Memorandum by the Department of External Affairs on the Governor General

The Government of the Irish Free State having exhausted every means open to them by way of informal consultation for the purpose of settling the difficulty of the vesting of the powers and authorities of the Governor General without having made any apparent progress, and considering that the situation now permits of no further delay, wish to inform His Majesty that they will feel obliged to advise him formally to issue a Warrant to the Chief Justice in the form already suggested declaring that the powers and authorities of the Governor General vest in him.

As His Majesty is aware, the Chief Justice will not take an Oath of Allegiance, and the Government of the Irish Free State cannot urge him and in his default cannot ask any other person to take that Oath. Furthermore, the Attorney General is of opinion that when the Office of Governor General becomes vacant and no person or persons are specifically appointed in his stead the Letters Patent contemplate that the powers and authorities of the Governor General vest automatically in the Chief Justice by virtue of his office, and that in his case no special formality is required. A copy of the Attorney General's opinion is attached hereto for His Majesty's information.¹ If His Majesty prefers that course, the Government of the Irish Free State will advise formally that for immediate purposes the powers and authorities should vest in a Commission consisting of three members who are already officers of State under the Constitution, and for that reason fit and proper persons to fulfil the further constitutional functions involved in their new appointment. As already indicated to His Majesty, the persons preferred by the Government of the Irish Free State for this Commission are, the President of the Executive Council, the Speaker of the Dáil and the Chairman of the Seanad. The members of the Commission would derive their powers and authorities from their appointment on the advice of the Government of the Irish Free State.