In fact, he never wavered in his view that this settlement was morally worthless because it had been signed under duress.24
The Constitution of the Irish Free State, enacted in December 1922, made the Treaty an integral part of Irish municipal law. As a consequence, this Constitution contained numerous provisions abhorrent to republicans, including an oath of allegiance to the British monarch by members of the Oireachtas, a right of appeal to the Privy Council and the appointment of a representative of the King in the person of the Governor-General. Thus the organs of the state’s authority were stained with the stigma of external domination in the eyes of the Treaty’s opponents.25
While Cosgrave’s government had advanced and affirmed the sovereignty of the Free State in international terms, it adopted an attitude of entrenched defence of the Constitution in the face of republican attacks. This is explained by the fact that, having fought the Civil War to defend the Treaty, the agreement became something of an article of faith26 and its terms were considered sacrosanct by ministers.27 In contrast, de Valera was determined to dismantle it, this being one of the core objectives of the Fianna Fáil party he founded in 1926. Dismantling the Treaty and purging the associated Constitution of its imperial impositions was a prerequisite for winning over the bulk of republicans who, with de Valera, had challenged the Free State in arms during the Civil War. This was an important group in terms of his party’s support base. The legitimacy of the state had been rejected by them; the dismantling of the Treaty settlement was essential to restore this legitimacy. Reinforcing de Valera’s determination was a strong conviction, shared by a long line of Irish nationalist leaders, in the creative possibility of political sovereignty for economic and social development; in fact, a satisfactory constitutional status was a prerequisite for such development.28
With his election as President of the Executive Council, de Valera began his assault on the Treaty. It was this recognition of the central role Anglo-Irish relations would play during the term of his government that prompted his decision to retain for himself the External Affairs portfolio. He was to exert total control over the conduct of this policy area. This approach reflected his determination never to let the debacle of the Treaty divisions happen again. Deirdre McMahon has written: ‘In any assessment of de Valera’s life and career it can be stated simply that the Treaty scarred him personally and politically for the rest of his life. It was his private avenging fury.’29 Not only was he clear in his policy objectives, he was also clear as to the means of their achievement. Fianna Fáil would proceed gradually, as he explained as early as 1926 at the inaugural meeting of the party. Addressing the gathering, de Valera stated that ‘a young man’s appreciation’ of the situation, as it then stood, would lead him to certain conclusions:
He would see that by isolating the oath for attack, the whole situation, and England’s ultimate control, would be exposed. He could scarcely doubt that, the real feeling of the people being what it is, the oath would fall before a determined assault, and he would set out to attack it as being the most vital and, at the same time, the part most easily destroyed of the entire entrenchments of the foreign enemy. He could see, once the oath was destroyed, promising lines for a further advance, with the nation moving as a whole, cutting the bonds of foreign interference one by one until the full internal sovereignty of the twenty-six counties was established beyond question.30
As Ó Tuathaigh has observed, this ‘was indeed to be the running order for constitutional change when Fianna Fáil eventually came to power in 1932’.31
Relations with Britain absorbed de Valera’s thoughts from the time he assumed leadership of government. He was certain in the principles, policies and practices of his Anglo-Irish strategy; it had been a long time in gestation and this made him a formidable proponent of the reordering of the constitutional architecture between the Free State and Britain. It soon became clear that he was intent on a revolutionary departure from the Dominion settlement.32 His ultimate aim was the recognition of Ireland as a republic, some form of association with the Commonwealth and the acceptance of the King as head of that association. This was his policy of ‘external association’, proposed during the Treaty negotiations and contained in ‘Document No. 2’ during the Treaty debates in the Dáil in 1921–2.33 It was still uppermost in his mind as President.34
Removal of the oath of allegiance
In accordance with Fianna Fáil’s 1932 election manifesto, the oath of allegiance in the Free State Constitution was to be abolished and the de Valera government moved with great speed to honour this pledge. On 12 March, the cabinet met to discuss the immediate introduction of the necessary bill to remove the offending Article 17. In the Department of External Affairs, Walshe and Hearne were uneasy. The former wrote to the minister counselling delay and urging him not to take any precipitate action which could jeopardise his ultimate objective.35 He also submitted a memorandum prepared by Hearne.36 Consistent with views expressed in memoranda prepared for the Conference on the Operation of Dominion Legislation and considered in Chapter 2, Hearne asserted the authority of the Oireachtas over the Constitution: ‘It can repeal the entire Constitution from beginning to end.’ He reiterated the opinion that Article 50, which required amendments to be within the terms of the Treaty, was simply a declaration of the fact that the state was bound by treaty obligations to another state; it did not impose limitations on the competency of the Oireachtas. In the copy of the memorandum retained in the National Archives, these opinions are marked in red ink on the margin, suggesting their importance to the reader, who may well have been de Valera.
There appears to have been a concern at government level that, notwithstanding the repeal of Article 17, Article 4 of the Anglo-Irish Treaty, which related to the oath, would still have the force of law in the Free State. Hearne addressed this matter by restating his view that the Treaty be regarded as an agreement between two sovereign states. Therefore, the essential issue was how the courts might interpret this article. He advised de Valera: ‘It is a settled rule of law that the courts of a treaty-bound state are bound to recognise and enforce the statutes of that state, even when they are in conflict with clear and unequivocal treaty obligations.’ Again, this sentence is marked in red ink on the margin of the memorandum.
On the question of what was the best approach to be adopted by the government, Hearne set out three possible courses of action: a review of the Treaty by both parties; submitting the oath to arbitration; and diplomatic discussions with the British government, the last of which was his preferred option.37 Such discussions should seek an agreement to delete Article 4 of the Treaty: ‘That is the only safe legal course to take and, in my view, the claims of the government to such an agreement would stand upon a solid and unassailable basis.’ He was clear in his view that the Irish government must give careful consideration to its choice of response: ‘But what matters most of all is the method adopted to secure the end.’ According to McMahon, de Valera compromised and the following day sent the British Dominions Secretary a statement announcing his intention to abolish the oath; there would be no immediate introduction of legislation. She regarded this as significant:
The views of Walshe and Hearne are important because they demonstrate that from the very beginning de Valera was prepared to listen to and act on their advice. It is also significant that the statement to the Dominions Secretary does not appear to have been discussed or even approved by the Irish cabinet.38
Walshe and Hearne clearly hoped that British ministers, having been given notice of Irish intentions, would seek to engage in discussions and offer concessions. In their advice, however, they underestimated the distrust of the new Fianna Fáil government in London.39 There was a deeply hostile reaction to de Valera’s stated intentions and this unleashed a ‘veritable Pandora’s box of fear and suspicion on the British side’.40
British ministers were adamant that the oath was an obligation under the terms of the Treaty and demanded full compliance on the part of the Free State. This intransigent attitude and their implacable opposition to de Valera were founded on the deeply held view that the Crown was the fundamental link of unity in the Commonwealth. There were genuine fears and concerns, moreover, that
