Despatch from Patrick McGilligan to L.S. Amery (London)
(D.5648C) (No. 42) (Confidential) (Copy)

Sir,

I have the honour to acknowledge receipt of your Confidential despatch No. 63 of the 6th February enclosing a memorandum dealing with the position of the Counsellors of State.

2. His Majesty's Government in the Irish Free State are glad to learn that, notwithstanding the manner of their appointment, the Counsellors of State - in matters concerning certain of His Majesty's constitutional functions - are considered to stand in the same relation to all the Governments of His Majesty as His Majesty himself. They also note with satisfaction that, in order to avoid even the suggestion that officers of State in Great Britain were acting in an executive capacity in the affairs of other States Members of the Commonwealth, it has been arranged that documents relating to these latter shall be signed exclusively by Her Majesty the Queen, the Prince of Wales and the Duke of York. It is nevertheless felt by His Majesty's Government in the Irish Free State that, in a matter of such grave import as the supreme affirmation of the people's will by the Sovereign, no doubts whatever should be allowed to persist as to the ultimate source of his authority or as to the strict constitutional sequence of the powers through which his authority is derived. The mere appearance of intervention, or shadow of intervention, by one of His Majesty's Governments between the Sovereign and his other Governments would destroy the very basis of the democratic institutions upon which the British Commonwealth of Nations is founded. It would, at least, strengthen the impression existing in certain spheres of Commonwealth thought that Great Britain acts as a sort of sieve between His Majesty and the other Nations of the Commonwealth to prevent the electors of these latter from enjoying constitutional privileges which the electors of Great Britain have enjoyed since the time when the Monarchy assumed its present constitutional character. His Majesty's Government in the Irish Free State fear that the method employed in the appointment of the Counsellors has in it some of the elements which encourage impressions of this nature and, as they feel sure that His Majesty's Government in Great Britain are no less anxious than they are to make perfectly clear the relations existing between His Majesty and his several Governments, they hope that His Majesty's Government in Great Britain of their own volition will take the necessary steps to have the question placed on the Agenda of the next Imperial Conference.

3. His Majesty's Government in the Irish Free State regret very much to learn that His Majesty's state of health is still very weak, and they do not wish, at this moment, to advise His Majesty to do anything which might require long and difficult explanations and which might accordingly disturb the rest which is so necessary for his recovery. They have, therefore, decided to accept the signatures to the Kellogg Pact and other documents, usually signed by His Majesty, of Her Majesty the Queen, the Prince of Wales, and the Duke of York as Counsellors of State, without a special ad hoc appointment by His Majesty, but they cannot agree to the citation of the Commission of Appointment in any document appertaining to the Irish Free State. The citation of the Commission would completely annul the constitutional advantages obtained by the arrangement for signature by members of the Royal Family exclusively in matters concerning His Majesty's Governments other than that of Great Britain, and only the very gravest reasons of State would impel His Majesty's Government in the Irish Free State to give their consent, however qualified, to the citation.

4. I enclose the instrument of ratification in the form desired by His Majesty's Government in the Irish Free State who hereby advise Her Majesty the Queen, His Royal Highness the Prince of Wales, and His Royal Highness the Duke of York, to sign the instrument.

5. I shall feel very much obliged if you will have the signed instrument forwarded to our Chargé d'Affaires at Washington.¹ He will be instructed to present the ratification simultaneously with His Majesty's other representatives when he has been advised by cable that the ratification has received the approval of the Oireachtas.