Birth of a State: The Anglo-Irish Treaty

Mícheál Ó Fathartaigh is a lecturer and historian based in the Social Sciences Research Centre, National University of Ireland, Galway, and Dublin Business School. His broad-ranging research on both the political and material development of the Irish state has been published widely. This is his fourth book.

Liam Weeks is a lecturer and political scientist in the Department of Government and Politics, University College Cork. His research on Irish politics, about which he has written in The Irish Times, Irish Examiner and Sunday Independent, has won a number of prizes and grants. This is his fifth book.

First published in 2021 by

Irish Academic Press

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Newbridge

Co. Kildare

Ireland

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© Mícheál Ó Fathartaigh and Liam Weeks, 2021

9781788551595 (Paper)

9781788551601 (Ebook)

9781788551618 (PDF)

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available from the British Library.

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Contents

Acknowledgements

Introduction

1. Negotiating the Treaty

2. The Second Dáil

3. Debating the Treaty

4. The Irish Free State and the Dominions

5. The Politics of the Treaty

6. The Anglo-Irish Treaty: The Document

Conclusion: The Case for a Reappraisal of the Treaty

Notes

Bibliography

Index

To the spirit of Kate and Michael Galligan

and Seán Mór Ó Fathartaigh, and to

the spirit of them all.

Acknowledgements

While it is only our names that appear on the cover of this book, it would not have been possible without the support that was given to us by our colleagues and our friends and families.

At Dublin Business School, we would like to acknowledge John Gunning, Stephen Henderson, Dr Michael Kane, Enda Kilgallon, Dr Heikki Laiho, Dr Tom Madden, Conor Murphy, Matt Nolan, Dr Piotr Sadowski and, especially, Dr Paul Hollywood. At the Social Sciences Research Centre at the National University of Ireland, Galway, we would like to acknowledge Dr Mike Hynes and Dr Tony Varley. At University College Cork, we would like to acknowledge the staff of the Department of Government and Politics.

We are furthermore grateful to professors Slava Jankin Mikhaylov and Alex Herzog for access to the dataset of parliamentary debates, and to them and Dr Hannah Bechara for their assistance with the analysis of this data.

Added to this list must be: Clive Ahern; Cat and Rob Anderson; Professor Frank Barry; Dr Gearóid Barry; Professor Gerry Boyle; Dr John Cunningham; Rosie and Fiachra Daly; Dr Emma Dillon; Mary and Maurice Doody; Sarah, Michael, Beth and Patrick Doody; Dr David Doolin; Mary and Malachaí Duddy; Anthony Egan; Marta and Con Egan; Gráinne and Malte Engels; Professor Diarmaid Ferriter; Kieran Galvin; Conor Gilbride; Ollie Gleeson; the late Professor Leo F. Goodstadt; Alan Gould; Andrew Greaney; Dr Brian Hanley; Joanne Hayes Earl; Anita, John, Anna and Alison Hogan; Alexander Kouker; Arielle and Chris Lindhorst; Ursula McFadden; Audronė Medele, Feargal McCauley, Emilia Medele and Noah McCauley-Wilson; Teresa and Colin Moore; Michelle Murphy and Joe Ó Ceallaigh; Aindrias Ó Cathasaigh; Dr Daithí Ó Corráin; Dr Martin O’Donoghue; Bernie and Davy O’Dywer; Professor Eunan O’Halpin; Sandra, Ciarán and Clare O’Leary; Larry O’Loughlin; Derek O’Reilly; Dr Niamh Puirséil; Dr Tara Raftery and Michael O’Dwyer; the Reilly families in Glenacolly and Gloshpatrick; Brendan Roche; Chris Russon; Peter Treacy; Jean and Ron Weeks; and the Whitehead family in Denver.

At Irish Academic Press, we would like to acknowledge gratefully the initial interest that was shown to our project and the subsequent care and attention to detail that was given to it by Conor Graham, Maeve Convery and Wendy Logue, as well as our editor, Anna Benn.

We would also like to acknowledge gratefully the grant support that this publication received from the College of Arts, Celtic Studies and Social Sciences at University College Cork.

Our greatest debt is, of course, to our immediate families, Margaret, Graham and Caoimhe; Proinnséas agus Mícheál, and last, but certainly not least, we are eternally grateful to Lornie and Tara, who more than anyone else have endured our musings on this project over the past few years. We would love to say this is our last word on the Treaty, but they know us better than that. We thank them for their patience.

Cork and Galway, June 2021

Introduction

Ratification Day in the United States falls on 14 January, marking the anniversary of the ratification in 1784 of the Treaty of Paris by the US Congress. Even though this was a monumental event in the formation of the United States of America, it is probable that few Irish readers are familiar with either the day or the treaty. Signed by British and US representatives, the treaty marked the end of the seven-year American War of Independence and established the boundaries between the British Empire and the new state. The date that is more celebrated is, of course, 4 July 1776, when the Second Continental Congress issued a declaration of independence from British rule.

That the commemoration of this declaration takes greater precedence than an actual moment of independence bears many comparisons to the Irish experience. The most important date for nationalists in Ireland is Easter Monday 1916, when Patrick Pearse issued a proclamation of independence outside the General Post Office in Dublin. That event marked the beginning of a week-long insurrection that was largely confined to the capital, but which had longer-term repercussions, sparking off a revolutionary war that culminated in a qualified form of Irish independence. This materialised under the Articles of Agreement between Great Britain and Ireland, signed on 6 December 1921, which came into effect as a treaty exactly one year after the signing. Under this agreement, for the first time in over 700 years, the twenty-six counties that were to constitute the Irish Free State would be free of British rule. This event achieved a significant modicum of success in contrast to the celebrated episodes of failure, and yet there is no official day in Ireland to commemorate either the signing of the Treaty or the formation of the state.

For many, the Treaty is associated with failure. Failure to achieve a republic. Failure to achieve full sovereignty and sever the link with the United Kingdom. Failure to establish a thirty-two-county state. Failure to honour the mandate that was given to Sinn Féin in 1918 when it won 70 per cent of seats on the island of Ireland in that year’s elections to the House of Commons. This understanding, however, is in part built on a mythology perpetuated by those opposed to the agreement, which was sustained through the decades, particularly by the dismantling of the Treaty by its opponents’ leader, Éamon de Valera, when he came to office in 1932.

As is shown in this book, a thirty-two-county, fully sovereign republic was never on the cards in 1921, and most of the Sinn Féin leadership knew this. They were content, albeit reluctantly so, to maintain an association with the United Kingdom, as this was the best that could be achieved, and with this relationship some form of an oath was inevitable. While it is correct to say that Sinn Féin had a landslide victory in 1918, taking this one step further to claim that it was a mandate for a republic that the Treaty betrayed requires numerous leaps of imagination. Interpreting public opinion on one issue from a general election result where people vote for parties and candidates across different constituencies is fraught with difficulties. While 1918 was perhaps the most single-issue election ever contested in Ireland, it needs to be recognised that it was held under the first-past-the-post voting system, known to produce radically disproportionate results where seat returns do not match votes won. So, while Sinn Féin won 73 seats out of 105, compared to the Irish Parliamentary Party’s (IPP) 4 seats, it won only twice as many votes as its nationalist opponents. More than one in five voted for the IPP, while fewer than half voted for Sinn Féin. Throw into the mix Labour’s voters not being represented due to its decision to stand aside from the election, and those in twenty-five constituencies (31 per cent of the electorate) not being allowed to exercise their franchise at all due to the lack of candidates willing to oppose Sinn Féin, and it is obvious that 1918 was not a normal election in the sense that we understand these events in the twenty-first century. In any case, transposing contemporary ideas and values onto events over a century ago is a task that should be treated with caution.

The Treaty was not the democratic outcome of free and fair negotiations between two state powers; the realpolitik of 1921 was that states with more resources used them to exert their will, whether fair or not. The agreement between British and Irish representatives was reached only under threat of war, and this duress impinged on the satisfaction with which the outcome was greeted in Ireland. This is not meant to be reproachful of the British side for using such aggressive tactics. That was the way of the world then when it came to international relations, and the British Empire, like any empire, was not built on fair cop diplomacy. Liberal democracy was a fledgling concept in the early twentieth century, with there being few examples of states that could be categorised as such. Most people lived in empires or under other forms of non-democratic rule, and even for those who did not, the extent of democracy was limited. There was little discussion of mandates, many people were disenfranchised (women, minorities, young people, the non-propertied), and voting systems with high levels of disproportionality were common.

Even if we were to impose a democratic interpretation onto events concerning the Treaty and defend the critics who claimed that the agreement was a rejection of the 1918 mandate, this group does not come out favourably. The Treaty’s opponents did not want a plebiscite on the agreement, and even though an overwhelming majority of the electorate voted for pro-Treaty parties in the June 1922 election, the anti-Treatyites still maintained that the majority had no right to do wrong. To criticise both the opponents and defenders of the Treaty from a modern values basis is unfair on both camps, and provides a false narrative and understanding of the period. The Treaty should be interpreted in a different light, and the outcome needs to be understood from the perspective of 1921, not 2021. That is the purpose of this book, which provides a fresh insight into a critically formative period that, for better or worse, produced the Irish state.

THE TREATY

The Treaty came about as the result of attempts by the revolutionary Dáil Éireann, monopolised by Sinn Féin, to achieve a complete separation from the British Empire. This intention had been formally proclaimed in the declaration of independence issued when the Dáil first met on 21 January 1919, a reaffirmation of the proclamation of independence issued by Pearse and his comrades in 1916. The political campaign of Sinn Féin was matched by an armed conflict taken up by its sister paramilitary association, the Irish Republican Army (IRA), which coincidentally began with the killing of two policemen in Soloheadbeg, County Tipperary, on the same day the Dáil issued its declaration.

While the British government initially attempted to deal with the Irish independence movement as it had done with previous nationalist insurrections – with armed resistance – by the summer of 1921 the Crown forces were no nearer to eliminating the insurgents than they had been at the outbreak of hostilities. As was the case with the British government’s policies vis-à-vis paramilitary violence in more recent times, behind policies of open conflict and condemnation were diplomatic manoeuvres to seek a peaceful resolution. These were kept secret from the general body politic, but in July 1921, David Lloyd George, the British prime minister, changed tack and issued an open invitation to the self-declared president of the Irish republic, Éamon de Valera, to talks in London to resolve the Irish issue. These negotiations formally began in October, and after two months they culminated in the Articles of Agreement, which were signed by all members of the Irish and British delegations. Although immediately called a treaty by many in Ireland, particularly for propaganda purposes by the pro-Treatyites, the Articles did not take effect until approved by the House of Commons of Southern Ireland at its one and only meaningful meeting, as well as by the British parliament, and then ratified by legislation in the latter (and it is debatable if even then it strictly met all the criteria to accurately be called a treaty). While this might sound pedantic, it is a point that needs to be mentioned from the beginning, as it became a recurring issue in the discussions over the document.

Although given the powers to sign an agreement with the British government, the Irish delegation would not necessarily have seen themselves as committing the country to its terms. In signing, they were merely deciding to give both the Irish cabinet and the Dáil the opportunity to consider the Articles; it was the latter body that had the ultimate power to decide if they were to become a treaty. While for Lloyd George and his government the Treaty was viewed as an end point in the issue of the Irish conflict, it was not to become so on the island. The Treaty was not accepted by all, and it split the cabinet, Dáil and country, resulting in a civil war just six months after its signing. Although the forces defending the Treaty initially proved victorious, within ten years its opponents had come to power, and they set about dismantling many of its provisions. It is in part for this reason that the Treaty has never been a popular element of nationalist, and consequently the Irish state’s, folklore. And for that reason, it is necessary to justify the importance of the document, and devote a whole book to the issue. It might seem strange to have to explain the significance of a treaty that established an independent state, but even those who defended the agreement were not its most avid fans.

The Treaty was born in difficult circumstances, which was to impact severely on its legacy. While the press and governments overseas welcomed its signing, partly because it was sold as an end to the conflict, the reception for the agreement was much more muted in Ireland. The celebrations through the night when a truce had been declared between the British army and the IRA in July 1921 were in stark contrast to the impact of the settlement reached five months later. Celia Shaw, a student at University College Dublin in 1921, noted in her diary entry from 6 December: ‘No-one knows what to think. There is an oath, though subtly worded … not a bonfire, not a flag, not a hurrah.’¹

Although Sinn Féin had achieved in the space of a few years what had eluded centuries of previous nationalist movements, the party split irrevocably over the Treaty. Those who opposed its ratification hoped that its future would be limited, and, indeed, its prime opponent, de Valera, did much to undo the Treaty on his coming to power ten years after its ratification. He removed the oath, denigrated the Office of the Governor-General, abolished the Senate, stopped the payment of annuities and realised his beloved concept of external association with the United Kingdom. In spite of all these actions, however, de Valera was not able to undo some of the lasting legacies of the Treaty, which justify a reconsideration of one of the key moments in Irish history. The Treaty’s consequences were numerous, but four of the more significant effects are considered here, as they left the greatest imprint on Irish political history.

The first and most important legacy is that it was the document that granted Irish independence. Wolfe Tone, Emmet, Butt, Parnell and Pearse may all have demanded various forms of self-government in the past, but ultimately it was the Treaty that involved the greatest concession from a British government since the aforementioned Treaty of Paris, which recognised American independence. The Anglo-Irish Treaty of 1921 was to grant Ireland a lot more freedom than was imagined at the time. To put this in perspective, consider the experiences of the other dominions of the British Empire, namely Australia, Canada, Newfoundland, New Zealand and South Africa, which are discussed in greater detail in Chapter 4. Australia formed a federation in 1901, but it was not until 1942 that the 1931 Statute of Westminster (which granted all dominions de facto independence) was ratified in Canberra, and only in 1986 that the right of the British parliament to legislate for Australia was removed. It also took until 1940 for Australia to have its first diplomatic mission outside Britain. Ireland, by contrast, had Timothy Smiddy appointed minister plenipotentiary to Washington in 1924. Canada achieved full internal sovereignty only in 1982, which took all of 115 years to realise after the 1867 Constitution Act that established the Canadian Confederation, prior to which point the British House of Commons had the power to amend the Canadian constitution. Newfoundland had to give up its self-governing status in 1934 due to financial insolvency, handing governorship of the region back to the UK, before voting to become a province of Canada fifteen years later. New Zealand did not adopt the Statute of Westminster until 1947, ninety-five years after the New Zealand Constitution Act gave the colony powers of self-governance, with the Constitution Act of 1986 severing the last de facto constitutional link with the British parliament.

One considerable difference between these cases and the Irish Free State was that a reason for the delay in realising the autonomy granted by the Statute of Westminster was these countries’ desire to maintain a constitutional relationship with the United Kingdom. It is the Union of South Africa that bears the closest resemblance to the Irish experience, where pressures for self-governance in the former Boer republics of the South African Republic and the Orange Free State led to the formation of the union in 1910. The Status of the Union Act in 1934 merged the Statute of Westminster into South African law, removing the last formal links with British rule. This statute was never formally adopted under Irish law because the Free State government maintained that the British right to legislate for Ireland was removed under the 1921 Treaty. On the occasion of the Statute of Westminster becoming British law in December 1931, the minister for external affairs, Patrick McGilligan, said: ‘The powers inherent in the Treaty position are what we have proclaimed them to be for the last ten years.’² The statute was simply achieving for the other dominions what the Irish Free State had secured in 1921. In other words, this confirmed that the Treaty was the foundation of Irish independence.

The second impact of the Treaty was a direct follow-on from the first, with the establishment of the new jurisdiction cementing the partition that had come about from the 1920 Government of Ireland Act. Although nationalists hoped that the border was temporary and would be undermined by the Boundary Commission proposed by the Treaty, the creation of a new polity significantly eroded the possibility of an all-island solution. As is discussed in Chapter 5, the commission on which Michael Collins and Arthur Griffith appeared to pin their hopes during the Treaty negotiations did nothing to resolve the issue of Ulster. While it is widely claimed that the 1920 act was responsible for partitioning the island, its outcome was not as definitive as we are led to believe. The legislation created two parliaments on the island, but within the realm of the United Kingdom, somewhat like the devolution process in Scotland and Wales in more recent decades. Provision was made for the establishment of an all-island Council of Ireland that would have authority over both Northern and Southern Ireland, ‘with a view to the eventual establishment of a parliament for the whole of Ireland’.³ In other words, it left open the possibility of a unitary approach, which to all intents and purposes was removed by the 1921 Treaty. Had the Dáil of 1921 known that the Boundary Commission would have no effect on the border, it is likely that the Treaty would have been rejected, and Ireland would have been plunged further into conflict, an ‘immediate and terrible war’, as Lloyd George had threatened. As it was, very little was said about partition or Ulster during the Dáil debates on the Treaty, despite it being a major topic of discussion during the negotiations in London. As is discussed in Chapter 3, far more attention was given over to the proposed oath to the British monarch, which proved short-sighted, given the impact partition was to have on the island, whereas the oath was abolished ten years later.

The third legacy of the Treaty, discussed in more detail in Chapter 5, is that the division within Sinn Féin over its approval formed the basis of the party system that emerged in the new state, and was to remain the key fulcrum of party competition for the rest of the century. While in other European states the main political battlegrounds concerned social divisions, particularly class, Ireland was to remain a case apart in that the two main parties were descendants of the Sinn Féin split. The Civil War that ensued as a result of this division translated politically into a battle between Fianna Fáil, the descendants of the anti-Treatyites, and Fine Gael, the pro-Treatyites. So deep was their animosity that, just as the Tramecksan and Slamecksan parties in Gulliver’s Lilliput neither ate, drank nor spoke with each other, so too the inheritors of the Treaty division remained at loggerheads long after the original actors and memories from that time had faded away. It was not until May 2020 that the two sides were prepared to enter government together, which even then did not resemble an alliance of long-lost pals, but rather a temporary arrangement. It is especially noticeable that the party challenging the Treaty parties’ dominance of Irish politics in Ireland’s 2020 election was Sinn Féin, itself sharing a similar legacy back to the 1921 split. The Treaty remains the Banquo’s ghost of Irish politics, with the party system unable to shake off its underlying influence. For this reason, when describing the genesis of the Irish party system, it has been said that ‘in the beginning was the Treaty’.⁴ It is necessary to understand that agreement to understand Irish politics.

The fourth consequence was the international impact of the Treaty. It set in motion the process by which Crown colonies were to become dominions, and by which dominions were to achieve full sovereignty. In this way it could be argued that the Treaty catalysed the process of decolonisation, and with it the beginning of the end for the British Empire.⁵ This international context is particularly important, because too often historical events in Ireland are viewed through a narrow nationalist lens. Momentous episodes are explained from a purely Irish narrative, as if being ‘une île derrière une île’ shelters the island from what is going on in the rest of the world. It is erroneous, however, to assume, à la F.S.L. Lyons, that as a nation the Irish are living in Plato’s cave, ‘with their backs to the fire of life and deriving their only knowledge of what went on outside from the flicking shadows thrown on the wall’.⁶ The evolution of Irish history can be viewed as a part of the wider international experience, which can provide a greater insight than a purely sui generis approach.

Taking the wider period of concern in this book, Ireland’s revolutionary war and campaign for independence from the United Kingdom were not isolated global events. They came during a period of considerable political and social change. Empires were crumbling, the idea of nation-states and self-rule were emerging, as were democratic tendencies. The Russian Revolution and the collapse of the German and Austro-Hungarian empires were hugely significant events at the end of the 1910s, and it is arguable that the Irish independence movement might not have achieved the success that it did in the absence of these other upheavals. The clamour to make government more representative of the people was growing around the world, not just in Ireland, with increasing demands to extend suffrage to the non-propertied classes, women and minorities. Alongside all this was the Great War (1914–18), the war to end all wars, which speeded up the process of change and precipitated the fall of a number of regimes.

Within this context, the Irish experience does not seem too unusual. Irish nationalists shared common cause with Poles, Slovaks, Hungarians and Czechs in seeking self-determination from a larger empire that subjugated their minority interests. But where the Central European states were aided in their cause by the collapse of their imperial masters (the Austro-Hungarian and Ottoman empires), the British Empire had not collapsed after the First World War; rather, it had in expanded, with gains made under the Treaty of Versailles of 1919 bringing almost one-quarter of the global population within it. Given this context, British government policy vis-à-vis Ireland needs to be viewed as part of a wider imperial policy. Oliver Russell, Lord Ampthill, a former viceroy of India, noted in the House of Lords debates on the Treaty that ‘this Irish question is far more a question for the British Empire than it is an Irish question’.⁷ Whatever outcome was reached with its nearest neighbour would have knock-on effects for the rest of the empire, from Mesopotamia to India, and it is important to consider the Treaty in this international context.

Sinn Féin was not the first nationalist movement attempting to break away from a colonial empire, and the Treaty was one of many attempts at reconciliation that various Western powers employed to resolve conflict both within, and affecting, their respective boundaries. For those aggrieved that the Treaty was achieved under duress, empires were not in the habit of willingly ceding portions of their territories. The Anglo-Irish Treaty of 1921 can thus be viewed not through a British–Irish or unionist–nationalist lens, but from the wider perspective of international settlements. For example, the British government had been heavily involved in drawing up the Treaty of Versailles after the First World War, with a defeated Germany not even being invited to negotiations. That treaty was agreed among the Allied powers, who threatened terrible war on the Germans if its extremely harsh conditions were not accepted. Just as de Valera would reject a settlement signed under duress two years later, the German leader, Prime Minister Philipp Scheidemann, rejected the Treaty of Versailles in 1919. He resigned rather than sign, with his replacement, Gustav Bauer, demanding amendments to articles on war guilt. The Allies were not for budging, and Lloyd George threatened an invasion within twenty-four hours if the treaty was not signed. With little indication that this was a bluff, the German prime minister had little option but to accede to the terms.

These developments would have been observed by Irish revolutionaries with keen interest, since they too were attempting to deal with one of the Allied powers with whom they were at war. De Valera had also attended the opening sessions of the Versailles proceedings, so in the context of his own discussions with Britain, he would have been well aware of the international environment. De Valera knew that just by talking to Sinn Féin the British were conceding. The British had not spoken with any of the representatives of the nations of the Central Powers who were to receive self-determination under the Versailles treaty. A case could easily have been made that Ireland was a matter of domestic policy for the British government, which could have been resolved in cabinet or parliament and not with a self-declared and illegal government. Such is how contemporary Spanish administrations in Madrid deal