Letter from Thomas J. Kiernan to Joseph P. Walshe (Dublin)
(Secret)

Dear Walshe,

This is to confirm and amplify our telephone conversation this morning.

In view of the private request from Dr. Skelton, the Dominions Office decided last evening to obtain privately the advice of the highest legal person in the land (that is, the Lord Chancellor,¹ but Batterbee did not wish to mention his name). The hypothetical question they put to him was, what would the proper constitutional course be if the Parliament here had not met till the 15th February and the last boat to New York sailed before that date, and if Mr. Baldwin had given a pledge to Parliament that he would bring the Pact before it, before ratifying it. The advice was that it would be quite in accord with the British constitution for the Cabinet formally to advise the King:

The whole facts would be clearly set out in the advice tendered to the King, and if necessary this advice, but certainly the instructions to the Ambassador abroad, would be disclosed to Parliament. The Prime Minister would then put all the facts to Parliament, explaining that as no doubt existed in this particular case as to what the wishes of Parliament were, he would ask Parliament to approve of the course taken in the exceptional circumstances by the Cabinet. Then, if Parliament refused to consent, the King's Seal would cease to be effective because that decision would have been anticipated as a possibility and fully covered in the advice given by the Ministers to the King.

This advice was given privately and is not being communicated directly to the Canadian Government but is being sent to Clark.³

Batterbee asked me if my Minister objected to the course Mr. Amery was taking in this case, in having these conversations between the Dominions Office and this Office. I think I probably had given Batterbee a suggestion of my feeling in this matter; but he explained to me that when talking to the Secretary of State last evening Mr. Amery said that if he only knew what to reply he would willingly write; that he means no discourtesy to the Minister; and that all he could think of writing is to suggest that the High Commissioner should discuss the matter with him, because if he writes anything else he may appear to embarrass our Government by making suggestions which we may regard as not quite correct constitutionally.

I was talking to you about the Seal when we were cut off. It just struck me that it would be a probable part of our constitutional evolution if the personal Seal of the King should only be used in respect of the affairs of the Dominion where the King was geographically situated, and that power should be in the hands of the Governor-General in other Dominions to apply the Royal Seal to Treaties etc. The position, as I understand it, at present is that the Lord Chancellor is the Keeper of the Seal and that Dominion Ministers tender their advice to the King through the Lord Chancellor; and that he is powerless, being merely the instrument by which the Seal is affixed. I hope you may have an opportunity of telling me your views on this subject at some later time.

After you have had an opportunity of discussing the Kellogg Pact with the Minister, will you kindly let me know what line I should take with the Dominions Office, because they are expecting something from me, one way or the other, and they are extremely anxious of course that we should fall in with their suggestion.