Sir,—I enjoyed Ivan Gibbons’s and Cormac Moore’s balanced discussion of the events surrounding the Boundary Commission (HI 33.6, Nov./Dec. 2025, pp 36–42) but would like to draw attention to an overlooked set of negotiations, occurring simultaneously, which were arguably more important. These were much more successful and led to the Irish Free State achieving de facto sovereignty in 1926. Following this, with the passing of the Statute of Westminster in 1931, the imperial parliament gave up its control over the dominions and the Commonwealth replaced the Empire.
This momentous change began with the Treaty and the writing of the Free State constitution, the latter arguably the most testing, as generalities had to be hammered into the specifics of the governance and powers of the Irish Free State. The old team of Lloyd George and Churchill again faced Collins and Griffith. Not only this, but the arguments were about the same things: the role and powers of the monarch and the primacy of the imperial parliament. The Treaty had already achieved much, with a nuanced oath of allegiance and ‘significant fiscal autonomy and a military force’ being conceded. They even managed to get ‘commonwealth’ inserted into the oath instead of ‘empire’, which was a first. These new negotiations, while not much researched and written about, were just as difficult and fraught as before, and again the Irish side was confronted with the threat of war, while at the same time civil war was de facto beginning back in Ireland.
Despite all this, the constitution was a great achievement. According to the constitutional lawyer Laura Cahillane in Drafting the Free State Constitution (2016): ‘Griffith, Collins, and their team should have been proud of the democratic document which they had managed to produce against the odds’. And, as she points out, because the wording of the oath of allegiance was ‘… different from that taken by members of the Dominions as, instead of swearing loyalty to the Crown, the Irish member swore allegiance to the Irish Constitution first and only afterwards was faithfulness to His Majesty mentioned. Essentially, all of the Articles dealing with the Crown were (therefore) devoid of substance.’
As early as April 1923, the reality of this new sovereignty was demonstrated when Britain’s extradition of Art O’Brien and colleagues to the Free State was ruled unlawful. The Appeal Court held that the Free State was now a ‘separate judicial entity’. Mary MacDiarmada (HI 33.1, Jan./Feb. 2025) says: ‘This point was not lost on Hugh Kennedy, the Irish attorney general: “The judgement is of great interest to the Free State, embodying as it does the recognition by English law of co-equality of the country with Great Britain”.’
The Free State government kept pushing its interpretation of the Treaty, and, indeed, that it was a treaty between sovereign states and not inter se, that is, intra-state. While this was a comfort to those in Ireland who supported the Treaty, for the other dominions it raised many questions. The Irish had agreed a treaty which described its relationship with the imperial power but which also contained a clause stating that the position of the Irish Free State shall be the same as that of Canada. Perhaps Lloyd George and Churchill saw this as limiting the status of Ireland vis-à-vis the other dominions, but the dominions took a different view. The Free State appeared to have ‘dominion status plus’.
Henceforth the Irish, now supported by South Africa and Canada, pushed at each Imperial Conference (a gathering of the dominions and colonies, together with the UK) for greater autonomy for the dominions. In particular, they sought the repeal of the Colonial Laws Validity Act (1865), which required their legislation to be approved by the Westminster parliament, and for the end of judicial appeals to the Privy Council. Starting at the Imperial Conference in 1923, the Irish agitated both for their definition of the Treaty and for greater autonomy for all the dominions—in effect, for the Commonwealth as it is today.
This work was rewarded at the 1926 Imperial Conference when a statement was issued—the Balfour Declaration (1926)—stating that the United Kingdom and the dominions were ‘… autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations’. The Irish also got agreement to change the title of the king by replacing ‘… of Great Britain and Ireland and of the British Dominions beyond the seas’ with ‘… of Great Britain, Ireland and the British Dominions beyond the seas’. This reflected that ‘Ireland’ was no longer part of one united kingdom alongside Britain and further cemented its status as equal to the other dominions.
During these early years, the Free State government also got the Treaty lodged with the League of Nations as an international agreement, against the wishes of the UK, and joined the League as a full member. One more push and the dominions got the Balfour Declaration enshrined in legislation with the passing of the Statute of Westminster in 1931. This act of the Westminster parliament also repealed the much-disliked 1865 Validity Act. In effect, after this Ireland became a ‘democratic republic with a hereditary head of state’.
At the last minute, however, the House of Lords, Churchill and others tried to get the Irish Free State exempted from some of the Statute of Westminster’s provisions. That they failed was due to the support of the other dominions, a Labour prime minister and the helpful ambiguities that the Treaty and the constitution contained.
Cosgrave, O’Higgins and their colleagues had worked hard to make good on Collins’s promise that, while the Treaty did not give the ultimate freedom that all nations desire, it gave the freedom to achieve it. As for the 1922 constitution, that so much of it survived into its 1937 successor speaks of its worth, as Professor Cahillane says.—Yours etc.,
PHELIM BRADY