Letter from John W. Dulanty to Joseph P. Walshe (Dublin)
(Secret and Confidential)

In confirmation of my telephone conversation this morning I beg to report that I saw the King's Private Secretary¹ today and handed to him a memorandum² of which the enclosed is a copy.

Sir Clive asked whether the President, the Speaker of the Dáil, and the Chairman of the Seanad were prepared to take the oaths normally taken by the Governor General. I said that I was not sure that this question arose. We understood that the British Ministers were not required to take any oath on the occasions when they were appointed to serve on Commissions, similar to that now proposed, during the King's illness and also during his absence in India.

Sir Clive pointed out that the Commissions were made by Orders in Council appointing Counsellors of State and that the Ministers in question would all be sworn as Members of the Privy Council. Whether or not they took an oath on being appointed members of the Special Commissions he was not clear. But he went on to point out in all three Commissions the powers of the Counsellors were rather restricted to formal routine matters and there was no power to dissolve Parliament - one of the most important duties of the Governor General under the Constitution. Further, in the Commissions of 1928 and 1929 it was agreed that all Submissions relating to the Dominions should be signed only by a member of the Royal Family.

I observed on the last point that there was a distinction between a Commission sitting in London acting for certain purposes in respect of the Commonwealth as a whole and a Commission sitting in Dublin acting simply in respect of Irish Free State affairs alone.

Sir Clive Wigram said that at a meeting of Prime Ministers and Heads of Delegations represented at the Imperial Conference held on the 10th November 1930, it was agreed and formally recorded that in future in appointing Counsellors of State in an emergency no person should be nominated as a Counsellor of State who was not a member of the Royal Family.

Sir Clive stated, that in accordance with Article 2 of the Treaty and Article 51 of the Constitution the President of the Executive Council was not eligible to be an Acting Governor General. He was very doubtful as to whether the President could be eligible for membership of a Commission to execute the duties of Governor General. This was analogous he thought to a Judge not being able to sit on a jury. He was speaking in a purely informal way and he was also speaking as a layman but he understood that if in the future it was proposed to create in Great Britain another Commission of Counsellors of State to meet some emergency it would not be possible to include on such a Commission any British Ministers.

I represented to Sir Clive that my Government were anxious to act constitutionally but the business of the Irish Free State must needs be carried on, and it would be unfortunate if merely legalistic considerations were allowed to stand in the way of the due despatch of such business. Sir Clive said that he felt sure the King's view would be that, with every wish to help his Government in the Irish Free State, he could not close his eyes to the fact that the Government of the Irish Free State and the Government of the United Kingdom were at variance on the question of the Oath. It appeared to him impossible for the King in face of this dispute to do anything until the two Governments had settled the dispute between themselves. Would it not be possible for the Law Officers of the Irish Free State and the Law Officers of the British Government to meet and reach an agreement on the Oath question about which at the moment there were fundamentally divergent views?