Drafting the Irish Free State Constitution

Laura Cahillane

• Publisher: Manchester University Press
• Year: 2016
• Print ISBN: 9781784995119
• eBook ISBN: 9781526100191
• Edition: 1
• Topic: History
• Subtopic: Italian History
• Index: History

Drafting the Irish Free State Constitution challenges the myths surrounding the Irish Free Constitution by analysing the document in its proper historical context, by looking at how the Constitution was drafted and elucidating the true nature of the document. It examines the reasons why the Constitution did not function as anticipated and investigates whether the failures of the document can be attributed to errors of judgement in the drafting process or to subsequent events and treatment of the document. As well as giving a comprehensive account of the drafting stages and an analysis of the three alternative drafts for the first time, the book considers the intellectual influences behind the Constitution and the central themes of the document. This work constitutes a new look at this historic document through a legal lens and the analysis benefits from the advantage of hindsight as well as from the fact that the archival material is now available.

1

The Constitution Committee and the beginning of the drafting process

I do not think I ever worked on a Committee where there was more good fellowship, and where it was possible to have strong differences of opinion without any personal feeling whatsoever. I doubt if a better Committee from the point of view of character and good-will ever attempted to draft a Constitution in any country.¹

The Constitution Committee

On a cold, sleety day in January 1922, when the newspapers carried stories of the success of the Collins–Craig Agreement, Michael Collins himself was addressing a modest gathering in the Mansion House. Seven men sat in front of him and the anticipation in the room was palpable. These men had been given the immense task of constructing a new constitution for the embryonic Irish state. Outside, Ireland teetered on the brink of civil war and this constitution would represent a chance to finally bring peace to a battered nation. It would need to be not only a document which would appease the Provisional Government and the British authorities but also one which would satisfy the Southern Unionists and would entice the moderate anti-treaty leaders back in from the cold. In essence, these men were being asked to prevent both a civil war and a return to hostilities between the fragile Irish state and Britain. The significance of their task would not have been lost on these men.

Following the signing of the Anglo-Irish Treaty on 6 December 1921, it had been decided to establish a Constitution Committee to draw up a suitable constitution which would be based on the Treaty. Collins had appointed himself chairman of this Constitution Committee but, owing to his many other commitments, he attended only one further meeting and so, guided by his instructions, the committee worked otherwise independently. Because of the magnitude of their task, it was of the utmost importance that the Committee, chosen by Collins and Arthur Griffith, should comprise accomplished, intelligent, politically neutral members.² The Committee was an interesting mix of nine very different characters.

Darrell Figgis was appointed acting chairman and, in the absence of Collins, effectively directed the proceedings of the Committee. He was a renowned literary figure in Ireland and had been an active member of the Irish Volunteers. Akenson and Fallin have described his appointment as a ‘most curious choice’³ as he was very unpopular. While Figgis was friendly with Griffith, a rift had occurred between himself and Collins but, despite this, he was, as Farrell notes, ‘a major influence on the shaping of the Constitution, both in his daily attendance at the Committee and in the subsequent debate in the Constituent Assembly’.⁴ Figgis was a hard worker in terms of his studies of constitutions and he was particularly impressed with the German Weimar Constitution. Having written a book on the ancient Gaelic state,⁵ he was anxious, as were the others, that aspects of this ancient heritage be reflected in the new Constitution.

Hugh Kennedy was a distinguished lawyer and would later become the first Chief Justice of the Irish Free State. Kennedy was a constitutional nationalist and he saw Dominion status as a way to establish new Irish institutions of the state, which he believed were necessary in order to ensure the legitimacy of the state. He was devoted to the work of the Constitution Committee and accompanied almost every delegation for negotiations with the British government. He played a major role both in the preliminary drafting and the legal phrasing of the document. He was the only member of the drafting Committee who was present at the discussions of the Irish government and subsequently he assumed the leading role in the constitutional negotiations and redrafting in London.

James Douglas was a Quaker and close friend of Collins. He was a pacifist and was involved with the Irish Conference Committee in 1917 which sought full Dominion status for Ireland on the Canadian model. He may have been chosen because of his work with the Irish White Cross;⁶ Collins felt that Douglas’s membership of the Committee was imperative as, besides the fact that he was experienced, conscientious and nonpartisan, he had also earned the trust of all varieties of Irish nationalists. Douglas reported regularly to Collins on the progress of the Committee.

Clement J. France, a lawyer from Seattle, Washington State, was an outspoken champion of workers’ rights. He came to Ireland in 1922 as a representative of the American Committee for Relief in Ireland. It was at this time that he met Douglas. The latter was impressed by France’s contribution to the success of the White Cross organisation and he proposed that France might be a useful addition to the Committee considering both his transatlantic experience and his legal capability. Later, however, Douglas was to doubt whether this was a sound decision. He received a letter from John Ryan, a New York correspondent who warned Douglas about France, saying France was claiming he had a special place in Irish governmental circles and that he was not to be taken as representative of Irish-American opinion.⁷ Douglas duly passed on the letter to Collins, while noting that France had been a great help to the work of the Committee. However, more letters were received within a few weeks which convinced Douglas that ‘the face value of the correspondence makes France look a pure adventurer’.⁸ Despite this, it appears France did make a valuable contribution to the work of the Committee. He was particularly concerned with the idea of complete economic freedom for Ireland and the protection of the natural endowments of the state.

Timothy James McNeill, brother of the nationalist revolutionary Eoin MacNeill,⁹ had served as a high-ranking civil servant in the Raj Civil Service in Calcutta before returning to Ireland. He had been active in a number of nationalist movements and became chairman of Dublin County Council. After serving on the Constitution Committee, McNeill was appointed as Irish High Commissioner in London and later as Governor-General. McNeill, like Douglas and France, was also involved in the White Cross.

James Murnaghan was a lawyer and an academic. He was appointed to the Supreme Court in 1925. He does not appear to have been involved in any way with Sinn Féin or any other nationalist organisation. Unfortunately, there is little information available on Murnaghan and, because he missed so many meetings due to illness, he does not seem to have had as great an influence as some of the others on the Committee, although he did work on the judicial provisions with John O’Byrne.¹⁰

John O’Byrne worked in the Civil Service in London for a few years before returning to Ireland to work in the Irish Land Commission. He later became a Supreme Court judge. While it seems O’Byrne was a regular attender, besides his work on the judicial provisions, there is little evidence of his influence on the Drafts.

While not involved in the original meetings, Alfred O’Rahilly was later invited to join the Constitution Committee. He was Professor of Mathematical Physics in University College Cork, a deeply religious Catholic, and was well known for his writings supporting the politics of Sinn Féin. He had very specific views on how the new Constitution should be structured as he had spent a number of years forming opinions on the subject, particularly while in prison on Bere Island. He favoured the use of the Swiss Constitution as a model.

Kevin O’Shiel was also a late addition to the Committee. He is credited with being largely responsible for the success of the Dáil Land Courts. As well as his work for the Committee in 1922, he acted as Assistant Legal Adviser to the Provisional Government and, because of his volume of work, he was unable to attend many meetings.

There were also three civil servants appointed as secretaries; E.M. Stephens¹¹ was the principal secretary and he was joined by R.J.P. Mortished¹² and P.A. O’Toole.¹³

In total, there were five lawyers on the Committee and four lay persons, including a professor, a businessman, a writer and a former British civil servant. The absence of any women on the Committee is notable, although it would not have been considered unusual. All were pro-Treaty nationalists.¹⁴ At least four members¹⁵ had also been involved in the Irish White Cross, which indicates that this organisation was seen as a neutral one whose members would be acceptable to all sides.¹⁶ It seems that Figgis, Douglas and Kennedy were the most influential members of the Committee, with O’Shiel and Murnaghan contributing least, due to their absences. O’Rahilly was also quite productive but his opinions were often too uncompromising for the others.

The work of the Committee

Beginnings

The Committee had an extremely short time within which to complete its drafting work: the Provisional Government had specified one month. One of the principal reasons for this short period was that the Provisional Government wished to attend the ‘Geneva Conference’¹⁷ in order to be recognised internationally as a new state. The British had agreed that, if the Constitution was in draft by March, then they would have no technical objection to the attendance of Irish Free State representatives at the Conference. Apart from the initial meeting, all Committee gatherings were held in the Shelbourne Hotel in what came to be known as the Constitution Room. The Committee sat almost every day for a month, and the drafting stage was completed by 7 March 1922 after twenty-seven meetings and members had considered a total of over fifty documents.¹⁸

Collins had outlined what he wanted from the drafting Committee at their initial meeting on 24 January. He told them not to be ‘bound up by legal formalities’ but to draft ‘a constitution of a Free State’ and the Provisional Government would fight to have it accepted. He pointed ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Acknowledgments
• Foreword by Mr Justice Gerard Hogan
• Introduction
• 1 The Constitution Committee and the beginning of the drafting process
• 2 The Drafts
• 3 Consideration by the government of the three Drafts
• 4 British reaction to the Draft Constitution
• 5 Debates in the Constituent Assembly
• 6 Themes and influences
• 7 The people’s Constitution
• 8 Anti-party politics
• 9 The legacy of the Irish Free State Constitution
• Reflections
• Appendix 1: Selected provisions from the Irish Free State Constitution Act
• Appendix 2: Draft A
• Appendix 3: Draft B
• Appendix 4: Draft C
• Bibliography
• Index