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fact, no longer exists and the principles which held it together do not apply at all to the scheme or system which has superseded it.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.
