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CHAPTER 2

In the Service of the Free State, 1922–1932

John Hearne accepted the Anglo-Irish Treaty of 1921 and this influenced him to support the Cumann na nGaedheal party led by William T. Cosgrave.1 This party was to have a strong neo-Redmondite presence,2 the old parliamentary nationalist tradition being seen as its natural constituency.3 For example, in March 1923, at a Cumann na nGaedheal meeting in Waterford City, an extremely conciliatory mood was evinced towards the old Irish Parliamentary Party, with many in attendance advocating the adoption of William Redmond as the Cumann na nGaedheal candidate in an election.4 Four years later, in 1927, at a meeting in Mayo to select candidates to represent the interests of Cosgrave’s government, twenty-two of the thirty-one members of the election committee of the old Irish Party were in attendance and one of the candidates considered for nomination had contested a seat for the same party.5 Cosgrave took satisfaction in bringing together the different nationalist traditions, a fact illustrated when both the sons of John Redmond and his successor, John Dillon, joined Cumann na nGaedheal.6 In fact, as Patrick Maume has observed, ‘the involvement in the Cosgrave government of middle-class Catholic professionals who might loosely be described as Redmondites … meant that Redmondites could claim some degree of credit for the creation of the new state’.7

The Irish Parliamentary Party tradition was mediated in the highest levels of government by ministers such as Kevin O’Higgins, Vice-President of the Executive Council and Minister for Justice, and James Hogan, Minister for Agriculture.8 The former, who was particularly influential in the development of Cumann na nGaedheal,9 had strong family connections with Home Rule politics.10 Writing about the two ministers, John Regan observed:

O’Higgins and Hogan were in power, it might be argued, in spite of it [the Irish revolutionary period, 1918–21]. O’Higgins, in particular, acted and behaved, even in his days with Collins in the provisional government, as if he should or one day would lead. School, university, the practice of the law, family, status, politics, their nationalism had all been framed within a history, perhaps a story of Ireland, the terminal point of which was to be the achievement of home rule. As part of a small, educated, and connected Catholic nationalist elite rapidly on the way up, they would be part of that achievement and benefit from it.11

These observations have strong resonances with Hearne’s circumstances, as described in the previous chapter. He too was university educated, a lawyer and the scion of a family of status which was steeped in Home Rule politics. Therefore, he could entertain reasonable expectations of benefiting from the establishment of a Home Rule parliament. This explains why he had more in common with the Cumann na nGaedheal regime than a putative Sinn Féin one; the former was more consonant with his political beliefs and formation.

Moreover, O’Higgins, in his politics and approach to government, wanted to integrate into the new political system being established in the Free State the Irish nationalist Catholic elite.12 Some had once been ‘members of the Roman Catholic establishment in waiting’,13 pending the advent of Home Rule. Their rightful place was now in leadership roles in the Free State, according to O’Higgins. It is interesting to note, as will be seen in this chapter, that it was the same O’Higgins who first identified Hearne as a possible candidate for a position in the service of the new state.

For a strident opponent of Sinn Féin, such as Hearne, Cumann na nGaedheal in government won his support as it jettisoned much of the revolutionary Sinn Féin policy and its rhetorical republicanism after the 1923 general election.14 In Cumann na nGaedheal’s election manifesto, it was argued that ‘the essence of a republic is the effective rule of the people, responsibility of governments to the people through their parliamentary representatives, the authority of the laws of the country derived from the people and exercised through a legislature elected by the people’. This had been established by the Constitution of the Free State; therefore, the republic had effectively been won.15 Sentiments such as these would have struck a chord with Hearne, as he had denounced Sinn Féin’s irresponsible policies in 1918, his views likely being reinforced by the country’s apparent descent into anarchy in 1922–3, as a consequence of that party’s pursuit of its illusive republic. Cumann na nGaedheal committed itself to an agenda of stable and efficient government and this represented a sensible and reasonable contrast and antidote to what Hearne would have regarded as the deplorable excesses of Sinn Féin.

The negation of extremism by Cosgrave and his ministers was more in keeping with the politics of an erstwhile follower of John Redmond than the more radical views of de Valera and his supporters. Interestingly, Kevin O’Higgins was criticised for his failure to understand what the Irish revolution of 1918–21 was all about – he was accused of having reduced it to the notion of the Irish people getting a parliament.16 Such an opinion is one with which Hearne might have identified and sympathised, given his ardent support for a Home Rule parliament for Ireland, and in the context of the perilous political situation in the country in 1922–3. Perhaps applicable to him also, to some degree at least, was an observation made by de Valera in the course of a press interview he gave on 15 January 1922. In it he argued that the Treaty would undermine Ireland’s position. He said that people did not realise this and explained why:

The national policy of the dominant political leaders of the last century, and of the present century up to the time of Mr Redmond’s death, has so affected the mental background of all who are now above middle age that they slip back quite easily over the last decade as if it had not existed and regard this Treaty from the point merely of a Home Rule Act that cannot ‘fix the boundary of the march of a nation’.17

While the reference to middle age is not relevant to Hearne, the Treaty viewed in the context of the Home Rule Act may be. It is interesting to remember that, in the course of his address to the Young Ireland branch in Waterford in 1918, discussed in Chapter 1, he rejected the charge that the Home Rule movement was setting boundaries to the march of the nation. He would have appreciated how much more freedom the Free State enjoyed under the Treaty settlement than it would have enjoyed under the Home Rule Act – the boundaries had been further extended. This represented real progress and was not to be discarded in a quixotic pursuit of republican constitutional dreams. Thus, by the mid-1920s the Free State’s ruling elite, in terms of composition and dominant political culture, appeared to share much in common with the pre-revolutionary elite of the Irish Parliamentary Party.18 For Hearne, in the turbulent years of the new state’s foundation, when citizens had to decide their political loyalties, it meant transferring support from Redmond’s party to Cosgrave’s. In truth, it was a decision which was neither surprising nor difficult.

Hearne served the Free State in a number of capacities. He was an army officer from 1922 to 1923. He then obtained employment in the Office of the Attorney General as an assistant parliamentary draftsman, a position he retained until 1929, when he became the legal adviser at the Department of External Affairs. He was a member of one of the elites within the new state – ‘civil servants, soldiers, legal advisers, republican brothers [members of the Irish Republican Brotherhood] – all of whom influenced policy and should be seen as forming extended and less recognisable elites within what might be termed the Treatyite establishment’.19 John Regan has written that the non-political nature of many of the elites makes their more subtle contributions difficult or impossible to identify and that this remains ‘especially true in the case of the senior civil servants in the early years of the new state’.20 In relation to Hearne, he played a pivotal role in the state’s Anglo-Irish and Commonwealth policies and, therefore, it is possible to identify and assess his contribution to some degree. He does not remain as anonymous as other civil service contemporaries.

Legal career

Before embarking on a career in the public service, Hearne was to practise as a barrister on the Leinster Circuit from 1919 to 1922. These years coincided with the struggle for independence waged by Sinn Féin and the Irish Republican Army. Sinn Féin set out in 1919 to create ‘a polity within a polity’ and nowhere was it more successful than in the creation of an alternative system for the administration of justice.21 Courts owing their allegiance to Dáil Éireann were established and became quite formalised in their procedure, issuing injunctions and summoning juries.22 Hearne appeared before them, acting as a counsel.23

Army officer

The Treaty was adopted by Dáil Éireann on 6 January 1922 but, for much of that year, the country was on the verge of anarchy. It was a very difficult time for those assuming the government of the newly independent state, a reality conveyed by one of its leaders, Kevin O’Higgins, in a memorable description:

The provisional government was simply eight young men in the City Hall standing amidst the ruins of one administration, with the foundations of another not yet laid, and with wild men screaming through the keyhole. No police force was functioning through the country, no system of justice was operating, the wheels of administration hung idle, battered out of recognition by the clash of rival jurisdictions.24

With the Garda Síochána in the process of being formed and trained, the only instrument at the disposal of the government with which to enforce its authority was its fledgling army. The Dáil, therefore, approved the establishment of military courts in September 1922.25

In the autumn of 1922, Cahir Davitt was appointed Judge Advocate General to head up the army’s legal section. He decided to attach to the headquarters of each command a legal staff officer, who would, if possible, be a qualified barrister or solicitor.26 He began recruiting suitable staff and met with Kevin O’Higgins, Minister for Justice, who was in the process of appointing district justices. Davitt has left an interesting account of the meeting:

I was told that Kevin O’Higgins, who had now become Minister for Justice, had received quite a number of applications from barristers and solicitors for positions as district justices to replace the old justices of the peace and that there were more applicants suitable in every way than there were vacancies to be filled. I called to see him and he gave me the names of those whom he would have liked to, but could not, accommodate. He made special mention of John Joseph Hearne, whom I had known in UCD and later as a counsel appearing before me in the Dáil courts. He was a Waterford man, whose family had always been staunch supporters of John Redmond and the Irish Parliamentary Party. He had himself in the 1918 general election ardently and eloquently supported John Redmond’s son, William Archer Redmond … O’Higgins told me that he would have appointed Hearne, of whose character and ability he had a high opinion but that there had been opposition within the government, which he had been unable to overcome.27

It is clear that Hearne’s credentials as a Home Rule activist were militating against him; he had made an enemy or enemies in high places.28 O’Higgins expressed the hope that Davitt would find a place for him on his staff and the latter readily agreed.29 Thus Hearne became a command legal staff officer.

He was appointed to the army’s Western Command. The circumstances of this have been described by Calton Younger in an account which captures the drama and hazardous nature of serving the young state:

Seán Mac Eoin had recently been promoted to major-general and appointed G.O.C. of the Western Command, an appointment he accepted reluctantly. He was a man of action and didn’t want to be tied down by administrative work. He would accept the command, he told Michael Collins, only if he were given a legal officer and a quartermaster. Collins quickly produced John Hearne, who afterwards reached ambassadorial rank. Hearne was rushed down to O’Callaghan’s, the military outfitters, where he exchanged his natty lawyer’s dress for an army uniform. He emerged with a Sam Browne belt that creaked its newness and a small holster. Having been issued with a large revolver, he took his place in McEoin’s car to travel to Athlone. As they set off, Hearne suddenly realised that McEoin had no escort and asked rather anxiously where it was. McEoin laughed. ‘Haven’t I got you?’ he said and, pointing to the revolver added, ‘and that’.30

Hearne was commissioned at the rank of commandant, effective from 12 October 1922.31

The duties of a command legal staff officer were to advise the general officer commanding on all matters relating to military law and courts martial; to direct and generally supervise the administration of military law in the command area; and to provide for the attendance of a legal officer at every court martial held in that area.32 The position was an important one in a country experiencing major civil disturbance, where military courts took the place of civilian ones. The courts had jurisdiction to try persons for offences such as attacks upon the national army; unauthorised possession of arms, ammunition or explosives; and the seizure and destruction of property.33 These same courts had powers to inflict punishments which included fines, penal servitude, imprisonment, deportation, internment and death.34 As legal officer of the Western Command, Hearne was responsible for the conduct of military courts in an area which included the western seaboard counties, as well as Longford, Roscommon, Sligo and Leitrim.35

His son, Maurice, has recorded that his father’s military promotion and attendant duties ‘placed Dad in somewhat of a dilemma’. He did not believe that capital punishment acted as a deterrent to criminality, especially in times of armed conflict, and that it left no margin for human error. The matter became a subject of discourse between them when they lived in Washington during Hearne’s tenure as Ambassador to the United States. In 1951, both of them went to hear the unsuccessful appeal of Julius and Ethel Rosenberg against the death sentences imposed on them for espionage. According to Maurice, it was to his father’s great relief that he was never appointed to conduct any case before a military court involving capital punishment.36

In considering Hearne’s attitude to his role and to the prevailing disorder, recourse must be had to surmise in the absence of personal papers. Cahir Davitt offers us an insight. Referring to those to whom he offered positions as legal staff officers, he commented that ‘once they had been given the opportunity of serving the state when it appeared to be in some danger, they felt it to be their duty, as citizens, not to refuse it [the position]’.37 Furthermore, reflecting on the position in the country, he observed:

Like the majority of the people, I regarded the provisional government as being the de jure as well as the de facto government of the state. I believed that it was not only its right but its plain and manifest duty to assert its authority and to protect the citizens in the exercise of their fundamental rights, to the undisturbed possession and enjoyment of their property and the lawful expression of their opinions. I believed that in order to do this it was essential to suppress the opposition of the Four Courts executive [anti-Treaty IRA leaders] and to prevent the use and abuse of the power they had unlawfully usurped. I believed that for the purposes of doing so the government had every right to use military force as well as other legitimate means, including the taking of human life, if necessary … Many attacks, in a sense all attacks, upon members of the government forces were made by men whom those attacked had every right and reason to regard as civilians. The Catholic hierarchy in a statement made from Maynooth in April [1922] had condemned the usurpation of power by the Four Courts executive; and in a joint pastoral letter of October 10 had stigmatised such attacks as being ‘morally only a system of murder and assassination’.38

It is reasonable to suggest that Hearne would have shared many, if not most of the sentiments recorded by Davitt relating to the circumstances facing the government and the response of Cosgrave and his ministers to them. Like their author, Hearne was loyal to the Free State and would likely have agreed with the view of the Civil War articulated by O’Higgins at Oxford University in 1924: ‘The right of the people to found a state on the basis of the Treaty which had been signed by their plenipotentiaries and endorsed by their parliament had to be vindicated beyond question.’39

As the Civil War petered out in 1923, the command legal staff officers became increasingly concerned about their future prospects. In May, they expressed these concerns in a letter sent to Cahir Davitt and signed by six officers, including Hearne.40 In response, Davitt met with them but could not offer any reassurances.

As for Hearne, his career in the army ended when he tendered a letter of resignation, dated 19 November 1923, to Davitt, who recommended its acceptance, adding ‘I do so with great regret, as this officer has been in every way satisfactory.’41 His commission was terminated on 20 December.42 He took up new employment in the Office of the Attorney General, as assistant parliamentary draftsman, in 1924.

Assistant parliamentary draftsman, 1924–9

In 1956, John Hearne reflected on his joining the civil service, recalling:

It happened that when I was of three years standing at the Bar an event took place which changed the course of the lives of many Irish lawyers and gave the legal profession a new place, and a new responsibility and a new influence in the country – I mean the establishment of the Irish Free State in the year 1922. For my own part, I was invited to work with the first Attorney General and spent five years in that department of the new government.43

The civil service John Hearne joined was a British type in miniature.44 On the establishment of the Irish Free State, 21,000 of 28,000 civil servants transferred to the service of the new government.45 The effect of this was administrative continuity both in terms of personnel and practice, a fact acknowledged in an official report in 1934:

The passing of the state into the control of a native government, however revolutionary it may have been as a step in the political development of the nation, entailed, broadly speaking, no immediate disturbance of any fundamental kind in the daily work of the average civil servant. Under changed masters the same main tasks of administration continued to be performed by the same staffs on the same general lines of organisation and procedure.46

This was a formidable inheritance for the new state, given the tradition of the British civil service and the quality of professionalism it displayed.47 The newly formed Irish civil service contributed to the establishment and consolidation of parliamentary democracy in the Free State.48 That post-independence generation of civil servants was imbued with profound loyalty and commitment to public service,49 being determined to ensure the survival and vitality of the new state.

As assistant parliamentary draftsman, John Hearne worked under Arthur Matheson, described by Maurice Hearne as ‘legendary’, and who was ‘reputed to be the most skilful legal draftsman not only in Ireland but throughout these islands’.50 According to the same source, Hearne formulated much of the legislation establishing the institutions of the state sector, notably the Electricity Supply Board (ESB).51 The draft bill relating to the ESB was described by Matheson as ‘highly technical, very detailed and very lengthy’.52 In an accompanying memorandum to the Attorney General, he wrote that the draft ‘far transcends in magnitude and difficulty anything which was contemplated by you, or in this office (or, I imagine, by the minister) when the work was undertaken two months ago’. He continued:

I am glad to take this opportunity of letting you know that much the larger share of the credit for having produced this draft in the short time and on the meagre instructions available belongs to Mr Hearne; the draft bill as it now stands is not a draft prepared by me with Mr Hearne’s assistance, but is a draft prepared by him under my supervision, a very different thing and one for which he should be given full credit.

Matheson explained, in some detail, the difficulties faced and included a timetable of meetings with various officials.53 He was determined to leave the Attorney General in no doubt as to the problems associated with the drafting of the bill. The skills Hearne learned as a draftsman were to serve him well when working on constitutional matters later in his career.

John Hearne and the Imperial Conference, 1926

In his capacity as assistant parliamentary draftsman, Hearne attended the 1926 Imperial Conference. Between 1922 and 1932 the foreign policy of the Cosgrave government was dominated by the paramount objective of achieving full and unrestricted sovereignty for the Irish Free State.54 This was to be realised by seeking to transform the British Commonwealth into a free partnership of sovereign independent states,55 all equal in terms of constitutional and international status. In practical terms, this meant equality between the United Kingdom and the self-governing Dominions. For Cosgrave and his ministers the international recognition of Irish sovereignty would represent the true measure of independence. The Irish Free State, however, could not be regarded as a full international entity because of the limited sovereignty of the Dominions in foreign relations.56 In fact, the degree of legal sovereignty they enjoyed in terms of international law was a matter of real controversy.

Notwithstanding these obstacles, there was a vital factor that was to work in favour of Irish policy. The Free State had acquired the status of a Dominion at a stage of development of the British Empire when the Dominions, ‘which had long enjoyed unfettered control of their domestic affairs and, more recently, limited treaty-making powers, were moving, if unevenly, towards autonomy generally, including autonomy in their foreign relations’.57 Such a development was viewed favourably and enthusiastically by a government ruling a country where Dominion status had never enjoyed popular support, having been imposed as part of the Treaty settlement.58 In a very real way, therefore, the Free State was never a member of the Commonwealth, in the sense of accepting it freely and warmly;59 and British beliefs that the country would become a Dominion psychologically as well as constitutionally were mistaken.60

The forum in which the Irish state pursued its policy and engaged in controversy with the government of Great Britain was the Imperial Conference, a gathering of the leaders of Dominion governments, held at periodic intervals. It was regarded as ‘the chief buttress of imperial unity and the tangible expression of imperial co-operation’;61 it was to be the stage on which the Dominions advanced towards full equality and sovereignty. The Irish first attended in 1923, but it was the Conference of 1926 where the Irish delegation played a full role. At this and other Conferences, the Free State delegates, in co-operation with other Dominions, notably South Africa and Canada, expanded the meaning of Dominion status.

John Hearne was among five civil servants who attended the 1926 Conference. The others were Diarmuid O’Hegarty, secretary to the Executive Council, Joseph Walshe, acting secretary of the Department of External Affairs, and two typists.62 Apart from the latter, Hearne was the most junior of the officials.63 This did not mean, however, that he was an unimportant member of the group. A small team such as the Free State delegation had no room for a superfluous member; all would have been expected to make a real contribution and were chosen accordingly. His expertise as a draftsman, together with his legal knowledge, were the determining factors in his selection. His presence in London was probably on the recommendation of the Attorney General, John A. Costello, in whose office he worked and who was an adviser to the ministerial delegation comprising Cosgrave, O’Higgins, Desmond FitzGerald, Minister for External Affairs and Patrick McGilligan, Minister for Industry and Commerce. Joseph Walshe prepared the significant documents that formed the basis of the Irish position at the Conference,64 though Hearne did contribute to a memorandum prepared by Costello on the complex area of merchant shipping.65 In addition to his general advisory role, he acted as an adviser to Kevin O’Higgins, the Free State’s representative on a committee dealing with the issue of nationality, and he was also nominated as the representative on a committee on overseas settlement.66

Before the Conference began, the Irish government proposed that the status of the Dominions be discussed and that anachronistic obstacles to the exercise of their sovereignty be removed.67 The Irish contributed to the clarification of the meaning of Dominion status and, according to D.W. Harkness, their major contribution in this regard was contained in what he described as a ‘remarkable memorandum’ drawn up by ministers and officials, the latter almost certainly including Hearne. Dated 2 November 1926, it was written two weeks into the Conference, which had begun on 19 October. Thus it represented an analysis and restatement of Irish aims, informed by the discussions of constitutional and diplomatic issues at the Conference. Entitled ‘Existing Anomalies in the British Commonwealth of Nations’, Harkness has described it as a document

of great breadth and it recognises that matters which affected one Dominion had repercussions upon all. Far from being a list of domestic grievances its aim was to create throughout the whole Commonwealth an atmosphere of co-operation based on the fellowship of equality … It raised questions of a penetrating nature that went to the heart of the imperial structure: questions that required the closest scrutiny at the highest level.68

The memorandum69 was predicated on a central contention of the Irish delegation that ‘the principle of the absolute equality of status and the judicial and constitutional independence of the members of the British Commonwealth of Nations is now admitted beyond controversy’. Accordingly, attention was drawn to the outstanding anomalies and anachronisms which appeared most to detract from that principle. The Free State insisted on the fundamental right of the government of a Dominion to advise the King on all matters relating to its own affairs. In effect, what was being demanded was that a Dominion government should enjoy the kind of constitutional relationship which existed between the monarch and the government in Britain, when the former acted solely on the advice of the latter.

The memorandum identified what it regarded as an anomaly in the role of the Governor-General in each Dominion – he was both representative of the King and the British government. This dual role gave the Governor-General the constitutional right to interfere in the affairs of a Dominion. To remedy this, the memorandum argued he should represent the King alone and act solely on the advice of the Dominion government. Consistent with this view was the insistence that the powers of reservation and disallowance conferred on the Governor-General be abandoned. In keeping with the assertion of the constitutional independence of the Dominions, their legislative enactments should enjoy extra-territorial effect. Finally, the assumption in international treaties that the signature of plenipotentiaries, appointed solely by the British government, was binding on the governments of the Dominions was utterly unacceptable. Rather, the principle should be accepted that no Dominion could bind another; only the signatures of plenipotentiaries appointed by a Dominion government could have the effect of binding it by international agreement.

The 1926 Imperial Conference is famous for the so-called ‘Balfour Declaration’, which described the Commonwealth as founded on the root principle of the equality of status of the Dominions: ‘They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.’70 Decisions made at the Conference reflected this declaration of equality. The Governor-General would cease to be the representative of the British government and was to represent solely the monarch, holding in all essential respects the same position in a Dominion as the King in Great Britain.71

It was recognised that it was the right of the government of a Dominion to advise the monarch in all matters relating to its affairs; the corollary was that the British government did not have the right to offer the monarch advice contrary to that of the Dominion government.72 Equality had implications for matters such as reservation and disallowance of legislation and its extra-territorial effect; the Conference recognised that these were complex legal and constitutional matters which would require detailed consideration by a committee of experts to be established for that purpose.73 This was the origin of the Conference on the Operation of Dominion Legislation, to be discussed later in this chapter. Finally, no Dominion was to be committed to obligations by another, and this included Great Britain.74

Hearne and Conference committees

The committee on nationality, on which O’Higgins was the Free State representative and Hearne his adviser, made little progress.75 The Irish were anxious to establish their own nationality; the British were determined to allow only Irish citizenship within British nationality. For Britain, allegiance to the Crown was crucial. The Irish were determined to refute what they regarded as the British ‘umbrella’ theory – that all the Commonwealth members should embrace British nationality. Minor matters were settled; it was decided to refer the more complex ones to the Conference on Dominion Legislation.76

John Hearne was the Free State representative on the subcommittee on overseas settlement, a body concerned with the problems associated with this policy in the Commonwealth. The policy had been defined at the 1923 Imperial Conference as ‘a redistribution of the white population of the Empire in the best interest of the Empire as a whole’.77 This definition was accepted by the committee which proceeded to examine proposals for its successful implementation. Matters discussed included the selection and recruitment of migrants; their reception and welfare; family settlement; the settlement of juveniles; and the settlement of women and girls.78

The report of the subcommittee was very comprehensive79 and adopted by the Imperial Conference on 19 November.80 The fact was, however, that, in terms of Irish concerns, both the report and the activities of the group which produced it were unimportant, if not actually irrelevant. The parts of the Commonwealth interested in overseas settlement were Canada, Australia, New Zealand and Southern Rhodesia. It was not a matter of any concern to the Irish government and there was little evidence of active participation in discussions by Hearne. His one reported contribution served to underscore the tangential nature of the subject for the Free State: ‘The representative of the governments of Newfoundland and the Irish Free State intimated that conditions in their territories precluded co-operation on their part.’81

This effective disengagement by the Irish delegation perhaps explained the acceptance of language in the report which otherwise might have elicited objections. It spoke of the need to stimulate the outward flow of population from the ‘Mother Country’ to the general advantage of the whole Commonwealth.82 In other circumstances, the description of Britain as the ‘Mother Country’ might have been challenged and rejected by the Irish; here it was tolerated in the context of a policy which was the product of colonialism and the colonial legacy in terms of the other Dominions, and apparently accepted as such by them. These regarded Britain as the ‘Mother Country’. Consequently, a country that was a reluctant Dominion was not going to raise objections to an issue that did not impact on it.

Nor should there be any surprise that the Free State, a country with an anti-imperial history and reputation, did not object to or even express a view on a policy that was a variation on the idea of plantation, a concept in Irish history redolent with notions of cultural, religious and racial superiority. After all, overseas settlement entailed the distribution of white people in the Dominions, who differed culturally, religiously and racially from the indigenous peoples. The Irish remained silent – this aspect of overseas settlement, as with the entire policy, simply did not have consequences for the Free State. Once again this aspect reflected the colonial legacy of the Dominions, lands essentially peopled by white settlers. Any comment might have caused offence among other Commonwealth governments and the Irish delegation would not have wished to cause such offence – it would have served no purpose in terms of Irish self-interest.

The official Irish response might also have been influenced by another consideration. Jason Knirck has written of the Irish tendency to write indigenous peoples out of their references to the other Dominions.83 This raised the vexed question of the relations between Irish nationalism and non-white regions of the Commonwealth. The Irish, it would seem, did not want to be too thoroughly connected with peoples widely perceived as inferior.84 In any case, this was not a major issue for the Irish Free State, as the matter of settlement was not one which preoccupied the attention of Irish policy makers. Nevertheless, the impact on indigenous races did not act as a spur to voice even the mildest concern. For the Free State, overseas settlement and its related matters were incidental and, therefore, principled observations and objections, if there were any, went unspoken.

Hearne’s membership of this committee probably reflected the fact that he was the most junior of the officials in the Free State delegation. He was appointed to represent the state on a body regarded as unimportant. He was the diplomatic rookie who drew the proverbial short straw and his nomination was a kind of apprenticeship. He did what was required of him: he said little and discharged his duties unobtrusively. The resultant report meant nothing in the Free State. Tellingly, the Free State was not represented on the committee on overseas settlement at the 1930 Imperial Conference.

The 1926 Conference was a success for Irish ministers and officials. This is evident when the November memorandum identifying anomalies is compared with the final report – very many Irish concerns had been addressed. The Balfour Declaration certainly gave cause for much satisfaction. In the Dáil, Desmond FitzGerald asserted that the Conference would ‘be regarded by historians as marking a definite step forward in the development of the individual states of the Commonwealth as distinct political entities in the general society of nations’.85 Listing the various decisions taken by delegates, he stated that relations between Great Britain and the other Dominions were now based on the root principle of equality of status.86

The commitment, competence and hard-work of the civil service advisers were a very significant factor in the success of the Irish delegation. The daily routine of Hearne and his colleagues was demanding and exhausting. They were accommodated in the Hotel Cecil, located between the Thames Embankment and the Strand,87 and here Hearne stayed for thirty-six days.88 The civil servants were virtual prisoners, a fact described by Diarmuid O’Hegarty, secretary to the Executive Council:

The points arising out of the conference and the memoranda which had to be prepared and submitted required careful consideration by the officials from the Department of External Affairs, the Draftsman’s Office [Hearne] and the executive council, who were in constant attendance on the ministers … Daily and even hourly conferences were necessary. Instructions, decisions, and memoranda were urgently required and given. Correspondence had to be attended to without delay. The volume of work was very heavy. During the days which I attended the conference not one of the officials engaged thereon on our staff had the opportunity of taking a walk. They were practically confined to two rooms – one used by the typists and the other employed as a conference room and dining room.89

For John Hearne, the 1926 Conference was an important occasion in his career. It was a significant conference in terms of the constitutional development of the Free State and he had been one of the advisers who had contributed to this development. He was to attend two other conferences – a clear indication that his contribution in 1926 was adjudged valuable by his ministerial and civil service superiors –where he was to play a more important role in terms of the Free State’s continuing constitutional evolution. However, he attended in a different capacity – as legal adviser at the Department of External Affairs.

Appointment as legal adviser, 1929

In 1929, John Hearne was appointed legal adviser.90 Together with two cadets recruited as a result of the first public competition for the Department of External Affairs, he joined an establishment which had endured many difficulties from its inception, not least the belief that its very existence was unnecessary.91 This department was a completely new institution of government, necessitated by the Free State’s constitutional status as a Dominion, and did not enjoy the advantage of the tradition of other offices in the former British administration, which were transferred into government departments, with comparatively little difficulty, on the setting up of the Irish state. During the Dáil debates in 1923 on the Ministers and Secretaries Act, which gave government departments their formal and legal basis, deputies questioned the need for a foreign ministry.92 The threat hanging over it was its possible absorption into the Department of the President. It was not until 1927 that its civil service head, Joseph Walshe, was given the rank of secretary and, by 1929, the threat to its independent existence had been dispelled with the recruitment of a legal adviser and cadets. These circumstances have prompted Dermot Keogh to write that ‘it was possible to speak for the first time of a Department of External Affairs’.93

Conference on the Operation of Dominion Legislation, 1929: Hearne’s memoranda

The Irish government was anxious to continue and expedite the process of transforming the character of the British Commonwealth. The 1926 Imperial Conference and, in particular, the Balfour Declaration had advanced this objective, but to the outside world it still had the appearance of an association dominated by Britain.94 A momentous step in altering this perception was taken at the Conference on the Operation of Dominion Legislation, which had its origins in the 1926 Conference and which, after some delay, was organised for October 1929. Its terms of reference were comprehensive:

To enquire into, report upon and make recommendations concerning

(i)Existing statutory provisions requiring reservation of Dominion legislation for the assent of His Majesty or authorising the disallowance of such legislation.

(ii)(a) The present position as to the competence of Dominion parliaments to give their legislation extra-territorial operation.

(b) The practicability and most convenient method of giving effect to the principle that each Dominion parliament should have power to give extra-territorial operation to its legislation in all cases where such operation is ancillary to provision for the peace, order and good government of the Dominion.

(iii)The principles embodied in or underlying the Colonial Laws Validity Act 1865, and the extent to which any provisions of that act ought to be repealed, amended or modified in the light of the existing relations between the various members of the British Commonwealth of Nations.

In addition to the above, the whole area of merchant shipping was referred to the 1929 Conference in order to ‘consider and report on the principles which should govern, in the general interest, the practice and legislation relating to merchant shipping in the various parts of the Empire, having regard to the change in the constitutional status and general relations which have occurred since existing laws were enacted’.95 The report of the Conference on Dominion Legislation was to be submitted to an Imperial Conference for its consideration.

The purpose and importance of the Conference on Dominion Legislation was explained earlier in 1929 by Patrick McGilligan, Minister for External Affairs, in the course of a Dáil debate on the estimates for his department:

The Commonwealth conception imports no limitation of the internal sovereignty of any of its members, and imposes no restrictions upon the exercise of its external sovereignty by any such member … In the autumn of the present year a committee of experts from every state of the Commonwealth will meet to discuss the formal amendment or modification, or repeal of enactments still on the statute book of the United Kingdom, which are inconsistent with the existing legislative powers of the member states’ parliaments. Our purpose is that whatever remnants there may be of the old order of imperial control will be removed and the last vestiges of the organisation now superseded swept away. The entire legal framework in which the old system of central rule was held together will be taken asunder and will never be put together again. A new legal structure will take its place … The free co-operation which is the basis of the Commonwealth idea … will be clothed in forms which reveal rather than conceal its reality.

McGilligan observed to deputies that ‘the House will realise what an amount of watchful, painstaking and highly technical labour that work involves’.96 John Hearne, as legal adviser at the department, did an immense amount of legal preparation, drawing on what D.W. Harkness has described as ‘his voluminous knowledge of British constitutional history’,97 and his memoranda were to inform, support and summarise the arguments of the Irish delegation at the Conference.

In a preliminary memorandum, dated 15 July 1929,98 Hearne gave an overview of some of the issues facing the Free State’s representatives. He emphasised that the new character of the Commonwealth found expression in the formula ‘freedom and constitutional equality’, thus indicating the freedom of the members to co-operate or act separately and equally in the exercise of every function of government – legislative, judicial and executive.99 The rapid development in the constitutional relations between the Dominions and the British parliament had resulted, however, in a situation in which the laws governing that relationship did not always reflect the new reality.100 Hearne explained this in almost poetic terms:

The statute book of the British parliament is crowded with imposing but antiquated legal structures in the shadows of which the new group of buildings – as it were – erected in the course of world reconstruction are lost to view. The Commonwealth will not appear to the world in its true perspective for the group of constitutional edifices which it is – each unit in the group, although not symmetrical with each other, yet splendidly proportioned to the ends and aims of all – unless and until the shadows cast upon it out of a dead age are lifted. ‘The state’, ‘the Commonwealth’, ‘status’ are spoken words. The written text of the statute law either belies them or gives them legal sanction, life and permanence. Step by step the written law must form up with the advances of the new constitutional doctrines.101

He had the Balfour Declaration in mind when he wrote of ‘momentous developments’ resulting ‘in a constitutional situation in which the United Kingdom as at present constituted is no more than one of the self-governing states of the Commonwealth’.102

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.

According to prevailing British legal theory, laws enacted by a Dominion legislature operated only within its territorial area, except where extra-territorial operation was given by the British parliament. In his memorandum, Hearne contended that nothing in the constitutions of the Dominions imposed any territorial limitation on the operation of any law made by a member of the Commonwealth. When necessary for ‘the peace, order and good government’ of a Dominion, its legislature was able to enact laws with extra-territorial effect. In his view, the words of the Dominion constitutions were wide enough to sanction such operation and, therefore, it followed that an act of the Oireachtas was not necessarily ultra vires if it had extra-territorial effect.108

Hearne’s interpretation, however, was not the main reason why the Irish government asserted the extra-territorial effect of Free State legislation. Rather, it was founded on a deep-seated perception of sovereignty and the consequent rejection of a Dominion status which denied this.109 Hearne articulated opinions informed by such beliefs in a subsequent memorandum, dated 26 August 1929, devoted entirely to the subject.110 He restated the view given in the preliminary memorandum that the right of extra-territorial legislation ‘must be regarded as inherent in the parliament of a Dominion’ and any contrary opinion111 had its origins, according to Hearne, ‘in the arbitrary limit set to the powers of the Dominions by judicial minds steeped in the law-lore of the British colony’.112 He asserted that ‘whatever the parliament of the United Kingdom can do, the parliament of any other of the associated states can do’.113 He advised, with certainty and conviction, on the necessary course of action to be pursued by the Irish delegates at the Conference: ‘The law must become and be this: that a member state of the British Commonwealth is in precisely the same position as is the United Kingdom or any other state in the world.’114

The second limitation on the powers of a Dominion parliament insisted upon by the British government had its basis in the Colonial Laws Validity Act 1865.115 Section two declared that any law made by the legislature of a colony, which was repugnant to any act of the imperial parliament extending to that colony, was, to the extent of the repugnancy, void and inoperative. Successive British governments insisted that the act applied to the Free State, an opinion rejected by the Irish government.116 Nor were the provisions of this act regarded by the latter as an abstract threat. In 1926, the Judicial Committee of the Privy Council used the statute to invalidate a section of the Canadian Criminal Code 1888. This decision had a particular resonance in Ireland, linked as it was to the constitutional position of Canada by the terms of the 1921 Treaty. Many observers on both sides of the Atlantic believed that the Privy Council was sending a message to the Free State, in the parliament of which there had recently been debates on the matter of retaining the right of appeal to the Privy Council from Irish courts.117 The Canadian case confirmed the Irish belief that the act was a direct threat to, and indeed a usurpation of, the attributes of sovereignty of the Free State, since its laws could be declared null and void if found to be repugnant to statutes passed by an external parliament.

In his preliminary memorandum, Hearne rejected the application of the Colonial Laws Validity Act to the Irish state, citing section three of the Irish Free State Constitution Act 1922,118 enacted by the British parliament on 5 December 1922, to give legal effect to the Constitution of the Irish Free State. This section stated that, if the parliament of the Free State made provision to that effect, any act passed before the Constitution Act, which applied to the Dominions, would also apply to the Free State. Hearne submitted that this section was based on the assumption that imperial statutes passed before the act did not apply to the Irish state; they could only do so if adopted by the Oireachtas.119 The Irish parliament had not adopted the Colonial Laws Validity Act.

In another memorandum, dated 3 September 1929, he developed his views on the Colonial Laws Validity Act.120 He was trenchant in his condemnation of it:

What is meant when it is said that the Colonial Laws Validity Act 1865 is repugnant to the legislative independence of the member states of the Commonwealth of Nations? Just this: that, as there is now in fact no supremacy of the British parliament over the parliament of, say, Australia or the Irish Free State, the retention on the British statute book of the Colonial Laws Validity Act is inconsistent with, in the sense of being irreconcilably opposed to, the constitutional fact.121

Its presence on the imperial statute book was contrary to the notion of an association of co-equal states and ‘the whole theme and theory of status and statehood as it exists in the Commonwealth today’.122 As in the case of extra-territorial legislation, Hearne was definite as to the approach the Free State must take at the forthcoming Conference: ‘But we must at least go to the length of seeking a formal repeal of the offending sections of the act of 1865 with something in the nature of a renunciation declaration in the recital of the repealing statute.’123 This suggestion was the least he could make in relation to a law he had forcefully described in figurative terms as ‘the sword of contingent invalidity hanging over Dominion legislation’.124

The essential legal import of Hearne’s submissions contained in the four memoranda regarding the extra-territorial operation of Dominion legislation and the Colonial Laws Validity Act was that ‘there exists no limitation of the legislative power of the Irish Free State arising out of status’.125 This was a powerful statement in the context of a state which was asserting its sovereignty and preparing for a conference which would be critical in relation to its international acceptance.

In terms of the development of the Commonwealth, one of the most complex areas was that of merchant shipping legislation.126 This fact was acknowledged in the report of the 1926 Imperial Conference, when it was observed that ‘it was difficult to reconcile the application, in its present form, of certain provisions of the principal statutes relating to merchant shipping, the Merchant Shipping Act, 1894 … with the constitutional status of the several members of the British Commonwealth of Nations’.127 This fact certainly concerned the Irish delegation, whose main concern was that the Free State should be able to fly its own flag on its ships, and that these be recognised internationally as Irish not British ships, as under existing laws.128 The Conference decided to refer the issue of merchant shipping to a special sub-conference which was to meet at the same time as the committee of experts reviewing Dominion legislation.129

Hearne produced a memorandum on merchant shipping, dated 24 July 1929,130 while also referring to it in his preliminary memorandum. In the former he asserted the power of the Oireachtas to legislate in regard to merchant shipping131 and that any bill so enacted would require all ships registered in the state to fly the national colours.132 He was very aware, however, of the fact that there existed throughout the world an administrative machinery established by the existing Merchant Shipping Act, which was of enormous advantage in the commercial life of the Free State.133 He was of the view, therefore, that Free State legislation would be determined by ‘considerations of expediency and practical convenience’.134 ‘Theoretical exactitude’ in the legal position of the Free State would have to take account of practical realities, Hearne summarising the situation thus: ‘In the event, all our problems may merge into one: the problem of how far the British government will allow us to enjoy the benefits and advantage of their merchant shipping system, while permitting us to depart in important particulars from the theoretical basis around which the system swings.’ In place of the existing system, Hearne envisaged the enactment by members of the Commonwealth of a series of reciprocal statutes to establish a system of merchant shipping laws based on mutual co-operation.135

This idea was developed in a memorandum entitled ‘Proposals for Reciprocity’.136 Merchant shipping laws should be enacted in a series of reciprocal agreements, the enforcement of which should be on the basis of mutual recognition and assistance. The authority of a statute of one member of the Commonwealth should, as far as practicable, bind all or at any rate be enforceable in the courts of all. According to Hearne, ‘merchant shipping laws should be enacted as conventions of the Commonwealth association’.137 The laws of all Commonwealth members should ‘hold good’ in the ports of the United Kingdom and in the ports of other member states.138 It is evident why this suggestion appealed to Hearne – the principle of reciprocity recognised the co-equal status of all Dominions and the consequent right to regulate their own merchant shipping laws, while preserving a mutually beneficial system of administrative machinery.

Arguably, the most interesting of Hearne’s memoranda was an undated one entitled ‘Reservation and Disallowance of Acts’.139 He was categorical in his view that reservation and disallowance ‘must be deleted absolutely’,140 as their existence ‘imperilled’ the constitutional position of the whole Commonwealth.141 He submitted that the Dominions were ‘now so completely independent that each can validly amend its constitution by legislation’.142 In an opinion strongly influenced by a spirit of nationalism and the autochthonous redoubt from which the Irish argued their view point, he continued:

The colony status is at the root of the whole attempt to perpetuate the idea that the status of the member states of the Commonwealth is a thing conceded by the British parliament rather than a thing asserted, claimed and achieved by the states themselves … Any compulsory limitation at all upon its [a Dominion’s] self-rule deprives it of the right to be recognised as a member of international society. The states of the Commonwealth must shed all the disabilities which marked the separate stages of their development. The removal of these disabilities is fundamental to the continued existence of the Commonwealth. The member states of that organisation have grown out of the scheme in which they came into being; the scheme itself, in fact, no longer exists and the principles which held it together do not apply at all to the scheme or system which has superseded it. Once the idea is grasped that the sovereignty of the Irish Free State, the sovereignty of Canada, the sovereignty of South Africa etc. exist prior in the order of thought to the group called the Commonwealth of Nations, so much so that if the sovereignty of those states disappeared the Commonwealth of Nations could not continue to exist, it becomes clear with what vigilant care the sovereignty of those states must be safeguarded.143

He then turned his attention to the role of the Crown in the Commonwealth. He did this because he believed that opponents of recent constitutional developments in the Commonwealth, particularly in Britain, would focus on the King’s position as a means of stymying progress towards Dominion equality. Hearne stated with absolute forthrightness that ‘there falls on the Commonwealth states no shadow of a feudal king’ but that, when some British statesmen spoke of the ‘king bond’, they were using language of ‘absolute loyalty’144 and this had no place in a modern association of equal states. If the King were to retain a role in the Commonwealth, he was firm about what it should be:

If you must continue the kingship as so characteristic a note in the old system that it could not be abandoned, you must refashion it to fit the accepted facts of the new system. You tool it, first of all, as it has stood for some hundreds of years before in the United Kingdom, an entity without initiative, a constitutionally unconscious automaton, in practice controlled by the executive, or the legislature, or the judiciary.145

Hearne conveyed the essence of his view when he described the position of the King in the United Kingdom as ‘a constitutional form’.146

In an important part of the memorandum, he turned his attention to a consideration of the matter of the sovereignty of the Irish Free State. His submission was again stated with certainty and conviction:

I do not know of any definition of a sovereign state in the post-war organisation of the world but this: a sovereign state is an organised political community which is independently capable of undertaking international obligations and which is recognised as so capable by international society. Is there any doubt whatever that the Irish Free State is such a community? … Is there any doubt whatever that there is no limitation upon the internal sovereignty of the Irish Free State and no limitation upon its external sovereignty save those which are freely self-imposed on every full international person by reason of their acceptance of the obligations of the Covenant of the League of Nations.147

Having defined the Free State as a sovereign entity, Hearne turned his attention to the contention that the Treaty of 1921 imposed ‘disabilities’ on the newly established state. It was essential to address this central matter, as the British preliminary memorandum, prepared for the Conference, argued that there was an ‘express limitation’ on the Free State that its legislation must conform to the Treaty.148 He contended that ‘if the Treaty of 1921 was a treaty at all, it presupposed the antecedent competency of this country – by whatever name it was called – to exercise the treaty-making power’. He continued: ‘And if that be so, the “limitations” imposed by the Treaty are not in fact limitations at all, but obligations of exactly the same character as those accepted by other states when they became parties to an international treaty.’149 In effect, as in the preliminary memorandum, he submitted that the Treaty of 1921 was an agreement between two independent states. Furthermore, regarding Article 50 of the Irish Free State Constitution, which stated that amendments to it had to be within the terms of that Treaty, he rejected this provision as a status-limitation upon the law-making competency of the Oireachtas; rather it amounted ‘simply to a declaration by the provisional government of the Treaty obligations of the state’.150 In amending the Constitution, the Irish state would have regard to the fact that there were obligations between it and another state but this did not mean that these obligations precluded the right of changing the Constitution.151

Hearne’s memoranda: an overview

Having considered many of Hearne’s memoranda, it may be useful, at this juncture, to give an overview of them by way of summary and assessment. He submitted that the Irish Free State was a sovereign, independent country and that the Treaty was an agreement between two such states. The corollary of this assertion of sovereignty was that there could be no limitation on the legislative competency of the Oireachtas. As a member of the Commonwealth, the Free State enjoyed complete equality with all other members, including the United Kingdom, as a consequence of the Balfour Declaration. However, the existing laws regulating Commonwealth relations did not reflect recent constitutional developments and obscured the sovereignty of Dominions, thus causing them to be denied their true international status. Such laws, accordingly, had to be changed to reflect the internal and external sovereign character of Commonwealth states. Hearne recognised that his views would be contested, if not actually rejected by Britain, and he had no illusions as to the resistance the Free State and the other Dominions would meet from British statesmen determined on preserving an old constitutional scheme which, heretofore, Britain had dominated.

Hearne’s views were influenced and informed by a number of related factors. He possessed an extensive knowledge of British constitutional law and legal developments in the Commonwealth. For him, the Balfour Declaration was a fundamental statement of the character of its Constitution and he was ever mindful of the equality it conferred not just on the Free State but on all Dominions. As regards factors within the Irish state, he was deeply conscious of the policy of Cosgrave’s governments to extend the meaning of Dominion status. Irish ministers conceived of the sovereignty of the Free State in absolute terms152 and were deeply committed to protecting this sovereignty and to resisting British attempts to treat the Commonwealth as an indivisible whole.153 Legal opinion, particularly the High Court ruling that the Free State was an independent country, supported both this policy and Hearne’s opinions. Finally, his nationalism, and that of the ministers he served, was a very substantial influence. It is important to recall again that he was a nationalist and his memoranda are evidence and reminders of this.

The memoranda were characterised by a clarity of style which, according to Harkness, was invaluable to those delivering his briefs.154 He was certain in his submissions and there was a forthrightness and trenchancy in their expression. The style had a dramatic and rhetorical quality, redolent of the gold medal winner in oratory who composed them. Figurative language also featured and gave legal briefs an occasional poetic flavour.

These memoranda were lengthy documents: the one on the Colonial Laws Validity Act numbered thirty-six A4 pages, while that which considered merchant shipping totalled fifty-one. They were organised in a clear and logical structure, often being divided into sub-headings for the ease of the reader. The memorandum on extra-territorial jurisdiction was structured as follows:

(i)Extra-territorial jurisdiction in international law.

(ii)Territorial limitation of Dominion legislation:

a.The meaning of the limitation.

b.Recent interpretation of the doctrine.

c.Its removal at the forthcoming conference.

The length gave them a comprehensiveness and completeness. To refer again to the memorandum on extra-territorial jurisdiction, it is full of references to legal enactments and the case law of Dominions. The memorandum on merchant shipping contains a detailed summary of merchant shipping legislation in the Commonwealth.

Finally, in considering Hearne’s legal submissions, there is an overriding and overarching fact which must not be forgotten. These legal opinions served a political purpose and were written to inform and reinforce the policies of the government. Therefore, they were, at times, as much political as legal documents.

Conference deliberations and report

The Conference on the Operation of Dominion Legislation eventually began on 8 October 1929 and continued until 4 December of the same year. The Irish Free State delegation included Hearne, Joseph Walshe, Diarmuid O’Hegarty, John A. Costello and Patrick McGilligan, all of whom had attended the 1926 Imperial Conference. There were seventeen plenary meetings155 and Hearne attended most, if not all of them.156 In addition, he was appointed to a committee to draft a declaration pertaining to extra-territorial legislation157 and acted as an adviser on a committee considering the Colonial Laws Validity Act.158

The minutes of the plenary sessions suggest the extent to which Hearne’s memoranda informed, supported and summarised the arguments and contributions of the Irish delegates. In his opening statement, McGilligan emphasised the coequality of all participating Commonwealth states and that the United Kingdom was no more than a coequal member of the association.159 The second meeting considered the extra-territorial operation of dominion legislation, with the Irish minister asserting that the legislative power of dominion parliaments should be as wide and unfettered as that of the United Kingdom parliament.160 As noted earlier, Hearne was a member of a committee selected to draft the relevant declaratory clause for inclusion in future legislation. This was composed of four civil servants and it considered a number of submissions, including one from McGilligan. The clause produced by the committee and approved by the Conference was entirely consistent with the views expressed by Hearne in his memorandum on the matter: ‘It is hereby declared and enacted that the parliament of a Dominion has full power to make laws having extra-territorial operation.’161

The fourth meeting, held on 11 October, discussed reservation of legislation. McGilligan rejected the retention of this power in any Dominion constitution. Furthermore, he argued that the power of reservation contained in the Merchant Shipping Acts did not apply to the Free State as the Oireachtas had not adopted them.162 On 15 October, the Irish minister attacked the Colonial Laws Validity Act. This enactment he described as ‘anomalous and an anachronism’, and he asserted that it could not be reconciled with the constitutional practices of the Commonwealth. He reiterated Hearne’s characterisation of it as ‘the threat of contingent invalidity’ hanging over Dominion statutes.163 At another meeting of the Conference on 31 October, the Free State’s Attorney General, John A. Costello, asserted the right of Dominion parliaments to amend their constitutions. Regarding the provision in the Irish Free State’s Constitution that legislation enacted by the Oireachtas could not be repugnant to the Treaty, he placed on record the contention of the Irish government that this was not so much a limitation of the state’s legislative power as a recognition of its obligations under the Treaty.164

The committee on the Colonial Laws Validity Act, of which Hearne was a member, had a demanding workload. Its terms of reference were: ‘To consider and report what action in relation to the provisions of the Colonial Laws Validity Act and matters ancillary thereto will be necessary to give effect to the principles laid down in the report of the inter-imperial relations committee, 1926.’ The first meeting, held on 31 October 1929, proceeded to consider seriatim the act’s provisions.165 There were fourteen meetings and several revisions of its final report before its work was completed166 and incorporated as ‘Part V’ of the Conference report.167 McGilligan was to describe this part as ‘the critical portion of the report’,168 a view reflecting the central part the act had played in the constitutional and legal architecture of the British Empire. The committee produced a declaration consistent with the recommendations and spirit of Hearne’s memorandum on the subject: ‘The Colonial Laws Validity Act of 1865 shall cease to apply to any law made by the parliament of a Dominion.’169

From the very start of the Conference, the Irish delegation was determined to make its point and ‘to invest every corner of the Commonwealth framework with that autonomy and equality declared in 1926’.170 It was demanding and strenuous work171 and the Irish had to be constantly vigilant to resist what Diarmuid O’Hegarty described as ‘the usual attempts to introduce into the documents words and phrases of a sapping nature’.172 The report of the Conference, released in all the Dominion capitals on 3 February 1930, contained much to please the Free State. It acknowledged that the principles of freedom, equality and co-operation had slowly emerged from the experiences of the self-governing communities constituting the Commonwealth. The Conference considered that it was its task to apply those principles to areas where law and practice were inconsistent with them.173 Therefore, it recommended the abolition of the powers of disallowance174 and reservation.175 Dominion legislation should have extra-territorial operation176 and the Colonial Laws Validity Act should no longer apply to such legislation.177 There were many recommendations relating to merchant shipping,178 but arguably the most important was the one that there be no longer any doubts as to the full and complete power of Dominion parliaments to enact legislation in this area.179

John Hearne’s participation in the 1929 Conference was yet another significant event in his professional career. His inclusion in the small and high-powered Irish delegation was again a testimony to his ability. He justified his place by the production of memoranda which were central to the presentation of the Free State’s position on a number of highly contested and controversial issues. Moreover, he was an adviser at meetings in London and so contributed to the decision-making process. Thus he was a participant at a conference that was a significant milestone in the progress and development of the constitutional and international status of the Free State, not least in laying the foundations for the 1930 Imperial Conference and the 1931 Statute of Westminster.

John Hearne and the Imperial Conference, 1930

The Imperial Conference of 1930 met from 11 October to 14 November and Hearne was again in attendance. The Irish came with a clear purpose, as was explained by Patrick McGilligan in the course of a statement at the first plenary session: ‘the recognition of our position as a free and sovereign state comes before all other considerations’.180 In practical terms this meant the adoption of the report of the Conference on Dominion Legislation, which recorded the advances in the meaning of Dominion status achieved in the previous ten years. Early in the proceedings it was decided to set up a committee under the chairmanship of Lord Sankey, the Lord Chancellor, to consider the matter of inter-imperial relations. It was to be a body of major importance and became the battleground of the Conference.181 Hearne was one of the main advisers to the Free State’s delegation. In addition, he was appointed to two subcommittees, concerned with merchant shipping and nationality.182

The Sankey committee had thirteen meetings,183 in addition to which there were some plenary sessions of the Conference.184 In relation to the report on the operation of Dominion legislation, substantial agreement had been reached in the previous year and the Conference accepted the document without any major alterations. Thus, among other things, the Colonial Laws Validity Act no longer applied to Dominions, the parliaments of which were recognised as having the power to repeal or amend any imperial statute pertaining to them. The same Dominion parliaments were also recognised as having the power to enact legislation with extra-territorial operation. The powers of reservation and disallowance were abolished. The decisions of the Conference were given legal expression in agreed legislation – the Statute of Westminster.185

The Conference report also contained a draft agreement on merchant shipping.186 It was the product of a subcommittee appointed to consider the matter and Hearne represented the Free State. It met for the first time on 20 October, with other meetings agreed upon for 21–3 October inclusive. The Sankey committee considered the deliberations of the subcommittee on 24 October. Hearne spoke at this meeting, informing the participants that the subcommittee was discussing the text of a long agreement and that there were several minor points which still needed discussion. He believed that at least three more subcommittee meetings would be necessary.187

The final agreement adopted by the Imperial Conference addressed many Irish concerns, as identified by Hearne in his 1929 memorandum on merchant shipping legislation. All ships were to be allowed to fly their national colours.188 Article 9 referred to a merchant shipping system based on mutual co-operation and reciprocity.189 It was agreed that all British Commonwealth ships were to enjoy a common status and were entitled to the recognition accorded to British ships.190 This decision addressed a matter highlighted by Hearne: that the Free State would enjoy the benefits of the Commonwealth merchant shipping system, while at the same time being able to regulate its own ships. A merchant shipping agreement was signed in December of the following year, which was in accord with the agreement adopted at the Conference.191

The other subcommittee of which Hearne was a member concerned itself with the subject of nationality. This highly complex and controversial area had always been one of the Free State’s long suits and had been considered at the 1926 Conference.192 It may be remembered that Hearne had been an adviser to Kevin O’Higgins, the Free State’s representative on the committee which considered the matter on that occasion. The Irish were then anxious to establish their own nationality and rejected the British view that the entire Commonwealth should shelter under the umbrella of British nationality. The matter was referred to the Conference on the Operation of Dominion Legislation, the report of which recognised a number of general principles pertaining to nationality. Members of the Commonwealth were united by a common allegiance to the Crown and this allegiance was the basis of the common status possessed by all subjects of the King.193 The recognition of this common status, however, was in no way inconsistent with the recognition of the distinct nationality possessed by the citizens of the Commonwealth’s individual member states.194 The complexity of the subject was again evident when it was observed that the practical application of the principles was not an easy task and was beyond the scope of the report.195

The Free State delegation brought to the 1930 Conference a draft of its proposed nationality bill. In a letter to Desmond FitzGerald, Minister for Defence and one of the delegates, Hearne summarised the bill’s intentions: ‘The scheme of our bill is that we define our own nationals and give to the nationals of other parts of the Commonwealth (i.e., old British subjects), while in the Free State, all the privileges and advantages given to British subjects at the present time.’196 He prepared a memorandum for the Irish delegates on the major sections of the proposed legislation, which were in accordance with the conclusions of the Conference on Dominion Legislation. Hearne advised the delegates that ‘in future the citizens of each state will look to the law of that state for the ultimate legal basis of their status’.197 In Harkness’s words, ‘this basis was infinitely preferable, the self-conscious Dominion felt, to the old, all-embracing category of “British subject”’.198 With regard to the concept of common status, the memorandum explained the policy of the Irish government:

Our law should provide that British subjects and Canadian subjects etc., living in Saorstát Éireann shall have the same status as citizens of Saorstát Éireann … The Department of External Affairs hopes … that by virtue of their citizenship of Saorstát Éireann our nationals will be entitled to the status of British subjects while in London, of Canadian subjects while in Ottawa and of South African citizens while in Pretoria.199

At the 1930 Conference, Free State representatives explained that they wanted their own citizenship first, as defined by their own laws, and would be happy to add the superstructure of a Commonwealth agreement on common status on top of this.200 There was British opposition to any alterations in the concept of Commonwealth nationality, but the principles of the 1929 Conference report were confirmed.201

The Irish delegation and the Imperial Conferences

The Irish delegates found the 1930 Conference a difficult experience. Harkness has observed that an Imperial Conference was never a ‘soft assignment’ but this one was ‘harder than most’,202 as it displayed ‘an unusual degree of temper and engendered unprecedented bitterness’.203 The British were less than happy with aspects of the report on Dominion legislation204 and chose to argue with ‘a medieval scholastic mentality’.205 Frustrated, Desmond FitzGerald informed his wife that things were ‘very trying’; and, writing to her on 6 November, he commented: ‘Yesterday was appalling. Massed British guns directed on us – I never had such a day … Faced with dishonesty, treachery and cowardice.’206 Notwithstanding this somewhat dystopian atmosphere, the Irish had every reason to be pleased with the outcome of the Conference. Irish representatives played a prominent role in drafting the Statute of Westminster.207 This helped remove all lingering doubts as to the status of the Irish Free State and the Dominions as full subjects of international law.208 It did not give the Free State all it wanted but did give the means to facilitate progress towards the eventual achievement of many of its objectives.209 Therefore, it may be regarded as a watershed in Anglo-Irish relations.

The successes and achievements of the Free State at the Imperial Conferences were due to the calibre and expertise of its delegations. These attributes owed much to the fact that there was a striking continuity of personnel over the three Conferences, from 1926 to 1930. In terms of ministerial representation, Patrick McGilligan attended all three; and Desmond FitzGerald attended in 1926 and 1930. Attorney General, John A. Costello, was present on all three occasions, as were civil servants Diarmuid O’Hegarty, Joseph Walshe and John Hearne. By 1930, Irish ministers were the longest-serving members of any Dominion government and were advised by highly experienced civil servants. Moreover, the Irish delegates and their advisers were all around the same age210 and from the same social class. They were not just colleagues but friends and this made real teamwork possible and natural.

This teamwork was inspired and strengthened by a sense of clear and common purpose: to achieve and secure recognition of Irish sovereignty. This objective was pursued, consistently and determinedly, from 1926 to 1930. The same arguments and counter-arguments ran through each Conference and each one represented a milestone in the pursuit of the Free State’s goal. When McGilligan told the Dáil that he regarded the report of the 1930 Conference ‘as being the end now achieved to the work which the then vice-president of this state, Mr Kevin O’Higgins, started in 1926’,211 he was expressing an essential truth and fact.

According to Harkness, McGilligan was the best-briefed delegate at the 1926 Conference212 and, for the 1930 Conference, the Department of External Affairs prepared its usual thorough briefs.213 As we have seen, Hearne did an immense amount of legal preparation for both events. This was his greatest contribution – he prepared the documentation central to the presentation of the Irish position; as it was stated earlier: he informed, supported and summarised the arguments of the Irish delegates. Commenting on John A. Costello’s contribution to the delegation at the 1926 Conference, former Taoiseach, Garret FitzGerald, described him as ‘the legal genius’ of the team whose ‘immense legal skill, his brilliance in any aspect of constitutional law, gave to our delegation of ministers and civil servants such a basis of knowledge, experience and skill, that they were able to outmanoeuvre not just the delegations of the other countries of the Commonwealth, but the British themselves’.214

While this may be an overstatement, it contains much that is true and it can be applied also with some justification and accuracy to Hearne’s role at the Conferences of 1929 and 1930. While describing the achievements of the 1930 Conference, McGilligan stated that ‘the system which it took centuries to build up has been brought to an end by four years of assiduous, concentrated collaboration between the lawyers and the statesmen of the states of the Commonwealth’.215 It is interesting that he highlighted the role of the lawyers; as one himself, he appreciated their contribution. And Hearne was one of those lawyers.

Regarding the 1926 Conference, Kevin O’Higgins was of the opinion that the best team at it was the Irish one: ‘The onus of the “status” push – anomalies and anachronisms – has fallen largely on ourselves.’216 Certainly, Irish politicians and officials involved in Anglo-Irish relations shared this view. There was a real sense of pride in their successes, a fact articulated in very definite terms by Hearne in 1929: ‘There is little doubt that whatever advances in constitutional practice and whatever contributions to the new constitutional doctrines are made by or as a result of the forthcoming sub-conferences will be made upon the showing of the Irish Free State representatives, that is to say, upon their advocacy of the New Policy forming in the Commonwealth generally …’ By the ‘New Policy’ Hearne meant the demand for coequality with Great Britain by many of the Dominions. According to him, this policy was ‘forming in the Commonwealth generally as a result of the special constitutional position of the Irish Free State’. He continued: ‘It is in the perspective of the Irish Free State Constitution, what it is and what it involves, that the contents of the entire Commonwealth conception are coming more and more into focus.’217 This ‘special constitutional position’ Hearne attributed to the fact that the Irish state came into being as a consequence of the Treaty which was an international agreement between two independent states; this gave the Free State Constitution ‘an international character not shared in their origins by the Constitutions of the other member-states of the Commonwealth’.218

In a memorandum to Éamon de Valera, dated March 1932, Hearne gave the newly elected President of the Executive Council an exposition of the Anglo-Irish and Commonwealth policies of Cosgrave’s government:

During the last nine years we have developed a very definite and wholly satisfactory technique abroad. We have posited certain facts on the basis of the Treaty of 1921 as an international treaty. We have done everything which an independent state can do … We have forced upon Great Britain the acceptance of our position abroad much against her will. And we have split the Commonwealth into a number of separate legal, political, diplomatic and international entities, that is, a number of separate international persons. We have broken down the theory that the Commonwealth is a legal, a political or diplomatic or international unit by making each member of it a legal, political, diplomatic and international unit in the fullest known sense of these terms. And we have done all that on the basis of the contention that the Treaty of 1921 was an international treaty … I am sure it is recognised all over the British Commonwealth and throughout the entire world that the lever of international advancement for each member of the Commonwealth during the past nine years has been ‘the Irish Treaty’. By reason of its international beginnings – namely, a treaty – the Irish Free State has made the international method the rule of the inter-state relationship in the Commonwealth itself, and has reformed that association in the light of the individual international responsibilities of its members towards each other and towards the other states of the world. Without the Irish Treaty the work could not have been done.219

Was Hearne overstating the role of the Free State in the development of the Commonwealth? Clearly, the Cumann na nGaedheal government was obsessed with the question of Irish sovereignty and was determined to thwart any attempts to limit that sovereignty.220 Hearne, however, ignored the fact that the state became a member of the Commonwealth at a time when the Dominions themselves were in the process of constitutional development and Dominion nationalism was expressing itself. Moreover, he also ignored the contribution of other Dominions to the constitutional evolution of the Commonwealth in the 1920s and of the importance of Irish co-operation with them in pursuit of the Free State’s objectives. While there are historians who are less inclined to accord the Irish state the credit Hearne gave it,221 a balanced assessment of its achievement is to be found in the opinion that:

at the Commonwealth Conferences of 1926 and 1930 and at the Conference on the Operation of Dominion Legislation of 1929 the Irish Free State diplomats and legal experts began to exert a considerable influence over the reform of Dominion status. Working closely with the Canadians and the South Africans, the Irish developed an agenda of radical change that resulted in the Balfour Declaration of 1926 and the Statute of Westminster of 1931 … Irish Free State Commonwealth and Dominion policy was an incremental battle in which each small gain was of large significance because it set important precedents for the independence of the Dominions generally.222

There is another perspective from which to consider and assess Hearne’s views, as expressed in his memorandum to de Valera and in earlier memoranda. They almost certainly made an important contribution to the creation and maintenance of an esprit de corps among Irish delegates at Imperial Conferences. These men approached their task with a growing sense of confidence and conviction in terms of what they were seeking to accomplish, and opinions and arguments articulated by Hearne contributed to and reinforced this sense. If he exaggerated on occasions, he did the Free State cause no harm; on the contrary, he did it some service. The Irish delegates at these Conferences were the representatives of a country demoralised by, and recovering from, the Civil War. Its diplomatic service was at an embryonic stage, its very existence questioned by politicians who argued that the country did not need a foreign ministry. These same representatives were negotiating with a British government and diplomatic machine that was highly developed and sophisticated and which regarded its Irish opposites with condescension, even contempt. When Lionel Curtis, adviser on Irish affairs at the Colonial Office, commented that the Foreign Office wanted the Irish ‘to be content to run like good dogs after the British coach’,223 he gave an insight into the challenge facing Irish negotiators – it was the Irish Davids against the British Goliaths. In such circumstances, a David needed inspiration, self-belief and self-confidence. Hearne’s words helped address the needs of his colleagues in this respect and his memoranda may be regarded, among other things, as a valuable, even essential source of motivation and inspiration.

Abolition of the right of appeal to the Privy Council

In spite of the most determined efforts of the Cosgrave government, there was one aspect of the Irish Free State’s membership of the Commonwealth which remained unchanged – the right of appeal to the Judicial Committee of the Privy Council.224 An unavoidable consequence of attaining the constitutional status of Canada, as defined in Article 2 of the Anglo-Irish Treaty 1921, was the imposition of this right of appeal.225 It was enshrined as Article 66 of the Constitution of the Irish Free State. The effect of this clause was to deny the state full judicial independence and the government itself felt that it was the ‘chief slur’ on its claims to sovereignty.226 Its political opponents pointed to this appeal as proof of the subservient status of the Free State in the Commonwealth. Nor was it an abstract constitutional provision – by 1931 there were at least nine petitions for leave to appeal to the Privy Council from the Irish Supreme Court, though only two came to judgement.227

A contemporary observed that, in such a situation, there was ‘inevitable conflict between the autonomy, legislative and judicial, of the Dominions and any attempt made by an extra-Dominion tribunal to which they did not consent and which they did not create, or control, to set aside or override their laws’.228 The removal of this right of appeal to the Privy Council, described by Minister for Finance Ernest Blythe, in 1929, as ‘a bad, unnecessary and useless court’,229 was one of the principal objectives of Cosgrave’s governments and John Hearne was to play an important role in their endeavours. The Free State, however, was to encounter the obdurate resistance of British governments which believed that the issue had fundamental implications for the defining role of the Crown in the Constitution of the Free State and throughout the Commonwealth generally.230

The matter was raised at the 1926 Imperial Conference, when Kevin O’Higgins was persuaded by Lord Birkenhead, who was accepted as a friend of Ireland, to postpone the question until the next Conference, where he would support the Irish demands for abolition of the appeal.231 However, by 1930 both men were dead and the Irish delegates at that year’s Conference were resolute in renewing their demands. The previous year it had fallen to Hearne to prepare the relevant memorandum for the Conference on Dominion Legislation, outlining the Free State’s case.232

Consistent with views expressed in other memoranda, he argued that no question whatever arose as to the power of the Oireachtas to amend Article 66 of the Free State Constitution. However, the matter was not that simple, as the right of appeal was preserved in Article 2 of the Treaty, which accorded the Free State the same status as Canada in the Commonwealth; the right of appeal applied in Canada and, consequently, Article 2 ensured its application in the Irish Dominion. An even further complication was Article 50 of the Constitution, which stipulated that amendments to it must be ‘within the terms of the scheduled Treaty’.233

Hearne suggested that the Free State could seek deletion of the offending Article 66 by agreement with Britain but, according to Hearne, this course of action was unlikely to yield success. Article 2 of the Treaty, with its implicit recognition of the right of appeal, defined the fundamental British conception of the constitutional relationship between the Crown and the Dominions. The Irish, therefore, would be met by assertions that the prerogatives of the King were ‘impregnable and immutable’ and that only an act of the imperial parliament could divest him of them.234

The solution to the impasse proposed by Hearne was the assertion and vindication of a principle he regarded as central to the constitutional conception of the Commonwealth and iterated in other memoranda: the equality of all member states as defined by the Balfour Declaration. The acceptance of this principle meant that the King could exercise no prerogative in any Dominion except on the advice of its government;235 and, by extension, the exercise of any prerogative preserved by Article 2 of the Treaty required the same advice. He contended that it was ‘contrary to the whole Commonwealth notion and to the principle of coequal sovereignty and co-operation … that His Majesty in his capacity of King of any one of the member states can be advised in matters affecting that member by a body external to it’.236 With typical trenchancy, Hearne summarised his opinion and advice:

It would appear, therefore, that an Irish Free State government has a complete case for removing the right of application for leave to appeal to the Privy Council based upon the separate constitutional existence of the member states of the Commonwealth and the inevitable implications of that constitutional fact. The judicial sovereignty of the Irish Free State is as inalienable as the legislative sovereignty or the executive sovereignty. I am satisfied that the Oireachtas cannot legislate away its law-making competency, nor can it legislate away its judicial sovereignty without destroying its status and statehood.237

Two months or so before the 1930 Conference, Hearne informed Martin Eliasoff, second secretary in the Irish High Commissioner’s Office, London, that the government did not consider the Privy Council as a court in the strict sense, as advice was given to the King by a number of privy counsellors and this advice was not the same as a judgement of a court of law. He described the continuance of the right of appeal as ‘a menace to the judicial sovereignty of the Free State’.238

At the 1930 Imperial Conference, the Irish were looking for an amicable solution and were confident that the right of appeal would be abolished.239 The importance of its removal for the Free State government was highlighted during the Conference in a radio address by Patrick McGilligan to the Irish diaspora in America, when he stated that there ‘was no intention of allowing this infringement of our sovereignty to continue’.240 However, on 25 October, McGilligan reported to Cosgrave on the resistance being experienced by the Irish delegation to their demands relating to the Privy Council.241 Among the arguments advanced by the British side to reject Irish demands was the contention that the Treaty settlement ‘had only given the Irish Free State the status of Canada as it had existed in 1921, without the benefits of subsequent constitutional advances achieved by the other Dominions’.242 In effect, the Balfour Declaration and its consequences did not apply to Ireland. The Irish were to be unsuccessful once again, as the British proved unyielding.243 The seriousness of this failure was underscored in a message from McGilligan to Cosgrave at the end of proceedings: ‘Concluding this morning. No agreement reached on Privy Council which is not mentioned in the report. Avoid all publicity, if possible, concerning this.’244

The effect of the failure was to make the Irish angry and resentful.245 These feelings can only have been exacerbated by the outcome of a meeting between Hearne and Seán Murphy, assistant secretary of the Department of External Affairs, and officials of the Dominion Office, held in London on Thursday 23 April 1931. Among the matters discussed was the controversial issue of the appeal. Having listened to the contributions of the British side, Hearne expressed the view to his opposites that the essential issue of its abolition was not being addressed. The two Irish civil servants wrote in their report to Dublin:

Mr Murphy and Mr Hearne consulted together on the whole situation on Monday night and Tuesday morning. Their joint impression was that there was no intention whatever in the Dominion Office to abolish the appeal by agreement and that in all the recent discussions the British government had one objective in view, namely to delay the introduction of bills in the Oireachtas to abolish the appeal or render it ineffectual.246

The reference to bills in the report relates to a decision by the Cosgrave government to pursue a unilateral policy of abolition of the right of appeal.247 Hearne drafted a series of bills to give effect to this course of action.248 The Constitution (Amendment No. 17) Bill proposed the abolition of the right of appeal contained in Article 66. Two other amendments were considered: the Constitution (Amendment No. 18) Bill defined more precisely the extent of the original jurisdiction of the High Court and the appellate jurisdiction of the Supreme Court; and the Constitution (Amendment No. 19) Bill proposed the deletion of the words ‘within the terms of the scheduled Treaty’ from Article 50, thus removing the Treaty as an obstacle to constitutional change. Two other bills were drawn up by Hearne in the event of the government not proceeding with the outright abolition of the appeal; the intent of these bills was to render the appeal de facto inoperative. The Supreme Court (Confirmation of Judgment) Bill permitted the executive council to immediately give statutory effect to any Supreme Court decision and thus give it immunity from interference by the Privy Council. The other proposed law, the Judicial Committee Bill, prohibited the enforcement of a decision of the Privy Council in any case concerning the Free State.249

None of the proposed bills was presented to the Oireachtas while Cosgrave was president. His government was awaiting the passage of the Statute of Westminster which would remove all doubts as to the power of the Free State parliament to enact such legislation.250 A general election intervened in 1932, in which Cumann na nGaedheal lost power. It was to fall to Éamon de Valera to secure the prize of the abolition of the right of appeal.

In the election campaign Cumann na nGaedheal emphasised its record and relied on scare tactics to discredit the Fianna Fáil opposition party.251 In effect, the electorate was offered a clear choice between a government defending the status quo and offering a conservative manifesto and a party proposing more radical constitutional, economic and social changes; and, in the words of Ciara Meehan, ‘ultimately the people voted for the future, not the past’.252 One thing is certain: the government which had ruled the Free State for a decade was not rewarded for its achievement in reshaping Ireland’s relationship with the Commonwealth. In the course of the contest, Cosgrave declared that he did not know what more the Free State could ask than the decision of the Imperial Conference of 1926: all the Dominions were recognised as being coequal with Britain.253 The problem, however, was that the government’s foreign policy lacked public appeal; at best, the domestic political return was modest. In fact, Fianna Fáil ‘successfully turned the government’s obvious enthusiasm for Commonwealth gatherings against it by caricaturing its delegates as top-hat-and-tailed imperialists cravenly aping their social superiors’.254 The electoral outcome was determined not by achievements in the diplomatic sphere; more pressing social and economic issues concerned the voters.

In the interval before Éamon de Valera’s election as President of the Executive Council, W.T. Cosgrave wrote to Hearne on 8 March 1932, thanking him for his ‘official and personal services’. Hearne’s reply on 6 April was respectful, warm and even affectionate. He expressed his ‘sense of the great honour it has been to have worked for so long in close association with those more nearly placed to the head of government in the labour and achievement of the past ten years’. He continued: ‘Nor can I express to our beloved President my gratitude for his graciousness and goodness on so many occasions during that time, for his patience with so many shortcomings, and the kindly appreciation and encouragement which lightened many a burden.’255

Whatever his personal feelings, Hearne had to accept that a new government was taking office; he had to accommodate himself to this reality. What he can never have anticipated was that he was to play a central and pivotal role in some of the most significant events in the early years of de Valera’s rule.