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
