Law and the Foundation of the Irish State on 6

December 1922

Introduction

The date on which the Irish State was founded, 6 December 1922, has never been

a major focus of celebration or commemoration. The day itself in 1922 was not

marked by any official celebrations in Ireland. Unofficial celebrations were held

in some places but much of the country, including the streets of its capital, was

quiet. The Irish Law Times concluded “The transition was hardly noticeable … in

the city of Dublin: and yet the change is tremendous and far-reaching”.1

The date of 6 December 1922 failed to capture the popular imagination as

an anniversary worth celebrating in the years that followed. Of course, this was

only to be expected when it already had so many competitors for the title of Irish

“independence day”. Examples include Easter Monday 1916, 21 January 1919, 6

December 1921, 14 January 1922, 31 March 1922 and 1 April 1922. Later

alternatives include the date of 29 December 1937 when the current Irish

Constitution came into force or even 18 April 1949 when the State was described

as a republic.2 In truth, the evolution of Irish sovereignty was a complex process

and this article does not attempt to argue in favour of any particular date as an

Irish “independence day”, an emotive concept that lies far outside the realm of

law. The concept of an “independence day” also raises difficult questions of

whether the Irish State would have satisfied definitions of a fully sovereign State

at the time it came into existence.3 However, the date on which the State came

1 Anon.“News” (1922) 56 Irish Law Times and Solicitors’ Journal 295.2 The Republic of Ireland Act 1948 (Commencement) Order 1949, SI 27/1949.3 The State proclaimed by the first Dáil Éireann on 21 January 1919 never achieved any form of international recognition and the reality of its control over the territory it claimed was disputed. Questions of sovereignty after 1922 are complicated by the association between the Irish Free State and Dominion status established by Articles 1 and 2 of the 1921 Treaty. For an argument that the Dominions were sovereign States see Edward J. Phelan, “The Sovereignty of the Irish Free State” (1927) 3 The Review of Nations 35-49. For contrasting perspectives, see P.J. Noel

1

into existence is primarily a legal issue and a degree of certainty on this issue is

required for practical reasons. These include drafting statutes, citizenship

matters, determining what laws were in force at a particular point in time and,

potentially, in resolving disputes between Ireland and the United Kingdom.

This article examines the legal basis for fixing 6 December 1922 as the

date on which an internationally recognised Irish State came into existence. This

question raises many difficult issues and it might well be asked why such an

examination is necessary at all when many organs of the Irish State already treat

6 December 1922 as the de facto date on which it came into existence. One

reason is that a number of early decisions of the Irish courts, including the

Supreme Court, assert that the State came into existence on dates other than 6

December 1922.4 Leo Kohn, whose book on the Constitution of the Irish Free

State is still used by the courts in interpreting provisions common to the

Constitutions of 1922 and 1937, wrote that “Irish constitutional theory” dates

back to the meeting of the first Dáil Éireann on 21 January 1919.5 Recent

publications have also cast doubt on the validity of 6 December 1922 as the date

on which the State came into being.6 The need for certainty is all the more

pressing in a decade of centenaries in which the centenary of the State on 6

December 2022 is fast approaching.

This article will examine the question of the date on which the State came

into existence in the context of a number of interrelated legal ambiguities that

surround its origins. The nature of these deliberate ambiguities explains how

and why it is possible to dispute the date on which the State came into existence.

This article will also analyse key events and legal instruments from the period of

transition that lasted for one year between the signing of the Anglo Irish Treaty

Baker, The Present Juridical Status of the British Dominions in International Law (London: Longmans, 1929) p.356 and Pearce Higgins, Hall’s International Law (Oxford: Clarendon Press, 1924) p.34.4 The leading example is Kennedy CJ’s judgment in In re Reade [1927] I.R. 31. 5 Leo Kohn, The Constitution of the Irish Free State (Dublin: Allen and Unwin, 1932), p.36.6 The author of this article must accept some responsibility for creating unintended doubts as to the significance of 6 December 1922. See Kieran Mooney, “The Statute Law Revision Project and Statute Law Revision in Ireland 2003 to 2015” (2017) 38(1) Statute Law Review 79. In addition, see Richard Humphries “Book Review of Laura Cahillane, Drafting the Free State Constitution” (2016) 39(2) Dublin University Law Journal, 475.

2

on 6 December 1921 to the key date of 6 December 1922. This is necessary

because many of the alternative dates for the foundation of the State are located

within this period of transition. The most important legal instrument in this

period of transition was a statute passed by the parliament at Westminster called

the Irish Free State (Agreement) 1922 that was enacted on 31 March 1922. This

article will examine how and why Hugh Kennedy, the first Chief Justice of the

Irish Supreme Court, fastened on the enactment of this statute as a key event in

bringing the Irish State into existence. It is also necessary to examine a related

British Order in Council that came into force on 1 April 1922 called the

Provisional Government (Transfer of Functions) Order 1922 that has been used

by other commentators to mark the creation of the State.7 This article will also

look at evidence from case law, statutes and other historical sources. The

conclusion argues that the weight of evidence in favour of foundation of State on

6 December 1922 easily outweighs any of the alternative dates that have been

advocated in the past and that there is no reason why courts and statutes in the

twenty-first century should not openly recognise this date instead of just using it

in practice as a de facto date of legal transition.

Necessary Ambiguities

The birth of the self-governing Irish State was made possible by the maintenance of

a number of deliberate and interrelated ambiguities in the field of law. The first of

these was the question of whether the document signed by British and Irish

representatives on 6 December 1921 was really an international treaty. This issue

is important because it raises the question of whether British representatives

recognised the existence of an Irish State in signing this document. Irish statesmen

argued throughout the 1920s and 1930s that this document was an international

treaty and even had it registered with the League of Nations.8 British statesmen

7 For example, see Richard Humphries “Book Review of Laura Cahillane, Drafting the Free State Constitution” (2016) 39(2) Dublin University Law Journal, 475.8 For example, see University College Dublin (UCD) Archives, Kennedy Papers, P4/308, memorandum on executive, undated 1922, Darrell Figgis, The Irish Constitution Explained (Dublin: Mellifont, 1922), p.11; Edward J. Phelan, “The Sovereignty of the Irish Free State” (1927) 3 The Review of Nations 35 and The Star, September 1930, pp.5 and 8.

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argued that it was not a treaty as the territory that later formed the Irish Free State

was, at the time of signing, still a part of the United Kingdom. One British MP

emphasised this point in 1921 when he declared “We can make treaties with

Germany and France, but we cannot make a treaty with Yorkshire, and how can we

make a treaty with Ireland?”.9 This objection was later joined by the legal issue of

whether agreements made between constituent parts of the British Empire could be

considered as being international in nature.10

The name of the “Articles of Agreement for a Treaty between Great Britain

and Ireland” was deliberately constructed to be ambiguous and to allow both sides

to save face before their domestic opponents. The original title was “Articles of

Agreement” and the words “for a Treaty” did not actually appear in the document

that was signed on 6 December 1921. Irish delegates requested that these words be

inserted one day after it was signed and Lloyd George consented to their insertion

into the British copy. 11 These words were not included in the Irish copy that was

already on its way to Dublin.12 This document was often called the “Articles of

Agreement” in the early 1920s but this was overshadowed by the popular use of the

term “Treaty”, always with a capital “T”. The actions of the Irish government in

registering this document with the League of Nations in 1924 is often presented as

finally resolving all ambiguity and confirming its status as an international treaty.13

In truth, the secretariat of the League of Nations lacked any power to refuse to

register the documents presented to it by the Irish Free State. The League followed

the only real option that was available to it by taking a middle course between the

9 Sir F. Banbury at Hansard, House of Commons, vol. 149, col. 346, 16 December 1921. 10 See Alfred Zimmern, The Third British Empire (London: Oxford University Press, 1929), pp.36-7; R.Y. Jennings, “The Commonwealth and International Law” (1953) 30 British Yearbook of International Law 320 at 332 and Franklin Berman, “Treaty-making within the British Commonwealth” 2015 (38) Melbourne University Law Review 897 at 905-7. This raises a legal issue known as the “inter se” doctrine. See James Edmund Sanford Fawcett, The Inter Se Doctrine of Commonwealth Relations (London: Athlone Press, 1958).11 Frank Pakenham (Lord Longford), Peace by Ordeal (London: Sidgwick and Jackson, 1972), p.246. 12 Ibid. Lloyd George justified the use of the term “Treaty” to the House of Commons in the following terms “It is an Agreement in the nature of a Treaty, exactly in the same way as the "Articles of Agreement" entered into by the Act of Union was called a Treaty by both parties in this House”. Hansard, House of Commons, vol. 149, col. 128, 15 December 1921.13 For example, see D.W. Harkness, The Restless Dominion (New York: New York University Press, 1969), p.63 and Michael Kennedy, The Irish Free State and the League of Nations, 1919-1946 (Dublin: Irish Academic Press, 1996), p.74.

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two disputants. When the text of the “Articles of Agreement” or “Treaty” was

published in the League’s “treaty series” it was accompanied by the official protests

that had been sent by the United Kingdom together with the responses made by the

Irish Free State.14

A much more emotive area of ambiguity concerns the question of whether

the Constitution of the Irish Free State was a British or Irish creation. The Irish

courts have held that an Irish Constituent Assembly created the 1922

Constitution.15 British courts stress that this Constitution was created by

legislation passed at Westminster.16 This debate has been heightened by links

made between the creation of the 1922 Constitution and the creation of the State

itself.17 These riddles have never been solved because they were designed to be

insoluble. As mentioned earlier, the British-Irish settlement of the early 1920s

was framed to allow both sides to save face before their domestic opponents. It

is unlikely that the British or Irish courts will ever reverse their earlier decisions

on the origins of the 1922 Constitution.18

The date on which the Irish State came into existence is related to the

legal controversies mentioned above and was also subject to policies of

deliberate ambiguity in 1921 and 1922. Yet, unlike the other two controversies

this matter remains an important practical question and not simply a matter of

national pride. Legal certainty in determining if and when particular laws

14 The British stressed that the actions of the Irish government were inconsistent with the inter se doctrine. See National Archives of Ireland (NAI), Department of Foreign Affairs, 417/105, memorandum by Joseph P. Walshe for the minister for external affairs on “The Registration of the Treaty”, 1 December 1924; Edward J. Phelan, “The Sovereignty of the Irish Free State” (1927) 3 The Review of Nations 35-49 at 37-8.15 State (Ryan) v. Lennon [1935] I.R. 170 and In the Matter of the Criminal Law (Jurisdiction) Bill 1975 [1976] 109 I.L.T.R. 69 at 76.16 Moore v. Attorney-General for the Irish Free State [1935] I.R. 472 and [1935] A.C. 484. 17 For example, Leo Kohn writes that the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 “formally proclaims the establishment of the Irish Free State”. Leo Kohn, The Constitution of the Irish Free State (Dublin: Allen and Unwin, 1932), p.99. An early draft of the 1922 Constitution known as the “M. Collins Draft” openly associated the creation of the Irish Free State with the creation of the 1922 Constitution. NAI, Department of the Taoiseach, S6541, undated draft Constitution, Article 1.18 Kingsmill Moore J set out the Irish and British views as to the creation of the 1922 Constitution in the case of In re Employers Mutual Insurance Association Limited. He concluded “But after the decision in The State (Ryan and Others) v. Lennon and Others … it is not open to an Irish Judge to adopt the British view and I only mention it to show that I have not overlooked it”. [1955] I.R. 177 at 217.

5

applied to the twenty-six counties demands a precise date on which the territory

of the Irish Free State seceded from the United Kingdom and became a self-

governing entity capable of making effective laws and achieving international

recognition.

The date of 6 December 1922 was enshrined in the text of the 1921

Treaty and was chosen because it marked the anniversary of the signing of that

document on 6 December 1921.19 As far as the British were concerned the

intervening year would be a time of gradual transition as key powers and

institutions were handed over on a phased basis before the twenty-six counties

of the south and west of the island of Ireland formally seceded from the United

Kingdom. The entity that finally came into existence on 6 December 1922, then

known as the Irish Free State, was not considered as having seceded from the

British Empire. Articles 1 and 2 of the 1921 Treaty made clear that the new State

would be a Dominion that shared key aspects of its autonomy with Canada,

which was often called the “eldest Dominion”. This process of transition was not

without controversy. First, many Irish supporters of the 1921 Treaty had real

difficulties accepting that the embryonic Irish Free State would be a Dominion in

the same manner as Canada, Australia, New Zealand, South Africa and

Newfoundland. In addition, many Irish nationalists in 1922 and afterwards

insisted that the self-governing Irish State was autochthonous and refused to

accept British claims that it had been created by the parliament at Westminster.

These disputes are linked to the question of the date on which the Irish Free

State came into being. Nevertheless, these complex issues require articles in

their own right and cannot be examined in detail here.20

19 Article 17 of the 1921 Treaty provided “By way of provisional arrangement for the administration of Southern Ireland during the interval which must elapse between the date hereof and the constitution of a Parliament and Government of the Irish Free State in accordance therewith, steps shall be taken forthwith for summoning a meeting of members of Parliament elected for constituencies in Southern Ireland since the passing of the Government of Ireland Act 1920, and for constituting a provisional Government, and the British Government shall take the steps necessary to transfer to such provisional Government the powers and machinery requisite for the discharge of its duties, provided that every member of such provisional Government shall have signified in writing his or her acceptance of this instrument. But this arrangement shall not continue in force beyond the expiration of twelve months from the date hereof”.20 These issues are discussed in Thomas Mohr, “The Irish Free State and the Legal Implications of Dominion Status, 1922-1937” (PhD thesis, University College Dublin, 2007).

6

In the early 1920s the Irish governments had concerns that far

outweighed questions of the date, nature and source of the State. Their priority

was to maintain as much stability as possible while completing the handover of

British institutions. Existing difficulties were exacerbated by the split over the

1921 Treaty, the outbreak of Civil War on 28 June 1922 and continuing

challenges to public order in the years that followed. In these circumstances it is

hardly surprising that Irish government was reluctant to commit itself as to the

date on which State came into existence and to celebrate that date accordingly.

There were very good reasons for maintaining a degree of ambiguity on the date

on which the State was born. For some nationalists the very idea of the creation

of a new Irish State was itself anathema. They saw the creation of the Irish Free

State as some form of revival of a pre-conquest Gaelic Irish State, however

anachronistic that might appear to modern eyes.21 Irish ministers had little to

gain from engaging in difficult debates as to whether any form of State had been

created by the rising on Easter Monday 1916 or by the first Dáil Éireann on 21

January 1919 and, if so, whether the Irish Free State could be seen as some form

of continuation of these revolutionary entities.22

Although the events of the revolutionary period between 1919 and 1922

are of unquestionable historical importance it is difficult to identify legal

institutions that survived into the new order that followed. The decrees issued

by the First and Second Dáil Éireann have never received unambiguous

recognition in Irish legislation23 or by the Irish courts after 1922.24 Plans to

21 A joint letter from Darrell Figgis, James McNeill and John O’Byrne insisted that the preamble to the future Constitution should make clear that no new State was being created and instead stress the renewal and re-establishment of the “ancient Free State of Ireland”. Figgis had written a book in 1917 on early medieval Ireland entitled The Gaelic State in the Past & Future (Dublin: Maunsel, 1917). The preamble to the draft constitution known as “Draft A”, signed by Figgis, McNeill and O’Byrne would have begun “We, the people of Ireland, in our resolve to renew and re-establish our State”. NAI, Department of the Taoiseach, S8953, letter from the signatories of Draft A, 13 April 1922. 22 Eoin MacNeill stressed the existence of an Irish State that preceded the signing of the 1921 Treaty in his criticism of the draft 1922 Constitution. NAI, Department of the Taoiseach, S8953, memoranda of 21 March 1922.23 Brian Farrell notes that there is no reference to these decrees in either the Interpretation Act 1923 or the Expiring Laws Act 1923. He does identify a possible exception in s.7, Indemnity Act 1924. Brian Farrell, “The Legislation of a ‘Revolutionary’ Assembly, Dáil Decrees, 1919-1922” (1975) 10 Irish Jurist 112 at 123.24 A possible exception is the judgment of Murnaghan J in Fogarty v. O’Donoghue [1926] I.R. 531.

7

publish these decrees in the early 1920s came to nothing.25 Brian Farrell

outlines the difficulties caused by the absence of official definition, procedure,

numbering and record-keeping that continue to create a great deal of uncertainty

as to what constituted a “decree” that was intended to be enacted between 1919

and 1922.26 By 1923 Irish ministers were anxious to dismiss the relevance of

these decrees even when they touched on matters that were under consideration

in proposed legislation.27 This policy has remained intact as reflected in the

absence of any reference to these decrees in the legislation that emerged from

the Statute Law Revision Project launched in 1998.28

The status of the 1919 Dáil Constitution remains disputed. It only

consisted of five short articles all dealing with the regulation of Dáil Éireann.

Brian Farrell argues that intentions evident in draft material that was not

included in the final text reflect a desire to create a basic law for an “emerging

state”.29 However, the reality that this material was rejected for inclusion

weakens this argument and it has never won consensus.30 In practice, this

document has been treated as having been the Constitution for Dáil Éireann and

not a document that attempted to regulate any kind of Irish State.31 It appears to

have been ignored by the drafters of the 1922 and 1937 Constitutions and faded

from the memory of legal scholars until a revival of attention in the late 1960s.32

Finally, the institutions known as the “Dáil courts” had been abolished when the

25 UCD Archives, Kennedy Papers, P4/744, Kennedy to Codling, 2 June 1924.26 Brian Farrell, “The Legislation of a ‘Revolutionary’ Assembly, Dáil Decrees, 1919-1922” (1975) 10 Irish Jurist 112 at 112. 27 Ibid. at 123-6.28 See Statute Law Revision (Pre-1922) Act 2005; Statute Law Revision Act 2007 and Statute Law Revision Act 2012. 29 Brian Farrell, “A Note on the Dáil Constitution, 1919” (1969) 4 Irish Jurist 127 at 135. 30 Seán McBride wrote, in a submission to the New Ireland Forum, “In addition, the first Dáil adopted “The Democratic Programme of Dáil Éireann”, and a “Provisional Constitution of Dáil Éireann”. … Neither of these instruments purported to be a Constitution for the Republic.” University College Cork (UCC) 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) at p.8 and The Government and Politics of Ireland (Oxford: Oxford University Press, 1974), pp.62-3.31 S.2(7), Interpretation Act 1923 provides “The expression ‘the First Dáil Eireann’ shall mean the assembly of members of Parliament elected for constituencies in Ireland at a Parliamentary Election held on the 14th day of December, 1918, who first came together in a Parliament held on the 21st day of January, 1919, in the official residence of the Lord Mayor of Dublin called the Mansion House at Dublin, and there drew up and promulgated a provisional constitution for the said assembly as Dáil Eireann and Government of Saorstát Eireann”. 32 Brian Farrell, “A Note on the Dáil Constitution, 1919” (1969) 4 Irish Jurist 127.

8

1922 Constitution came into operation and it was subsequently considered

necessary to clothe their past decisions with the authority of the new legal order

created in 1922.33 The Crown courts were retained in 1922 pending the creation

of an entirely new system in 1924.34

The drafters of the 1922 Constitution did consider two opening

provisions that would have linked that document with the works of Patrick

Pearse and with the “Democratic Programme” issued by the first Dáil Éireann in

1919. These were removed during the early stages of Anglo Irish negotiations on

the 1922 Constitution. The British government never appears to have been

aware of the origins of these provisions but objected to them on the basis of their

perceived communistic nature.35 The Provisional Government also considered a

number of preambles for the 1922 Constitution that would have dwelled on the

origins of the State but these were dropped before the draft Constitution was

shown to the British government on 27 May 1922.36

The numbering of successive entities calling themselves “Dáil Éireann”

remains the only acknowledgement of the events of 1919 to 1922. The lower

house of the first parliament of the Irish Free State included the “third Dáil

Éireann” since a “first Dáil Éireann” had sat between 1919 and 1921 and a

“second Dáil Éireann” between 1921 and 1922. Yet even this gesture was based

on statutory provisions passed after 1922.37 There were also practical

difficulties in establishing continuity between the first and second Dáil Éireann

and the third Dáil Éireann that was styled “the Constituent Assembly” and

approved the final text of the 1922 Constitution. The official name of the

Constituent Assembly in the Irish language was “Dáil Bhunaidh” which can be

translated as “original Dáil”. This Constituent Assembly would later become one

33 Dáil Éireann Courts (Winding Up) Act 1923; Dáil Éireann Courts (Winding Up) Act 1923, Amendment Act 1924 and Dáil Éireann Courts (Winding Up) Act 1925. See also Mary Kotsonouris, The Winding-up of the Dáil Courts, 1922-1925 (Dublin: Four Courts Press, 2014).34 Article 75, Constitution of the Irish Free State. See also Courts of Justice Act 1924.35 Thomas Mohr, British Involvement in the Creation of the Constitution of the Irish Free State (2008) 30 Dublin University Law Journal 166.36 NAI, Department of the Taoiseach, S8953.37 S.2, Interpretation Act 1923.

9

of three components of the Oireachtas that also included the King and the

Seanad.38

The British government had less reason to indulge in ambiguity in 1921

and 1922. Yet the nature of the Treaty settlement demanded that they avoid

needless offence to Irish sensibilities on this subject. British statesmen

understood the argument that a pre-existing Irish State had been in existence

before the signing of the Treaty even if they could not and would never recognise

it.39 The British also had their own sensitivities that prevented them from

enacting a statutory provision containing a blunt statement that the territory of

the Irish Free State would secede from the United Kingdom on a particular date.

A provision of this nature would only appear in 1932 and then only in an Order

in Council.40 Nevertheless, under British law the Government of Ireland Act 1920

remained valid for the entire island of Ireland and the territory of the twenty-six

counties remained nothing more than an autonomous part of the United

Kingdom known as “Southern Ireland” until late 1922.

The “Provisional Period”

The signing of the “Articles of Agreement” or “Treaty” on 6 December 1921

initiated a period of transition that lasted until 6 December 1922. Winston

Churchill referred to this year of transition as an “interim period” or as an

“interregnum period”.41 The unionist newspaper the Northern Whig spoke of the

Irish Free State undergoing a “chrysalis stage”.42 W.T. Cosgrave called it a “year

of preparation”.43 Official documents preferred the term “provisional period”.44

38 Article 12, Constitution of the Irish Free State.39 For example, see Hansard, House of Commons, vol. 150, col. 1263, 16 February 1922. 40 See Order in Council of 17 March 1932 on the “provision for the reciprocal enforcement of judgments in the United Kingdom and in other parts of His Majesty’s Dominions under Part 11 of the Administration Act 1920”. This provides that “on the 6th day of December, 1922, the Irish Free State was established under the provisions of an Act of Parliament shortly entitled the Irish Free State Constitution Act 1922 (Session 2)”.41 Hansard, House of Commons, vol. 151, col. 1013, 6 March 1922 and col. 1358, 8 March 1922.42 Northern Whig, 6 December 1922, p. 6.43 Irish Independent, 7 December 1922, p.5.44 For example, s.37, Cmd. 1911 (July 1923), Heads of Working Arrangements for Implementing the Treaty.

10

One of the first signs of transition was the gradual withdrawal of British security

forces, a process that would not be completed until after 6 December 1922. The

withdrawal of British security forces was seen as a priority as their continued

presence offered a target to those who opposed the Treaty settlement. The Irish

Provisional Government that was established on 14 January 1922 was intended

to fill the gap created by the gradually diminishing British security presence and

to prepare the way for the establishment of a permanent legislature and

executive.45

Key facilities were handed over to the Provisional Government that would

help oversee this transition. The earliest symbol of change was the handover of

Dublin Castle on 16 January 1922. During the provisional period the new Irish

authorities overprinted the words “Rialtas Sealadach na hÉireann” meaning

“Provisional Government of Ireland” on postage stamps bearing the head King

George V.46 Perhaps the best-known feature of the provisional period was the

painting of the post boxes from red to green. However, this symbolic change of

colours occurred on a phased basis and was not completed until 1923.47

The gradual painting of the post boxes and the production of stamps

bearing British and Irish symbols reflect intentions that the provisional period

be one of phased transition. The Irish Provisional Government was in place but

the British still recognised that Irish executive functions were vested in the Lord

Lieutenant who remained in Dublin and continued to issue proclamations

throughout the provisional period. The British government simply ordered the

Lord Lieutenant to cooperate with the Provisional Government and to act “upon

the advice of the Irish Ministers”.48 The parliament at Westminster continued to

45 See Article 17 of the 1921 Treaty and Hansard, House of Commons, vol. 149, col. 42-3, 14 December 1921.46 Liam Miller, Postage Stamps of Ireland, 1922-1982 (Dublin: Department of Posts and Telegraphs, 1983), pp.7-8.47 Stephen Ferguson, The Irish Post Box (Dublin: An Post, 2009), pp.42-3.48 Cmd. 1911 (July 1923), Heads of Working Arrangements for Implementing the Treaty. See also Anon. “Article 73 of the Constitution, Irish Free State - II” (1929) 63 Irish Law Times and Solicitors’ Journal 133 at 134 and The King (Johnstone) v. The Officer Commanding Ardaravan House Barracks. Johnstone v. O'Sullivan and Others (1923) 2 I.R. 13.

11

pass statutes and statutory instruments for the territory of the embryonic Irish

Free State, sometimes at the request of the Irish Provisional Government.49

In early 1922 the two sides agreed that the Irish could draft their own

Constitution but that the British government would be shown its text before it

was made public.50 The 1921 Treaty enshrined the key date of 6 December 1922

as the final deadline for the transition process that would see the establishment

of a permanent government and parliament for the Irish Free State.51 This did

not prevent an earlier completion but it was obvious that no permanent

government and parliament could be established until an Irish Constitution was

in place.

In the early days it was hoped that this period of transition could be

completed very quickly. The Constitution Committee, a group appointed to

create preliminary constitutional drafts, was forced to complete its work in little

over a month. The Provisional Government had initially envisaged completion of

the final text of the Constitution by March 1922.52 They had received assurances

that the British government would make every effort to get the Constitution

through Westminster within a month if a satisfactory draft were completed by

the middle of March.53 The British even agreed to Irish attendance at a

forthcoming international conference at Genoa on condition that an agreed draft

was produced by 8 March.54 This deadline proved to be unrealistic and it

gradually became clear that the transition process could not be accelerated.55

49 For example, see the Unemployment Insurance Act 1922 described below.50 NAI, Cabinet Minutes, G1/1 2 February 1922 and the National Archives of the United Kingdom (TNA), CAB 43/6, 22/N/60(6), meeting between the British and Irish signatories, approval of draft constitution, 26 February 1922.51 See fn.19.52 NAI, Cabinet Minutes, G1/1, 7 February 1922 and Hansard, House of Commons, vol. 150, col. 1274, 16 February 1922.53 TNA, CAB 23/29, CAB 6(22), conclusions of cabinet meeting, 30 January 1922.54 TNA, CAB 23/29, CAB 3(22), conclusions of cabinet meeting of 23 January 1922 and NAI, Cabinet Minutes, G1/1, 26 January 1922. 55 TNA CAB 21/252, note of interview with Duggan, O’Higgins, Kennedy, Collins and Anderson, 7 February 1922. The British, taking into account the experiences of the other Dominions, felt that even six months was an overambitious timeframe for completing a constitution. They felt that twelve months was more realistic, a prediction that proved to be accurate. UCD Archives, P4/197, British Cabinet paper PGI 18 “Ireland”, undated 1922.

12

As events transpired, the Irish Provisional Government spent three

months analysing and adapting its draft Constitution before finally taking it to

London. The British government rejected this draft and the resulting redrafting

created additional delays.56 There was also the necessity to have an election in

the twenty-six counties to create the Constituent Assembly that would approve

the agreed text of the Constitution. The unexpected outbreak of Civil War on 28

June 1922 created additional strains. The collapse of the Lloyd George coalition

in October 1922 also threw up an unexpected British general election and an

entirely new British government led by Andrew Bonar Law was forced to come

to grips with the final part of the transitional period whose maximum limit was

due to expire on 6 December 1922. The final debate at Westminster on the draft

Constitution had to be compressed into a short window of time in order to meet

this tight deadline.57

The transitional arrangements that characterised the provisional period

were not always fully understood. Some British newspaper correspondents

heralded the birth of the Irish Free State when the Treaty was perceived to have

been ratified by the Dáil and later by elected members of the autonomous

parliament of “Southern Ireland” in January 1922.58 They must have realised

that their declarations were premature when King George V opened parliament

on 7 February 1922 with the words “The final establishment of the Irish Free

State as a partner in the British Commonwealth is anxiously awaited throughout

the world”.59 Even leading judges suffered from confusion on the nature of the

period of transition. Lord Sumner, a Lord Justice of Appeal, admitted during the

course of a parliamentary debate on 21 March 1922 “Until a few minutes ago I

had never heard it suggested that the Irish Free State and Government were

56 TNA, CAB 43/7, 22/N/162, draft Irish Constitution, 27 May 1922.57 The Irish Free State Constitution Bill 1922 (Session 2) was introduced in the House of Commons on 24 November 1922 and received the royal assent on 5 December 1922. Hansard, House of Commons, vol. 159, col. 174, 24 November 1922 and vol. 159, col. 1609, 5 December 1922. 58 The Times carried an article on 16 January 1922 that began “The Irish Treaty Ratified – ‘Fair Play all Round’ - The Irish Free State lives and has its being. It was called into existence to-day at a meeting of elected members of the Southern Ireland Parliament”. The Times, 16 January 1922, p.10.59 See also Henry Harrison, Ireland and the British Empire, 1937 (London: Robert Hale, 1937), p.93.

13

still in nubibus and would not come into existence until some time in the summer

after further Acts have been passed in Ireland and here”.60

The constitutional position of the territory of the embryonic Irish Free

State during this provisional period also caused some confusion. Barra Ó Briain,

the author of a textbook on the 1922 Constitution, concluded that both rival

governments and legislatures “recognised, that in fact, there actually existed a

kind of constitutional vacuum which would continue until the coming into

operation of the new Constitution”.61 This was an exceptional perspective as

most lawyers abhorred the very idea of a constitutional vacuum and many came

up with ingenious solutions that aimed to fill it.62

Patrick McGilligan, who would later serve as Irish minister for external

affairs between 1927 and 1932, believed that the Irish Free State had come into

existence when both sides had formally ratified the 1921 Treaty but did not

specify when these acts of ratification had taken place.63 Possible dates for Irish

ratification are 7 January 1922 when the Treaty was approved by the second Dáil

Éireann, 14 January 1922 when it was approved by elected members of the

parliament of Southern Ireland64 and 25 October 1922 when the Irish

Constituent Assembly passed the Constitution of the Irish Free State (Saorstát

Éireann) Act 1922. Possible dates for British ratification include 16 December

1921 in an address to the King’s speech65, 31 March 1922 with the enactment of

60 Hansard, House of Commons, vol. 49, col. 670-1, 21 March 1922. Maurice Gwyer displayed similar confusion in early 1922 when he wrote that the provisions of the Irish Free State (Agreement) Act 1922 ensured that “The severance of the Irish Free State from the parliamentary system created by the Act of Union in 1800 is thus complete”. Maurice L. Gwyer author of the fifth edition of William R. Anson, The Law and Custom of the Constitution, Volume 1, (Oxford: Clarendon Press, 1922), p.423. This conclusion is open to challenge as MPs from the territory of the Irish Free State continued to sit in the House of Commons until the unexpected British election of 15 November 1922 while peers from this territory continued to sit in the House of Lords long after 31 March 1922.61 Barra Ó Briain, The Irish Constitution (Dublin: Talbot, 1929), p.52.62 For example, Patrick McGilligan denied the existence of a legal vacuum during “the transition stage” in The Star, September 1930, p. 8. See also Anon. “Article 73 of the Constitution, Irish Free State - III” (1929) 63 Irish Law Times and Solicitors’ Journal 139 at 140. 63 The Star, September 1930, p. 8.64 Under Article 18 of the 1921 Treaty the agreement had to be approved by “the members elected to sit in the House of Commons of Southern Ireland”.65 See also O’Donoghue v. Roche [1927] I.R. 152 at 160 and Anon. “Article 73 of the Constitution, Irish Free State - II” (1929) 63 Irish Law Times and Solicitors’ Journal 133.

14

the Irish Free State (Agreement) Act 1922 and 6 December 1922 when the

Constitution of the Irish Free State Act 1922 (Session 2) was brought into force.66

The date on which the various parties fully ratified the 1921 “Treaty” or

“Articles of Agreement” remains a source of tiresome controversy and endless

confusion. Unfortunately, it is not possible to ignore this difficult issue as it lies

at the heart of many theories that insist that the Irish State was created before 6

December 1922. Many of these theories are connected with Westminster’s

enactment of the Irish Free State (Agreement) Act 1922. No historical analysis of

this statute is possible without mentioning the contribution of Hugh Kennedy.

He was partially responsible, as a member of the Constitution Committee and as

legal advisor to the Provisional Government, for persuading Irish ministers to

request that Westminster enact this legislation. He would later be responsible

for interpreting this legislation as the first Chief Justice of the Irish Supreme

Court.

Hugh Kennedy and the Irish Free State (Agreement) Act 1922

In early 1922 Kennedy and other members of the Constitution Committee were

uneasy with the provisional period that was currently in place. They stressed

the vulnerability of the Treaty settlement, which at that time enjoyed no official

status under British law, during their opening meeting with Michael Collins and

Arthur Griffith in attendance.67 The Constitution Committee also produced

drafting documents insisting that Irish authorities must be solely responsible for

the creation of their own Constitution. They recommended that the Treaty be

ratified, and thus brought into effect, by the British as soon as possible. Once this

was done it was argued that the British would have “nothing to do with the

66 Edward J. Phelan raised the possibility of both sides engaging in two stages of ratification with the British ratifying by means of the Irish Free State (Agreement) Act 1922 and the Irish Free State Constitution Act 1922 (Session 2) and the Irish by the resolution of 7 January 1922 and by the Constituent Assembly on 25 October 1922. Edward J. Phelan, “The Sovereignty of the Irish Free State” (1927) 3 The Review of Nations 35-49 at 37.67 James G. Douglas with Anthony J. Gaughan, Memoirs of Senator James G. Douglas (1887-1954) Concerned Citizen, (Dublin: University College Dublin Press, 1998), p.78.

15

Constitution” and that any attempts made by them to amend it would constitute

a breach of the 1921 Treaty and interference in the internal affairs of another

sovereign State.68 The Constitution Committee envisaged the enactment of a

British statute that would ratify the Treaty and some form of outline of the future

Irish Constitution that would mark the conclusion of Westminster’s involvement

in Irish internal affairs. Under this scheme an Irish Constituent Assembly would

complete the process by giving force of law to the final text of the Irish

Constitution.69 Hugh Kennedy would later revive this perspective when he

became Chief Justice of the Irish Supreme Court in presenting a purported

British ratification of the 1921 Treaty on 31 March 1922 as the final act in

recognising a sovereign State in Ireland.70

In early 1922 Hugh Kennedy accompanied Michael Collins to London to

push for a final and comprehensive British ratification of the Treaty.71 The

British government recognised that the position of the Irish Provisional

Government was anomalous as it lacked any basis in British statute law.72 It

agreed to have the parliament at Westminster to pass the Irish Free State

(Agreement) Act 1922, a statute that would clothe the Treaty and the Provisional

Government with the apparel of legality under British law.73 This statute was

finally passed on 31 March 1922. However, the British government recognised

Irish demands for full ratification of the Treaty as an attempt to reduce their

room for manoeuvre in relation to the draft Constitution and the overall

completion of the settlement.74 After some deliberation the British argued that

68 UCD Archives, Kennedy Papers, P4/308, memorandum on executive, undated 1922.69 NAI, Department of the Taoiseach, S8953, brief resumé of the history of the drafting and enactment of Constitution of 1922, undated.70 In re Reade [1927] I.R. 31.71 The Provisional Government originally considered having the British approve the Constitution at the same time as ratifying the 1921 Treaty. This was prevented by delays in finalising the text of the Constitution. NAI, Cabinet Minutes, G1/1, meetings of 20, 26 and 31 January 1922, 1, 2, 7 February and 20 March 1922. 72 Hansard, House of Commons, vol. 150, col. 1261-2, 16 February 1922. 73 S.1(1) and (2), Irish Free State (Agreement) Act 1922. S.1(4) provided that at the next general election there would be no more MPs elected to the House of Commons from Irish constituencies other than those of Northern Ireland. This ensured that a small number of MPs would sit in the House of Commons from the territory of the future Irish Free State until the unexpected British election of 15 November 1922.74 Winston Churchill argued “We have not yet seen the Constitution, nor ascertained whether it conforms to the Treaty and to the assurances given to the Southern Unionists at the same time. We do not know what the result of the Free State election will be. We are not prepared to abrogate our final controls, such as we judge them, in these matters at this stage.” TNA CAB

16

full ratification was out of the question as it could be seen as activating the

“Ulster Month” under Article 11 of the Treaty that provided a mechanism for

Northern Ireland to opt-out of the Irish Free State. They argued that Northern

Ireland should be allowed to consider the Constitution proposed for the Irish

Free State before exercising this option.75 Consequently, final ratification would

have to wait until Westminster enacted the statute containing the anticipated

Constitution of the Irish Free State.76 The Irish proved unable to rebut this

argument and, reluctantly, agreed to this procedure.77

In the years that followed Hugh Kennedy, as Chief Justice of the Irish

Supreme Court, placed great emphasis on the argument that the British had

indeed ratified the 1921 Treaty when they enacted the Irish Free State

(Agreement) Act 1922 on 31 March 1922. This allowed him to assert that that

the Irish Free State had come into existence at the time of the signing of the

Treaty on 6 December 1921 or, at the latest, on 31 March 1922.78 Kennedy made

use of this interpretation in the case of In re Reade in response to litigants who

had assumed that the State had been created on 6 December 1922.79 He insisted

that once the British ratified the 1921 Treaty in the Irish Free State (Agreement)

Act 1922 “[t]he Parliament of the United Kingdom thus brought to an end the

Union of 1800 by enacting the Treaty as law”.80

There are a number of difficulties with Kennedy’s interpretation of the

Irish Free State (Agreement) Act 1922. S.1(5) of this statute provided that “this

Act shall not be deemed to be the Act of Parliament for the ratification of the said

Articles of Agreement”. Kennedy argued that s.1(5) was nothing more than a

reservation concerning the “Ulster Month” and that the British had ratified the

Treaty for all other purposes.81 Even if Kennedy’s interpretation can be accepted

21/252, Churchill to Salisbury, 24 March 1922. See also TNA CAB 27/153, PGI 20th Conclusions, meeting of 24 March 1922.75 TNA CAB 21/252, Churchill to Salisbury, 24 March 1922.76 Ibid.77 TNA CAB 21/252, secretary’s note of a conference of the British and Irish representatives, 6 February 1922 and Irish Free State (Agreement) Bill – Lords’ Amendments, 27 March 1922; Hansard, House of Commons, vol. 150, col. 1274, 16 February 1922.78 [1927] I.R. 31 at 47 and 49.79 Ibid. at 39 and 40. 80 Ibid. at 51. 81 [1927] I.R. 31 at 51.

17

it is clear that any ratification that had occurred was only a partial ratification

and one that was only completed with the enactment of Westminster’s Irish Free

State (Constitution) Act 1922 (Session 2) on 5 December 1922.82

The argument that the Irish Free State (Agreement) Act 1922 had

completed the creation of the Irish State was also contrary to the stated

intentions of the British government during the negotiations on this statute with

an Irish delegation that included Kennedy himself. British memoranda from

early 1922 confirm that one of the main purposes of enacting this statute was

“For conferring the necessary powers on the Provisional Government of

Southern Ireland in the interval before the Irish Free State is established”.83

Kennedy himself had personally signified his agreement to the following

declaration that the British government was authorised to make when enacting

this statute “This, however is clear – that the settlement between England and

Ireland is not consummated on our part until the Irish Constitution has been

registered in statutory form by the British Parliament”.84

In 1922 Winston Churchill, then Colonial Secretary, told the House of

Commons that the Irish Free State (Agreement) Act 1922 only gave statutory

force to the Treaty during the parliamentary debates that preceded its

enactment. Churchill added “There must be another Bill which gives the final

and complete ratification and which is connected with the enactment of the

Constitution.”85  Some weeks later Churchill attempted to remove persistent

confusion on this point by stressing “Not until we have passed another Act of

Parliament confirming the Constitution, and finally ratifying the Treaty, does the

Irish Free State obtain its full juridical status”.86

The British government made clear before, during and after the

enactment of the Irish Free State (Agreement) Act 1922 that it did not recognise

82 S.5, Irish Free State Constitution Act 1922 (Session 2). This perspective is endorsed by Henry Harrison in Ireland and the British Empire, 1937 (London: Hale, 1937) p.97.83 TNA CAB 21/252, undated memorandum beginning “In addition of the simple confirmation of the agreement, legislation will be necessary for the following purposes:”.84 TNA CAB 21/252, PGI 49, memorandum by Curtis, 7 February 1922, Annex C.85 Hansard, House of Commons, vol. 151, col. 766-7 and 801, 3 March 1922.86 Hansard, House of Commons, vol. 154, col. 2136, 31 May 1922.

18

this legislation as fully ratifying the 1921 Treaty or as bringing the Irish Free

State into existence. Hugh Kennedy, in his judgment in the case of In re Reade,

was attempting to use a British statute for a purpose that he must have known

was inconsistent with the circumstances in which it had been created.

Why then was Kennedy so determined to establish an early date for the

birth of the Irish State in preference to 6 December 1922? The most likely

explanation was a desire bolster the argument made during his time as a

member of the Constitution Committee that the Irish Constitution of 1922 should

be seen as a wholly Irish creation without substantial British involvement.

Kennedy was always determined to minimise the British role in the creation of

the 1922 Constitution. In 1922 he persuaded the British government to meet

Irish sentiments by using the term “register” in place of “adopt” when speaking

of Westminster’s role in bringing the draft Constitution into force.87 The word

“register” was emphasised in the months and years that followed to support

arguments that the Irish authorities alone had created the 1922 Constitution.88

In the late 1920s Kennedy also attempted to minimise the role of the British

government in making extensive amendments to the draft Constitution.89 During

the same period Kennedy remained wedded to the argument that the British had

completed their role in establishing the Treaty settlement by 31 March 1922 at

the latest and that the Constitution that came into force on 6 December 1922 had

been an exclusively Irish creation. Consequently, his decisions in relation to the

date on which the Irish State was created must be seen in this context.

87 TNA CAB 21/252, PGI 49, memorandum by Curtis, 7 February 1922, Annex C. 88 For example, see Dáil Debates, vol. 1, col. 657 and 683, 25 September 1922; vol. 1, col. 1436, 10 October 1922 and vol. 1, col. 1457-67, 11 October 1922.89 Hugh Kennedy, “Character and Sources of Constitution of the Irish Free State” (1928) 14(8) American Bar Association Journal, 437 at 443.

19

Case Law and the Foundation of the Irish State

Hugh Kennedy was not the only Irish judge to consider the difficult question of

the date on which the State had come into existence. The early judgments of the

courts of the Irish Free State are not entirely consistent on this point. This was a

product of the policy of deliberate ambiguity surrounding the creation of the

Irish Free State. This legacy also means that the courts in the early 1920s did not

openly state the date of creation. Instead, the date must often be surmised from

a particular judgment and, as a consequence, can never free from the potential

for dispute.

The case of Johnstone v. O’Sullivan was actually heard during the

provisional period with final judgment being given by the Court of Appeal of

Southern Ireland on 4 December 1922.90 Molony CJ, who delivered the original

judgment in the King’s Bench Division, later affirmed by the Court of Appeal,

does speak of British ratification of the Treaty by the Irish Free State

(Agreement) Act 1922 but the remainder of his judgment cannot be read as

recognizing a State that was already in existence.91 The final decision of the

Court of Appeal recognised that ultimate responsibility for “the peace and order

and good government” of what the court still called “Southern Ireland” remained

vested in the Lord Lieutenant as the King’s representative.92

The new courts of the Irish Free State were not entirely free from

confusion as to the date on which the State came into existence. In 1925

Meredith J concluded that the partial repeal of a statute by the parliament at

Westminster on 5 December 1922 had no impact on the law in force in the Irish

Free State in the case of Cahill v. Attorney General.93 By contrast the 1924 case of

90 The King (Johnstone) v. The Officer Commanding Ardaravan House Barracks. Johnstone v. O'Sullivan and Others [1923] 2 I.R. 1391 Ibid. at 14. An article that appeared in the Irish Law Times and Solicitors’ Journal in the issue of 1 and 8 July 1922 insisted that the Irish Free State had not yet come into constitutional existence. Anon. “The Status of the “Irish Free State” (1922) 56 Irish Law Times and Solicitors’ Journal 164.92 The King (Johnstone) v. The Officer Commanding Ardaravan House Barracks. Johnstone v. O'Sullivan and Others [1923] 2 I.R. 13 at 25-6.93 This was the partial repeal of the Government of Ireland Act 1920 by the Irish Free State (Consequential Provisions) Act 1922. John Cahill and Others v. The Attorney-General of Saorstát Éireann, the Minister for Home Affairs of Saorstát Éireann, and The Minister for Defence of Saorstát

20

R. (Armstrong) v. County Court Judge of Wicklow unambiguously supports the

date of 6 December 1922 as the date on which the Irish Free State came into

existence.94

The early Irish decisions can be distinguished from that of Kennedy CJ in

In re Reade. In this case the key judgment was delivered by a judge who was

intimately familiar with the creation of the Irish Free State (Agreement) Act

1922. As seen earlier, Kennedy knew that the Irish Free State (Agreement) Act

1922 was not intended to constitute a final British ratification of the 1921

Treaty. Nevertheless, Kennedy proved able to convince at least one of judicial

colleagues to endorse his decision that full British ratification of the 1921 Treaty

had recognised the existence of an Irish State before 6 December 1922.

FitzGibbon J had declined to agree or disagree with Kennedy’s decision on the

birth date of the State in the case of In re Reade.95 One year later, FitzGibbon

proved willing to endorse the position that the Irish Free State had come into

existence “at the latest on March 31st, 1922” in Performing Right Society v. Bray

UDC.96 This opened yet another point of contention between the Irish Supreme

Court and the Judicial Committee of the Privy Council which endorsed the date of

6 December 1922 in this case and in other Irish appeals.97 The Privy Council was

following British precedents from as early as 1923 that endorsed this date and

openly rejected the enactment of the Irish Free State (Agreement) Act 1922 as

the decisive moment of transition.98

In recent decades the Irish courts have provided a little more certainty on

this question. In the 1960s and afterwards the Irish courts began to declare

without reservation that the State had come into existence in 1922.99 Yet these

Éireann [1925] 1 I.R. 70 at 76 and 86.94 [1924] 2 I.R. 139 at 153.95 [1927] I.R. 31 at 58.96 [1928] I.R. 506 at 517-18.97 In re Compensation to Civil Servants under Article X of the Treaty [1929] I.R. 44 at 68. See also Performing Right Society v. Bray UDC [1930] I.R. 509 at 527-8.98 Motor Union Insurance Company v. Bogga [1923] 57 I.L.T.R. 105. 99 For example, see State (Hully) v. Hynes [1966] 100 I.L.T.R. 145 at 165; People v. Cummins [1972] I.R. 312 at 323; In the Matter of the Criminal Law (Jurisdiction) Bill 1975 [1976] 109 I.L.T.R. 69 at 77; G v An Bórd Uchtala [1979] 113 I.L.T.R. 25 at 46; McKenna v. An Taoiseach [1996] 1 I.L.R.M. 81 at 105; O’Shiel v. Minister for Education [1999] 2 I.L.R.M. 241 at 246; O’Shea v. Ireland

21

decisions seldom settle on a particular date within 1922. Other sources of law, in

particular statute law, cannot afford to indulge in the same level of ambiguity.

Statute Law and the Foundation of the Irish State

Statute law has long accepted the date of 6 December 1922 as the de facto date

on which the Irish State came into existence. Although Irish governments had a

powerful interest in maintaining a level of ambiguity on the date of foundation,

this position was not acceptable to the drafters of statutes who required

precision on this important point. Irish statutes from the early 1920s onwards

have focused on the date of 6 December 1922 as the key date that marked the

break from the United Kingdom. For example, s.20 of the Adaptation of

Enactments Act 1922 defines a “British statute” in the following terms:

“The expression “British Statute” shall, where the context so requires or admits,

mean Act of the Parliament of the late United Kingdom of Great Britain and

Ireland which was on the 6th day of December, 1922, in force in the area now

comprised in Saorstát Eireann.”100

This definition was later replicated in other Irish statutes.101 In the

years that followed other statutes also made reference to “the late United

Kingdom of Great Britain and Ireland in such period before the 6th day of

December, 1922”.102 This date is used by the Irish Nationality and Citizenship Act

1935 as the point at which the status of Irish citizenship was established.103 The

date of 6 December 1922 is also recognised as a point of transition in the civil

service.104 The internal files of the Office of the Attorney General in the 1920s

[2007] 1 I.L.R.M. 460 at 470 and Barlow v. Minister for Agriculture [2016] 2 I.L.R.M. 494 at 507. 100 The British equivalent to this provision can be found in Irish Free State (Consequential Adaptation of Enactments) Order 1923 (1923, No. 405).101 For example, s.10, District Justices (Temporary Provisions) Act 1923.102 For example, s.2, Old Age Pension Act 1932 and s.159, Social Welfare (Consolidation) Act 1981.103 Ss.2, 15, 16 and 17, Irish Nationality and Citizenship Act 1935. See also Article 3 of the 1922 Constitution of the Irish Free State.104 For example, see s.82, Local Government (Superannuation) Act 1948.

22

and 1930s recognised 6 December 1922 as the date of transition for statute

law.105 The “statute law revision project” launched in 1998 has placed this date

at the core of its ultimate objective. This project hopes to confine the Irish

statute book to legislation passed after the 6 December 1922 by repealing

statutes passed before that date.106

It is possible to find a few purported exceptions to the practice followed

by Irish statute law in focusing on 6 December 1922 as the key date of transition.

One example is Leo Kohn’s use of s.1 of the Indemnity Act 1924 to support the

possibility that the Irish State might have come into existence on 21 January

1919.107 This provision makes reference to the first and second Dáil Éireann and

provides for the payment of compensation “for or on account of or in respect of

any act, matter, or thing done, whether within or outside Saorstát Éireann, after

the 21st day of January, 1919, and before the 28th day of June, 1922”.108  There

are a number of difficulties with Kohn’s argument. The term “Saorstát Éireann”

appears to be used in a territorial context to refer to the twenty-six counties of

the south and west of the island of Ireland. In addition, the operative dates refer

to periods of conflict, i.e. the beginning of the Irish War of Independence and the

beginning of the Civil War, rather than any date of State foundation.

Statutes that focus on the signing of the Treaty on 6 December 1921 can

also be found on the Irish statute book. These statutes are ambiguous and are

easily outnumbered by the multitude of the Irish statutes that focus on 6

December 1922. For example, the Adaptation of Enactments Act 1922 attempts

to cover all bases when it makes reference to 6 December 1921 and 6 December

1922 in the same provision.109 Another example is the Industrial and

Commercial Property Protection Act 1927 enacted soon after the Kennedy CJ’s

105 NAI, Attorney General’s Office, 2003/5/43, chronological index to the statutes in force, 6 December 1922.106 See Preamble, Statute Law Revision (Pre-1922) Act 2005; Preamble and ss.2 and 3, Statute Law Revision Act 2007 and Preamble and ss.2 and 3, Statute Law Revision Act 2012. 107 Leo Kohn, The Constitution of the Irish Free State (Dublin: Allen and Unwin, 1932), p.36.108 Even statutes that make direct reference to the “First Dáil Éireann” and the “Second Dáil Éireann” in the context of offering compensation during a period of conflict made use of the key date of 6 December 1922. For example, see Fifth Schedule, s.1(b), Transport Act 1944 and Fourth Schedule, s.2(b), Transport Act 1950. 109 S.11(1), Adaptation of Enactments Act 1922.

23

judgment in In re Reade. This statute can be considered exceptional as it

attempted to deal with the difficult and controversial question of whether British

Imperial statutes applied to the Irish Free State in the same manner as Canada

and the other Dominions.110 This legislation was later embroiled in an appeal to

the Judicial Committee of the Privy Council which chose to focus on 6 December

1922 as the relevant date.111

Statute law represents a major barrier to alternative dates for the birth of

the Irish State that precede 6 December 1922. Article 73 of the Irish Free State

Constitution carried over statutes that were still in force on that date. An earlier

date of creation that lacked a legal instrument with a similar provision would

mean that no statute law could have been carried over after 6 December 1922.112

In practice the Oireachtas, the Irish courts, parliamentary counsel and other key

institutions have declined to treat the foundation of the State as a legal tabula

rasa.113 Even statutes passed by Westminster during the period of conflict that

followed 21 January 1919 have been treated as valid law.114 This includes the

highly controversial Government of Ireland Act 1920. On 2 May 1921 the

executive of the first Dáil issued a proclamation declaring that this statute was

illegal.115 However, Kennedy CJ gave judgment in O’Donoghue v. Roche on the

110 See Thomas Mohr, “British Imperial Statutes and Irish Sovereignty: Statutes Passed After the Creation of the Irish Free State” (2011) 32(1) Journal of Legal History 61. 111 Performing Right Society v. Bray UDC [1930] I.R. 509 at 527-8.112 See Anon. ”Article 73 of the Constitution, Irish Free State - I” (1929) 63 Irish Law Times and Solicitors’ Journal 127 at 127-8. The 1921 Treaty and the Irish Free State (Agreement) Act 1922 contain no provision allowing for the survival of existing statutes. However, Clause 13 of the Provisional Government (Transfer of Functions) Order 1922 (1922 No. 315) that came into force on 1 April 1922 does provide “Subject to any Act of the Provisional Parliament and to the provisions of this Order and any other Order made under the Irish Free State (Agreement) Act, 1922, all existing laws, institutions and authorities in Southern Ireland, whether judicial, administrative or ministerial, shall continue as if this Order had not been made, subject to the modifications necessary for adapting them to this Order, and in particular to the modifications hereinafter set forth”.113 Johnston J concluded in Performing Rights Society v. Bray UDC [1928] I.R. 511 “I cannot believe that this great constitutional change brought with it, or was intended to bring with it, a juristic vacuum in any department of national activity. On the contrary, it is plain beyond controversy that the Constitution is based upon the assumption of the existence in the Free State of a fully developed body of law, regulating all rights and duties within that territory”. [1928] I.R. 506 at 511.114 For example, the Sex Disqualification (Removal) Act 1919 which allowed women to sit on juries before the passage of restrictive legislation in the 1920s. See Thomas Mohr, “The Rights of Women under the Constitution of the Irish Free State” (2006) 41 Irish Jurist 20-59. See also, NAI, Attorney General’s Office, 2003/5/43.115 See Fogarty v. O’Donoghue [1926] I.R. 531 at 539.

24

basis that the Government of Ireland Act 1920 had remained in force in all parts

of Ireland throughout 1921 as both parties had assumed this to be the case.116

Another difficulty with rejecting the date of 6 December 1922 as the birth

of the State is that there is not one but many alternatives to this date. Kennedy

was not able to fix on a single definitive date in his judgment in In re Reade. He

presented a personal opinion that once the Irish Free State (Agreement) Act had

been enacted on 31 March 1922 the Treaty had then become an “operative

instrument” from the date it was concluded, i.e. 6 December 1921.117 Yet he did

not have complete confidence in this argument and added that the United

Kingdom created by the Irish Act of Union had been dissolved “[a]s from that

date, in my opinion, but certainly, I think, at the latest as from the 31st March

1922”. Kennedy’s reasoning also raised the difficult concept of the State having

retrospective origins. FitzGibbon J provided yet another possible date of

foundation in the form of 14 January 1922, the date on which the elected

members of the parliament of Southern Ireland were purported to have ratified

the 1921 Treaty, in Performing Right Society v. Bray UDC.118 In addition, the

attention that had been focused on the Irish Free State (Agreement) Act 1922 has

led other commentators to fasten onto the related date of 1 April 1922. This was

the date of issue of the Provisional Government (Transfer of Functions) Order

1922, a British Order in Council that followed the enactment of the Irish Free

State (Agreement) Act 1922.119

The purpose of the Provisional Government (Transfer of Functions) Order

1922 was to transfer important executive functions to the Irish Provisional

Government. It came into force on 1 April 1922, which has since been promoted

as the date on which Ireland attained “legally recognised executive

independence”.120 The importance of this date was also emphasised in the 1925

116 [1927] I.R. 152 at 162.117 [1927] I.R. 31 at 47-8. Kennedy touched on this point in the earlier case of O’Donoghue v. Roche [1927] I.R. 152 at 161.118 [1928] I.R. 506 at 517.119 The Provisional Government (Transfer of Functions) Order 1922 (1922 No. 315). See also NAI, Department of the Taoiseach, S991. 120 Richard Humphries “Book Review of Laura Cahillane, Drafting the Free State Constitution” (2016) 39(2) Dublin University Law Journal, 475.

25

case of Cahill v. Attorney General.121 More recently, one commentator argues

“April Fool’s Day is perhaps a worthy candidate for an Irish independence day

and hopefully would capture the irreverent streak in the Irish character”.122

The date of 1 April 1922 has more potential for comedy than any of the

alternative dates but the joke should not be taken too seriously. The text of the

Provisional Government (Transfer of Functions) Order 1922 refers to “Southern

Ireland” rather than the “Irish Free State” as the entity that was currently in

existence. The date of 1 April 1922 did witness the beginning of the transfer of

civil servants in many important areas. But these civil servants did not

immediately become officers of the Irish Free State but were considered officers

of the Irish Provisional Government.123 In addition, many important aspects of

civil administration were not transferred on 1 April 1922. The Provisional

Government agreed to delay the transfer of a number of key functions which

remained in the hands of the British Government until a second transfer was

agreed on 4 December 1922.124 The most important of these were inland

revenue and matters relating to customs and excise. This delayed transfer was

necessary as the Provisional Government was not in a position to collect taxes

during the provisional period. The continuity of British control after 1 April

1922 over some important executive functions resulted in the Provisional

Government requesting that the provisions of Westminster’s Unemployment

Insurance Act, enacted on 12 April 1922,125 be extended to the territory of the

121 John Cahill and Others v. The Attorney-General of Saorstát Éireann, the Minister for Home Affairs of Saorstát Éireann, and The Minister for Defence of Saorstát Éireann [1925] 1 I.R. 70 at 76 and 86.122 Richard Humphries “Book Review of Laura Cahillane, Drafting the Free State Constitution” (2016) 39(2) Dublin University Law Journal, 475.123 See Anon. “Article 73 of the Constitution, Irish Free State - I” (1929) 63 Irish Law Times and Solicitors’ Journal 127. Article 77 of the 1922 Constitution provides “Every existing officer of the Provisional Government at the date of the coming into operation of this Constitution (not being an officer whose services have been lent by the British Government to the Provisional Government) shall on that date be transferred to and become an officer of the Irish Free State (Saorstát Eireann), and shall hold office by a tenure corresponding to his previous tenure.”124 NAI, Department of the Taoiseach S991, Provisional Government (Transfer of Functions) Order 1922 - Agreement as to Day of Transfer, 1 April 1922 and also Agreement between the Treasury and Ministry of Finance relative to Schemes under Article 7(1)(b), Transfer of Functions Order 1922, 4 December 1922. The Provisional Government insisted that transfers after 1 April 1922 occur by means other than additional Orders in Council. UCD Archives, Kennedy Papers P4/192, Liddell to Kennedy, 9 August 1922. 125 S.16(5), Unemployment Insurance Act 1922.

26

embryonic Irish Free State on 5 May 1922.126 A number of additional statutes

passed by Westminster in 1922 were later recognised by the Office of the

Attorney General as being in force in the Irish Free State.127 In addition, the

provisions of the Order in Council of 1 April 1922 did not transfer competence

for sensitive executive powers such as control over military matters and external

relations. As mentioned earlier, the Lord Lieutenant remained in place and, from

a British perspective, continued to exercise executive functions after 1 April

1922.128

Arguments on the birth date of the Irish State that rely on British statutes

or Orders in Council could also be seen as undermining arguments that the Irish

Free State was an autochthonous entity. Under British law, the twenty-six

counties remained an autonomous part of the United Kingdom for most of 1922

under the Government of Ireland Act 1920. The acceptance of this perspective

would mean that the Irish Provisional Government was a devolved

administration that owed its existence to British legislation.129 Heavy reliance on

the 1921 Treaty and its registration with the League of Nations in 1924 brings its

own hazards to Irish sovereignty. These actions of the Irish government were

seen as enhancing the argument that the provisions of the Treaty could only be

altered by means of bilateral agreement, an approach that would be abandoned

126 Provisional Government Unemployment Insurance Order 1922 and Provisional Government (Unemployment Insurance) Decree (Decree No. 4 of 1922 of the Irish Provisional Government) cited in the case of In re Hennessy [1932] 1 I.R. 11. See also UCD Archives, Kennedy Papers, P4/186, Greer to Kennedy, 11 April 1922 and P4/187, Greer to Kennedy, 4 May 1922.127 These included the Unemployment Insurance Act 1922, the Representation of the People Act 1922 and the Finance Act 1922. The Irish Free State (Consequential Provisions) Act 1922 refrained from legislating for the future Irish Free State but was dependent on adopting or reciprocal legislation of the Oireachtas. NAI, Attorney General’s Office, 2003/5/43, chronological table, 1922. 128 The case of Johnstone v. O’Sullivan saw the Irish courts examine the difficult issue of transfer of military functions during the provisional period. This had been complicated by the outbreak of Civil War on 28 June 1922. The Court of Appeal noted that not all aspects of civil administration in what the judges still called “Southern Ireland” had been transferred to the Provisional Government under the Provisional Government (Transfer of Functions) Order 1922 on 1 April 1922 and concluded that the Lord Lieutenant retained oversight in this area. The King (Johnstone) v. The Officer Commanding Ardaravan House Barracks. Johnstone v. O'Sullivan and Others 1923 2 IR 13 at 27. 129 Irish Free State (Agreement) Act 1922. As mentioned earlier, the Lord Lieutenant was still in place, issuing proclamations and under instructions to “act on the advice of the Irish Ministers”. Cmd. 1911 (July 1923), Heads of Working Arrangements for Implementing the Treaty.

27

by de Valera in the 1930s.130 By contrast, the date of 6 December 1922 has

alternative roots to those found in British statutes. It could be seen as having its

origin in an Irish statute, the Constitution of the Irish Free State (Saorstát

Éireann) Act 1922, that provides a possible alternative to the parallel British

statute, the Irish Free State Constitution Act 1922 (Session 2). It also leaves open

the possibility of some form of dual creation which may be considered closer to

the political realities of 1922 than theories of exclusive British or Irish

creation.131

The Events of 6 December 1922

The weight of legal evidence in favour of 6 December 1922 is bolstered by the

beliefs and actions of persons who were alive on this date. It was widely

anticipated that the Irish Free State would come into formal existence on 6

December 1922. Yet, there was little evidence of celebration as this historic date

approached. The Times reported that the mood in Dublin was quiet and

restrained as the day approached. It added

“The silence and restraint, however, need no explanation. The realization of

freedom will come later. It is chiefly of the price of freedom that Ireland is

thinking to-day and of the heavy tasks that must be achieved before peace can be

made more secure and the foundations of progress truly laid. Furthermore,

anxiety exists about the possibility of some specially [sic] desperate outbreak of

violence. In spite of its preoccupation, however, the general public awaits the

coming of the Free State with sober thankfulness and with real hope.”132

130 Ged Martin argues “by treating the agreement as an international treaty, and so registering it at Geneva, the Irish had given Britain an additional hold over them – Cosgrave himself admitting that the Treaty could ‘only be altered by consent’”. Ged Martin “The Irish Free State and the evolution of the Commonwealth, 1921-1949” in Ronald Hyam and Ged Martin (eds) Reappraisals in British Imperial History (London: Macmillan, 1975), pp.216-7. See also Edward J. Phelan, “The Sovereignty of the Irish Free State” (1927) 3 The Review of Nations 35-49 at 38-9.131 For example, see Anon. “Article 73 of the Constitution, Irish Free State - III” (1929) 63 Irish Law Times and Solicitors’ Journal 139 at 140.132 The Times, 6 December 1922, p.16.

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The Belfast News Letter, a strongly Unionist newspaper, painted a

particularly unhappy note on 6 December 1922 with the headline “A joyless

greeting – Free State inaugurated”.133 Fears of a spectacular attack by anti-Treaty

forces on that important date were acute and trains running into Dublin were

searched and passengers questioned.134 Some days earlier the Derry People and

Donegal News published a “Dublin letter” that reported “At the moment of

writing there is everywhere a feeling of uneasiness and uncertainty that the city

is on the eve of further terrible happenings”.135 The feared attack actually took

place on 7 December when a pro-Treaty TD, Sean Hales, was shot dead and

another, Pádraic Ó Máille, was wounded on the streets of Dublin. Yet, 6

December 1922 itself remained relatively free of violence. Celebrations with

bonfires, illuminations, singing and torchlight processions were held in some

parts of the country on 6 December 1922 but these were locally organised

events.136 The Irish Independent tried to sound an optimistic note by concluding

“The Free State comes into being to-day, not with the flourish of trumpets and

the great popular rejoicing which would assuredly be witnessed in more normal

times, but with, nevertheless, a steadfast belief in the minds of the vast majority

of Irishmen that the future of the new regime will be an era of peace and

prosperity”.137 The Freeman’s Journal announced on 6 December 1922 “To-day

Ireland regains her long-lost heritage”138 and celebrated “an epochal event”.139 It

also printed a short poem entitled “Freedom” and a cartoon of Ireland as a young

woman greeting a rising sun as she hailed the arrival of the “long-looked-for

day”.140

The main official event of 6 December 1922 actually occurred outside

Ireland as King George V made a royal proclamation at Buckingham Palace that

formally brought the new Irish Constitution into force and, in doing so, became

133 Belfast News Letter, 7 December 1922, p.5.134 For example, see Cork Examiner, 5 December 1922, p.5.135 Derry People and Donegal News, 2 December 1922, p.5.136 For example, see Connacht Tribune, 9 December 1922, p.5.137 Irish Independent, 6 December 1922, p.7.138 Freeman’s Journal, 6 December 1922, p.5. 139 Freeman’s Journal, 7 December 1922, p.5.140 Ibid.

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head of state of the new Irish Free State.141 Members of the new Irish

government had earlier met the King’s representative, known as the “Governor

General”, at Holyhead before accompanying him on his journey to Dublin.142 The

new Governor General, Timothy M. Healy was Irish, a departure from the existing

precedent of appointing a member of the British nobility, a concession intended

to mollify local opinion. The King’s proclamation was read out again in Dublin

during the swearing in ceremony for the new Governor General.143 All this

Dominion symbolism led some anti-Treaty women to walk the streets of Dublin

carrying placards that sarcastically greeted the arrival of “Empire Day”.144

However the symbolism of 6 December 1922 was not one-sided. One of the most

noticeable changes on the streets of Dublin was the hoisting of new tricolour

flags over public buildings.145 One of the stranger signs of change on 6 December

1922 was the long queues outside the post offices dominated by stamp collectors

anxious to buy the first Irish issues.146 The eager collectors were rewarded with

green stamps that depicted a map of the whole island of Ireland.147 These stamps

were originally intended to be issued on 1 January 1923 until the Provisional

Government insisted that they be issued on 6 December 1922 to coincide with

the foundation of the State.148 Unfortunately, there were not enough of the new

issues and the new State was forced to continue overprinting stamps bearing the

image of King George V for some time to come. However, the overprints

produced after 6 December 1922 celebrated the birth of the new State by using

the term “Saorstát Éireann” in place of the name of the Provisional Government

that been used in the provisional period.149

141 See Article 83 of the Constitution of the Irish Free State. See also Freeman’s Journal, 7 December 1922, p.5.142 The Times, 6 December 1922, p.14 and New York Times, 6 December 1922, p.4.143 New York Times, 7 December 1922, p.6.144 The Times, 7 December 1922, p.12.145 Irish Independent, 7 December 1922, pp.4 and 5; Freeman’s Journal, 7 December 1922, p.4; New York Times, 7 December 1922, p.6 and La Presse, 6 December 1922, p.13.146 Freeman’s Journal, 7 December 1922, p.7 and Cork Examiner, 8 December 1922, p.7.147 Irish Times, 6 December 1922, p.4. 148 Irish Independent, 5 December 1922, p.6. 149 Liam Miller, Postage Stamps of Ireland, 1922-1982 (Dublin: Department of Posts and Telegraphs, 1983), pp.8-9. This stamp was reproduced in a series of commemoratives issued in 1997 that celebrated the 75th anniversary of “Rialtas na hÉireann” or the “Government of Ireland” in place of celebrating the 75th anniversary of the State itself. See https://colnect.com/en/stamps/list/country/2616-Ireland/year/1997/page/4 (accessed 20 January 2018).

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The most obvious official event that took place on 6 December 1922 was

the formal opening of the Oireachtas. W.T. Cosgrave, who became the first

President of the Executive Council, gave a speech that stressed hopes for peace in

the new State and reconciliation with Northern Ireland that was widely

praised.150 His appeal to those in arms against the new State “to open their eyes

and to realise … the fact that freedom is in their hands though they know it not”

was often quoted in late 1922.151

Only formal ceremonies, such as the opening of the Oireachtas, took place

on 6 December 1922 because the real work behind the handover had already

been completed during the provisional period. However, the provisional period

had also witnessed considerable setbacks such as the outbreak of Civil War and

the loss of Arthur Griffith and Michael Collins. The 6 December 1922 saw many

tributes to these and other Irish leaders over the centuries who had made this

day possible.152 W.T. Cosgrave believed that the provisional period was a unique

opportunity “which might have been spent conserving the fruits of our struggle”

that had instead been wasted as a result of the “mad efforts” of irreconcilable

opponents of the Treaty.153 Despite these serious challenges, some

commentators were prepared to provide sanguine assessments of the

provisional period. The Limerick Leader praised the performance of the

Provisional Government during the year of transition which, despite challenging

conditions, “gave splendid and unquestionable proofs of the capacity of Irishmen

for the duties and responsibilities of self-government”.154

The 6 December 1922 witnessed the birth of a State whose population

remained deeply divided as to the wisdom of signing the Treaty one year earlier.

The details of Dominion status for the twenty-six counties and the deepening of

partition from Northern Ireland had suddenly become much more real and

150 For example, see Irish Times, 7 December 1922, p.5 and Irish Independent, 7 December 1922, p.4. 151 Dáil Debates, vol. 2, col. 13-4, 6 December 1922. Irish Independent, 7 December 1922, p.4, and Cork Examiner, 8 December 1922, p.4.152 For example, Irish Independent, 6 December 1922, p.6; Connaught Telegraph, 9 December 1922, p.3; Derry Journal, 8 December 1922, p.4; Kilkenny People, 9 December 1922, p.5 and Ulster Herald, 2 December 1922, p.2.153 Dáil Debates, vol. 1, col. 12, 6 December 1922154 Limerick Leader, 6 December 1922, p.3.

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dominated the thoughts of many commentators.155 The one point that united the

people who celebrated around bonfires and the people who protested with

placards on the streets of Dublin on 6 December 1922 was the belief that an

important transition had occurred on that day. W.T. Cosgrave greeted the birth

of the State with relief and concluded “We were always quietly confident that we

would win through, but it required time and patience”.156 He also saluted “this

notable day when our country has definitely emerged from the bondage under

which she has lived through a week of centuries”.157

Conclusion

This article has avoided any attempt to determine an Irish “independence day”.

This is a difficult concept that draws on emotive arguments that are far removed

from the field of law. If independence means the emergence of a fully sovereign

State recognised by the international community it is difficult to fix on any single

date for the Irish Free State. After 1922 the infant Irish Free State had to grapple

with the meaning of Dominion status that was enshrined in the 1921 Treaty.158

Opinions remained divided throughout the 1920s as to whether the Dominions

were sovereign States.159 Textbooks on public international law were reluctant

to class any of the Dominions in this category until after the enactment of the

Statute of Westminster in 1931.160

It is important to recognise that the emergence of the Irish State owes its

existence to many important events in the first half of the twentieth century.

Law, as opposed to popular culture, has little use for independence days.

Nevertheless, the requirements of law, in particular the drafting of statutes, do

155 For example, see the interview with T.M. Healy in Irish Times, 6 December 1922, p.5 and W.T. Cosgrave’s speech at Dáil Debates, vol. 1, col. 14-8, 6 December 1922.156 The Times, 6 December 1922, p.14 and Irish Independent, 6 December 1922, p.7.157 Dáil Debates, vol. 1, col. 12, 6 December 1922 and Irish Independent, 7 December 1922.158 See Thomas Mohr, “The Irish Free State and the Legal Implications of Dominion Status, 1922-1937” (PhD thesis, University College Dublin, 2007).159 See fn.3.160 See Thomas Mohr, “The Statute of Westminster: An Irish Perspective” (2013) 31(1) Law and History Review 749 at 750.

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require the selection of a single date as that on which the territory of the Irish

State formally left the United Kingdom. This date can only be the 6 December

1922. This remains the date recognised by British legislation and by the British

courts. Irish legislation, subject to a small number of questionable deviations,

has also accepted this date in practice. The early decisions of the Irish courts

were complicated by political questions concerning the origins of the 1922

Constitution that are now of much reduced significance in the aftermath of the

adoption of a new Constitution in 1937. The alternative dates promoted in cases

such as In re Reade and Performing Right Society v. Bray UDC are based on

interpretations of British statutes or Orders in Council that do not stand up to

close scrutiny and undermine assertions that the Irish State was an

autochthonous entity. By contrast, the date of 6 December 1922 does not

necessarily mean accepting that British or Irish authorities were the sole

creators of the 1922 Constitution. This date is enshrined in parallel statutes

passed in Dublin and at Westminster and so maintains the necessary ambiguity

desired by British and Irish negotiators in 1921 and 1922 as to the legal origins

of the Irish State.161

On 6 December 1922 the Irish State received the external recognition that

had always eluded the first Dáil Éireann. Telegrams poured in from the

Dominions welcoming the Irish Free State as a sister nation.162 The American

ambassador to the United Kingdom recognised that the birth of the Irish State

ensured that a “running sore in Anglo-American relations is healed”.163 The most

important recognition of all came from the United Kingdom which, in enacting a

Constitution for an Irish State, had recognised the secession of most of the island

of Ireland. Andrew Bonar Law, prime minister of the United Kingdom, sent a

telegram to Dublin that recognised “the inauguration of the Irish Free State” and

promised cooperation for “lasting concord between the two countries”.164

161 See Constitution of the Irish Free State (Saorstát Éireann) Act 1922 (Ir.) and Irish Free State Constitution Act 1922 (Session 2) (UK)162 Irish Times, 7 December 1922, p.5 and 8 December 1922, p.4.163 Montreal Daily Star, 6 December 1922, p.3.164 The Times, 7 December 1922, p.14.

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The final piece of evidence concerns the belief of a great many people

alive on 6 December 1922 that this date represented the birth of the Irish State.

The Irish Times carried the headline “December 6 – Birth of Irish Free State” and

concluded that this date marked “an end and a beginning” in “an almost

bewildering moment of transition”.165 Other newspapers remarked on the speed

with which historical events had moved leading up to this crucial date. The

Western People reflected on the transition “from a country which three years ago

was bound with the shackles of an alien Government, and struggling to be free,

we have emerged into the sunshine of a glorious dawn”.166 The Cork Examiner

recorded “the 6th of December, 1922, will for all time remain an epoch-making

day in the story of Ireland, when her freedom was born and she became a nation

among the nations of the world”.167 The Tuam Herald declared “December 6th,

1922 is and will be one of the most fateful days in the Irish political calendar. On

that day Ireland acquired full and complete control of its own destinies”.168 The

Irish Independent called the 6 December “Free State Day” and celebrated the date

on which “[t]he Union formally and finally comes to an end”169 together with the

“resurrection of Ireland’s freedom”.170 A special editorial in that newspaper

entitled ““Establishment of Free State” emphasised that “a new era in our history

opens” and “To-day the old and bad order completely disappears”.171 There was

an acute awareness of the eye of posterity with the leading story announcing

“Saorstát Éireann is born to-day – the occasion of probably the greatest event in

Irish history since the nation lost its freedom over 700 years ago”.172 The

Connacht Tribune boasted “December 6, 1922 … the Free State became a fait

accompli, recognised by all the nations of the earth, ratified by its own

Parliament and that of Great Britain. This is the great central historical fact

which nothing can alter”.173 Most dramatic of all was the Sunday Independent

which announced “Ireland, amid travail and agony, has been re-created a nation.

165 Irish Times, 6 December 1922, p.4.166 Western People, 9 December 1922, p.5.167 Cork Examiner, 6 December 1922, p.4.168 Tuam Herald, 9 December 1922, p.2.169 Irish Independent, 5 December 1922, p.5.170 Irish Independent, 6 December 1922, p.5.171 Ibid. at p.6.172 Ibid. at p.7.173 Connacht Tribune, 9 December 1922, p.4.

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The Charter of Liberty was delivered on December 6, 1922 – a date that will be

memorable in the history of the world”.174

This important date was also recognised by the media outside the new

State. The Times hailed 6 December 1922 as the “first day of the Free State”.175

The Daily Express recorded the date on which “Ireland was reborn”.176 The

Westminster Gazette concluded that 6 December 1922 marked the date on which

“the Irish Free State came legally into being” an event that would allow the Irish

to “develop a civilisation such as they have longed for on lines peculiarly their

own”.177 The New York Times wrote “Without ostentation, the Irish Free State

came into existence today” and emphasised the simple manner in which “the

new era was inaugurated”.178 Similar sentiments were evident in neighbouring

Canada where the Montreal Daily Star led with the headline “Irish Free State is

born in calm and hopeful confidence – New Irish Dominion begins life after many

years of bitter warfare”.179 La Presse, an assertive French Canadian newspaper,

wished “Longue vie et prospérité à l’État Libre d’Irlande”.180 The New York Times

marked the birth of the Irish Free State by printing a specially commissioned

poem that saw Britannia as a reformed “olden foe” that now wished “Godspeed”

to the “footsteps of our fair Free State”.181 This wealth of contemporary evidence

from 1922 has ensured that later historians of the period have also endorsed the

date of 6 December 1922 as the date on which the Irish State came into being.182

None of the multitude of alternative dates as to when the Irish State came

into existence can match the great weight of evidence that points to 6 December

1922. The Irish Independent predicted “December 6, 1922, will be a notable and

memorable day in our history. It marks the emergence of the nation from

174 Sunday Independent, 10 December 1922, p.6.175 The Times, 7 December 1922, p.12.176 Reprinted in Irish Independent, 7 December 1922, p.6.177 Irish Independent, 7 December 1922, p.6.178 New York Times, 7 December 1922, p.6.179 Montreal Daily Star, 6 December 1922, p.1.180 La Presse, 7 December 1922, p.4.181 Joseph Clarke “To the Irish Free State, 1922”, New York Times, 6 December 1922, p.4.182 For example, see Frank Pakenham (Lord Longford), Peace by Ordeal (London: Sidgwick and Jackson, 1972), p.307; Joseph M. Curran, The Birth of the Irish Free State 1921-1923 (Alabama: University of Alabama Press, 1980), p.263 and Tom Garvin, 1922: The Birth of Irish Democracy (Dublin: Gill and Macmillan, 1996), p.183.

35

servitude to freedom”.183 The Western People shared this confidence that

“Wednesday, 6th December 1922 will be a day long to be remembered in the

annals of the history of our country”.184 Some newspapers even expressed the

hope that the date marking the creation of the State might even prove to be a

turning point in the Civil War. The Tuam Herald declared “We must, one and all,

pull ourselves together and determine that now, after the 6th of December, all the

dark doings that are disgracing our country shall once and for all cease”.185 Yet it

cannot be denied that celebrations were muted on that date as a consequence of

the continued threat of violence that in the words of the New York Times

“induced a sober bearing toward this momentous day”.186 The public were

excluded from the first meeting of the Oireachtas which was surrounded by a

cordon of soldiers.187 The United News Service reported “The Irish Free State

was born at midnight with troops prepared to save the child from enemies”

adding “Dublin was virtually under martial law as the greatest event in the

history of Ireland came to pass”.188 Most gloomy of all on 6 December 1922 was

the Belfast News Letter which announced “the Free State is now in existence. …

The people of that part of Ireland have their fate in their own hands. … We

cannot entertain high hopes for a bright future for them”.189

Most new States are born in difficult circumstances, many much worse

than that endured by the Irish State. The date of the creation of many States only

becomes a subject of celebration with the passing of troubles and the benefit of

hindsight. In 1922 a cartoon published by the Montreal Daily Star showed the

new Irish State as a ship weighing anchor and setting sail on a dark and turbulent

sea.190 The Kilkenny People used the same analogy “The ship of the Irish Free

State has been launched on the seas – ‘desperate seas’ they are at present. It is

for Ireland to say whether the ship will founder on the rocks or whether the

183 Irish Independent, 7 December 1922, p.4.184 Western People, 9 December 1922, p.5.185 Tuam Herald, 9 December 1922, p.2.186 New York Times, 7 December 1922, p.6.187 Irish Times, 7 December 1922, p.5 and New York Times 7 December 1922, p.6. This was a meeting of the Dáil as the membership of the Seanad was still in the process of formation on 6 December 1922.188 Montreal Daily Star, 6 December 1922, p.1.189 Belfast News Letter, 6 December 1922, p.6.190 Montreal Daily Star, 7 December 1922, p.4.

36

storm will pass and the voyage be happy and beneficent”.191 Despite a difficult

early voyage the Irish State launched on 6 December 1922 proved to be stable,

democratic and enduring. Its centenary on 6 December 2022 deserves to be

recognised and celebrated.

191 Kilkenny People, 9 December 1922, p.5.

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