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JOHN HEARNE
Architect of the 1937 Constitution of Ireland
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Hearne was a member of this Catholic university educated elite. He might have expected to play an important role in an Irish Home Rule parliament. This would not have been an unreasonable expectation, considering his family’s status in one of the party’s strongholds, his political activism, his education and undoubted abilities, particularly in law, a profession with strong links to politics. Such speculation, such engagement in counterfactual history, while diverting, is of no value here. What did happen was that he had no role in a Home Rule Ireland because there was no such thing. Rather he came to play a significant role in the new political dispensation after the Anglo-Irish Treaty settlement of 1921. Instead of being one of the ‘lost generation’ of Home Rulers, he was to become a member of the ruling elite in a newly independent state.
Hearne addressed a fundamental issue in terms of the relationship between Commonwealth states and, in particular, their relationship with Britain – the extent of the legislative powers of Dominion parliaments. Regarding the Free State, the matter had to be viewed in the context of the situation resulting from the Treaty of 1921. Citing legal opinion, that of Justice Murnaghan in the High Court in 1925, the effect of Article 1 of that instrument was to create an independent state.103 Therefore, Hearne asserted a fact which ‘needed no emphasis’, that the Treaty was an agreement between two independent nations104 and, in theory, there could be no limitation to the legislative power of an independent state.105 He declaimed the view that ‘to speak of a disability to legislate arising out of the status of “an independent state” seems to do violence to the plain meaning of words’.106 He accepted that British legal theory might not accept his arguments but this was not material to the purpose of his memorandum. Indeed, he realised that the student of British constitutional history was familiar with the long-drawn-out controversy as to the extent of the legislative power of Dominion parliaments.107 He highlighted the two areas of particular contention where the British government insisted on the limitation of the power of these parliaments – the extra-territorial effect of legislation and the application of the Colonial Laws Validity Act 1865.
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