Letter from Joseph P. Walshe to John W. Dulanty (London) enclosing copy of a memorandum on the powers of the Governor General
(Confidential) (Copy)

Dear High Commissioner,

I enclose a Memorandum concerning the vesting of the powers and authorities of the Governor General in the Chief Justice for presentation to the King. On giving this Memorandum to Sir Clive Wigram you should make it absolutely clear that the Chief Justice will not take the oath under any circumstances. And perhaps it would also be well to add once more that the general attitude here is entirely opposed to the imposition of oaths or tests from outside or to making the taking of such oaths or tests a condition of good relations between the two countries.

MEMORANDUM

The President of the Executive Council and Minister for External Affairs of the Irish Free State desires to inform His Majesty of the further developments which have taken place in relation to the exercise of the powers and authorities of the Governor General.

Having in mind the difficulties pointed out by His Majesty in the course of the present informal consultations and desiring to meet those difficulties the President of the Executive Council has again spoken to the Chief Justice and has asked him to consider once more the possibilities of exercising the powers and authorities of the Governor General. The Chief Justice does not accept the view that there is an automatic vesting of the powers and authorities in him during a vacancy. He states that he has no authority to do any act which the Governor General would otherwise perform in the name of and on behalf of His Majesty. He has no official knowledge of the Letters Patent and he declares that the King has no power to compel any individual in the Irish Free State to act as his deputy. Furthermore there is no Statute in the Irish Free State which imposes on the Chief Justice as such any obligation to act as such Agent of the King. He further states that if the Letters Patent were intended of their own force to compel the Chief Justice to act they are to that extent a nullity and of no effect. He objects to taking any oath if such be necessary and he declares that there is no legal or other obligation which compels him to do so. When it was suggested that Section III. of the Letters Patent could be so interpreted as to exclude the Chief Justice from the category of persons who should take the oath the Chief Justice replied that he could not in any case act without a formal Warrant. He agreed to accept a Warrant in the following form:

We do by this Our Warrant given under Our Sign Manual and Signet on the advice of the Executive Council of the Irish Free State, declare that you, Aodh Ua Cinnéidigh, by virtue of your office as Chief Justice of the Irish Free State, have Our authority to exercise and perform as from the 1st day of November, 1932, the powers and authorities of Our Governor General of the Irish Free State until such time as We shall be further advised in relation to the exercise of the said powers and authorities by the Executive Council of the Irish Free State.

His Majesty should however be made aware of a further difficulty, namely, that while the Chief Justice is prepared to act on this Warrant the exercise of the powers and authorities of the Governor General by him might be questioned on the ground that the provisions of the concluding paragraph of Section III of the Letters Patent could be interpreted as imposing conditions precedent to the vesting of the powers and authorities in the Chief Justice with which he had not complied. It therefore becomes clear that the only sure way to remove the difficulty is to amend the Letters Patent, and as the Executive Council of the Irish Free State is advised that both the Letters Patent and the Instructions are entirely out of harmony with the present constitutional position, it is considered that this occasion should be used for the purpose of making all the adjustments required by that position.