The articles of the Treaty which gave rise to so much debate both inside and outside the Dáil over the Christmas period of 1921 fall into two categories. Firstly, there was the issue which has become known to history as ‘Crown and empire’. Secondly, there were the clauses which concerned ‘essential unity’ – the continued partition of the country and the constitutional position of the young state of Northern Ireland. Other issues regarding defence, taxation obligations and trade were significant but were ultimately overshadowed by those encapsulated in Articles 1–4 of the Treaty.
In essence, the signatories provisionally committed the new Irish Free State to a recognition of the British monarch as the titular head of state to be represented in Ireland by a Governor-General. Furthermore, the Treaty, were it to be ratified by the Dáil, would oblige all elected parliamentarians to swear an oath of allegiance – including a commitment to be ‘faithful’ to the British monarchy – before taking up their seats in the legislative assembly. Regarding Ireland’s relationship to Britain, Articles 1 and 2 were ambivalent. They accorded Ireland the same dominion status as Canada, but that was a concept whose constitutionality had not yet been fully explored or expounded. The British empire was evolving into the British Commonwealth and the colonies were coming to be known more as dominions. However, it was open to interpretation whether dominion status tethered Ireland to a legal position subject to imperial traditions or, as Collins advocated at the time, would afford the Free State the freedom to mould her future relationship with Britain along lines in keeping with republican ideology.
From its opening article, it was clear that the Treaty encompassed the entire island of Ireland but that according to Article 11, Northern Ireland could if she so wished, ‘contract out’ of the arrangement within one month of the Treaty being endorsed. In real terms then, the border splitting Ireland in two was to remain, notwithstanding the contingency included in Article 12 heralding the establishment of a boundary commission to determine exactly where the border should be, ‘in accordance with the wishes of the inhabitants, so far as may be compatible with economic and geographic conditions’. The plenipotentiaries were confident that such a body would transfer significant portions of Northern Ireland to the south, prejudicing against the economic viability of what was to remain. But the acceptance of a boundary commission tacitly admitted the existence of a boundary, or border at all, and so copperfastened the division of the country for the time being at least.
Articles 6 and 7 established that until agreement between both governments was reached, defence of Irish coastal waters was to be exercised by the British navy and made possible by their retention of four ports: Berehaven, Cobh and Lough Swilly with the fourth, Belfast Lough, falling under Northern Ireland’s jurisdiction. Article 8 limited Ireland’s capacity to build up a standing army but its principle, that Ireland’s armed forces not exceed Britain’s armed forces relative to the size of its population would have enabled her develop an army far bigger than she could ever afford or, hopefully, need.
Free trade was enshrined in Article 9 while Article 10 committed Ireland to the payment of pensions and compensation in the event of redunduncy to members of the Crown forces who had served in Ireland, excepting those who had served during the War of Independence. Evidently the prospect of shouldering the pensions of retired Black and Tans and Auxilliaries was not something the Irish negotiators were prepared to accept.
Articles 13 and 14 refer to upholding the terms of the Government of Ireland Act of 1921 regarding Belfast’s parliament and sovereignty while Article 15 concerns relations between the southern and northern parts of the island, particularly concerning trade links and the protection of minorities within both jurisdictions. Article 16 makes implicit the potential for sectarian division which might arise and strives to counteract the possibility of its occurence at institutional level.
Finally, Articles 17 and 18 deal with the immediate future. The former provides for a provisional government to be set up in the south, recognised by Westminster, while the latter reiterates the title of the document and its provisional nature. Both delegations would have to take the document back to their respective parliaments for ratification. What had passed between them were proposals to be vetted and/or endorsed or rejected by the democratic assemblies to which both were accountable, the House of Commons and Dáil Éireann.