Memorandum from Joseph P. Walshe to Eamon de Valera (Dublin)

President, Minister for External Affairs

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1. It will be seen from the attached Letters Patent and Instructions issued on the establishment of the Governor General's office that:
1. No person other than the Chief Judge can assume the powers and authorities vested in the Governor General so long as the Chief Judge is not incapacitated, removed or absent from the State. (Letters Patent. III.).
2. No assumption of the powers and authorities mentioned can take place until the oaths appointed to be taken have been taken. (III. Letters Patent; II. Instructions).
3. The oaths are as follows:
   

   Oath of Allegiance.

   'I .............................. do swear that I will be faithful and bear true Allegiance to His Majesty, etc. his heirs and successors according to Law. So help me God.

   Oath of Office.

   'I .............................. do swear that I will well and truly serve His Majesty, etc. in the office of .................................

   So help me God.' (Instructions, II.).

2. The 1930 Conference Report, having declared the exclusive right of the Governments concerned to advise the King in relation to the Governor General, states that the manner in which the instrument containing the Governor General's appointment should reflect the principles set forth is a matter in regard to which His Majesty is advised by His Ministers in the Dominion concerned.
   

   The instrument referred to is the Commission of Appointment. This instrument in T. Healy's¹ care was signeted with the departmental seal and countersigned by a British Minister. In J. McNeill's case it was signeted but not countersigned. In conformity with the advance made, the next Commission would be signeted with the new Irish Signet Seal and countersigned by the President of the Executive Council.

3. The position is therefore as follows:

There will be a hiatus in the Constitutional position of the Saorstát as from the 1st November, unless either a new Governor General has been appointed with all the formalities or the Chief Justice has complied with the formalities prescribed.

There is no way out of that dilemma, because it is hardly possible that the King could accept an advice from our Government which would change the most vital and operative part of the procedure which causes a named individual to be the King's representative. A submission containing that advice would therefore bring about a major Constitutional crisis.