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INTRODUCTION

On 29 December 1937, Ireland celebrated Constitution Day, the day on which the country’s new fundamental law, Bunreacht na hÉireann, came into operation. To mark the occasion the government organised a rare, if modest, display of ceremonial.1 The national flag was flown on all public buildings throughout the country. In Dublin, at 9.30am, a twenty-one-gun salute was fired at the Royal Hospital, Kilmainham. In all military barracks, garrisons assembled at this time. Reveille was sounded and the tricolour raised. A feu de joie was fired, the national anthem played and soldiers attended mass. At 9.40am, in Dublin, Éamon de Valera, now styled ‘Taoiseach’ under the Constitution, and his ministers assembled at Government Buildings and were driven, with an escort of mounted cavalry, to the Pro-Cathedral for a solemn votive mass. Services were also held by other religious denominations – the Church of Ireland, Quakers and Jews. On his return to Government Buildings de Valera greeted the Chief Justice, Timothy O’Sullivan, who made and subscribed to the declaration as required of every judge under the Constitution. On his return to the Four Courts, the Chief Justice witnessed the declaration of the President of the High Court. At 12.40 pm, the Presidential Commission, one of the new constitutional organs of state, met at Dublin Castle. It discharged a number of functions, as required, pending the election of a President of Ireland in 1938. In honour of the day, the post office issued a special commemorative stamp. That evening de Valera made a radio address to the people of the state.

Among the congregation in the Pro-Cathedral on that day was a 44-year-old, slightly built civil servant, John Joseph Hearne, legal adviser at the Department of External Affairs. Unknown to most of those in attendance, he had played a very significant role in the making of Bunreacht na hÉireann. This fact was acknowledged by de Valera; in a copy of the document presented to Hearne, the Taoiseach wrote the following dedication in his own hand:

To Mr John Hearne, Barrister at Law, Legal Adviser to the Department of External Affairs, Architect in Chief and Draftsman of this Constitution, as a souvenir of the successful issue of his work and in testimony of the fundamental part he took in framing this, the first free Constitution of the Irish People.

Éamon de Valera

Constitution Day 29 XII 19372

Beyond a small number of politicians and senior civil servants, Hearne’s role remained unacknowledged and unrecognised for decades by a wider public. This was in keeping with the practice of the civil service which was regarded by its members and politicians as an ‘anonymous corps’,3 charged with meeting the needs and demands of ministers, behind a wall of secrecy and discretion. Civil servants were expected to work under cover of anonymity, preserving traditional boundaries that existed between them, the government and the public. The state’s administrative system was founded on the belief that a transgression of this principle would undermine ministerial prerogative and responsibility.4 Nearly thirty years after the introduction of Bunreacht na hÉireann, in December 1965, the Taoiseach, Seán Lemass, was asked by Deputy Patrick Harte to name those who in any way assisted in the drawing up of the Constitution. In his reply Lemass stated that ‘it would be contrary to the civil service tradition of anonymity to disclose the names of civil servants who were engaged in the drafting work’.5

A consequence of the general ignorance of the role of Hearne and other civil servants in the making of Bunreacht na hÉireann was that its production was attributed to de Valera alone. There was a clichéd image of him drafting it in long hand.6 A sense of this was conveyed by his son, Terry:

I have recollections of him in his study as he worked on the draft, but his eyesight continued to cause him trouble. He would only write by using a pen with a very large nib, which meant that vast amounts of paper often overflowed from his desk onto the floor. One day I remember going into his study, where I was warned not to walk on the many sheets of paper which were scattered on the floor. In time I believe these drafts were destroyed, but I often think it would have been interesting to see those portions of the new Constitution which were rejected or otherwise as first drafted.7

In a book published in 1973, the distinguished historian F.S.L. Lyons wrote: ‘The Constitution was a remarkable document – remarkable for what it contained and for what it omitted, remarkable still more because, as we now know, it was very largely the work of one man, Mr de Valera himself.’8

De Valera did not disabuse people of this notion. As head of the government which proposed the Constitution, he accepted and endorsed the view that the role of civil servants was an anonymous one. He was also happy to bask in the glory of his perceived constitution-making prowess. He informed the British Ambassador to Ireland, Sir Andrew Gilchrist, at a meeting on 27 February 1967: ‘Of course, I wrote most of the Constitution myself.’9 The acceptance of this fact among his more ardent followers contributed to his mystique and charisma. A charismatic leader is someone who is credited with having achieved seemingly impossible tasks and who, in the eyes of his followers, possesses qualities which mark him not just as rare or exceptional, but almost superhuman. ‘The vital dimensions of real charisma are not, therefore, necessarily attributes of the leader but, rather, qualities he is believed to possess by his followers who place a blind trust in him.’10 The complexities of constitution-making rank as a skill of the highest order and were probably akin to de Valera’s supposed prowess in mathematics. This prowess was, according to admirers, awe-inspiring to the point of being disconcerting.11

In 1970, two official biographies of de Valera, in English and Irish, were published. Both of them contained what was probably his first public acknowledgement of Hearne’s role in the process which led to the 1937 Constitution. Interestingly, there is a marked difference in the description of this role between the two publications. In the English version there is a reference to Hearne by name and this is in relation to his preparation of draft heads for a new constitution in 1935.12 In a second reference he is unnamed. This reference concerned the appointment, in 1936, of two civil servants to a commission to consider the functions and composition of a Senate, if one were established under a new constitution. The two, Hearne and John (Seán) Moynihan (secretary to the Executive Council) were, according to the English biography, ‘intimately associated with the drafting of the proposed constitution’.13 In the Irish biography, Hearne’s role is given a much more expansive treatment. He is named ten times and there are at least five references in which he is clearly identified, but not named. In the matter of the Senate commission, Hearne and Moynihan are named, with the added comment (as in the English version) that they were both very closely involved (‘baint an-dlúth acusan araon’) in the drafting of the Constitution.14 It should be noted that the English biography was much more widely read and more readily available.

A year before the appearance of the biographies, John Hearne died, on 29 March 1969. His obituary in the Irish Times referred to the fact that he was ‘prominent’ in the drafting of the Constitution,15 while the Irish Independent noted his ‘big part’ in its preparation.16 It was not until the pioneering research of Professor Dermot Keogh that there was a greater knowledge and appreciation of this role. In a book published in 1986, writing about Bunreacht na hÉireann, he stated that ‘the central figure in the process was unquestionably John Hearne, an able and knowledgeable civil servant’.17 He published an article in the following year on the document, on the occasion of its fiftieth anniversary. Keogh described Hearne’s contribution thus: ‘Apart from de Valera himself, no individual was so centrally involved in the drafting and shaping of the new Constitution.’18 In the same year, University College Dublin academic Brian Kennedy, in an article in the Irish Times, under the heading ‘The special position of John Hearne’, described him as ‘a distinguished civil servant – the man behind the 1937 Constitution’.19 On the seventy-fifth anniversary (2012), Hearne was described in a publication as ‘the person who played the most consistent and central part in the drafting process’.20 A year later, Seán Faughnan wrote that Hearne ‘with de Valera, was to prove to be the principal architect of the 1937 Constitution’.21 More recently, scholars have confirmed this assessment. Diarmaid Ferriter has commented: ‘Nor was its creation possible without the contribution of civil servants like John Hearne and Maurice Moynihan’ (secretary to the government, 1937–48).22 Bill Kissane identified Hearne as the most important of the civil servants involved in its production23 and, in the opinion of Judge Gerard Hogan, ‘the supremely gifted John Hearne was the principal drafter’.24

While the role of John Hearne in the making of the 1937 Constitution has emerged from obscurity, it is important, however, never to forget that the document’s prime mover and originator was Éamon de Valera. The Irish version of his biography conveyed this point with powerful directness: ‘Bhí rian láimhe de Valera go trom ar an mBunreacht agus é á dhréchtadh. Chaith sé dua agus dícheall le gach alt agus gach focal ann.’ (De Valera’s handwork was very much on the Constitution as it was being drafted. He put labour and effort into every paragraph and word.)25 Professor Ronan Fanning wrote in 1987:

It is historically accurate to speak of the 1937 Constitution as de Valera’s Constitution, not merely because he was the head of the government that enacted it but because the records recently released by the Department of the Taoiseach and by the Franciscan Institute in Killiney, where de Valera’s own papers are housed, put his personal predominance beyond any shadow of doubt.26

Faughnan commented that ‘ultimately it was de Valera’s decision what should or should not be included. The drafting of the Irish Constitution of 1937 was a process which was controlled and, in all essentials, inspired by de Valera himself’.27 Hearne’s son, Maurice, acknowledged this fact in notes he prepared for a biography of his father: ‘The Constitution of 1937 sprang from the nationalist ideals of Eamon de Valera, it was his political brainchild and it was he and he alone, among the Irish political figures at the time, who had the courage to shepherd it to its successful conclusion between 1935–7.’ Of his father’s role, he added: ‘It is equally clear to me that it was my father whom Mr de Valera most trusted to bring his ideal to that successful conclusion.’28

Notwithstanding a greater knowledge and appreciation of John Hearne’s part in the process which led to Bunreacht na hÉireann, Professor J.J. Lee was correct when he observed that ‘much remains to be uncovered about the planning and drafting of the Constitution, including not least the role of John Hearne and Maurice Moynihan’.29 This book concentrates on Hearne and attempts to identify more precisely, describe more thoroughly and assess more critically his role. It is a task made difficult, however, by the absence of any personal papers belonging to him and of official sources at important times in the process of writing the document. Hearne confirmed this fact in a letter to Maurice Moynihan in 1963:

As regards the English version [of the Constitution], I kept no records at all of my conversations with the President or others in the course of the drafting, and made none afterwards. On one occasion during the drafting, the President asked me whether I was making notes of our conversations and I said I was not doing so. As to whether there is any summary account of the discussions, their general nature, and so on, I should say there is no such account. There is none prepared by me and none of which I am aware.30

Nevertheless, it is important to try and understand Hearne’s role more completely. It is also an opportunity to assess the document from the perspective and through the prism of Hearne’s contribution – a document regarded by de Valera as one of his [de Valera’s] two greatest achievements,31 and of which it has been commented that ‘little else in his career throws such a shadow over contemporary Ireland’.32