No. 478 NAI DT S4285B

Letter from William T. Cosgrave to Lord Granard (Dublin)

Dublin, 8 November 19301

Dear Lord Granard,

Since I wrote you on the 6th instant, I have been thinking further over the matter and have received a short report from London on the position there.2

I fear that there must be a complete lack of appreciation on the part of the British Government of the importance of the issues to which the Appeal to the Judicial Committee gives rise, and I am very disappointed at the attitude which has been shown to this and other questions during the present Conference.

Four years ago, at the 1926 Conference, we raised the question of the Appeal, and Mr. O'Higgins pressed it very hard at the Inter-Imperial Relations Committee. It was then, as it is now, a vital issue for us. After personal conversations between Lord Birkenhead and Mr. O'Higgins, at which the former urged that political considerations rendered it impossible for him to support us at the time, and that, if we waited for three years, we would have his full assistance, Mr. O'Higgins agreed not to press his claim to a conclusion and the paragraphs which appeared in the 1926 Report were settled on this basis. I shall return to the terms of those paragraphs later.

Mr. O'Higgins reported this conversation, and the resulting arrangement, to me at the time, and my recollection of the matter is very clear. Lord Hailsham and our Attorney General were also present at the conversations. I learn with no little amazement that Lord Hailsham's recollection of the meeting does not appear to coincide either with what Mr. O'Higgins told me at the time or with the present recollection of our Attorney General. It is singularly unfortunate that the two principals to this arrangement have passed away but there is I think a sufficiency of testimony to show that Mr. O'Higgins' report to me was an accurate reflection of what took place. I begin to see now what was in Mr. O'Higgins' mind when he used the phrase 'I wonder will they keep their promise'.

Let me now come to the 1926 Report. It begins with the statement that it was no part of the policy of His Majesty's Government in Great Britain that the question of Appeals to the Judicial Committee should be dealt with otherwise than in accordance with the wishes of the part of the Empire primarily concerned. It goes on to say that changes likely to give rise to issues affecting another part should be preceded by consultation and discussion. It concludes by recording our agreement not to press our claim for the immediate removal of the appeal and our notice that we would raise the issue in 1929.

Now, when we raise the issue, we are told first that, owing to the attitude of Mr. Lloyd George on the one hand and Mr. Baldwin on the other, it is impossible for the present British Government to get a measure dealing with it through the British Parliament. This is something we can understand. But what we cannot understand is the attitude of His Majesty's Government in Great Britain, whatever Party may for the time being constitute that Government, when they seek to defend their failure to carry out the report of 1926 on the grounds:

(a) of the Southern Loyalists, and
(b) of the special position of the Irish Free State under the Treaty.

In so far as the Southern Loyalists are concerned, I understand that the case has been made that the retention of the Appeal was one of the safeguards agreed in 1921. This is not the case. Certain safeguards were agreed, but they had nothing to do with the Appeal, and, in so far as they were agreed, they have been honoured. The Appeal is, in any event, of no practical utility as a safeguard, as I think the majority of people concerned will admit, and it is, perhaps, of some import that amongst the cases in which leave to appeal has been sought since 1922, there is not one which could be said even remotely to concern a Southern Loyalist. The letter which was sent to the Press last week by the Archbishops of Armagh and Dublin3 is so evidently written for the purposes of the present Conference that I do not consider it necessary to deal with it other than to say that I cannot deprecate too strongly what appears to be an attempt to reintroduce Irish affairs into the field of English politics, and that along the old and abhorred lines of religious controversy. I need only add that the whole Protestant population of the Irish Free State is less than 7 1/2 % of the total, that the percentage of that minority who would willingly be described as Southern Loyalists is much smaller than is generally appreciated, and that, so far from their having suffered any disabilities since 1922, they one and all admit that they have received the utmost justice. The only contentions upon which the Southern Loyalist argument could be used, so far as I can see, are either that a minority of 7 1/2 percent should be entitled to prevent the wishes of the remaining 92 1/2 percent from being realised, or, alternatively, that the Judicial Committee can be relied upon to base their decisions, not upon legal considerations, but upon preconceived prejudices or upon the measure of political influence which can be brought to bear on its members. Neither of those contentions commend themselves to me, nor do I think they would commend themselves to public opinion here or in England.

The other ground of argument, namely the special position of the Irish Free State under the Treaty, is a matter of very much graver concern, because it goes down to the roots of the Treaty Settlement. I understand the argument may be shortly summarised in three propositions:-

(1) The Appeal to the Privy Council exists in the Irish Free State by reason of the analogy to the position of the Dominions created by Articles 1 and 2 of the Treaty.
(2) The Dominions generally are entitled to have the question of how far legal decisions in their Courts shall be finally determined in accordance with their wishes, but
(3) The Irish Free State is not so entitled, because of the Treaty.

Let us, for the purposes of the argument, admit contentions (1) and (2). Coming to contention (3), it would at first sight seem to imply that the Treaty contains some specific restriction on our action in regard to the Privy Council. But does it? There are, undoubtedly, special restrictions in the Treaty, but they are specifically set out in Articles 6, 7, 8 and 9. The Privy Council is not one of them, and its absence, particularly when other restrictions are mentioned, in itself definitely negatives the possibility of such an implication. Thus, we come to the real implication underlying contention (3). It will be more readily understood if I put it in the following words. All the Dominions, save the Irish Free State, can abolish Appeals if they so desire. The Irish Free State cannot, because in 1921 His Majesty's Government in Great Britain had not yet acquiesced in the formal declaration of 1926 that the status of a Dominion included the power of abolishing such Appeals. To put it in another way, the Irish Free State was given Dominion status in 1921, but it was a static status. We were co-equal for the moment with the other Dominions, but once any progress was made by the other Dominions, we lost our co-equality. We did not move pari-passu with them. This theory is a novel one in the mouths of responsible British statesmen. It belies their private assurances and their public utterances over the last nine years. It is the argument advanced against acceptance of the Treaty by the late Mr. Childers4 and repudiated, not by the Irish Signatories alone, but by the British Signatories also. If persisted in it will vitiate the whole position; it will undermine the foundations on which we are endeavouring to build up a system of co-operation and mutual assistance between ourselves and the other communities forming the British Commonwealth of Nations.

There has been some suggestion, I am told, that the matter of the Privy Council has been placed on a contractual basis by the inclusion of the proviso in Article 66 of the Constitution. My memory is, fortunately, quite clear on this, and it is supported by reference to the debates in the British House of Commons. English Signatories believed that the Appeal, in so far as it was existent in the other Dominions, was impliedly imported into the Irish Free State because of Articles 1 and 2 of the Treaty. We did not take that view. They desired, out of excess of caution, that since the Appeal was written into other Dominion Constitutions, it should also be written into ours, lest its omission might be urged as proof that the Appeal, even in its then obsolescent state, did not lie in the Irish Free State.

The question of how far this Appeal was dying or dead had been canvassed long prior to the Treaty. We agreed that the framing of our Constitution was not the occasion for defining practice. We felt that so far as we were concerned the proviso would for all practical purposes be a dead letter and that it would finally be removed whenever, in the development of the Dominions, formal record was made of the generally accepted view that the question was one for each Dominion to decide. We, therefore, consented to its inclusion but our consent to write in the proviso created no new contract. The only contract we have is the Treaty Contract. That contract provides that we have the same status as the Dominions, not in relation to any point of time in the past or in the future, but in relation to every point of time from 1922 to the end. Kevin O'Higgins assured the members of the Dáil in 1922 that the Treaty would 'ensure to this country the utmost limit of the development of any of the Dominions'. It was on this basis the Treaty was accepted, it is on this basis we stand now and must always stand.

I have written at great length, but I hope with enough clearness to show you that on this matter there can be for us no departing from the position we have taken up. It is fundamental to our very existence as a Dominion. In essence we could not have recommended, nor could we continue to accept the Treaty on any other basis. Not alone do internal politics dictate the course we must pursue; it is clearly and sharply defined by inter-Commonwealth relations and policy. The Commonwealth can only survive on good faith and good-will, and, if your great influence can make this principle clear to our friends in England, then something will have been accomplished of lasting value to the society of Nations to which we and they belong.

[copy letter unsigned]

1 Handwritten marginal annotation by McDunphy: 'The date on this text is wrong. It was actually written, signed and delivered to Lord Granard on the 9th'.

2 See No. 471 and No. 472.

3 See No. 469.

4 Robert Erskine Childers (1870-1922), chief secretary and defence expert to the Irish Treaty Delegation (1921); opposed the 1921 Anglo-Irish Treaty; executed in November 1922.

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