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Implementing the 1921 treaty: Lionel Curtis and constitutional procedure
Published online by Cambridge University Press: 28 July 2016
Extract
If there is a top civil service adviser to the British government on imperial affairs in the early twentieth century whose influence was such that his biography is long overdue, it is Lionel Curtis. And in the context of recent Irish history, if there is a person whose role in shaping the British conception of the 1921 Anglo-Irish settlement has yet to be fully appreciated or analysed, it is again Lionel Curtis. Lord Longford’s references to Curtis in Peace by ordeal give some indication of the influence his ideas had on British cabinet ministers before and during the treaty negotiations in the summer and autumn of 1921. But a much fuller and more systematic survey of Curtis’s association with Ireland over a broader period is needed to measure this extraordinary man’s imprint on Anglo-Irish relations.
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References
1 Pakenham, Frank (subsequently Longford, Lord), Peace by ordeal (London, 1935), pp 72–3, 136–40.Google Scholar
2 Gollin, A.M., Proconsul in politics: a study of Lord Milner in opposition and in power (London, 1964), p. 41.Google Scholar
3 Ibid., pp 163–5 : Kendle, J.E., ‘The Round Table movement and “home rule all round”’ in Hist. Jn., 11, no. 2 (1968), pp 332–53.CrossRefGoogle Scholar
4 Jones, Thomas, Whitehall diary, 3 : Ireland, 1918–25, ed. Middlemas, K., (London, 1971), p. 77n.Google Scholar
5 In a statement to the writer on 14 Sept. 1976 Professor Mansergh recalled that Curtis claimed to be a Tipperary man by birth.
6 For British cabinet records relating to the treaty negotiations see the following group of cabinet office papers in the P.R.O. GAB 21/243 ‘Irish settlement, negotiations between H. M. government and Irish leaders’; also, GAB 43/2, ‘Conferences on Ireland, memoranda circulated to British representatives’ (S. F. (B) series); and CAB 43/3, ‘Conferences on Ireland, memoranda circulated ito British and Irish representatives’ (S. F. (C) series). Both series continued after the treaty was signed. ‘S.F.’ meant Sinn Féin; this reflected the British constitutional view of the people with Whom they were dealing : not dáil representatives, but rather ‘the Irish leaders’ in their capacity as representatives of Sinn Fein, the majority party in Ireland in the most recent election.
7 ‘Ireland and dominion status, preliminary note on the constitutional position’, memorandum by Lionel Curtis, n.d., S.P (B) 11, CAB 21/243.
8 Ibid.
9 Ibid.
10 ‘Memorandum on the provisional government, by Mr Lionel Curtis’, S.F (B) 44, 18 Dec. 1921, CAB 21/243, cited henceforth as ‘Curtis memorandum, 18 Dec. 1921’.
11 Articles of agreement for a treaty between Great Britain and Ireland, 6 Dec. 1921, 1 [Cmd 1560], H.C. 1921, i, 75, henceforth cited as ‘the treaty’.
12 At this time the treaty debates were not expected to take as long as they did.
13 Minutes of a meeting of the committee on Irish finance, 12 Dec. 1921, CAB 21/248.
14 Cabinet conclusions 91(21)1(5), 7 Dec. 1921, CAB 23/27.
15 10 & 11 Geo. v, c. 67.
16 ‘Note by Sir Francis Greer’, appendix I to memorandum by Lionel Curtis, S.F.(B) 40, 10 Dec. 1921, CAB 21/243.
17 See below, pp 321–2.
18 Cabinet conclusions 92(21), 12 Dec. 1921, GAB 23/27. See also minutes of a meeting of the committee on Irish finance, 12 Dec. 1921, GAB 21/248.
19 Gurtis memorandum, 18 Dec. 1921.
20 As note 16 above.
21 Ibid. This was to be the arrangement when the provisional government actually came into existence on 14 Jan. 1922 until the Irish Free State (Agreement) Act was passed on 31 Mar. 1922.
22 ‘Memorandum on ithe provisional government as contemplated by article 17 of the treaty, by Lionel Curtis’, S.F.(B) 40, 10 Dec. 1921, GAB 21/243; cited henceforth as ‘Curtis memorandum, 10 Dec. 1921’.
23 ‘The future of the Royal Irish Constabulary’, memorandum by Sir Hamar Greenwood, GP 3524; ‘Memorandum on the transfer of police and allied departments, by Sir John Anderson’; and ‘Further note by Sir Francis Greer on an act of indemnity’,; all dated 10 Dec. 1921, CAB 21/243.
24 ‘In saying this’, wrote Anderson, ‘I do not attribute to those who will form the provisional government any desire not to play the game, but the apprehension of men whose lives might be placed in jeopardy will not be allayed by anything short of complete prior transference of personnel and records’.
25 Curtis memorandum, 10 Dec. 1921.
26 Anderson memorandum as in note 23 above.
27 Curtis memorandum, 18Dec. 1921.
28 The treaty.
29 Curtis memoranda, 10 and 18 Dec. 1921.
30 Ibid.
31 Ibid.
32 Curtis memorandum, 10 Dec. 1921.
33 Curtis memorandum, 18 Dec. 1921.
34 See p. 324.
34 Theoretically, it was therefore possible that while a narrow majority might reject the treaty in ‘the dái1, the pro-treaty deputies, together with the Trinity College members, could fom a majority of the soulthern members and legally ‘approve’ the treaty for Ireland. Such a hypabhetical event was unlikely and not even Curtis’s memoranda allude to it. But it is stated here by way of illustrating the distinot constitutional position as conceived by the British in opposition to the traditional Irish conception of the dáil’ authonity in the treaty’s approval.
35 Curtis memorandum, 18 Dec. 1921.
36 Cabinet committee memorandum P.G.I., 1, 21 Dec. 1921, GAB 27/154.
37 At the time of its establishment the membership consisted of Sir Laming Worthington-Evans (secretary of state for war), Sir Gordon Hewart (the attorney general), Sir Hamar Greenwood (the chief secretary) and Lord Fitzalan (the viceroy), with Tom Jones and Lionel Curtis as secretaries.
38 Other members were Sir Francis Greer (parliamentary draftsman at the Irish office) and Sir Frederick Liddell (parliamentary counsel), as well as other specialists, Greedy, Tallente and Davis.
39 ‘Report of a cabinet committee appointed to consider what steps should be taken on approval of the treaty between Great Britain and Ireland, for giving effect to its provisions, and more especially for the establishment of a provisional government for Southern Ireland in terms of article 17’, P.G.I. 18. GAB 27/153 (also G.P. 3601, CAB 24/132), cited henceforth as P.G.I. 18.
40 On the British side a special three-day session of parliament culminated on 16 Dec. 1921 with a resolution approving the treaty by 401 to 58. See Hansard 5 (commons), cxlix, 360.
A copy of the minutes of the meeting of the Southern Ireland parliament on 14 Jan. 1922 is in the Irish cabinet papers in the State Paper Office of Ireland, file S.i. (The ‘S’ series comprises files of the taoiseach’s office and its antecedents, the executive council of the Irish Free State and the provisional government cabinet. Whatever about the interpretation that the present dáil is the constitutional descendant of the legislative body set up in January 1919, the administrative origins of Irish departments lie in the provisional government ministries, and not in those of the Jan. 1919-June 1922 dáil).
A notation in S.1. indicates that the original copy of the minutes referred to remains in the custody of the clerk of the dáil. Nowhere in the minutes or agenda of the meeting, or in Griffith’s letter summoning the members (all in S.1.), can be found the words ‘Southern Ireland parliament’.
Another document in S.1 shows that the new ministers in fact never signified their acceptance of the treaty in writing as the treaty provided. The following undated minute by a Free State executive council secretary, Micheál Mac Donnchadha, is worth quoting : ‘A minute of the meeting of the provisional government of 13 Aug. 1922 . . records that every member of that government named therein had already signified in writing his acceptance of the treaty. I cannot, however, trace the actual documents. On 19 September 1922 I wrote to Mr Cope, representative of the British government. He did not reply in writing but informed Miss Sheila Murphy, of the secretariat, that no such notification had been sent but that, on 16 January 1922, each member of the provisional government had verbally signified his acceptance of the treaty.’
41 Its members were Michael Collins, chairman and minister of finance; E. J. Duggan, home affairs; Kevin O’Higgins, economic affairs; P. J. Hogan, agriculture; Fionán Lynch, education; W. T. Cosgrave, local government; Joseph McGrath, labour; and Eoin Mac Neill, minister without a portfolio. J. J Walsh was appointed postmaster general but was not a member of the provisional government.
42 Conference minutes 22/N/60(1), 18 Jan. 1922; 22/N/60(2), 19 Jan. 1922, CAB 21/249 (also CAB 43/6).
43 See Heads of working arrangements for implementing the treaty, 1 Cmd 1911], H.C. 1923, xviii, 123.
44 Conference minutes 22/N/60(2), 19 Jan. 1922, CAB 21/249 (also CAB 43/6).
45 See joint report by Hugh Kennedy and Sir Gordon Hewart in conference minutes 22/N/60(4), 6 Feb. 1922, CAB 43/6.
46 The treaty.
47 Irish memorandum, of a conference in London attended by Collins, Duggan, O’Higgins, Lloyd George and Churchill, 21 Jan. 1922 (S.P.O., Irish cabinet papers, S. 11).
48 British memorandum of a conference in London (see note 47), 21 Jan. 1922, GAB 12/252.
49 ‘Extract from Mr Gollins’s statement at a constitutional committee meeting’, 24 Jan. 1922 (S.P.O., Irish cabinet papers, S.3124).
50 Provisional government minutes, 26 Jan. 1922, G. 1/1 The ‘G’ series at S.P.O. comprise the volumes of the Irish cabinet minutes beginning with the first meeting of the provisional government on 16 Jan. 1922.
51 As note 47 above.
52 ‘Report of the attorney-general’s committee on legislation required to establish the Free State’, 24 Jan. 1922, CAB 21/252. Members of the committee were Greenwood, Anderson, Hewart, Greer and Liddell, with Curtis as secretary.
53 Provisional government minutes, 31 Jan. 1922, G. 1/1.
54 Ibid.
55 Provisional government minutes, 1 Feb. 1922, G. 1/1.
56 Provisiional government minutes, 2 Feb. 1922, G. 1/1.
57 Conference minutes, 22/N/60(3), 5 Feb. 1922; 22/N/60(4), 6 Feb. 1922, CAB 21/249; (also CAB 43/6).
58 Figgis to Cuntis, 9 Feb. 1922, CAB 27 /154.
59 Clippings in the Kennedy papers, Archives Department, U.C.D., P4/VII/24.
60 Read out in ithe house of lords on 21 Mar. 1922 by Peel, Viscount, Hansard 5 (lords), 49, col. 663.Google Scholar
61 See Hansard 5 (lords), xlix; also cabinet conclusions 22(22)3, 29 Mar. 1922, CAB 23/29; and Churchill’s speech on 30 Mar. 1922 in Hansard 5 (commons), clv, 1691.
62 12 Geo. v, c. 4.
63 13 Geo. ν, c. 1; Irish Free State (Saorstát Éireann) Act (no. 1 of 1922).