Memorandum on the Boundary Question
(Probably by Hugh Kennedy)

QUESTION - Can the Boundary Commission transfer any part of the area now within the jurisdiction of the Government of the Saorstát and add such part to the area under the joint jurisdiction of the Government of Great Britain and the Government of Northern Ireland?

1. It appears pretty clearly from the remarks of Mr. Justice Feetham made during the course of the recent hearing in London (25th August, 1925) that, applying certain principles of construction to the Treaty, he is of opinion that the answer to the above question is 'Yes,' that is to say that the Commission has power to determine that territory now governed by the Government and Parliament of the Saorstát shall pass from it and be governed by the Governments and Parliaments of Great Britain and Northern Ireland in their respective spheres of jurisdiction under the Government of Ireland Act, 1920.

2. Mr. Justice Feetham arrives at this opinion by applying a canon of construction which he states as follows:- 'Our business is to look at the Treaty, and then if we find difficulties or ambiguities or have trouble in identifying the subjects dealt with we are is to look at the language of the Treaty and where such language does not admit of doubt other extraneous facts will not assist us. It is only when we are in difficulties about the language that we ought to look at extraneous facts' (page 27 of the transcript of proceedings sent me).

3. If this principle is to be rigorously applied by the Commission and the litera scripta of the Treaty is alone to be looked at (unless what are called 'patent ambiguities' appear upon reading the litera scripta), then there would be a strong case for the Judge's interpretation of the document as giving to the Commission power to fix a boundary for Northern Ireland which would include territory now outside that boundary. Therefore the first question to be considered is whether the Judge's canon of construction is sound and is applicable to the document (the Treaty).

4. It is to be observed that the Counsel for the Saorstát, in reply to a direct question from Judge Feetham, said he agreed with the rule of construction as stated by the Judge but subject to the qualification that you must have regard to the facts and the parties at the time you signed the contract, that is to say the rule as stated, but with the qualification mentioned, applies to the interpretation of contracts inter partes, and so applies to the Treaty, implying that the Treaty is, as a matter of law, to be construed as if it were an ordinary private contract between two private persons.

5. There is no doubt that Mr. Justice Feetham was, in the passage I have quoted (paragraph 2 above), stating his conception of the rule of English Law to be followed in construing English contracts, and it is evident that he supposes himself bound to apply to the interpretation of the Treaty the rules of English law and practice governing the interpretation of ordinary contracts between private parties, rules which I may mention are noted for their much greater strictness and more rigid adherence to the litera scripta than the principles favoured by other, especially Latin, countries.

6. In my opinion, even from the point of view of a private contract, the rule as stated by Judge Feetham cannot be accepted as an accurate statement of the canon of construction according to English law. The strict rule is certainly that the intention of the parties is to be sought in the written instrument. Parties are taken to intend what they express in writing, not simply in isolated clauses or passages read separately but in the instrument read as a whole and each clause or passage in its context. The instrument itself however is not to be read as an isolated fact. It is to be read in its context, i.e. in the surrounding circumstances, and the plain ordinary meaning of the bare words used is subject to be controlled by reference to the subject matter dealt with and to the surrounding circumstances at the date when it was made and the facts or matters in relation to which it is to operate. A contract is therefore to be interpreted in the light of these matters and so read the intention of the parties is to be ascertained from the actual terms of the instrument. External evidence of intention different from what can be so ascertained is not permissible except in a case where, upon such reading of the instrument, there is found to be a hidden or 'latent' ambiguity (i.e. an ambiguity not apparent merely upon the written word but shown in the circumstances to exist) and in that case extrinsic evidence of intention may be admitted to solve the ambiguity, or as it is sometimes expressed 'to resolve the equivocation.' This is a somewhat compressed (but I think accurate) statement of the relevant English law upon the interpretation of ordinary private contracts, law which is also the law in force in the Saorstát. Judge Feetham's statement will therefore be seen to be a far too narrow statement of a very narrow and strict rule of English law.

7. But I find that Judge Feetham appears to feel himself bound to apply to the interpretation of the Treaty these narrow and rigid principles governing the interpretation of English private contracts (principles which, on the occasion referred to already, he did not, in my opinion, state with accuracy). I do not know why he should feel so bound in dealing with an international instrument. There is no well-recognised code of rules for the interpretation of Treaties though there are some few generally accepted rules. But even the leading English text-writers on International Law admit that the rules of English law governing the interpretation of private contracts are not capable of application to the interpretation of Treaties. See for example, PITT-COBBETT, 'Leading Cases onInternational Law' (4th Edition, 1922, Volume I, page 344):

'On the question of the interpretation of Treaties, it seems that both international tribunals and municipal courts will, in construing international compacts, adopt a more liberal construction than that which would ordinarily be applied, at any rate in the English and American courts, to the construction of private instruments and agreements. This arises from the fact that the prime aim of all interpretation must be to get at the real intention of the parties; and that in determining this regard must be had at once to the nature and subject-matter of the compact, and the circumstances under which it was arrived at. Applying these considerations to Treaties, we find that such compacts are usually made by diplomatists, and not by lawyers; that they commonly deal with large national interests; and that they are often concluded in circumstances which render it impossible to settle all minor points or to provide for every conceivable contingency.' (See also page 346.)

WESTLAKE, International Law, Part I (1910) at page 293, says:-
'The important point is to get at the real intention of the parties, and that enquiry is not to be shackled by any rule of interpretation which may exist in a particular national jurisprudence but is not generally accepted in the civilised world. On the whole we incline to think that the interpretation of international contracts is and ought to be less literal than that usually given in English courts of law to private contracts and acts of parliament.'

HALL, International Law, (7th Edition, 1917), tries to draw up a set of rules for the interpretation of treaties which he thinks might meet with acceptance, but he says in a footnote at page 349 - 'There is no place for the refinements of the courts in the rough jurisprudence of nations.' In my opinion, the Boundary Commission is not to regard itself as fettered by the narrow rules of English law as to the construction of private contracts when they approach the interpretation of the Treaty.

8. One further consideration of this matter is to be noted. In their considered opinion, given to the Crown on 31st July, 1924, the British Privy Council advised, in answer to the Supplemental (the 5th) Question submitted to them, that the finding of a majority of the Boundary Commission would rule on the ground that it was not a private arbitration but a body entrusted with matters of a general nature and of public concern. The findings on the earlier questions support the view of the international character of the Treaty and of the Commission, and exclude the notion that the instrument is in the nature of a private contract.

9. I have laboured this aspect of the Question because I gather from the transcript of the shorthand note that here lies the real and fundamental difficulty with Judge Feetham. Acting on what I believe to be an erroneous view of his legal position as member of the Boundary Commission, he refuses to look outside the four corners of the written instrument. In my opinion he is wrong in this even from the narrow point of view of an English contract, but much more so from the point of view proper to the interpretation of an international agreement or treaty. I will now discuss the question on the assumption that the considerations I have offered are accepted and that my conclusion is accordingly assented to.

10. Assuming then that we are entitled to look outside the Treaty document itself and consider the surrounding circumstances, the context of fact, at the time it was made, for the purpose,

(a) as limited by English rules of construction of private contracts, of truly interpreting the express words and terms actually used, the litera scripta, of the document; or

(b) as more liberally permitted in construing public international documents, of ascertaining the real intention of the parties, what they were at and what they intended to agree, even though not adequately or aptly expressed by the words and terms actually used.

I will refer shortly to such of those facts and circumstances as appear to me to stand out as relevant to and decisive of the question under consideration. They are comparatively few but impressive

11. The first fact is the existence of an Irish minority concentrated in the North-East corner forming an almost homogeneous population in four counties and at some points beyond the boundaries of those four counties. That population, politically organised as the Ulster Unionists, opposed the realisation in any measure of Irish national aspirations. This minority with the advantage of local concentration claimed separate treatment in any settlement of the Irish question by way of self-government in Ireland, when some such settlement became inevitable, but, being a minority even in the Province of Ulster, they made it clear by resolution of the Ulster Unionist Council (10th March, 1920) that they would not have separate treatment for the whole Province. They demanded the Six Counties now known as Northern Ireland as far back as 1916 (resolution of the Ulster Unionist Council 12th June, 1916) and that demand was conceded by Great Britain in the Government of Ireland Act, 1920, passed after the Irish representation had been withdrawn from Westminster, and in the teeth of the hostility of the majority of the population in two of the counties.

12. The Six-County area was the high-water mark of the Ulster Unionist demand. It was conceded by the British Government without any authority from Ireland, opposed by the majority of the Irish people, bitterly opposed by the populations of large areas who were not in harmony with the political or religious creeds of the homogeneous population already referred to. Moreover, the British Government knew well from the breakdown of the Buckingham Palace conference that no political leaders in Ireland could stand for a settlement which consigned the populations in Tyrone and Fermanagh to the rule of the Ulster Unionists. The rest of the country would not agree to the sacrifice and these people would not submit to be alienated from those to whom they were bound by every tie.

13. When the Treaty came to be negotiated, the Irish delegates were appointed by the Dáil which spoke for the whole of Ireland and included representatives from the Six Counties. The delegation was appointed to negotiate an all-Ireland settlement. Two of the delegates represented Northern Ireland constituencies, viz. President Griffith (Tyrone and Fermanagh) and General Collins (Armagh) and were in an especial manner concerned with the interests of their constituents who had been coerced into the ambit of Ulster Unionist authority in Northern Ireland.

14. An all-Ireland settlement was arrived at. The British Government had committed itself to a policy of 'no coercion for Ulster,' meaning by the term 'Ulster' the homogeneous population of the North-East corner who owned the political leadership of the Ulster Unionist party. Accordingly the British on their side imposed one qualification, namely, a qualification which would enable the British Government to honour its pledge that the Ulster Unionist population would not be coerced to accept an all-Ireland Government if they should persist in rejecting it. But such rejection would raise anew the problem of the nationalist populations collected against their will into Northern Ireland - the problem which had broken up the Buckingham Palace conference, the problem which was necessarily a very live question for President Griffith and General Collins directly representing the populations affected, the problem which would block any settlement providing no solution for it. The Boundary Commission was the solution agreed to for that problem in the event of the all-Ireland settlement being defeated by the Ulster Unionist politicians.

15. To sum up the outstanding facts of the circumstances surrounding the making of the Treaty, relevant to the question under consideration, we have:-

1. The effective revolt of the Irish people against British rule, leading inevitably to the withdrawal of British rule and the recognition of an Irish Government:

2. The existence of a dissident minority, consisting of a homogeneous population concentrated in the North-East corner of the country, speaking through the Ulster Unionist leaders:

3. Pledges given by British political leaders to that minority that they would not be forced to accept the rule of an Irish Government:

4. A hasty attempt by British politicians to secure fulfilment of the pledge behind the backs of the Irish people by setting up the Government of Northern Ireland over the Six Counties:

5. A new problem caused by coercion of Nationalist populations, separated from those with whom they have everything in common, put against their will under the Ulster Unionist Government, converted from being part of an effective majority into a helpless minority under a hostile authority:

6. A truce in the Anglo-Irish war to permit of negotiations for an all-Ireland settlement:

7. An all-Ireland settlement agreed subject to a reservation saving the British position consequent on the pledge given to the Ulster Unionist people of the North-East corner:

8. The reservation required by the British pledge necessarily qualified by a provision to be made for the problem of the Nationalist populations in Northern Ireland in case the British pledge should be insisted upon:

9. Agreement that this ultimate problem, if it should arise, be left to a Commission who should solve it according to the wishes of the inhabitants so far as economic and geographic conditions would not be incompatible with the fulfilment of those wishes:

10. No demand or claim ever made by the people of the Six Counties or by any of their political leaders for the inclusion of any part of the area of the twenty-six counties in the area of Northern Ireland:

11. Northern Ireland constituted as a Province of Great Britain with limited local government and representation in the parliament of Great Britain, which remains the undisputed supreme government and ruling authority in Northern Ireland:

16. From all that I have said there emerges the vital fact, the key to the situation, namely, that there was but one problem of area to be solved, and that was the problem of that portion of the area snatched into Northern Ireland whose inhabitants demanded that they should be in political association with the rest of Ireland and as to whom the people of the rest of Ireland demanded that they should continue in the National fold. There never was any other problem facing the delegates of the two nations. There was no claim for the transfer to Northern Ireland of any other part of the area of Ireland, 'not an inch,' consequently no such question arose for solution. The area of Northern Ireland alone was in dispute, and that only on the happening of the contingency of the Northern Government electing to stand out of the settlement. Once the facts are recalled, the intention of the parties to the negotiations becomes clear. The intention in agreeing to set up a Boundary Commission was to provide a settlement for the one big national question which would remain for settlement as a consequence of the obstinacy of the Ulster Unionist politicians. Such is the context of fact in which the boundary provisions of the Treaty are to be read. Such was the actual intention of the agreement for a Boundary Commission. I now come to the instrument itself and consider what is expressly set down in writing.

17. Let me repeat that in arriving at the effect of a particular provision of a written instrument, the whole document is to be taken into consideration (unless forbidden by the document itself which is not the case here). In my opinion, the intention of the parties as found upon the examination of the history of the transaction which I have made in the foregoing paragraphs, is to be found clearly expressed in the Treaty read in the light of the facts.

18. We begin with Article I. of the Treaty which contains the fundamental agreement resulting from the negotiations, that is to say, (a) Dominion status is agreed as the constitutional and political form of the settlement; and (b) the settlement is an all-Ireland settlement. The Dominion recognised under the name of the Irish Free State is to comprise the whole of Ireland.

19. But the pledge given to the North Eastern Unionists by the British political leaders is to be honoured. Accordingly machinery is provided by Article XII. whereby, if they so elect, the people to whom that pledge was given can secede from the Dominion of Ireland and pass back again as a province under the Government of Great Britain.

20. But, again, the people who have no interest in the British pledge to the North Eastern Unionists, who do not form part of the homogeneous population covered by that pledge, are not to be coerced to pass out of the Dominion with the provincial fragment. It is therefore agreed and the Treaty provides by the proviso to Article XII. that they are to be relieved from any coercion save the coercion of economic and geographic conditions.

21. To read into the proviso to Article XII. a provision for transferring any part of the twenty-six counties into the area of Northern Ireland, is to read into it something which is not there in express terms, and is not there for the very good reason that no such question arose before the signing of the Treaty, no such operation had to be considered in the absence of any demand for it, the negotiations were not concerned with it, and it was not within the contemplation or intention of the parties.

22. The history of the transaction as I have examined it, establishes that the meaning and intention of the Proviso to Article XII. was, as indeed it reads, to qualify the power of 'opting out of' the Free State given by the Article, by saving as far as possible from its operation those who wished to remain in the Free State. Hence this Proviso is engrafted upon the 'opting-out' provision, modifying and qualifying that provision and none other. Hence the declaration at the end of the proviso speaking only of the boundary (i.e. the area) of Northern Ireland, the one matter in dispute and before the minds of the signatories as arising upon the event of an 'opting-out' - the boundary which called for correction to meet the demand of one of the two negotiating parties that coercion and injustice should not be inflicted on the Nationalist population then within that boundary in the process of securing freedom from coercion for the Unionist people of Northern Ireland. The boundary of Northern Ireland only is dealt with in the clause because no similar case had been made in respect of the area comprised in the twenty-six counties. To provide for the transfer of any part of that area to Northern Ireland would have been to penalise the new Dominion for the act of the Northern Ireland Government in seceding contrary to the agreement and intention of both negotiating parties to have an all-Ireland settlement if possible.

23. It is, therefore, I think, clear upon the face of it that -

(a) The Proviso to Article XII. of the Treaty is a modification or qualification upon the right given by that Article to the Parliament of Northern Ireland to 'opt-out-of' the Irish Free State:

(b) The Proviso limits the area which may be carried out of the Free State by the operation of 'opting-out':

(c) The Proviso does not refer to, and is in no way concerned with the area comprising twenty-six counties theretofore styled by the British under the Government of Ireland Act, 1920 as 'Southern Ireland,' an area not the subject of dispute between the negotiating parties in the settlement at which they had arrived:

24. While I think the matter is sufficiently clear on Article XII. as I have explained it in preceding paragraphs, I look for corroboration elsewhere in the document. Such corroboration is not far to seek.

25. Article XI. in my opinion fully corroborates the position I have stated. The Dominion is established by the first Article for the whole of Ireland. It came into immediate effect and operation throughout the whole undisputed area of the twenty-six counties. The exercise of its powers of government is suspended in the disputed area of Northern Ireland. It is clear that the settlement effected by the Treaty is regarded as final and complete so far as the twenty-six counties are concerned, while the way is kept clear for the operation of Article XII. in respect of the six counties then comprised in Northern Ireland. In face of that state of affairs, the Boundary Commission have no power or authority to reopen the completed operative settlement made and in full force and effect in the twenty-six counties.

26. Again, the whole of Ireland being comprised in the Dominion of the Free State and its governmental authority being merely suspended in the Six Counties, so much of Northern Ireland as is excluded by the Boundary Commission from the 'opting-out' area comes automatically under the authority of the Government and Parliament of the Free State and no legal or constitutional difficulty arises. But the Government and Parliament of the Dominion of the Free State are now in full operative authority by virtue of the Treaty and the ratifying legislation, throughout the twenty-six counties. The Dominion is in a very different constitutional position from that of Northern Ireland which is constitutionally a subordinate province of Great Britain. The Dominion being completely established in the twenty-six counties and now operative in that area, does the Commission propose to ask for legislation of the Parliament of the Free State transferring territory to the Parliaments of Great Britain and Northern Ireland, the only way such transfer can now be effected? Is it not thus apparent that the Commission has no powers or functions in relation to the area of the twenty-six counties.

27. The case then is that -

1. The intention in fact was that the Commission set up under the proviso to Article XII. was to deal only with the disputed area then included in Northern Ireland:

2. The intention actually expressed by the clause as explained by the surrounding circumstances is in accord with the intention in fact:

3. The frame of the Treaty, in particular Articles I. and XI., confirms the interpretation of Article XII. in consonance with the intention in fact.