John J. Hearne, Constitutionalist and Man of Law

The Constitution at 80:

‘John J. Hearne, Constitutionalist and Man of Law’

Paper delivered at a conference held at the University of Limerick, 11 November 2017

Dr Eugene Broderick

Modern History Adviser, Waterford Museum of Treasures

The former Chief Justice Mrs Justice Susan Denham has observed that there has been a significant lacuna in Irish legal history, in that unlike other jurisdictions, as a state we have not appropriately honoured the drafters of our Constitution.1 For decades, little attention was paid, in particular, to the role of various civil servants in the process which led to the adoption of Bunreacht na hÉireann. Pre-eminent among these was John Joseph Hearne and this papers seeks to give a brief overview of an aspect of the career of an almost forgotten drafter of the 1937 Constitution – his lifelong commitment to constitutionalism and the rule of law.

That John Hearne played a central and pivotal role in the production of the 1937 Constitution is beyond dispute and we have de Valera’s own assessment to confirm this. The 29th December 1937 was Constitution Day, the day on which the state’s new constitution came into operation. On that day John Hearne was presented with a copy of the document on which Eamon de Valera had written the following inscription:

To Mr John Hearne, Barrister at Law, Legal Adviser to the Department of External Affairs, Architect in Chief and Draftsman of this Constitution, as a souvenir of the successful issue of his work and in testimony of the fundamental part he took in framing this, the first free Constitution of the Irish People.

Éamon de Valera2

The basic facts of John Hearne’s life and career may be given in outline. He was born in Waterford City on 4 December 1893. His father, a local factory owner, served as mayor of the city in 1901 and 1902. The young John Hearne began studies for the Roman Catholic priesthood in 1910, leaving Maynooth College in the autumn of 1916. He studied law in UCD from which he graduated with an LLB degree in 1919. He entered the King’s Inns and was called to the Bar in 1919. During the Civil War he served in the Free State Army from October 1922 to November 1923. He was appointed assistant parliamentary draftsman

1 Susan Denham, ‘Foreword’, in Eugene Broderick, John Hearne: Architect of the 1937 Constitution of Ireland (Dublin: Irish Academic Press, 2017), vii.

2 National Library of Ireland, Ms., 23,508. 2 in the autumn of 1923 and in 1929 he became the legal adviser in the Department of External Affairs. It was in 1939 that he began a career in the diplomatic service, with his appointment, on the establishment of diplomatic relations with Canada, as High Commissioner to Ottawa. In 1950 he was appointed Ireland’s first ambassador to the US, retiring in 1960. Hearne died on 29 March 1969.3

In 1901 Richard Hearne, father of the then eight year old John, was elected Mayor of Waterford. Re-elected in 1902, he was to become one of the most important local supporters of the leader of the Irish Parliamentary Party and MP for the City of Waterford, John Redmond.4 His father was to be highly influential in the political formation and development of John Hearne. Roy Foster has noted that in the life stories of many Sinn Féin revolutionaries of this era, as confided to the Bureau of Military History in the 1940s and 1950s, the influence of a family member, who provided a powerful nationalist conditioning, was emphasised.5 Richard Hearne provided a different, but no less powerful conditioning for his son. John Hearne grew up in a home where home rule politics were a central part of family life; and just as some learned republican revolution in and from their families, he learned constitutionalism.

It was during a by-election campaign in Waterford City in March 1918 that John Hearne gave an uncompromising expression of his belief in, and commitment to, Home Rule constitutionalism. On 6 March John Redmond died and a by-election called for 22 March. His son, Captain William Archer Redmond, was selected to contest the seat and his opponent was Dr Vincent White, representing Sinn Fein. Prominent in their support of Captain Redmond were the Hearnes, John and his father, Richard. John Hearne delivered a number of trenchant addresses in favour of Redmond and this election campaign revealed Hearne to be an admirer of John Redmond and an uncompromising supporter of Home Rule. He enunciated a deep commitment to constitutional politics as the means of winning self-government; and he utterly rejected the politics of the resurgent Sinn Fein party, which he characterised as reckless and irresponsible.6

Considering Hearne’s attitude to Sinn Fein and what he regarded as extreme republican separatism it was perhaps inevitable that he accepted the Treaty settlement of 1921. Politically, he would have appreciated how much more freedom the Free State enjoyed under this settlement than it would have enjoyed under the Home Rule Act. Critically and more importantly, as a constitutionalist, he accepted the will of the Irish

3 This overview is based on Broderick, John Hearne.

4 Broderick, John Hearne, 8-10.

5 R.F. Foster, Vivid Faces: The Revolutionary Generation in Ireland 1890-1923 (London: Allen Lane, 2014), 70.

6 See Broderick, John Hearne, 14-21. 3 people as expressed by Dáil Éireann in its ratification of the 1921 agreement. 7 Not only did he accept the decision, he sought to vindicate it by serving in the Free State army as a command legal officer from October 1922 to November 1923.8 The sentiments articulated by Cahir Davitt, Hearne’s military superior, likely resonated with Hearne and explain his motivation in joining the army:

‘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’.9

In supporting the Treaty Hearne supported the Cumann na nGaedheal party of WT Cosgrave. In its 1923 election manifesto Cumann na nGaedheal argued that the ‘essence of a republic is the 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’.10 Such sentiments accorded with those of Hearne, the constitutionalist. In the turbulent years of the new state’s foundation, when citizens had to decide their political loyalties, for him it meant transferring support from Redmond to Cosgrave. It was not a hard choice to make, when the alternative was what Hearne regarded as republican incendiarism. Cosgrave’s party was to have a strong neo-Redmondite presence,11 the old parliamentary nationalist tradition being seen as its natural constituency.12

With the advent to power of Fianna Fail in 1932, Hearne found himself serving Éamon de Valera who, in addition to being President of the Executive Council, was also the Minister for External Affairs, the political head of the department to which Hearne had been appointed legal adviser in 1929. Hearne expected to be dismissed. After all, he had been an open supporter of John Redmond and a bitter opponent of Sinn Fein in the Waterford

7 Ibid., 26-29.

8 Ibid., 29-32.

9 Bureau of Military, Witness Statement, 1,751, Cahir Davitt, 81-82.

10 Quoted in Broderick, John Hearne, 27.

11 Patrick Maume, The Long Gestation; Irish Nationalist Life 1891-1918 (Dublin: Gill and Macmillan, 1999), 215.

12 John M. Regan, The Irish counter-Revolution 1921-1936: Treatyite Politics in Independent Ireland (Dublin: Gill and Macmillan, 1999), 341. 4 elections of 1918. During the March by-election de Valera had been in Waterford city and very likely heard of Hearne and his uncompromising attacks on Sinn Fein.13

Hearne, however, was not dismissed; on the contrary, there developed between him and de Valera a relationship characterised by a high degree of professional interaction and closeness. According to historian, Professor Dermot Keogh, perhaps he ‘was the person with whom de Valera had the closest contact during the early years of his coming to office’.14

What was the basis of their relationship? Its principal foundation was de Valera’s need for the advice and assistance of legal experts in order to realise his constitutional objectives. A fortnight after the Fianna Fáil government was formed in 1932, the Attorney General wrote to UCC academic, Professor Alfred O’Rahilly, that matters relating to the Constitution

have now reached a stage when they must be dealt with as matters of practical politics . . . In the course of a discussion with the President we agreed that it is vital that we should have the help of men who have been considering these matters and have . . . expert knowledge of them.15

Pre-eminent among such men was Hearne. Ronan Fanning has recounted what was probably a pivotal moment in the development of the relationship between minister and civil servant:

Hearne recalled that one of de Valera’s first actions as Minister for External Affairs was to ask for the files on the Commonwealth Conferences of the 1920s. Sometime later, he told Hearne he had read them with interest, adding: ‘I didn’t know ye had done so much’.16

De Valera recognised and acknowledged Hearne’s contribution and the latter appreciated this fact.

De Valera was referring to the role played in the 1920s by Hearne, when as a civil servant he had helped progress the principal foreign policy objective of the Cosgrave administration, namely the achievement of full and unrestricted international sovereignty for the Irish Free State. This was to be realised by transforming, in a legal and constitutional

13 See Broderick, John Hearne, 62.

14 Dermot Keogh, ‘Profile of Joseph Walshe, Secretary, Department of External Affairs 1922-46’, Irish Studies in international Affairs, vol. 3, no. 2, 1990, 74.

15 Quoted in Brian Farrell, ‘De Valera’s Constitution and Ours’, in Brian Farrell (ed.), De Valera’s Constitution and Ours’ (Dublin: Gill and Macmillan, 1988), 200.

16 Quoted in Ronan Fanning, Éamon de Valera: A Will to Power (London: Faber and Faber, 2017), 160. 5 fashion, the British Commonwealth into a free partnership of sovereign independent states. In practical terms, this meant equality between the United Kingdom and the self-governing dominions.

It was at Imperial Conferences, periodic gatherings of heads of government of the various dominions, that the Free State pursued its policy of international equality. Hearne attended the 1926 conference at which the famous Balfour Declaration was adopted, asserting the equality of all the member states of the British Commonwealth. He was also in attendance at the 1930 Imperial Conference, serving as a legal adviser to the Irish delegation which played a central role in the framing and declaration of the principles which were enshrined in the Statute of Westminster, 1931. By the terms of this legislation passed by the United Kingdom parliament, the equality of the dominions was given legal expression and the right of dominions to amend legislation passed by the Westminster parliament which affected them was recognised.17

In his dealings with de Valera Hearne revealed himself to be a constitutional nationalist. He was always a man of the law – he never abandoned the path of constitutional nationalism. He evolved from being a supporter of home rule to being a supporter of the treaty, and then to supporting de Valera’s policy of dismantling this same treaty settlement. How can this evolution be explained? Was he such a chameleon that he eventually became a person devoid of any principles? This most certainly was not the case. His views were informed by the evolving legal and constitutional principles as they pertained to Ireland’s status in its relationship with Britain. For Hearne, this constitutional relationship came to be defined by the Balfour Declaration of 1926 and the 1931 Statute of Westminster – it was one of equality. Accordingly, the Free State could amend its constitution, indeed discard it and adopt a new one – and so dismantle the Treaty settlement - because of the constitutional and legal foundation of equality between all the members of the British Commonwealth.18

Hearne’s experiences as a constitutionalist during a time of revolutionary upheaval forged in him a profound respect for law. His Redmondite roots and his legal training shaped his views as to the importance of law. He articulated his ideas in this regard in a memorandum prepared by him for de Valera in June 1937, entitled ‘The Constitution and National Life’, and in speeches delivered as a diplomat. In these he enunciated a deeply held belief: ‘A nation’s laws are as much part of its national life as are its language, its literature, its arts and its particular outlook upon the great public questions of the age’.19

17 For an account of Hearne’s role at Imperial Conferences see Broderick, John Hearne, 34-57.

18 For a consideration of Hearne’s views see ibid., 47-48; 66-77.

19 National Archives of Ireland, DT S9905, Memorandum prepared for Éamon de Valera, 12 June 1937, 1-2. 6

Hearne believed that there was a relationship between a country’s history and its constitution.20 However, in his opinion, this relationship between history and a country’s constitution had not applied to Ireland for hundreds of years. Rather, the Irish nation refused to give its allegiance to laws imposed on it, and which were alien to its philosophy of life. Consequently, the Irish were characterised, in Hearne’s words, ‘as a nation of rebels and revolutionaries, bereft of a talent for normal government and ordered political life’. They became synonymous with ‘disloyalty and disorder’. Hearne asserted that ‘a system of law which is divorced from the convictions, the beliefs and the spiritual character of a people is in no sense a national code’.21

There was, however, Hearne believed ‘a moment in the history of every free people in which their philosophy of life passes into their national law’. In Hearne’s opinion this happened in Ireland in 1937; to quote him:

Here again thought the lawyers and others who framed the national Constitution of Ireland in 1937 was the supreme opportunity, the first given to the Irish people for seven hundred years of enacting a fundamental law which would take account of our national thought and reflect the philosophy of life of our people.22

Clearly, for Hearne the Constitution was much more than a recital of legal provisions; it was the encapsulation of the essence of a people by virtue of enshrining their philosophy of life. He had a philosophic, even esoteric view of the document and, consequently, this elevated and exalted the process of constitution-making. In their conversations and discussions, it was likely, indeed certain, that he expressed this fundamental vision of the Constitution to de Valera. For de Valera, his legal adviser was very much a man of the law, who guided and inspired him, the nation’s leader, through the legal perils of the monumental task of establishing a new fundamental law for a recently independent state, at a time of severe diplomatic and legal tensions between Ireland and Britain, and against the backdrop of a European continent descending into conflict and turmoil.23

Demonstrably, John Hearne was always a constitutional nationalist. As a young man in Waterford he rejected what he regarded as Sinn Fein extremism in favour of constitutional home rule. His constitutionalism had its origins in his commitment to Redmond’s policies, nurtured in his family home, in that most Redmondite of cities,

20 John J. Hearne Papers, Speech delivered in Canada, date and place unknown, 3. The Hearne Papers have since been deposited in University College Dublin Archives, reference P291.

21 Hearne, ‘Constitution and National Life’, 4.

22 John J. Hearne Papers, Address delivered at the annual meeting of the Harvard Law School Association of New Jersey, Newark, New Jersey, 23 March 1957, 8.

23 For a development of this argument see Broderick, John Hearne, 205-6. 7

Waterford. This belief in constitutionalism was confirmed during the upheavals of the Civil War. He never faltered in his commitment to constitutional means as the most proper and effective ones to advance the objective of Irish self-government.

John Joseph Hearne was, clearly, de Valera’s trusted servant, but he had been Redmond’s first – and Hearne never forgot that. And in that remembrance are to be found the basis of his respect for constitutional nationalism and the rule of law to which he helped give expression in the Constitution of 1937, the framing of which document he played, in de Valera’s words, ‘a fundamental part’.

Eugene Broderick – contact details:

087-9417729 [email protected]