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
