The Anglo-Irish Treaty: Did the Irish delegates have the right to sign without consultation?

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Written By: Michelle O’ Reilly

About the Author

Michelle O’ Reilly has a BA in history and English, a postgraduate diploma in education and an MA in modern Irish history, all from University College Dublin. She is currently employed as a history and English teacher.

 

The Anglo-Irish Treaty: Did the Irish delegates have the right to sign without consultation?

As William Shakespeare masterfully said, ‘Confusion now hath made his masterpiece’.  Confusion certainly had made its’ masterpiece in relation to the Anglo-Irish Treaty of 1921.  A truce came into effect on July 21, 1921 between the I.R.A. and the British forces.  Following this, the negotiation of a lasting truce began between Sinn Féin and the British government.  In October that year an Irish delegation selected by De Valera and the cabinet went to London to negotiate with the British delegation.  Michael Collins and Arthur Griffith headed the Irish team and the deliberations for a satisfactory treaty for both sides continued from October to December. Prior to these negotiations headed by Collins and Griffith, De Valera met with Lloyd George on many occasions but they were unsuccessful in coming to an agreement.[1] A shadow of confusion looms over the signing of the Anglo-Irish Treaty; the delegates’ position was misunderstood by themselves and the Irish cabinet. Never mind confusion over their position, allegedly Collins was reluctant to go to London at all and protested to De Valera.[2] He remarked to Batt O’Connor that, ‘it was an unheard of thing that a soldier who fought in the field should be elected to carry out negotiations’.[3]

The ultimate confusion lay in their role; were they plenipotentiaries or negotiators?  The delegates supposedly signed the Treaty with the understanding that they had the right as plenipotentiaries to do so without prior consultation with Dublinand they argued their position in the Dáil.  Griffith iterated, ‘as regards any suggestion that the plenipotentiaries exceeded their instructions, that I, as Chairman of the Delegation, immediately controvert it’.[4] Nevertheless, throughout the course of the debates they seemed unsure of the limitations of their role and the rest of the cabinet failed to clarify it. Diarmaid Ferriter suggested that De Valera understood the term plenipotentiaries to mean something different from the literal definition.  To him it meant, ‘someone who was sent over to make peace and who came back and their actions were ratified or not’.[5] If this was the case there was major confusion on both sides of the cabinet and both failed to fully clarify it before the signing of the Treaty.  This article will examine the evidence and explore the contradicting arguments of whether the delegates had the right to sign without consultation or not, and why they signed. It will also explore if there was ever any real possibility of agreement between all cabinet members on any form of treaty and why De Valera did not attend the negotiations.  The article will only discuss certain issues and will not cover everything as it is a broad topic.

The article will begin by determining if they had the exclusive permission to sign the Treaty; if they had the authorisation to sign.  There are two contradicting conclusions on this point, one from the delegates and one from De Valera and the anti-Treaty contingents. According to the delegates, they were granted the position of plenipotentiaries.  By definition, a plenipotentiary is conferred full powers to make crucial decisions and transact business on behalf of the state without prior consent from the government.  In the Dáil meeting on December 14, 1921 the discrepancies between the two sides over the delegates’ authority were evident.  Michael Collins argued that the original credentials appointed them ‘as envoys plenipotentiaries from the elected Government of the Republic of Ireland to negotiate and conclude on behalf of Ireland’[6] the vital word here is ‘conclude’. Collins argued that these were the first credentials given to the delegates and they appear to grant them permission to conclude on affairs. De Valera argues that the original credentials that Collins mentioned, were never presented and were not given to or accepted by the British delegates,

‘Was that ever presented?’, ‘Was that document giving the credentials of the accredited representatives from the Irish Government to the British Government presented to, or accepted by, the British delegates?’[7]

He argues that this document of original credentials was null and void, ‘I did not read out that first document because I was informed that it had not been accepted’[8]and that the second document was the active one and that this was previously made known to all,

‘By the admission of the delegates themselves, we did not send them, and it would be ridiculous to think that we could send five men to complete a treaty without the right of ratification by this assembly. [9]

The second document referred to was read out first by De Valera at this meeting on December 14 before Collins interrupted with his request for the ‘original’ credentials to be read out first.[10]  De Valera introduced it as the ‘actual text of instructions’ that he wrote on October 7, 1921.[11] These instructions contradict the delegates’ argument that they ‘did not exceed their instructions’[12]. The text of instructions read out by De Valera and believed by him to be the active set stipulate that,

‘(2) It is understood before decisions are finally reached on the main question, that a dispatch notifying the intention to make these decisions will be sent to members of the Cabinet in Dublin, and that a reply will be awaited by the plenipotentiaries before final decision is made.’

‘(3) It is also understood that the complete text of the draft treaty about to be signed will be similarly submitted to Dublin, and reply awaited’[13].

It is impossible to say for definite which document the delegates were supposed to abide by but what is certain is that there was confusion on both sides.  De Valera, and perhaps the entire cabinet, excluding the six, believed that the delegates’ role was to negotiate with the British delegates and that they would not sign without consultation.  On the other hand, the delegates argued that they had the right to sign without cabinet deliberation.

Nevertheless, there appears to be more evidence in favour of De Valera’s hypothesis on the matter; that the second document was active as the guidelines and that they had no right to sign independent of Dublin.  Although there may have been some confusion still lingering, it seems that the delegates knew that they were expected to consult with the cabinet first. According to Jason Knirck, on the December 3 Griffithagreed that only the Dáil could sign ‘any document which involved the crown.’[14] There is evidence to prove that their usual practice throughout the debates was to inform and liaise with De Valera and the Irish cabinet during the Treaty debates in London.   Prior to the signing of the Treaty the delegates’ behaviour reflected the terms laid out in the second document presented by De Valera at the Dáil meeting on December 14; they took orders from Dublin, informed the cabinet of, and deliberated on aspects of the debates.  The Irish delegation waited a week after the talks began for instructions from Dublin concerning Ulster before discussing it.[15] Griffith corresponded with De Valera continuously during the negotiations, for example he wrote telling him that they told the British delegation that they would not recognise the crown unless the ‘essential unity of Ireland was agreed to on both sides’[16], on the same date Griffith told De Valera that Lloyd George was willing to ‘fight on the Ulster matter to secure essential unity’ in return for a promise of good will on the Irish side. In November, he wrote making it ‘clear that the sole function of the Commission was to delimit Northern Ireland’s territory’.[17] Not only did they correspond with De Valera, they consulted with, and adhered to cabinet decisions; for example, they returned to Dublin with a draft proposal in November and it was deemed unacceptable and they returned to London and stood by this decision.[18] The above information suggests that they acted out of character by signing the treaty without consulting with the cabinet first. They obviously did not feel they had the right to sign in November without consultation as they returned with a draft

Treaty and did not sign it after deliberating with the cabinet, therefore had they any more right to sign in December? The December document was much the same as the draft that was unacceptable in November; surely they knew it would not be passed byDublin. Up to the signing of the Treaty they appear to see their role as representative negotiators only.

Arguably, it appears that the delegates were confused about the authority they were granted and its limitations. There is a discrepancy between the actual definition of a plenipotentiary and De Valera’s definition but, he and the cabinet did somewhat clarify the delegates’ position for them with the second document stipulating what was expected from them as plenipotentiaries.[19]  Evidence suggests that the delegates were not granted the right to sign without consultation by the cabinet and seemed to be aware of this by their actions during the debates prior to the actual signing.  Still, for the delegates consultation may have been professional conduct rather than anything more; they may have felt that when the time came for making the final decision that they had the right to do so.  Confusion aside, on paper and as far as their colleagues were concerned, the evidence suggests that the delegates did not have the authority to sign the Treaty.  It is important now to decipher why they signed it although they did not have the permission. Again, there are many arguments and reasons put forward for this.  Lloyd George’s threat of war ‘within three days’ crops up time and time again by the delegates and the pro-Treaty/pro-Collins side as the primary excuse for signing.[20] This may be a valid reason for signing.  The threat of war alone was a scary prospect for the Irish delegation but the deadline of three days made it more alarming.  It would have taken the delegates three days to travel toDublin and back alone without time for consultation and if the threat was serious this made it impossible for them to consult in person withDublin before signing.  Empty threat or not, the British delegation had to be aware of the connotations of setting a three day deadline.

On the other hand, it has been argued by Kevin Matthews and even Griffith, that there was no substantial threat of war from the British side.  It seems plausible, although maybe only with hindsight, that Britainwould not have declared war on Irelandfor financial and humanitarian reasons.  Britainand its people had faced the burden of the First World War and were financially and emotionally exhausted.  Lloyd George’s position was threatened by the conservative side of the coalition; he had recently faced a confidence vote, an election and The Liverpool Conference.[21]  Matthews points out that,

‘with Jones memorandum in hand, Lloyd George began to move towards the position of Bonar Law. This soon would become evident in a draft Treaty sent to the Irish delegates a day before the Liverpool Conference was due to vote on the die-hard resolutions’

to the Irish question.[22]

 

Bonar Law did not seem to disagree with the form of treaty purposed in the November memorandum which resembled the final Treaty that he ‘endorsed in the House of Commons.’[23] With this in mind, surely if George was moving to Bonar Law’s position and was canvassing for support prior to the Liverpool Conference, he was not about to wage war on Ireland but rather settle the question quietly and to the advantage of the conservatives and Unionists in the six counties. Arguably, declaring war onIreland would not have strengthened his position with the electorate.  Also,Britain was under the gaze of the other members of the commonwealth andAmerica; declaring war onIreland would not be a positive move.

It appears that Griffithdid not view the threat of war as substantial either.  He dismissed the threat of war as having no serious meaning in his correspondence with De Valera in November. He said that the British assured him that if ‘Ulsterproves unreasonable they are prepared to resign rather than use force against us’ and that no alternative government could ‘commit itself to a war policy against Ireland’.[24] Taking the above correspondence into account, perhaps the threat of war was not seen as substantial at the time, even without hindsight; Griffith did not seem to view the threat of war as substantial prior to the signing.  It does appear that the threat did shake the other delegates; Griffith had already agreed to sign at this stage, the threat came to convince the remaining members to sign and it was successful.[25] It could be argued that the delegates still had no right to sign whether the threat was real or not.  In the Dáil meeting on December 14, Griffith read out the official minutes of the cabinet meeting, they stated that the delegates return ‘and say the Cabinet won’t accept the Oath of Allegiance if not amended and to face the consequences, assuming that England will declare war.’[26] Although De Valera protests and says that these minutes were never signed, read or adopted, Griffith is adamant that they were upheld and accurate.[27]  If that is the case then the delegates did not uphold their duties and ‘face the consequences’ even if that meant war.

Whether the threat of war was substantial or not; the Irish delegates signed.  There begs a question if the delegates actually believed the threat to be real or not. Arguably, the British delegates were bluffing.  It was not in their interest to declare war on Irelandand they were anxious to annex a conclusion as the debates had lasted a long time. They began in October with De Valera and Dublinwas proving difficult; they refused the November draft. J.J. Lee says that Griffithwas deluded by Lloyd George.[28]  The evidence suggests that Griffith at least may have recognised their bluff from the correspondence mentioned above; his dismissal of the threat of war and his knowledge of George’s weakening position in government. Therefore, why did the Irish delegates not call his bluff.  Hopkinson refers to this and says that the war threat was not the main reason for concluding the negotiations.[29] Tensions were mounting between the cabinet in Dublin, essentially De Valera and the Irish delegation. De Valera was proving awkward and immoveable on some points such as the Oath of Allegiance and the Governor general;[30] ‘De Valera’ pointed out the sort of oath you could and the oath you could not take.’[31] Perhaps they were growing just as tired as the British delegates and saw the threat of war as an excuse to sign. Arguably, they knew De Valera would not accept this treaty as he refused the November draft which was much the same but they went ahead and signed anyway.  It is possible that tensions had reached a height on both sides and the delegates felt there would be no pleasing De Valera and took the best that was offered and ‘achieved all they could have hoped to achieve’.^[32]

Perhaps, the Irish delegates did not fully understand De Valera’s grievances with the draft.  Lee points out that Collins was trying to ‘circumvent the Treaty by devising a republican constitution acceptable to anti-treaty opinion’ but he failed because he failed to recognise the extent of the importance of the exclusion of the oath and governor general to the opposition.[33] They signed a treaty which seemed to embellish what they were ordered to achieve; the oath resembled De Valera’s accepted form of oath.  They made their arguments regarding this in the Dáil meeting on December 16, 1921; they discussed the oath that the Dáil accepted, and the one that they signed.[34] The discussion was centered on the difference in the phrasing of the oaths; the oath that De Valera verbally stipulated to the delegates before their return to London, the oath that they wrote down as resembling, in their eyes, the oath De Valera wanted and the oath put forward in the Treaty.  De Valera did not want any ambiguity in the wording of the Treaty for fear of the British using it to take advantage in the future.  He refers to this in discussing the delegates’ permission to sign, ‘because in the case of a treaty, even verbal, the exact form of words is of tremendous importance.’[35] The delegates’ failure was in not realising the importance of the phrasing of this to De Valera, for example, the oath signed included the King’s name, ‘H.M. King George V’.[36]   This caused much anxiety for De Valera and he stated on December 16 that, ‘I never suggested King George V being in the oath’.[37] It was the principle of it that mattered most to De Valera and the delegates failed to recognise this and to anticipate the extremity of his reaction.  Such confusion and misunderstanding existed that Barton, in drafting an oath acceptable to the Irish cabinet, added the King’s name.  According to Barton, De Valera ‘did not say King George V’ but Barton ‘drafted that with Mr. Childers’ assistance.’[38]

Furthermore, it could be suggested that the delegates viewed the Treaty as only a signed draft to be ratified by the Dáil.  Griffith said in the Dail debate December 14, ‘that the British Ministers did not sign the Treaty to bind their nation. They had to go to their Parliament and we to ours for ratification.’[39]This may be so, but they were naive in thinking that signing the Treaty without consultation was a small issue to be made light of; ratifying a signed treaty is not the same as deliberating on a proposed treaty as Griffith appears to be suggesting. By signing it they brought it to the Dáil for approval or refusal and either outcome would not be unanimously agreed on.  It created the possibility of a split in cabinet either way and if it was refused they would have to go back to the negotiating table with their tail between their legs. Therefore, perhaps the delegates were lucky that the Treaty was accepted by the electorate and the cabinet.  Nevertheless it is easy to recognise this now with hindsight. This gave them support and more strength in their decision to sign. Still, De Valera admitted that the Treaty had still to be ratified and is not binding until it is, ‘this Treaty is simply an agreement and that it is not binding until the Dáil ratifies it’.[40]  It is only when the decision is not in his favour that he really turns his back on the delegates.  Nevertheless, Lee argues that it would not have made a difference if they had consulted with Dublin as the majority of the cabinet was in London anyway and the majority vote; the majority was in London and they were willing to sign.[41] Lee fails to take into account the fact that Griffith was the only one fully committed to the signing at that stage. According Matthews, ‘he was speaking for himself only not for his colleagues’ and that they were weary and ‘a bitter struggle ensued between the Irish delegates’.[42] Perhaps consultation from Dublin may have stopped the remaining delegates from succumbing to the pressure in the hours before signing. De Valera argues that he did not attend the negotiations so that ‘the delegation should be provided against hasty action.’[43] He said that this was why the delegates were not permitted to sign without sending a draft toDublin first. This is speculation, but if they did send a copy back before signing, it may have stopped them acting hastily, if that is why they signed.

Nonetheless, no one can foretell what might have been. One thing seems almost certain, alongside the obvious confusion that existed, that entire agreement was never reachable and that a form of spilt was inevitable.  De Valera himself admits this, ‘I do not mean to say that if we had signed finally the document it would have mattered. There would have probably been a division.’[44] Lee also suggests that De Valera would not accept any compromise that was not his and that staunch Nationalists would not accept any form of compromise. Therefore, was a unanimous agreement possible at all under any circumstances.[45]  Lee argues that De Valera knew that some Nationalists would not accept any form of compromise therefore he sent someone else, the delegates to compromise for him, yet according to Fanning he opposed the Treaty because it was ‘not his compromise.’[46] Therefore, it seems it was a vicious circle for De Valera and for the possibility of reaching an agreement.  Although, De Valera and the anti-Treaty side admitted that the Treaty was not binding until it was ratified, they still did not accept it when it was passed by the cabinet and the electorate. De Valera refused to accept the vote and resigned. He released his ‘Proposed Treaty of Association between Ireland and the British Commonwealth’ in January 1922.[47] Furthermore, Lee says that there would have been a struggle between De Valera and Collins anyway.  He suggests that neither wanted to be second in command and that De Valera felt threatened by Collin’s popularity.[48] Hopkinson agrees and suggests that De Valera ‘might find it difficult to assume a controlling role in nationalist ranks’.^[49] De Valera may not have wanted the Treaty to be accepted as it was not his compromise and may be viewed as Collins’ victory. Therefore, in return for De Valera’s decision not to attend the negotiations in order to retain his image as a non compromiser and allow others to ‘bear the brunt of the compromise’[50], he was not willing to allow Collins to take the glory for securing the Treaty.  This creates a complex scenario in which agreement seems impossible to achieve.

Therefore, why did De Valera not attend the negotiations. Coogan described it as ‘the worst single decision of de Valera‘s life, for himself and for Ireland.’^[51] De Valera says that he stayed behind to provide certainty and support. He also wanted to keep tabs on the delegates in their negotiations with Britain.[52] Furthermore, De Valera had tried to reach an agreement already in London prior to the summoning of the delegation and failed. With this in mind he was aware of the difficulties which faced the delegates, as ‘he knew fairly well from his experience over in London how far it was possible to get the British government to go’^[53], and did not want to be seen as a failure himself. Lee agreed with Coogan and argued that De Valera sent the delegates to bear the brunt of the compromise that he knew was inevitable but he did not apprehend the extent to which they would have to bear the brunt.[54] The problem may have been that the delegates gained a compromise for him but not the one he wanted.  He may not have planned the split but looking back now it seemed inevitable as he was proving extremely difficult to please; he did not want to be viewed as a compromiser so he did not attend the negotiations, he wanted the Treaty on his terms but sent the delegation to get it for him, and finally, he seemed threatened by Collins and wanted a compromise on his terms but wanted someone else to take the blame for it but wanted recognition at the same time.

Ultimately, confusion and conflicting ideologies looms over the signing of the Anglo-Irish Treaty. Cathal Brugha admits this when he says to the cabinet, referring to Collins and Griffith, that ‘we differed in opinion. It was not because I doubted their honour’.[55] In relation to De Valera and Collins this is speculative but De Valera also made a reference to the division being on ‘absolute fundamentals’ and not personalities.[56] There was confusion on both sides; the delegates argued that they had the right to sign and that this was stipulated in the first document of credentials. The fact that there were two documents of credentials show the lack of clarity and preparation for the negotiations. Nevertheless, the delegates did seem to understand their position and had some conflicting arguments, for instance, Griffith agreed that only the Dáil could sign ‘any document which involved the crown’[57] and then Collins said that the first document granted them permission to sign. Perhaps they grew tired and wanted to sign, were pressured to do so by the threat of war or by Griffith; he agreed to sign first.  Furthermore, De Valera did not send orders in relation to the north until a week into the talks[58] or a written copy of the form of oath that he required. It was left to Barton and Childers to try to write a copy of the oath that they thought resembled what he had voiced in the Dáil[59]. According to De Valera, ‘I was not aware it (his stipulations for oath) was being taken down until I saw Mr. Gavan Duffy in the middle of it and I was not taking any care of my words’.[60]   This shows the lack of organisation and preparation within the cabinet for the negotiations. This is a complex debate and the only conclusion that can be argued with any certainty is that there is confusion over whether they had the right to sign and over why they signed.  Not only are historians confused but the delegation and cabinet were also confused.

 

 

 

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