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The Status ®F the Irish Free State in the British

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The Status ®F the Irish Free State in the British THE STATUS ®F THE IRISH FREE STATE IN THE BRITISH COMMONWEALTH ®F NATIONS The adoption of the title, the British Commonwealth of Nations, dates, in its modern sense, from its use in the Irish Free State Constitution Act of 1922. 1 The British Commonwealth of Nations grew out of the change from th6 old empire to the new which followed the first World War. The Commonwealth represents an association of theoretically equal nations bound together by a common crown and founded upon the principles of consultation and cooperation.2 It is not the concern of this study to differentiate between the Commonwealth and the ritish Empire other than to limit the Commonwealth to Grew Britain and the Dominions. The Irish Free State entered the community of nations known as the British Commonwealth with the ratification of the Articles of Agreement for a Treaty between Great Britain and Ireland as a Dominion, or rather, with the same constitutional status of the other Dominions, ' The Irish Free State as a Dominion. The Irish Free State obtained the same constitutional status of the other Dominions with the reluctance of all the Irish Nationalist leaders. The goal of the Irish Nationalists was a Republic. When. it became abundantly clear that a Republic could not be obtained the delegation sent to negotiate with the British Government in London in 1921 agreed to "Dominion status" . This acceptance of Dominion status was confirmed by a majority of Dail Eireann as the best compromise available, and as an alternate to the, 1 Article 1 of the Constitution of the Irish Free State provided, "The Irish Free State (otherwise hereinafter called or sometimes called Saorstat Eireann) is co=equal a member of the Community of Nations forming the British Commonwealth of Nations." a Cf. the observations in this regard in W.Y Elliott, The New British Empire (New York, McGraw-Hill, 1932), p. 12. s The Irish Free State is not specifically called a Dominion in the Articles of Agreement. Article 1 states, "Ireland shall have the same constitutional status in the Community of Nations known as the British Empire as the Dominion of Canada, the Commonwealth of Australia, etc." Later, in the Irish Constitution, which in turn depends upon the Articles of Agreement, there is still no specific statement that the Irish Free State is a "Dominion ." Article 1 of the Constitution simply refers to the Irish Free State as "coequal a member of the Community of Nations forming the British Commonwealth of Nations ." However, this can be considered as rendering sufficient con- stitutional-acknowledgment since all of the co-equal members of the British Commonwealth are considered as having Dominion status. This lack of use of the specific label of Dominion status did not give rise to any question- ing of the Free State's membership in the Commonwealth . The point is raised simply because it is unusual that in the instruments which gave - birth to the Irish Free State the term "Dominion" was not specifically.used . Clause 1 of the Statute of Westminster cleared up any misapprehension in this regard by listing the Irish Free State as a Dominion . 184 The Canadian Bar Review [Vol. XXII Thoseresumption of war with Britain. 4 who disagreed with this decision and remained adamant about the Republic commenced the Irish Civil War. The acceptance of "Dominion status" was conditioned by the belief, on the part of the Irish leaders who accepted it, that it was a stepping stone to independence. It has been said that the Irish Free State is not a Dominion. Why has this charge been made? What is a Dominion? For our purposes, a Dominion is one of the so-called "equal states" of the British Commonwealth of Nations. The Irish Free State is certainly such an "equal state." Dominion status, according to Lloyd George, was, "something that has never been defined by Act of Parliament, even in this country, and yet it works perfectly."s Such a definition was hardly acceptable to the Free State point of view.' All of the Dominions except the Irish Free State advanced to their respective position of self-government by evolution. The Irish Free State achieved its status by revolution and an international treaty. This is an important aspect, because, if the relation of the Irish Free State to the Imperial Parliament was to be the same as that of Canada, as fixed by law in Article 2 of the Articles of Agreement of 1921, then two entities were made analagous in practice after completely different means and view- points had been employed to arrive at their positions. The British Government assumed that the Irish Free State which had come into existence by revolution and reluctant agreement with Great Britain, could be placed on the identical constitutional basis of the other Dominions who had achieved their status by evolution. In addition, it was assumed and hoped, with little factual background to give optimism to such assumptions and hopes, that the Irish Free State would evolve along the same lines as other Dominions. The subsequent history of the Irish Free State has shown that these assumptions were ill-founded. The process of evolution is basic to the orthodox British conception 4 "The Irish Bulletin made unaffectedly merry at the expense of a policy which threatened war if Ireland declined as a `free Dominion to join volun- tarily a free association of free nations." cited by Frank Pakenham, Peace by Ordeal, (London, Jonathan Cape, 1935), p. 87. c Cited by Nicholas Mansergh, The Irish Free State, (London, George Allen and Unwin, 1934) p . 35 f. n. 4 . 6 The Irish objection never stopped with quarreling over a definition but was concerned with the whole concept of Dominionism insofar as it concerned restrictions of Irish sovereignty or the relation of the Irish Free State to Great Britain . In terms of personalities the acceptance of Dominion status by the Irish Free State represents a victory by David Lloyd George over Eamon De Valera. That victory, it must be emphasized, was Dominion status as it came into being for the Free State in 1922, not the enlarged concept of the period following 1932 when De Valera was President of the Executive Council of the Irish Free State. 1944] Status of The Irish Free State 185 of the progress of Dominions. This has not been the course which the Irish Free State has followed ; rather, it has forced departures. This conception of evolution as the basis for the achievement of positions by all the Dominions except the Free State is also the basis for the claims that the Irish Free State is not a Dominionn 7 The underlying factor in this denial of the term Dominion must not be confused with Dominion status. That is to say, those who claim that the Irish Free State was not a Dominion due to the fact that it had not been a colony,' and came into existence in a manner different from other Dominions, are one in agreeing that the Irish Free State possessed the same constitutional status as other Dominions. It would appear then, that this dispute is no more than a quibble over terms. For our purpose the Irish Free State maybe considered as ,a Dominion. Even the securing of external association by the De Valera Government need not change the status of the Free State as a Dominion. Certainly the De Valera Government recognized that the Free State retained its status within the British Commonwealth of Nations .9 This was also the official position of the British Government. 7 The leading assertions that the Irish Free State was not a Dominion are: Timothy Smiddy, "The Position of the Irish Free State in the British Commonwealth of Nations," from Great Britain and the Dominions, (Harris Foundation Lectures, Chicago, University of Chicago Press, 1928), p. 109: "While the Irish Free State has some times been implicitly referred to as a dominion, it is not so, while yet it has the status thereof. In fact, Ireland has always been a nation." The Hon. Hugh Kennedy, Chief Justice of the Supreme Court of the Irish Free State, "Character and Sources of Constit- ution of the Irish Free State," American Bar Association Journal, vol. 14, August-September, 1928, p. 440: "The idea which it is intended to convey by the statements in question [that Ireland is not a Dominion] would be better expressed by saying `Ireland is not a colony.' . Ireland is not a British colony but an ancient nation, which has entered into the British Community of Nations, clothed with the constitutional status and equality of a Dominion member of that community." Raoul de Warren, L'Irlande et ses institutions politiques, (Nancy, Berger-Levrault, 1928), p. 273 ff. conducts his discussion under the subtitle, "l'État Libre d'Irlande n'est pas un Dominion." He bases his contention on the arguments that Ireland was not a colony and that the Free State was founded by an international treaty which was not the case with the other Dominions. e The importance of previous colonial status is frequently overemphas- ized and would appear to be careless terminology which weakens any defin- ition of the Commonwealth. Yet in as recent and careful a work as Robert . Stewart, Treaty Relations of the British Commonwealth of Nations, (New York, 1939) the, conclusion is reached, p. 363, "The essential characteristic of the present-day British Commonwealth of Nations is that colonies once subject to imperial supremacy, in law and in fact, have become `co-ordinate members with each other and with Great Britain' in the Com- monwealth Association ." This study is typical of most recent studies of the Commonwealth which treat the background of Anglo-Irish relations as if it did not exist.
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