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Opposition to the Constitution of the Irish Free State in 1922

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The Centenary of the Irish Free State Constitution

Part of the book series: Palgrave Modern Legal History ((PMLH))

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Abstract

This chapter provides a snapshot of the opposition to the Free State Constitution in the year 1922 before opinions were influenced by the course of subsequent events and the benefit of hindsight. It outlines why some Irish people felt that they could not support the new Constitution and how they expressed their opposition to it. The most obvious group that opposed the 1922 Constitution were those that had also opposed the Anglo-Irish Treaty signed in 1921. This chapter will examine the legal arguments used by this group to challenge the validity of the 1922 Constitution. It will also examine unionist objections and the position of those who felt that they could support the Treaty but had serious reservations concerning the Constitution. The overall objective of this analysis is to provide a better understanding of the circumstances in which the 1922 Constitution came into force.

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Notes

  1. 1.

    The official title was “Articles of Agreement for a Treaty between Great Britain and Ireland”.

  2. 2.

    See Leo Kohn, The Constitution of the Irish Free State (London: Allen and Unwin, 1932), 271–83, Laura Cahillane, “Anti-Party Politics in the Irish Free State Constitution” Dublin University Law Journal 35 (2012) 34, and “The 1922 Constitution; Constituting a Polity” in Chap. 2 of this volume. See also David Kenny, “The 1922 Constitution as a Failed Attempt to Break with Westminster Tradition” in Chap. 10 of this volume.

  3. 3.

    Dáil Debates, vol. 1, col. 361–5, 18 September 1922.

  4. 4.

    See Thomas Mohr, “George Gavan Duffy and the legal consequences of the Anglo Irish Treaty, 1921–1923” Northern Ireland Legal Quarterly 73 (2023) 55.

  5. 5.

    Dáil Debates, vol. 1, col. 1909–14, 25 October 1922.

  6. 6.

    For example, Irish Times, 16 June 1922, 4 and Church of Ireland Gazette, 15 December 1922, 713–4. See also Belfast News Letter, 16 June 1922, 10 and 17 June 1922, 4.

  7. 7.

    Irish Times, 16 June 1922, 4.

  8. 8.

    Irish Times, 1 December 1922, 6

  9. 9.

    Belfast News Letter, 17 June 1922, 4.

  10. 10.

    Northern Whig, 22 June 1922, 4.

  11. 11.

    Belfast News Letter, 7 December 1922, 4.

  12. 12.

    Belfast News Letter, 5 December 1922, 4.

  13. 13.

    For example, see Belfast News Letter 16 June 1922, p. 10 (citing an article in the Morning Post) and Northern Whig, 30 November 1922, p. 4. This perspective was shared by some Irish supporters of the Treaty. For example, see P.S. O’Hegarty, The Victory of Sinn Féin (Dublin: UCD Press, 1998), p. 141.

  14. 14.

    Belfast News Letter, 17 December 1922, 5.

  15. 15.

    Contemporary newspapers confirm this expectation. For example, see the Belfast News Letter, 8 December 1922, 10 and Northern Whig, 8 December 1922, 4. See also the nationalist Irish News, 7 December 1922, 4. See also C.R.G Murray, “The Partition of Ireland and the 1922 Constitution” in Chap. 3 of this volume.

  16. 16.

    Report of the Irish Boundary Commission 1925 (Shannon: Irish University Press, 1969). See also Michael Laffan, The Partition of Ireland, 1911–25 and Paul Murray, The Irish Boundary Commission and its Origins, 1886–1925 (Dublin: UCD Press, 2011).

  17. 17.

    Article 55 of the final text of the 1922 Constitution made clear that extern ministers would be required to take the oath.

  18. 18.

    Poblacht na h-Éireann, 22 June 1922, 1.

  19. 19.

    Poblacht na h-Éireann, 22 June 1922, 1.

  20. 20.

    Poblacht na h-Éireann, 22 June 1922.

  21. 21.

    For example, see Poblacht na h-Éireann, 22 June 1922, 1 This example actually precedes the outbreak of civil war.

  22. 22.

    Poblacht na h-Éireann (Scottish Edition), 28 October 1922, 1

  23. 23.

    Poblacht na h-Éireann (Scottish Edition), 21 October 1922, 1

  24. 24.

    Poblacht na h-Éireann (Scottish Edition), 25 November 1922, 3

  25. 25.

    Poblacht na h-Éireann (Scottish Edition), 26 August 1922, 8.

  26. 26.

    Poblacht na h-Éireann (Scottish Edition), 30 September 1922, 8.

  27. 27.

    Poblacht na h-Éireann (War News), 6 December 1922, 1.

  28. 28.

    For example, see the stance of David Kent TD in Evening Herald, 20 June 1922, 1 and The Plain People, 18 June 1922, 2.

  29. 29.

    See the announcement of the IRA 4th Northern Division in Dundalk Democrat, 19 August 1922, 9.

  30. 30.

    For example, Poblacht na h-Éireann (Scottish Edition), 11 November 1922, 1 and 6.

  31. 31.

    For example, see Letters 11 and 13, Correspondence of Mr Eamon de Valera and Others (Dublin: Stationary Office, 1922), pp. 7–9. By contrast, see the definition of the third Dáil Éireann in section 2(9), Interpretation Act 1923.

  32. 32.

    Freeman’s Journal, 27 March 1922, p. 5. See also Irish Independent, 23 March 1922, p. 5. Evidence that de Valera later regretted this stance is provided by correspondence intercepted during the Civil War and later published. He wrote on 13 September 1922 that “Rory O’Connor’s unfortunate repudiation of the Dáil, which I was so foolish as to defend even to a straining of my own views in order to avoid the appearance of a split is now the greatest barrier that we have”. Letter 20, Correspondence of Mr Eamon de Valera and Others (Dublin: Stationary Office, 1922), pp. 14–5. The IRA would repudiate the authority of the second Dáil again in 1925. See Earl of Longford and Thomas P. O’Neill, Eamon de Valera – A Biography (Boston: Houghton Mifflin, 1971), p. 240.

  33. 33.

    Poblacht na h-Éireann, 29 June 1922, 4. The fadas on the word “Dáil” do not appear in the original text but were added by the author for the sake of consistency. See also Poblacht na h-Éireann (Southern Edition), 6 September 1922, 1. de Valera abandoned this argument in Letter 13, Correspondence of Mr Eamon de Valera and Others (Dublin: Stationary Office, 1922) p. 8.

  34. 34.

    See Letter 13, Correspondence of Mr Eamon de Valera and Others (Dublin: Stationary Office, 1922), pp. 8–9.

  35. 35.

    For example, see Earl of Longford and Thomas P. O’Neill, Eamon de Valera – A Biography (Boston: Houghton Mifflin, 1971), p. 200. Thomas Johnson, leader of the Labour party also assumed that the legal origins of the provisional parliament lay in the Irish Free State (Agreement) Act 1922. Dáil Debates, vol. 1, col. 424–5, 19 September 1922.

  36. 36.

    Dáil Debates, vol. 1, col. 428, 19 September 1922. See also Section 2(9) of the Interpretation Act 1923 that asserts an Irish origin for the 1922 election in addition to Westminster’s Irish Free State (Agreement) Act 1922.

  37. 37.

    The preamble to the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 began with the words “DÁIL EIREANN sitting as a Constituent Assembly in this Provisional Parliament”.

  38. 38.

    Poblacht na h-Éireann (Scottish Edition), 30 September 1922, 8 and 14 October 1922, 3. See also The Plain People, 18 June 1922, 2 and Poblacht na h-Éireann, 29 June 1922, 4 and 5.

  39. 39.

    Dáil Debates, vol. F, no. 1, 21 January 1919. See the differing wording provided by The Plain People, 23 April 1922, 2–3; Dorothy Macardle, The Irish Republic (London: Gollancz, 1937), pp. 959–60 and Brian Farrell, “A Note on the Dáil Constitution, 1919” Irish Jurist 4 (1969) 127 at 135–6.

  40. 40.

    Farrell argues that the version supplied by his article was that actually used by the Dáil. Farrell, “Dáil Constitution, 1919”, 130.

  41. 41.

    This reality is acknowledged by Brian Farrell who provides the example of Aodh de Blacam, What Sinn Féin Stands For (Dublin: Cahill and Co, 1921), pp. 98–99. See Farrell, “Dáil Constitution, 1919”, 127.

  42. 42.

    See Section 2(7), Interpretation Act 1923.

  43. 43.

    University College Cork Archives, O’Rahilly papers, U. 118, Box 6, Submission to the New Ireland Forum, 1984. See also Basil Chubb, The Constitution of Ireland (Dublin: Institute of Public Administration, 1966) 8 and The Government and Politics of Ireland (Oxford: Oxford University Press, 1974), 62–3. The claimed identity of the 1919 document as a national constitution was rejected in 1922 by a newspaper associated with the Labour Party. Voice of Labour insisted that “it is ridiculous to say that the Republic had or has a Constitution”. Voice of Labour, 24 June 1922, 4. For a contrasting perspective, see Farrell, “Dáil Constitution, 1919”, 127. Farrell bases his argument that the 1919 document served as a national Constitution on draft provisions that were rejected for inclusion rather than on provisions that were selected for the final text (see 130–1).

  44. 44.

    The Plain People, 23 April 1922, 2.

  45. 45.

    The Plain People, 23 April 1922, 2 and 18 June 1922, 2. This reality is made clear in the Dáil debate that introduced this document. Dáil Debates, vol. F, no. 1, 13–14.

  46. 46.

    Article 5 of this instrument provided “This Constitution is provisional and is liable to alteration upon seven days written notice of motion for that specific purpose”.

  47. 47.

    A letter to An Phoblacht in the 1930s complained of the lack of attention paid to the 1919 document within the anti-Treaty press. It was described as “the first draft of a Constitution for the Republic” that was “printed and circulated for discussion and amendment”. The letter noted that the 1919 document had been ignored by “the imperialist organs” but then asked “why was it boycotted by AN POBLACHT [sic]?” An Phoblacht, 23 April 1932, p. 6.

  48. 48.

    See Thomas Mohr, “The Influence of Chief Justice Hugh Kennedy on Irish Legal Scholarship and Publishing” Irish Jurist 64 (2020) 97 at 128.

  49. 49.

    For example, Poblacht na h-Éireann, 4 May 1922, 1 and Letter 15, Correspondence of Mr Eamon de Valera and Others (Dublin: Stationary Office, 1922), pp. 9–12. On other occasions the term “Treaty of Surrender” was used. For example, Poblacht na h-Éireann (Scottish Edition) 28 October 1922, 1 and 6 January 1923, 5.

  50. 50.

    For example, see Poblacht na h-Éireann, 29 June 1922, 5 and Freeman’s Journal, 28 April 1923, 7.

  51. 51.

    For example, Poblacht na h-Éireann, 4 May 1922, 1 and 22 June 1922, 1 and Poblacht na h-Éireann (Scottish Edition), 28 October 1922, 1.

  52. 52.

    Poblacht na h-Éireann, 12 April 1922, 1.

  53. 53.

    Section 2, Constitution of the Irish Free State (Saorstát Éireann) Act 1922 [Irl.] and preamble to the Irish Free State Constitution Act 1922 (Session 2) [UK]. The use of the term “repugnancy clause” for these provisions was created by Leo Kohn. Kohn, Constitution of the Irish Free State, 98–100.

  54. 54.

    Poblacht na h-Éireann, 22 June 1922, p. 1 and 29 June 1922, 8.

  55. 55.

    For example, see Poblacht na h-Éireann, 22 June 1922, 1 and Poblacht na h-Éireann (War News), 6 December 1922, 1.

  56. 56.

    Poblacht na h-Éireann (Scottish Edition), 16 September 1922, 3.

  57. 57.

    For example, see Poblacht na h-Éireann, 29 June 1922, 4.

  58. 58.

    See Thomas Mohr, Guardian of the Treaty: The council Appeal and Irish Sovereignty (Dublin: Four Courts Press, 2016).

  59. 59.

    Constitution of the Irish Free State (Saorstát Éireann) Act 1922 [Irl.] and the Irish Free State Constitution Act 1922 (Session 2) [UK]. See also Alan Greene, “‘The Supreme Legislative Authority Speaking as The Mouthpiece of the People’: Constituent Power and the Irish Free State” in Chap. 4 of this volume.

  60. 60.

    Freeman’s Journal, 6 December 1922, 4.

  61. 61.

    Westmeath Examiner, 2 December 1922, 5.

  62. 62.

    The Plain People, 25 June 1922, 1.

  63. 63.

    Poblacht na h-Éireann, 4 May 1922, 1.

  64. 64.

    State (Ryan) v. Lennon [1935] IR 170 and In the Matter of the Criminal Law (Jurisdiction) Bill 1975 [1976] 109 ILTR 69 at 76.

  65. 65.

    Moore v. Attorney-General for the Irish Free State [1935] IR 472 and [1935] AC 484.

  66. 66.

    An Phoblacht, 23 April 1932, p. 4.

  67. 67.

    An Phoblacht, 7 January 1933, p. 4 and 21 October 1933, p. 4.

  68. 68.

    An Phoblacht, 7 May 1932, p. 2.

  69. 69.

    Irish Times, 17 June 1922, 7 and Belfast News Letter, 17 June 1922, 5.

  70. 70.

    The Plain People, 18 June 1922, 2. The “fada” on the word “Dáil” does not appear in the original text but was added by the author for the sake of consistency.

  71. 71.

    For example, Belfast News Letter, 17 June 1922, 5, 21 June 1922, 4 and 22 June 1922, 6.

  72. 72.

    Waterford News, 23 June 1922, 6, Poblacht na h-Éireann, 29 June 1922, 5, Anglo Celt, 24 June 1922, 5 and Belfast News Letter, 22 June 1922, 6. de Valera’s reference to a system aimed at the “the degradation of a people” might be interpreted as more scathing condemnation of the draft Constitution but this was drawn from a quote of Edmund Burke speaking of the penal laws.

  73. 73.

    Irish newspapers quoted the conclusion of the London Times that “The Constitution … is Ireland’s last chance of peace”. For example, see Evening Herald, 24 November 1922, 2. See also Waterford Standard, 1 July 1922, 2, Limerick Chronicle, 28 October 1922, 2, Evening Herald, 25 November 1922, 4, Derry Journal, 4 December 1922, 4, Limerick Leader, 16 June 1922, 3 and Westmeath Examiner, 7 October 1922, 4.

  74. 74.

    See Select Constitutions of the World (Dublin: Stationary Office, 1924).

  75. 75.

    See the views of Desmond FitzGerald quoted in Tom Garvin, 1922 – The Birth of Irish Democracy (Dublin: Gill and Macmillan, 1996), p. 128.

  76. 76.

    For example, see Poblacht na h-Éireann (Scottish Edition), 26 August 1922, 2 and 23 September 1922, 2 and Dublin News, 16 December 1922, 1.

  77. 77.

    Poblacht na h-Éireann (Scottish Edition), 16 September 1922, 3 and The Plain People, 23 April 1922, 2.

  78. 78.

    In 1938 seven surviving anti-Treaty TDs of the second Dáil Éireann, who refused to recognise the validity of all subsequent Irish parliaments, attempted to vest all powers of government in the IRA. See Thomas Mohr, “The Strange Fate of the Dáil Decrees of Revolutionary Ireland, 1919–22” Statute Law Review 43:1 (2022) 120 at 132.

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  1. School of Law, University College Dublin, Dublin, Ireland

    Thomas Mohr

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  1. School of Law, University of Limerick, Limerick, Ireland

    Laura Cahillane

  2. Maynooth University, Maynooth, Ireland

    Donal K. Coffey

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Mohr, T. (2024). Opposition to the Constitution of the Irish Free State in 1922. In: Cahillane, L., K. Coffey, D. (eds) The Centenary of the Irish Free State Constitution. Palgrave Modern Legal History. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-46181-1_5

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