Abstract
The inter-war period was one of a burgeoning interest in the nation. To take one example, Article 16 of the 1921 Constitution of the Kingdom of the Serbs, Croats and Slovenes stipulated that ‘the State shall encourage the fostering of nationality’. The question of nationality and nationalism was to be dealt with in the preliminary articles of the 1937 Constitution. This was complicated by the manner in which nationalism and republicanism had played a part in Ireland’s struggle for independence. The establishment of the state was also a more complicated matter than it had been in 1922—the question of the nature of the state and the relationship between the state and the citizen were permeated by issues such as religious teaching, which are present in other elements of the document.
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Notes
- 1.
Dorothy MacArdle, The Irish Republic (Dublin: Wolfhound Press, 1999), 846–847.
- 2.
MacArdle, The Irish Republic, 846–847.
- 3.
The Cosgrave government noted in response to de Valera’s suggestion that ‘Paragraphs (1) […] of this document are guaranteed by the Constitution, and, therefore, should have no place in peace conditions.’ MacArdle, The Irish Republic, 853.
- 4.
20 August 1936 (University College Dublin Archives (hereafter UCDA): P150/2370).
- 5.
UCDA: P150/2373 (14 October 1936).
- 6.
UCDA: P150/2385.
- 7.
See UCDA: P150/2375:
The declarations relating to sovereignty will be to the effect that sovereignty resides in the people, that the people have the right to determine the form of government and of the institutions of government under which they desire to live, and also the right to determine the extent of the co-operation of the State with any other State or any league or group of States. The people will be declared to be the ultimate arbiters on all disputed issues of national public policy.
- 8.
The printed versions of McQuaid’s drafts contain subsequent pencil amendments of phrases that occur in the 28 February draft. These amendments may have been suggestions by McQuaid or suggestions noted by McQuaid.
- 9.
Dublin Diocesan Archives (hereafter DDA): AB 8/A/48. They read in full as follows:
-
1.
The Irish nation—that social and historical grouping of men and women, who (having been born either within the territory of Eire or outside its territory of Irish parents) and having been marked by common qualities of character and outlook, constitute separate spiritual and physical unity—has, within its own territory , an inalienable, indefeasible and sovereign right, to the unfettered control of its own destinies, by declaring what its form of Government shall be and by designating its own rulers who shall promote the common weal, social economic and political.
-
2.
The National Territory consists of the whole of Ireland and its territorial seas.
-
3.
The Irish Nation, for the benefit and protection of its citizens and the promotion of peace, both national and international, may enter into Treaties and Agreements with other States for the purpose of attaining these objects.
-
4.
All disputed questions of national policy and expediency, within the State of Eire, shall, in last resort and without recourse to arms, be determined, in a referendum as by law defined, by the final vote of the citizens of the Irish nation.
-
1.
- 10.
28 February 1937 (DDA: AB8/A/51).
- 11.
The forms of life in the X draft were ‘economic, social and political’ rather than ‘political, economic and cultural’, as in the final version.
- 12.
UCDA: P150/2416. The insertion of ‘cultural’ occurred at this stage in response to a query by the department of the president of the executive council (NAI: Taois s.9715B).
- 13.
‘The territory of Eire shall be such as from time to time may come within the jurisdiction of Eire’ (UCDA: P150/2370).
- 14.
UCDA: P150/2370.
- 15.
13[?] October 1936 (UCDA: P150/2373). The draft of 14 October contained a similar note: there was to be a ‘[d]eclaration that the national territory consists of the whole of Ireland and its territorial seas and that the right of the Nation to the whole of the national territory is indefeasible’ (UCDA: P150/2373). An earlier draft in the same folio does not contain an article on territory but has a handwritten note ‘Territory? Fundamental Declaration’ (UCDA/P150/2373).
- 16.
UCDA: P150/2387.
- 17.
NAI: Taois s.9715B.
- 18.
Article 10 of the Covenant of the League of Nations stated:
The Members of the League undertake to respect and preserve as against eternal aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.
- 19.
Article 3 stated:
-
1.
The Federal territory embraces the territories of the Federal Provinces.
-
2.
An alteration in the Federal territory involving an alteration in the territory of a Province […] can be made only by identical Constitutional Laws of the Federation and of the Province the territory of which is altered.
Federal Provinces were defined in Article 2 of the Constitution.
-
1.
- 20.
Article 2 stated:
The territory of Esthonia includes Harhumaa, Lāānemaa, Jārwamaa, Wirumaa, with the town of Narwaa and district, Tartumaa, Wiljandimaa, Pārnumaa, the town of Walk, Wörumaa, Petserimaa and other border regions inhabited by Esthonians, the islands of Saaremaa (Oesel), Muhumaa (Moon), and Hiiumaa (Dago), and other islands and reefs situated in Esthonian waters.
The delineation of the Esthonian frontiers shall be determined by International Treaties.
- 21.
Article 3 stated:
-
1.
The territories of the Czechoslovak Republic shall form a united and indivisible unit, the frontiers of which may be altered only by Constitutional Law ….
-
2.
In accordance with the treaty concluded […] between the Principal Allied and Associated Powers […] and the Czechoslovak Republic […] the autonomous territory of Carpathian Russinia […] shall be and remain an integral part of the Republic […].
-
1.
- 22.
Article 83 of the 1931 Constitution goes into great detail about the individual regions, or Banovinas, of the Kingdom of Yugoslavia. It is sufficient to cite only one of the nine regions:
The Drava Banovina is bounded by a line passing from the point where the northern boundary of the district of Čabar cuts the State frontier, then following the State frontier with Italy, Austria and Hungary to a point where the State frontier with Hungary reaches the river Mura (north-east of Čakovac). From the river Mura the boundary of the Banovina follows the eastern and then the northern boundaries of the districts of Lendava, Ljutomer, Ptuj, Šmarje, Brežice, Krško, Novo Mesto, Metljika, Črnomelj, Kočevje and Logatec, including all the districts mentioned.
- 23.
Article 1 stated:
The territory of Portugal is that which at present belongs to it and comprises:-
-
1.
In Europe: the mainland and the archipelagos of Madeira and the Azores.
-
2.
In West Africa: Cape Verde archipelago, Guinea, S. Tomé and Principe and their dependencies, S. João Baptista de Ajudá, Cabinda and Angola.
-
3.
In East Africa: Mozambique.
-
4.
In Asia: the State of India and Macao and their relative dependencies.
-
5.
In Oceania: Timor and its dependencies.
-
1.
- 24.
Article 8 began: ‘The Spanish State, within the irreducible limits of its present territory ….’
- 25.
55 Dáil Debates (10 April 1935) col. 2270–2271.
- 26.
UCDA: P67/184.
- 27.
12[?] October 1936 (UCDA: P150/2373).
- 28.
28 February 1937 (UCDA: P150/2387).
- 29.
A handwritten version of the draft which excludes the final clause may be found in the McQuaid papers (DDA: AB/8/A/V/48). Cathal Condon attributes the entire X draft of Article 3 to McQuaid. However, the final clause does not appear in the handwritten draft and is circled in the subsequent X draft, which indicates it was an addition he did not foresee (An Analysis of the Contribution made by Archbishop John Charles McQuaid to the Drafting of the 1937 Constitution (MA thesis, University College Cork, 1995), 41). It is possible that the original note may have been dictated by de Valera .
- 30.
2 March 1937 (NAI: AGO/2000/22/796).
- 31.
Thomas Mohr has provided an excellent account of the difficulties associated with extra-territorial legislation during the life of the Irish Free State, “The Foundations of Irish Extra-Territorial Legislation,” Irish Jurist 40 (2005) 86.
- 32.
UCDA: P150/2370.
- 33.
Earl of Longford and T. O’Neill, Eamon de Valera (Dublin: Hutchinson and Co, 1970), 294.
- 34.
31 August 1936 (UCDA: P150/2370).
- 35.
Earl of Longford and T. O’Neill, Eamon de Valera, 294–295.
- 36.
UCDA: P150/2370.
- 37.
67 Dáil Debates (25 May 1937) col.947.
- 38.
Amendment no. 2, 67 Dáil Debates (25 May 1937) col. 968.
- 39.
Amendment no. 2, 67 Dáil Debates (25 May 1937) col. 970.
- 40.
Amendment no.1, 67 Dáil Debates (25 May 1937) col. 953.
- 41.
Amendment no. 1, 67 Dáil Debates (25 May 1937) cols. 967–968; Article 1 stated: ‘The Irish Free State […] is a co-equal member of the Community of Nations forming the British Commonwealth of Nations.’
- 42.
See Constitutionalism in Ireland 1932–1938, Chap. 5.
- 43.
Article 1 stated: ‘Sweden shall be governed by a king and shall be a hereditary monarchy’.
- 44.
Article 1 stated: ‘The form of government is a limited monarchy. Royal power is hereditary.’
- 45.
Article 40 stated: ‘It is the will of the Mexican people to constitute themselves into a democratic, federal, representative Republic, consisting of States, free and sovereign in all that concerns their internal affairs, but united in a federation according to the principles of this fundamental law.’
- 46.
Article 1 stated: ‘Russia is declared a Republic of Soviets of Workers’, Soldiers’ and Peasants’ Deputies.’
- 47.
Article 1 stated: ‘[t]he German Reich is a Republic.’
- 48.
Article 2 stated: ‘[t]he Czechoslovak State shall be a Democratic Republic’.
- 49.
Article 1 stated: ‘Esthonia is an independent Republic in which the sovereign power is in the hands of the people.’
- 50.
Article 1 began: ‘Austria is a democratic Republic.’
- 51.
Article 1 stated: ‘[t]he Polish State is a Republic.’
- 52.
Article 5 began: ‘[t]he Portuguese State is a unitary and corporative Republic.’
- 53.
Article stated: ‘[t]he Lithuanian State is an independent democratic Republic.’
- 54.
Article 1 began: ‘Spain is a democratic Republic of workers of every class, organized under a system of liberty and justice.’
- 55.
18 May 1935 (UCDA: P150/2370).
- 56.
6 August 1936 (UCDA: P150/2370).
- 57.
UCDA: P150/2373.
- 58.
UCDA: P150/2373.
- 59.
UCDA: P150/2374.
- 60.
Article 2 of the 1922 Constitution stated:
All powers of government and all authority legislative, executive, and judicial in Ireland, are derived from the people of Ireland and the same shall be exercised in the Irish Free State (Saorstát Eireann) through the organizations established by or under, and in accord with, this Constitution.
In his construction of Article 2 in Lynham v Butler (No 2), Kennedy CJ noted: ‘the Divine delegation to the people is acknowledged in the preamble to the enactment’ [1933] IR 74, 95.
- 61.
See Chap. 2.
- 62.
The Earl of Longford and T. O’ Neill, Eamon de Valera, 218, 295.
- 63.
Michael Browne , “The Source and Purpose of Political Authority,” Studies (1936): 390.
- 64.
Letter from Browne to de Valera : ‘I have not been able to get in touch with Dr. Lucey yet. It is probable that all the papers will appear in the Sept. issue of Studies.’ A letter does exist from Browne to de Valera dated 23 Sept 1936 which encloses Lucey’s paper, so we may surmise the letter with Browne’s paper enclosed pre-dates 23 September 1936 (UCDA: P150/2895).
- 65.
20 October 1933 (UCDA: P150/2895).
- 66.
Browne , “The Source and Purpose of Political Authority,” 394.
- 67.
Browne , “The Source and Purpose of Political Authority,” 396.
- 68.
B. Shiva Rao, ed. Select Constitutions of the World (Madras: The Madras Law Journal Press, 1934), 359. It had been amended in 1925 to include this section.
- 69.
UCDA: P150/2370. It begins ‘All powers of government and all authority, legislative, executive and judicial, are derived from God though the people […]’
- 70.
UCDA: P150/2370.
- 71.
47 Dáil Debates (3 May 1933) col. 431.
- 72.
UCDA: P150/2373. Interestingly, the Constitution of the Republic of Austria of 1920 stated in Article 1 that ‘[i]ts law emanates from the people’. Article 82.1 stated: ‘All judicial power emanates from the Federation.’ Article 1 of the 1919 Constitution of the German Reich also uses the word ‘emanates’.
- 73.
19[?] October 1936 (UCDA: P150/2374). Article 39 of the 1917 Constitution of the United States of Mexico stated, ‘The national sovereignty is vested essentially and originally in the people. All public power emanates from the people, and is instituted for their benefit’ (italics added).
- 74.
22 October 1936 (UCDA: P150/2374).
- 75.
See ‘Summary of main provisions of the Constitution,’ 5 November 1936 (UCDA: P150/2375).
- 76.
See UCDA: P150/2387.
- 77.
Alfred O’Rahilly, “The Sovereignty of the People,” Studies 10 (1921): 39–56; and Alfred O’Rahilly, “The Sovereignty of the People,” Studies 10 (1921): 277–287. See also Alfred O’Rahilly, “The Democracy of S. Thomas,” Studies 9, no. 33 (1920): 6–13.
- 78.
O’Rahilly, “The Sovereignty of the People,” 287.
- 79.
O’Rahilly, “The Sovereignty of the People,” 46–47 (footnote omitted). The section omitted here refers to a Suarez quotation.
- 80.
O’Rahilly, “The Sovereignty of the People,” 278–279.
- 81.
Billot (1846–1931) was made a cardinal by Pius X in the consistory of 1911. He resigned his office in 1927 as a result of Pius XI’s condemnation of Action Francaise. According to Cooney, ‘McQuaid accepted completely these neo-scholastic teachings [of which Billot was the distal proponent] on the unchanging nature of the Catholic Church.’ See John Cooney, John Charles McQuaid: Ruler of Catholic Ireland (Dublin: O’Brien Press, 1999), 44–45.
- 82.
UCDA: P150/2406.
- 83.
UCDA: P150/2406.
- 84.
Francis of Vittoria (c. 1480–1546) was a Dominican who held the principal chair in theology at the University of Salamanca between 1524 and 1544.
- 85.
Zigliara (1833–1893) was created a cardinal by Leo XIII in his first consistory of 1879. He was responsible for the first draft of the papal encyclical Rerum Novarum. See Eduardo Soderini, The Pontificate of Leo XIII: Volume I (Carter tr) (London: Burns Oates & Washbourne, 1934), 192–193. Soderini stated that Leo XIII found the work ‘profound, but the Pope judged it too prolix and perhaps too theoretical’. The 1913 Catholic Encyclopedia noted that ‘not very long ago [his Summa Philosophica] was adopted as the textbook for the philosophical examination in the National University of Ireland’. McQuaid received a BA from University College Dublin.
- 86.
Vincenzo Gioacchino Raffaele Luigi Pecci (1810–1903) was made cardinal in 1853 and pope (as Leo XIII) in 1878. His most famous encyclical, Rerum Novarum (1891), was the subject of intense interest in the 1930s due to the 1931 publication of Quadregesimo Anno, which celebrated 40 years of Rerum Novarum. McQuaid displays a knowledge of other encyclicals by Leo XIII, for example Immortale Dei (1885).
- 87.
67 Dáil Debates (25 May 1937) cols. 977–978.
- 88.
Irish Independent 15 May 1937.
- 89.
25 May 1937 (UCDA: P150/2395).
- 90.
DDA: AB 8/A/48. Emphasis added.
- 91.
20 Aug 1936 (UCDA: P150/2370).
- 92.
UCDA: P150/2373.
- 93.
22 Oct 1936 (UCDA: P150/2370).
- 94.
5 Nov 1936 (UCDA: P150/2375).
- 95.
11 Jan 1937 (UCDA: P150/2387).
- 96.
UCDA: P150/2397: ‘The national flag of Éire consists of the three colours green, white, and saffron arranged vertically in that order, the green being next to the hoist.’ Matheson’s proposals were consistent with Article 2 of the 1921 Constitution of the Kingdom of the Serbs, Croats and Slovenes.
- 97.
UCDA: P150/2397. Matheson suggested it might be preferable if it stated that ‘[t]he national flag of Éire is a tricolour of green, white, and orange in such form as shall be defined by law’. This method of determining the flag by law had been followed both in those constitutions which made no mention of a flag and others such as Article 111 of the 1814 Constitution of the Kingdom of Norway.
- 98.
The 1937 Constitution was, in this regard, similar to Article 5 of the 1920 Constitutional Charter of the Czechoslovak Republic—‘[t]he colours of the Republic are white, red and blue’—and Article 3 of the 1919 Constitution of the German Reich—‘[t]he colours of the Reich are black, red and gold’.
- 99.
Article 3(1) of the 1934 Austrian Constitution stated: ‘The colours of Austria are red, white and red.’ See also Article 8 of the 1928 Constitution of the Republic of Lithuania, and Article 1 of the Constitution of the Spanish Republic of 1931.
- 100.
Article 3(2) stated: ‘The coat of arms of Austria consists of a detached double-headed black eagle, with a golden halo, golden claws and red tongue. Its breast is covered with a red shield with a silver cross-bar.’
- 101.
The 1928 Constitution of the Republic of Lithuania did the same in Article 8, which stated: ‘The State colours are yellow, green and red. The State arms consist of a white knight on a red background.’
- 102.
Article 2 began:
The arms of the Kingdom are a two-headed white eagle with outspread wings on a red shield. On the two heads of the double-headed eagle is the Crown of the Kingdom. On the breast of the eagle is a shield bearing: a white cross on a red shield with a flint and steel in each corner, a shield divided into 25 fields, alternately silver and red, and below it a blue shield with 3 gold six-pointed stars and a white crescent.
- 103.
See Leo Kohn, The Constitution of the Irish Free State (London: George Allen and Unwin, 1932), 123–125.
- 104.
UCDA: P150/2365.
- 105.
UCDA: P150/2370. It should be borne in mind that the Hearne draft was based on the 1922 Constitution; the recognition of English as an ‘equal’ language was not necessarily in accordance with Hearne’s preferences. In the report on the second house, which was compiled in 1936, a number of members, including Hearne, expressed a reservation, stating they were ‘strongly of opinion that it is due to the dignity of the National Language that effective provisions should be made at the outset to ensure and maintain the gradual predominance of Irish as the language of the Second House’. Saorstát Eireann, Report of the Second House of the Oireachtas Commission (Dublin: Stationery Office, 1936), 13.
- 106.
Eireann, Report of the Second House of the Oireachtas Commission, 13.
- 107.
UCDA: P150/2373.
- 108.
UCDA: P150/2374.
- 109.
15 March 1937 (UCDA: P150/2401).
- 110.
UCDA: P150/2415 (emphasis added).
- 111.
UCDA: P150/2427.
- 112.
18 May 1935 (UCDA: P150/2370).
- 113.
12[?] October 1936 (UCDA: P150/2373).
- 114.
13[?] October 1936 (UCDA: P150/2373).
- 115.
UCDA: P150/2374. Interestingly, the preamble to the article at this point differentiated between citizenship of the state and membership of the nation; it began ‘[t]he following possess are of Irish nationality and have the rights of citizens of E’.
- 116.
DDA: AB8/A/51.
- 117.
NAI: Taois s.9715B.
- 118.
The memorandum considered that:
The provisions in the Article as a whole require examination in the light of the existing law dealing with nationality and citizenship . Their implications in relation to other Articles of the Constitution dealing with the rights etc. of citizens … would appear to require special consideration.
- 119.
UCDA: P150/2415. This subdivision continued into the draft of 10 April 1937.
- 120.
17 April 1937 (UCDA: P67/184).
- 121.
UCDA: P150/2427.
- 122.
DDA: AB 8/A/49.
- 123.
68 Dáil Debates (9 June 1937) col. 120.
- 124.
67 Dáil Debates (25 May 1937) col. 993. The Portuguese reference was to the 1933 Constitution.
- 125.
Article 4 dealt with citizenship.
- 126.
DDA: AB8/A/51.
- 127.
National Archives of Ireland: Taois s.9715B.
- 128.
UCDA: P150/2395.
- 129.
See, further, Leo Kohn, The Constitution of the Irish Free State (London: George Allen and Unwin, 1932), 172–174.
- 130.
Nicholas Mansergh, The Irish Free State—Its Government and Politics (London: George Allen and Unwin, 1934), 52.
- 131.
Mansergh, The Irish Free State—Its Government and Politics, 53 (footnotes omitted).
- 132.
UCDA: P67/184. This memorandum was sent to the secretary of the department of the president of the executive council.
- 133.
He instanced in this regard the relevant legislative provision, for example the Mines and Minerals Act 1931.
- 134.
Article 41 of the draft of 11 January 1937 stated:
The property hereinafter referred to, namely, all the lands and waters, mines and minerals, natural resources, royalties and franchises which, at the date of the coming into operation of this Constitution, belong to Saorstát Eireann shall, from and after the said date, belong to E. subject to any trusts, grants, leases or concessions then existing in respect thereof or any valid private interest therein, and shall be controlled and administered by the Minister in charge of the department of finance , so, however, that no part of the said property shall be alienated save with the consent of Dáil Éireann.
UCDA: P150/2387.
- 135.
1 March 1937 (UCDA: P150/2397).
- 136.
1 March 1937 (UCDA: P150/2397).
- 137.
Square brackets present in original draft.
- 138.
UCDA: P150/2415. Article 10.4 stated in full:
Provision may also be made by law for the management of land and waters acquired by Éire after the coming into operation of this Constitution and for the control of the alienation, whether temporary or permanent, of the land and waters so acquired.
- 139.
UCDA: P150/2427. The only difference was that the draft version refers to ‘Éire’ where the final version refers to the ‘State’. This was necessitated by the amendments consequent on the amendment of Article 4.
- 140.
11 January 1937 (UCDA: P150/2387).
- 141.
30 April 1937 (UCDA: P150/2429).
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Coffey, D.K. (2018). Nation and State. In: Drafting the Irish Constitution, 1935–1937. Palgrave Modern Legal History. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-76246-3_3
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