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CHAPTER 3

Serving de Valera, 1932–1936

On 9 March 1936, Éamon de Valera, with the support of the Labour Party, was elected President of the Executive Council of the Irish Free State and appointed his first Fianna Fáil government. Notwithstanding rumours of a planned coup by the outgoing administration, there was a smooth transfer of power. The change of government caused apprehension in the civil service as no one knew what to expect from the new ministers. In particular, there were fears that de Valera would introduce a spoils system and install his supporters in key positions.1 John Hearne expected to face dismissal.2 There were at least three reasons for him to be concerned. He had been an open supporter of John Redmond and a bitter opponent of Sinn Féin in the two elections in Waterford in 1918. During the March by-election, de Valera had been in the city and would likely have heard of Hearne and his speeches. Exacerbating his concerns was the fact that his Redmondite associations had already militated against his appointment as a district justice by the Cosgrave government. Secondly, he had served in the Free State army, regarded by republicans as the ruthless instrument of their defeat and oppression. Finally, he was legal adviser in the Department of External Affairs, to which de Valera had appointed himself minister. It was not unreasonable to speculate that Hearne was apprehensive that the new minister might appoint another in his place, one who shared de Valera’s outlook and would be his preferred choice to help implement his controversial Anglo-Irish policy.

Fortunately for Hearne, there was no purge of civil servants. The new President was happy to exploit the talents of many former opponents.3 What Fianna Fáil regarded as hostile in the shape of Cumann na nGaedheal, it embraced as neutral, disinterested, professional and expert in the shape of the civil service.4 De Valera was to defend the service in the face of criticism by republican hardliners, arguing that it was loyal to the state. Deirdre McMahon has commented that his success in establishing a firm working relationship and continuity with the civil service was perhaps one of the most notable achievements of his early administrations.5

Arguably, nowhere was this relationship more apparent and more important than in the Department of External Affairs. De Valera assumed this portfolio because, according to his biographers, ‘he always felt that this was a post which should, if possible, be held by the head of government, that there might be no doubt as to the authority with which the minister spoke’.6 This consideration was to be all the more relevant as Fianna Fáil’s Anglo-Irish policy was to prove contentious and ‘the dark legacy of the Treaty split forged his determination to retain the control of the day-to-day detail of this policy in his own hands’.7 The department de Valera headed was a small one; hence a good working relationship with its personnel was very desirable. In 1935, it employed fifteen to twenty people and was situated on the top floor of the Department of Agriculture in Government Buildings.8 In 1930, the senior staff consisted of the secretary, assistant secretary, two junior administrative officers, a legal adviser and an assistant legal adviser.9 The members of this small service had generally enjoyed a peculiarly personal and highly influential relationship with their minister10 and de Valera was to be no exception. His first meeting with Joseph Walshe, the department’s secretary, did much to assuage anxieties among the staff at the arrival of the new minister. According to former diplomat Con Cremin, ‘all five or six diplomats at headquarters [Hearne was probably one of them] sat around a table awaiting Walshe’s return. When he finally returned, he proclaimed de Valera as “charming, simply charming’’’.11

Walshe came to realise that de Valera’s election was an opportunity to increase the standing and influence of his department. The new President was also his minister and therefore the most influential member of the Executive Council. During the 1930s, External Affairs grew in respectability and stature within the civil service.12 Walshe’s biographer, Aengus Nolan, has observed that he and de Valera established ‘a healthy relationship’,13 as he provided his minister with ‘extensive and expert information’ on the constitutional issues relating to the government’s Anglo-Irish policy.14 During the 1933 general election, he seemed to pledge his support to the Fianna Fáil leader.15 According to Nolan, Walshe was ably assisted by John Hearne when it came to advising de Valera;16 and, in her magisterial study of Anglo-Irish relations in the 1930s, Deirdre McMahon identified Hearne as an official who was to play an important role during this decade. She described him as de Valera’s ‘adviser during the period of his constitutional reforms’.17 Ronan Fanning has confirmed Hearne as one of a ‘troika of senior officials’ on whom de Valera came to rely for counsel, the others being John Dulanty, Irish High Commissioner in London, and Walshe.18 Unlike the latter, however, it appears that Hearne remained a supporter of the Cumann na nGaedheal–Fine Gael political tradition, his son, Maurice, commenting in his plan for a proposed biography of his father that ‘Dad was … not even a supporter of that party [Fianna Fáil].’19

Meetings between de Valera and Hearne

Hearne recorded details of one-to-one meetings he had with de Valera in 1933 and 1934.20 Between 27 June and 18 August 1933 he had nine meetings, during which a wide range of topics with implications for the Free State’s relations with foreign countries was discussed. On 27 June, Australia’s candidacy for a seat on the Council of the League of Nations was considered, with de Valera deciding to support a fellow Dominion. The following day, both men addressed the possible appointment of a new American Minister to Dublin. On 24 July, Hearne read for de Valera a report from the Irish legation in Berlin concerning a recent newspaper article printed in Germany alleging de Valera’s Jewish ancestry and his association with Jewish bankers. The minister directed the legation to make a strong protest.

The coverage of Blueshirt activities in the foreign press was the subject of a meeting on 18 August 1933. A draft statement, approved by de Valera, was to be sent to Irish legations describing such reports as ‘sensational’ and ‘inspired by enemies of Ireland and of the present government’. It is very likely that the minister and his legal adviser had more meetings than the nine recorded by Hearne. According to Dermot Keogh, perhaps he ‘was the person with whom de Valera had the closest contact during the early years of his coming to office’.21 These meetings facilitated the establishment and development of a good professional relationship between the two men, the minister coming to appreciate and value the advice and abilities of his department’s legal adviser. He came to realise that Hearne was a civil servant he both trusted and admired.

De Valera and the quest for sovereignty

A preoccupation with Irish sovereignty was the defining feature of Éamon de Valera’s long political career, Gearóid Ó Tuathaigh writing:

Throughout the whole of de Valera’s public life … this central question – the status of Ireland, the extent of her independence, the exact measure of sovereignty (in all its manifold forms, economic, social and cultural, no less than political) – this central question was to be the governing passion of his political life, the source from which were to spring the bulk of his ideas, aspirations, policies and, indeed, prejudices.22

De Valera declared that his fundamental opposition to the Anglo-Irish Treaty of 1921 was rooted in his conviction that it represented a denial of the basic principle of the sovereignty of the Irish people, having been imposed under the threat of immediate and terrible war.23 In fact, he never wavered in his view that this settlement was morally worthless because it had been signed under duress.24

The Constitution of the Irish Free State, enacted in December 1922, made the Treaty an integral part of Irish municipal law. As a consequence, this Constitution contained numerous provisions abhorrent to republicans, including an oath of allegiance to the British monarch by members of the Oireachtas, a right of appeal to the Privy Council and the appointment of a representative of the King in the person of the Governor-General. Thus the organs of the state’s authority were stained with the stigma of external domination in the eyes of the Treaty’s opponents.25

While Cosgrave’s government had advanced and affirmed the sovereignty of the Free State in international terms, it adopted an attitude of entrenched defence of the Constitution in the face of republican attacks. This is explained by the fact that, having fought the Civil War to defend the Treaty, the agreement became something of an article of faith26 and its terms were considered sacrosanct by ministers.27 In contrast, de Valera was determined to dismantle it, this being one of the core objectives of the Fianna Fáil party he founded in 1926. Dismantling the Treaty and purging the associated Constitution of its imperial impositions was a prerequisite for winning over the bulk of republicans who, with de Valera, had challenged the Free State in arms during the Civil War. This was an important group in terms of his party’s support base. The legitimacy of the state had been rejected by them; the dismantling of the Treaty settlement was essential to restore this legitimacy. Reinforcing de Valera’s determination was a strong conviction, shared by a long line of Irish nationalist leaders, in the creative possibility of political sovereignty for economic and social development; in fact, a satisfactory constitutional status was a prerequisite for such development.28

With his election as President of the Executive Council, de Valera began his assault on the Treaty. It was this recognition of the central role Anglo-Irish relations would play during the term of his government that prompted his decision to retain for himself the External Affairs portfolio. He was to exert total control over the conduct of this policy area. This approach reflected his determination never to let the debacle of the Treaty divisions happen again. Deirdre McMahon has written: ‘In any assessment of de Valera’s life and career it can be stated simply that the Treaty scarred him personally and politically for the rest of his life. It was his private avenging fury.’29 Not only was he clear in his policy objectives, he was also clear as to the means of their achievement. Fianna Fáil would proceed gradually, as he explained as early as 1926 at the inaugural meeting of the party. Addressing the gathering, de Valera stated that ‘a young man’s appreciation’ of the situation, as it then stood, would lead him to certain conclusions:

He would see that by isolating the oath for attack, the whole situation, and England’s ultimate control, would be exposed. He could scarcely doubt that, the real feeling of the people being what it is, the oath would fall before a determined assault, and he would set out to attack it as being the most vital and, at the same time, the part most easily destroyed of the entire entrenchments of the foreign enemy. He could see, once the oath was destroyed, promising lines for a further advance, with the nation moving as a whole, cutting the bonds of foreign interference one by one until the full internal sovereignty of the twenty-six counties was established beyond question.30

As Ó Tuathaigh has observed, this ‘was indeed to be the running order for constitutional change when Fianna Fáil eventually came to power in 1932’.31

Relations with Britain absorbed de Valera’s thoughts from the time he assumed leadership of government. He was certain in the principles, policies and practices of his Anglo-Irish strategy; it had been a long time in gestation and this made him a formidable proponent of the reordering of the constitutional architecture between the Free State and Britain. It soon became clear that he was intent on a revolutionary departure from the Dominion settlement.32 His ultimate aim was the recognition of Ireland as a republic, some form of association with the Commonwealth and the acceptance of the King as head of that association. This was his policy of ‘external association’, proposed during the Treaty negotiations and contained in ‘Document No. 2’ during the Treaty debates in the Dáil in 1921–2.33 It was still uppermost in his mind as President.34

Removal of the oath of allegiance

In accordance with Fianna Fáil’s 1932 election manifesto, the oath of allegiance in the Free State Constitution was to be abolished and the de Valera government moved with great speed to honour this pledge. On 12 March, the cabinet met to discuss the immediate introduction of the necessary bill to remove the offending Article 17. In the Department of External Affairs, Walshe and Hearne were uneasy. The former wrote to the minister counselling delay and urging him not to take any precipitate action which could jeopardise his ultimate objective.35 He also submitted a memorandum prepared by Hearne.36 Consistent with views expressed in memoranda prepared for the Conference on the Operation of Dominion Legislation and considered in Chapter 2, Hearne asserted the authority of the Oireachtas over the Constitution: ‘It can repeal the entire Constitution from beginning to end.’ He reiterated the opinion that Article 50, which required amendments to be within the terms of the Treaty, was simply a declaration of the fact that the state was bound by treaty obligations to another state; it did not impose limitations on the competency of the Oireachtas. In the copy of the memorandum retained in the National Archives, these opinions are marked in red ink on the margin, suggesting their importance to the reader, who may well have been de Valera.

There appears to have been a concern at government level that, notwithstanding the repeal of Article 17, Article 4 of the Anglo-Irish Treaty, which related to the oath, would still have the force of law in the Free State. Hearne addressed this matter by restating his view that the Treaty be regarded as an agreement between two sovereign states. Therefore, the essential issue was how the courts might interpret this article. He advised de Valera: ‘It is a settled rule of law that the courts of a treaty-bound state are bound to recognise and enforce the statutes of that state, even when they are in conflict with clear and unequivocal treaty obligations.’ Again, this sentence is marked in red ink on the margin of the memorandum.

On the question of what was the best approach to be adopted by the government, Hearne set out three possible courses of action: a review of the Treaty by both parties; submitting the oath to arbitration; and diplomatic discussions with the British government, the last of which was his preferred option.37 Such discussions should seek an agreement to delete Article 4 of the Treaty: ‘That is the only safe legal course to take and, in my view, the claims of the government to such an agreement would stand upon a solid and unassailable basis.’ He was clear in his view that the Irish government must give careful consideration to its choice of response: ‘But what matters most of all is the method adopted to secure the end.’ According to McMahon, de Valera compromised and the following day sent the British Dominions Secretary a statement announcing his intention to abolish the oath; there would be no immediate introduction of legislation. She regarded this as significant:

The views of Walshe and Hearne are important because they demonstrate that from the very beginning de Valera was prepared to listen to and act on their advice. It is also significant that the statement to the Dominions Secretary does not appear to have been discussed or even approved by the Irish cabinet.38

Walshe and Hearne clearly hoped that British ministers, having been given notice of Irish intentions, would seek to engage in discussions and offer concessions. In their advice, however, they underestimated the distrust of the new Fianna Fáil government in London.39 There was a deeply hostile reaction to de Valera’s stated intentions and this unleashed a ‘veritable Pandora’s box of fear and suspicion on the British side’.40

British ministers were adamant that the oath was an obligation under the terms of the Treaty and demanded full compliance on the part of the Free State. This intransigent attitude and their implacable opposition to de Valera were founded on the deeply held view that the Crown was the fundamental link of unity in the Commonwealth. There were genuine fears and concerns, moreover, that the Irish government was seeking to unravel the entire 1921 settlement and reopen the whole issue of the nature of the constitutional relationship between Ireland and Britain, which the British government believed had been settled.41

John Hearne got an insight into British attitudes at a meeting in London, in July 1932, with Sir Harry Batterbee, the assistant undersecretary at the Dominions Office. The official memorandum recorded that Sir Harry wanted a few minutes’ private conversation with Hearne. The latter agreed and ‘Sir Harry proceeded at once to express his views on the general political situation between the two countries.’

He said that everybody connected with official life in the Dominions Office had been very much hurt by the treatment the British government had received at the hands of the new Irish Free State government. The attitude of ‘declining to discuss’ the oath of allegiance was quite unprovoked and uncalled for. But the real gravamen of the existing situation was not this particular difficulty or that particular difficulty, it was the background of the situation, the fundamental unsettling of things that had been regarded as settled, the tendency behind all the particular points at issue to put an end to the basis of the existing relations between the two countries … One felt the hopelessness of dealing with this or that dispute as long as the main position was not definitely settled … He personally felt that the Irish people themselves would have to decide in one way or the other the fundamental question of the continuance of the Irish Free State in the British Commonwealth. It would be for them to say after experience what their decision was to be. It all came to that in the end.42

The hostile reaction among British politicians to de Valera’s policy raised concerns regarding possible implications for Irish people resident in Britain. A memorandum produced by Hearne examined this matter and probably calmed the fears of Irish ministers.43 The legal adviser explained that the residency of most Irish people in Britain was regulated by the Nationality and Status of Aliens Act 1914, by the terms of which all persons born within His Majesty’s Dominions were deemed to be natural-born British subjects. A change in this law would be necessary to deprive them of this status. Assuming that steps were taken to change this, Irish residents would then be classed as ‘aliens’. This would impact on many of the benefits they enjoyed, such as the right to practise medicine on the same terms as English doctors. Moreover, aliens could be deported on various grounds. Hearne pointed out, however, that a person could not be deported simply because she or he was an alien; such a person had to be adjudged as ‘undesirable’ within the terms of the act, for example on account of a criminal record. Even if their status changed, he concluded that a considerable portion of Irish nationals in Britain might escape the more drastic forms of hardship.

It was against a backdrop of an increasingly toxic climate in Anglo-Irish relations that de Valera introduced the proposed legislation to abolish the oath on 20 April 1932. John Hearne was the civil servant in charge of the bill.44 It contained three sections. The first deleted Article 17 of the Free State Constitution. The second repealed section 2 of the document of the Irish Free State (Saorstát Éireann) Act 1922, which required that the document be construed with reference to the Treaty. Under the last section, Article 50, which governed the amendment procedure, was itself amended by the deletion of the words which stipulated that all amendments had to be ‘within the terms of the scheduled Treaty’. Clearly, the bill did much more than simply abolish the oath.45 It also removed the repugnancy clause, a far more significant provision from a legal perspective because ‘it unlocked the potential to unravel the Treaty settlement’.46 This removal was, in fact, ‘the preliminary step’ to this unravelling and, ‘ultimately, for the enactment of the current 1937 Irish Constitution’.47

It is possible, perhaps, to identify Hearne’s influence on de Valera’s speech to the Dáil during the bill’s second stage on 27 April 1932. The President argued that the oath’s removal was consistent with the Free State’s position as a coequal member of the Commonwealth,48 a theme iterated by Hearne on many occasions. He almost certainly influenced de Valera’s statement that, in cases when the courts were required to interpret municipal law which contradicted treaties, the courts favoured municipal law,49 an opinion consistent with the view expressed in Hearne’s memorandum on the oath, which was noted earlier. The bill passed all stages in the Dáil on 19 May 1932 and was sent to the Seanad, where it was delayed; it finally became law on 3 May 1933.50

The annuities’ controversy

The newly elected Fianna Fáil government also announced its intention to withhold payment to the British Treasury of the land annuities due under various land acts enacted by the imperial parliament. A cornerstone of Fianna Fáil’s refusal to pay them was that the financial agreements between the Free State and Great Britain in 1923 and 1926,51 under which the Irish government agreed to collect the annuities and pay them to the British government, were not binding because they had not been submitted to the Dáil for debate and ratification.52 Hearne prepared two memoranda in response to information sought by de Valera on this aspect of his government’s objection to their payment. The first, dated 11 April 1932, outlined the practice in other countries regarding parliamentary approval of agreements and treaties.53

The second, dated 12 April 1932, considered the authority of the Cosgrave government to bind the state to the payment of the annuities.54 Hearne wrote that he could not give a final opinion until all the relevant facts and documents were before him. He did, however, explain the general principles relating to such an agreement. Having been signed by President Cosgrave, an external government would have no reason to believe that the head of government of the Irish Free State was not entitled to bind at least the government of the Free State by his signature. Furthermore, Cosgrave’s signature had not been repudiated by the government. Lastly, the state had acted on the agreement by paying the annuities. Given the opinions expressed by Hearne, the overall import of this memorandum was not particularly helpful to the position of de Valera’s government.

In retaliation for de Valera’s refusal to pay the annuities the British government imposed special duties on Irish imports in July 1932. The Free State countered by putting duties on English imports. The ‘Economic War’ had begun. The two controversies in Anglo-Irish relations – the oath and annuities – became conflated in the responses and attitudes of British ministers, and the special duties came to be seen as a means of putting pressure on de Valera to capitulate. Thus there was the effective pursuit of a policy of economic sanctions for political ends in response to the abolition of the oath.

As a means of resolving their differences over the annuities, both governments gave consideration to arbitration.55 However, there was a fundamental difference between them: British ministers insisted that the matter be submitted to a Commonwealth tribunal, as described in the report of the 1930 Imperial Conference. This tribunal was to be composed of representatives of member states and was to be resorted to as a means of settling intra-Commonwealth disputes.56 Despite reservations about arbitration, de Valera indicated, in June 1932, that he would accept it in principle, but with the proviso that the arbitral tribunal should not be restricted to Commonwealth personnel.57 The British government insisted on this restriction and so the prospect of arbitration foundered.58

During the July meeting between Hearne and Batterbee, referred to earlier, Hearne had given his views on the question of arbitration. In the memorandum recording the encounter, Hearne was reported as stating that ‘he had no authority to go into the general position or to discuss the particular issues, e.g., the oath or the land annuities’; he was giving ‘a purely personal opinion’.59 This opinion he expressed with his usual trenchant forthrightness:

The government of the Irish Free State had accepted the principle of arbitration as a method of settlement. The two governments were definitely agreed on that; they had not agreed on the method of constituting the arbitral tribunal. But in that state of facts the British government brought in the Import Duties Bill against Irish Free State goods and produce. While discussion of ways and means of arbitration – the principle already accepted – was going on this bill was introduced. It would be difficult to find an instance of mishandling of a difficult situation so extraordinary as that.

In his contention that both governments had definitely accepted the principle of arbitration, Hearne was overstating the level of agreement and understanding. The fact was that, at best, ‘arbitration was a half-hearted compromise about which both governments had serious reservations’.60 Regarding Britain’s insistence on a Commonwealth tribunal, Hearne declared that the Irish government refused to regard the report of the 1930 Imperial Conference pertaining to this putative tribunal as ‘the edict of a super-parliament’. Hearne was correct in his view. The report, while agreeing to the composition and remit of the proposed body, recommended the adoption of a voluntary and not an obligatory system.61 Speaking in parliament on 3 July 1932, Labour MP Clement Atlee attacked British demands for a Commonwealth tribunal; the conclusions of the 1930 Conference were, according to him, ‘a pious view’.62 McMahon was accurate in her comment that British ministers were ‘clearly ignorant of the chequered history of the Commonwealth tribunal’.63

Hearne was definite in his opinion of the implications of the British refusal to consider a tribunal composed of non-Commonwealth representatives: it was a denial of the Free State’s international sovereignty: ‘If the Irish Free State had any international existence at all it was entitled to an international tribunal to arbitrate an international financial issue.’ In his discussion with Batterbee he referred to an earlier statement made by the British civil servant:

You say that the people of the Irish Free State must decide the question of membership of the Commonwealth. What considerations will operate in their minds when taking that decision? You know that since the Treaty was signed they have been assured that membership of the Commonwealth in no way derogates from the substance of international statehood. If you steadily decline to accept that situation, if you insist that membership of the Commonwealth does derogate from statehood and does deprive members – other than great Britain – of certain elementary international rights, what decision do you think the Irish people will take?

Batterbee was unmoved, the memorandum recording his reaction: ‘Sir Harry said that the Commonwealth tribunal will be insisted upon: it was fundamental.’ Hearne utterly disparaged this notion: ‘Was the half-worked-out idea of a Commonwealth tribunal going to be set up as a sort of judicial constitution of the British Commonwealth?’ Showing an understanding and appreciation of the evolution of Dominion status over the previous ten years, he informed the British official that ‘the existence of the Commonwealth in the future would depend upon the very fact of its having no judicial constitution or other constitution of any kind’.64 Throughout this meeting John Hearne defended the position of the Irish Free State, employing arguments which displayed a consummate, even prescient knowledge of Commonwealth development, while Batterbee articulated the views of a dying imperialism.

Governor-General controversy

In 1932, de Valera found himself embroiled in a controversy involving the Governor-General, James McNeill. The manner in which he dealt with it contrasted sharply with his handling of the matters of the oath of allegiance and the annuities. He was certain and considered in dealing with them; the situation with McNeill took what McMahon has described as ‘a maverick course’.65 This was due to the fact that the matter arose unexpectedly.

Fianna Fáil regarded the position of Governor-General with unrelenting hostility. Representing the King, it was a tangible symbol and reminder of the hated Treaty settlement. It was also attacked as being too costly and as an absolutely useless office, filled by a ‘rubber stamp’.66 De Valera did not initially intend to act against the representative of the monarch in 1932; that was for the future. Events, however, conspired otherwise.

Confrontation arose between McNeill and the government because of his disrespectful treatment by ministers. Shortly after their appointment in March, Sean T. O’Kelly, Vice-President of the Executive Council, and Frank Aiken, Minister for Defence, made a pointed departure from a reception at the French legation on the arrival of the Governor-General. McNeill complained to de Valera and demanded an apology but without satisfaction. Tensions came to a head in July after a series of petty snubs during the Eucharistic congress. McNeill published his correspondence with de Valera, in spite of warnings to the contrary from the Executive Council. The Fianna Fáil government decided to force his resignation,67 which took effect in November.

De Valera decided to use the opportunity to diminish the status of the office by appointing an acting Governor-General. His subsequent handling of events was confused, even haphazard. Ill-prepared because of the unexpectedness of this controversy, he was also distracted by more pressing matters, such as the oath and annuities. Chief Justice Hugh Kennedy was considered for the position but was unwilling to serve.68 De Valera proposed that he himself assume the role in an acting capacity. However, the King’s secretary replied that the Treaty and Constitution appeared to make it impossible for the offices of President and Governor-General to be held by the same person.69 De Valera then made the proposal that the powers be vested in a commission, composed of himself, the Ceann Comhairle and the Chairman of the Senate. The King refused to consider this.70

Hearne became involved in the controversy surrounding the Governor-General. He prepared a memorandum on the letters patent constituting the office for the assistant secretary at the Department of External Affairs Seán Murphy.71 In another memorandum, he advised abolition of the office and that the government deal directly with the King. He was very clearly of the mind that the government should take a firm stand on that basis in any possible future negotiations.72 De Valera was not ready for such a course of action at this stage – it simply was not on his agenda of constitutional change for the year 1932. The most significant part played by Hearne in this affair was his accompanying the Attorney General, Conor Maguire, to a meeting with Chief Justice Kennedy. A memorandum, prepared on 20 November for the Executive Council, recorded that both men called on the judge ‘with a view to discussing with him the question of his assumption of the duties of office of acting Governor-General pending the appointment of a successor to McNeill’.

De Valera’s emissaries were singularly unsuccessful, the memorandum noting that ‘the Chief Justice stated that in his opinion it would be obligatory to take the oath of office and the oath of allegiance and that he did not desire to take these oaths’.73 This unequivocal refusal thwarted de Valera’s plans to use the opportunity of McNeill’s resignation to nullify the office he was vacating. The President was effectively forced to appoint Domhnall O’Buachalla.74 Even though O’Buachalla was to discharge the office in an anonymous fashion,75 thus marginalising its public significance, de Valera nevertheless was forced to make this appointment in 1932, having gone to great trouble to avoid making a permanent appointment in that year.76

De Valera’s decision that Hearne accompany the Attorney General suggests that the President increasingly appreciated his knowledge, competence and abilities. He was probably the obvious choice, given his position in the Department of External Affairs, but, considering the urgency of the situation, indeed its near crisis proportions, de Valera would not have entrusted this sensitive and important task to a civil servant in whom he did not repose confidence, simply because of that civil servant’s position. That he did was an indication of the growing professional closeness between the two men.

Privy Council appeal

On 9 September 1932, John Hearne wrote a secret memorandum listing outstanding issues between the Irish and British governments. The second item on the list was the Privy Council appeal.77 Its inclusion was unsurprising given that it was an ongoing source of discord. During his July meeting with Batterbee, Hearne had expressed his frustrations on this matter, as recorded in the official memorandum:

But as a purely personal opinion he would like to say to Sir Harry Batterbee that he had always regarded the Privy Council issue as a test issue, a test of the reality of Commonwealth Conference decisions. He had expressed a certain view to Sir Edward Harding [permanent under-secretary, Dominions Office] previously when Sir Edward was in Dublin with Mr Thomas [Dominions Secretary]. He would repeat it now. It was this. If those whose duty it was to carry out the directions of successive governments had been able to say to President de Valera when he took office that the Privy Council had been regarded by the British government as a Treaty issue, just as the oath was now so regarded by the British government, but that the Privy Council issue had been settled by agreement without any difficulty whatever because of the wishes of the Irish people in the matter, what a difference that might have made. But what had been the position? The President had to be told – if indeed he had not known it already – that negotiations lasting over years had been a failure, and that an absurd interpretation of the Treaty was solemnly advanced over and over by successive British law officers to defeat the Privy Council policy of the government and people of the Irish Free State.78

In January 1933, Éamon de Valera called a snap general election. Fianna Fáil won an overall majority in a campaign dominated by Anglo-Irish relations. With a renewed and stronger mandate, de Valera continued what British ministers, implacably wedded to the status quo, regarded as his ‘constitutional rake’s progress’.79 On 9 August 1933, he introduced three bills to amend the Constitution, thus demonstrating his steely determination to dismantle the Treaty settlement. All of them were enacted by November. The Constitution (Amendment No. 20) Act transferred from the Governor-General to the Executive Council powers relating to the appropriation of money under Article 37. The Constitution (Amendment No. 21) Act removed from Article 41 provisions about the withholding, by the Governor-General, of the royal assent to bills and the reservation of bills for the signification of the King’s pleasure. The third measure (Amendment no. 22) abolished the right of appeal to the Privy Council contained in Article 66. Hearne prepared a memorandum on the matter of the appeal,80 which he was directed to send to the Attorney General, in whose department the bill was being drafted. He also sent copies of the bills he had prepared for the Cosgrave government, which are noted in Chapter 2. On 15 November 1933, this amendment completed its passage through the Houses of the Oireachtas.81

That same evening, the Erne Fisheries Company announced its intention to appeal a judgement of the Supreme Court to the Privy Council in defiance both of the amendment and the wishes of the Irish government.82 As part of the appeal, the company requested that the Privy Council determine the legitimacy of the abolition of the right of appeal.83 This was a crucial case for the Free State: at issue was the right of its parliament to amend the Constitution and the validity of this and other constitutional amendments. Should the Privy Council reject the legitimacy of the constitutional amendment abolishing the right of appeal, this would have the effect of subverting the state’s claims to full judicial sovereignty and, by extension, its claim of being an independent sovereign state.

De Valera received conflicting advice from the Attorney General and Hearne as to what the government’s response should be to the decision of the Privy Council to hear the appeal. Maguire favoured making a diplomatic protest, while the legal adviser advocated tendering advice to the King to accept the terms and significance of the amendment.84 The monarch, according to Hearne, had no constitutional option but to accept the advice of his government in the Irish Free State. Hearne’s advice was informed by his conviction of the state of the constitutional development of the Commonwealth, which was founded on the fundamental principle of the coequality of all members:

Their [the government’s] action must be based on the supreme authority of the Oireachtas to regulate and control the prerogatives of the King. The whole issue is a constitutional issue between the parliament and government of Saorstát Éireann, and the King. The correct course for the government to take will be to advise the King in terms of the Constitution (Amendment No. 22) Act … The government should firmly decline to be drawn into any discussion with the British government on the question of the propriety or otherwise of advice tendered to the King … The King will not refuse to accept the advice of the government of Saorstát Éireann. This advice would be correct on every conceivable ground. It would be correct on the legal ground of the statute of the Oireachtas barring the prerogative of appeal in express terms; correct on the constitutional ground of the relations which exist between the King and the government of Saorstát Éireann in an opinion so obviously internal as the organisation of the judicial system; correct on the political ground of a unanimous Dáil and practically undivided public opinion; correct on the international ground of the judicial sovereignty of the Irish Free State and its responsibility in international law for the acts of its judicial tribunals.85

De Valera did not accept the advice of either official; rather, he instructed that the Free State ignore the proceedings of the Privy Council.86 The case was heard in April 1935.87 Finally, on 6 June of the same year, the Privy Council ruled that the Irish Free State had the right to abolish the appeal. It summarised its judgement in one sentence: ‘The simplest way of stating the situation is to say that the Statute of Westminster gave to the Irish Free State a power under which they could abrogate the Treaty, and that, as a matter of law, they have availed themselves of that power.’88

This judgement resulted in the collapse of British legal arguments concerning the maintenance of the Treaty settlement. While the British government would continue to oppose de Valera’s constitutional reforms, it could never again seriously challenge the legality of the measures.89 This decision must have given Hearne great satisfaction, even pleasure. It vindicated his view, expressed in many memoranda, regarding the sovereignty and coequality of all members of the Commonwealth. As a man of the law, he would likely have concurred with Thomas Mohr’s assessment: ‘As a result of this decision the date of June 6, 1935 can be considered the day in which Ireland finally won undisputed judicial sovereignty and therefore can be considered a great victory for Irish sovereignty as a whole.’90

The ‘nationality code’

One of the most complex issues which faced the Commonwealth was that of nationality, a fact noted earlier in accounts of Imperial Conferences. De Valera believed that each member state had a distinct and separate nationality91 and decided to give a legal basis to Irish nationality in the Free State. On 15 November 1934, the Dáil began debating the Nationality and Citizenship Bill. This was an area which usually came within the remit of the Department of Justice, but de Valera, as Minister for External Affairs, promoted the legislation92 because it had implications for Anglo-Irish and Commonwealth relations. Speaking in the Dáil, the President explained that the bill contained proposals for the regulation throughout the world of Irish citizenship and sought to govern the conditions for its determination and acquisition.93 De Valera’s involvement meant that Hearne became involved in the legislative process, by virtue of his position as legal adviser. On 2 January 1935, in reply to queries from Stephen Roche, secretary of the Department of Justice, regarding the effects of the bill on the validity of certain wills, Hearne explained some of the consequences if it were to be enacted. He stated categorically that ‘No person shall be a citizen of Saorstát Éireann and a British subject thereunder.’94 The bill heralded the end of the notion of common status among Commonwealth citizens as far as the Free State was concerned.

On 14 February 1935, the Dáil began consideration of the Constitution (Amendment No. 26) Bill, pertaining to Article 3,95 which was concerned with citizenship. Hearne had explained the bill’s purpose in a memorandum in November 1934: it was to remove the territorial restriction on citizenship created by this article. Under it, a citizen of the Free State was only such ‘within the limits and jurisdiction of Saorstát Éireann’. The amendment proposed ‘to delete the quoted words so that in future the citizenship created in Article 3 will have extra-territorial effect and will follow those who possess it throughout the world’.96 On the same day, the Dáil also debated the Aliens Bill. De Valera stated that it contained proposals ‘to deal with those who are not regarded as citizens’.97 Hearne had also explained its purpose in an earlier memorandum: ‘The proposed bill is necessary having regard to the fact that we require a new definition of “alien” in the light of the new Citizenship Bill and a new code to regulate the position of aliens in Saorstát Éireann.’98 On 3 December 1934, he issued another memorandum on the Aliens Bill, which repeated much of the information and details contained in the earlier one.99 De Valera told the Dáil that the three bills together could be regarded ‘as comprising our whole nationality code’,100 and Hearne wrote that it was intended that the Constitution Amendment and Aliens Bills would become law at the same time as the Nationality and Citizenship Bill.101 This is what happened effectively, with the amendment being enacted on 5 April 1935 and the two other bills on 10 April.

Absence of provisions for common status presented a major difficulty for British ministers, as it was believed that this would lead to a breach in the unity of the Commonwealth. The Nationality Bill made no reference to such status and de Valera was uncompromising in his position: ‘the British view of common status was not one in which representatives of this state at any time concurred’.102 In fact, the bill was very much along the lines of the proposals put forward by Irish delegates at the 1930 Imperial Conference. The Aliens Bill further antagonised British opinion by including British subjects in the definition of aliens as anyone who was not a citizen of the Free State.103 However, the Irish government had power to exempt certain classes of people from this definition and when the bill became law it made an order exempting citizens from the other Commonwealth countries from the status of aliens. Notwithstanding this fact, the language used in the acts of Ireland’s ‘nationality code’ pointed not towards membership of the Commonwealth but towards de Valera’s concept of external association as he had sketched it years before in ‘Document No. 2’.104

Abolition of the Seanad: the ‘Hearne affair’

On 22 March 1934, de Valera introduced the Constitution (Amendment No. 24) Bill, to amend Article 12 and abolish Seanad Éireann as a constituent House of the Oireachtas.105 The bill was enacted on 29 May 1936, the Seanad sitting for the last time on 19 May, when it adjourned sine die.106 Fianna Fáil’s attitude to the Free State Seanad will be considered in the next chapter; here we are concerned with an incident involving John Hearne in the course of the abolition debate in that house on 15 January 1936.

During the discussion, there was criticism of the fact that de Valera was not present in the chamber. Senator William Quirke, the Fianna Fáil group leader, offered an explanation. According to him, an official from the President’s Department, unnamed by Quirke, was sent to take notes on the debate. He was approached by an official on the Seanad staff and informed that he could not sit where he was, unless accompanied by a minister, but that a seat would be provided in the public gallery. De Valera’s official left. Quirke described this as ‘an unprecedented incident’ and he alleged that it was ‘premeditated’ and ‘indicative of the vindictive policy of the majority of this house against the President personally’.107

The Cathaoirleach, Senator T.W. Westropp Bennett, intervened at this juncture to clarify the situation. It transpired that Hearne was the official in question, and that

[he] came in at three o’clock and sat in one of the seats reserved for those in attendance on ministers. He was asked who was coming, or if the President were coming, and he said he did not know: that he was not aware that he was coming. Mr Coffey [an official of the Seanad] was then asked to tell him that he could not remain there if a minister were not in attendance – those seats were reserved for ministers and their attendants – but that a seat would be provided for him in the front row of the [public] gallery. He replied ‘Tell him [the Cathaoirleach] to communicate that to me in the proper way’, and he subsequently left. That was communicated to me by the Clerk of the House. I then prepared this letter, which I signed, and which would have been handed to him if he came back. It was not handed to him, as he did not come to the House later. The letter reads as follows: –

‘Legal adviser to the Minister for External Affairs.

I am afraid I cannot allow you to sit behind the chairs reserved for ministers if no minister is in attendance. A seat in the gallery will be found for you. This procedure is in accordance with precedent’.

–Cathaoirleach108

The next day the event was reported in the three national newspapers. Under a heading, ‘An unusual incident’, the Irish Times carried a description based on the statements of Senators Quirke and Westropp Bennett.109 The Irish Press used the heading ‘A remarkable incident’.110 The Irish Independent described the affair and continued: ‘It is understood that the President regarded the action which caused his adviser to withdraw as a grave discourtesy to himself and that he would probably not attend the debate today.’111

Senator Westropp Bennett wrote to de Valera on 16 January to explain the matter from his point of view. In the detailed letter, he emphasised the protocol governing the attendance of ministerial officials in the Seanad chamber and assured the President that he never intended to offer any discourtesy to him or his officials.112 De Valera’s curt, two-sentence reply simply noted the explanation which had been offered.113

This incident, an essentially minor one, underscored the tensions between de Valera and the Seanad. ‘The Hearne affair’, if it may be so styled, was the product of turbulent political times, an overly sensitive upper house and a head of government determined in his antipathy towards it. It was unfortunate that Hearne was caught in the crossfire, and this may be explained by the fact that, according to the Irish Independent, ‘he usually accompanied the President in the Senate when the abolition bill and certain other bills were discussed’.114 He happened to be there when a defensive Seanad decided to stand on its dignity by invoking precedent. Throughout his career, Hearne was quintessentially the self-effacing and unobtrusive civil servant and it is reasonable to assume that he would have found the publicity unwelcome – though he was no shrinking violet, as was evidenced in his attitude and reply to Mr Coffey. While de Valera exploited the incident for political advantage, it is likely that he did take umbrage at the treatment of his legal adviser. What he regarded as the insulting treatment of Hearne was, in fact, directed at him; Hearne was simply a vicarious target. It is also possible that the President was unhappy that a civil servant was drawn into a political spat. This unhappiness may have been exacerbated by the fact that the official in question was Hearne, for whom he had a high regard.

The close professional relationship that developed between John Hearne and Éamon de Valera in the years 1932–6 was founded on the latter’s appreciation of Hearne’s judgement, competence and expertise. The President came to realise that the Waterford-born lawyer and civil servant possessed attributes which facilitated the realisation of his policy objectives. Hearne responded by serving his minister with consummate professionalism. This relationship was to be the foundation of the trust reposed in Hearne by de Valera when it came to the advancement of his radical programme of constitutional change.