any legislation to change any legislation, without any role for the British parliament which may have enacted the original legislation in the past. Ireland symbolically marked these changes in two mould-breaking moves.

It sought, and got the King's permission, to have an Irish minister, with the complete exclusion of British ministers, formally advising the king as King of Ireland in the exercise of his Irish powers and functions (eg, the signing of a Treaty between the Irish Free State and the Portuguese Republic in 1931);
The unprecedented abandonment of the use of the British Great Seal of the Realm and its replacement by the Great Seal of the Irish Free State , which the King awarded to his Irish Kingdom as King of Ireland, again in 1931. (The Irish Seal consisted of a picture of 'King George V of Ireland' enthroned on one side, with the Irish state Harp and the words Saorstát Éireann (gaelic for Irish Free State) on the reverse. It is now on display in the Irish National Museum, Collins Barracks in Dublin.)

As a result, if Collins in 1921 described the Treaty as the 'freedom to achieve freedom', all the changes, the last being the awarding of the Irish Great Seal (the first in Commonwealth history), Ireland had fully achieved de jure independence exactly ten years after the Treaty that promised it. When Eamon de Valera became President of the Executive Council (prime minister) in 1932 he described Cosgrave's ministers' achievements simply. Having read the files, he told his son, Vivion, "they were magnificent, son." (All that remained was British control of a number of ports in the Irish Free State, called the Treaty Ports. However that was an issue not of constitutional law but technical requirements in the Treaty which could and were renegotiated in 1938 to Ireland's satisfaction.)

That freedom allowed de Valera, on becoming President of the Executive Council (February 1932) to go even further. With no British restrictions on his policies, he abolished the Oath of Allegiance, (which Cosgrave intended to do had he won the 1932 general election) the Senate, university representation in the Dáil, appeals to the Privy Council. His one major cock-up occurred in 1936 when in a rush to use the abdication of King Edward VIII, he tried to abolish the crown and governor-general with the Constitution (Amendment No.27 Act), only to be told by senior law officers and others that, as the crown & governor-generalship existed separate from the constitution in a vast number of Acts, Charters, Orders-in-Council, Letters Patent, they both still existed. He had to rush through a second Bill, The Executive Powers (Consequential Provisions) Act, 1937 to repeal all the bits he'd forgotten! (He retrospectively dated the second Act's effect back to December 1936!)

5 The aftermath of the Irish Free State

In 1937, Eamon de Valera replaced the 1922 constitution of Michael Collins with his own, renamed the Irish Free State Éire, and created a new 'president of Ireland' in place of the Governor-General of the Irish Free State. His constitution, reflecting the 1930s preoccupation with faith and fatherland, in Articles 2 challenged in theory the partition of Ireland under the Government of Ireland Act 1920, while in Article 3, accepted the reality of partition. It also provided for a special position for the Roman Catholic Church, while also recognising the existence and rights of other faiths, specifically the minority Anglican Church of Ireland and the Jewish Congregation in Ireland. (These articles were all repealed, the latter in 1972, the former in 1999.)

It was left to de Valera's successors in government (1948) to achieve the country's formal transformation into the Republic of Ireland. A tiny minority of Irish people, usually attached to small parties like Sinn Féin and Republican Sinn Féin, denied the right of the twenty-six county state to use the name 'republic', continually referring to the twenty-six county state as the 'Free State', its citizens 'Free Staters' and its government the "Free State" or "Dublin" Government. Though with Sinn Féin's entry in the Republic's Dáil (where they won 5 seats out of 166 in the 2002 general election) and the Northern Ireland Executive (where they have 2 ministers), the odds are that the number of those who have refused to accept the legitimacy of the Irish Free State/Éire/Republic of Ireland, which is already very small, will decline further.

6 Additional reading

Tim Pat Coogan, Eamon de Valera (BooksEnthsiast.com)

Tim Pat Coogan, Michael Collins (BooksEnthsiast.com)
Lord Longford, Peace by Ordeal (Universally regarded by all sides as THE definitive account of the Treaty negotiations. Though long out of print, it is available in libraries)

Dorothy McCardle, The Irish Republic (no ISBN details available. May be O/P. A classic 'old-style' republican analysis published in the 1960s with a pro-de Valera slant)

7 According to Irish constitutional theory

Preceded by:
Irish Republic
(declared by Dáil Éireann in 1919)

Irish States (1171–present)

Succeeded by:
Éire

8 According to British constitutional theory

Preceded by:
United Kingdom of Great Britain and Ireland