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 Hearne, of whose character and ability he had a high opinion but that there had been opposition within the government, which he had been unable to overcome.27
It is clear that Hearne’s credentials as a Home Rule activist were militating against him; he had made an enemy or enemies in high places.28 O’Higgins expressed the hope that Davitt would find a place for him on his staff and the latter readily agreed.29 Thus Hearne became a command legal staff officer.
He was appointed to the army’s Western Command. The circumstances of this have been described by Calton Younger in an account which captures the drama and hazardous nature of serving the young state:
Seán Mac Eoin had recently been promoted to major-general and appointed G.O.C. of the Western Command, an appointment he accepted reluctantly. He was a man of action and didn’t want to be tied down by administrative work. He would accept the command, he told Michael Collins, only if he were given a legal officer and a quartermaster. Collins quickly produced John Hearne, who afterwards reached ambassadorial rank. Hearne was rushed down to O’Callaghan’s, the military outfitters, where he exchanged his natty lawyer’s dress for an army uniform. He emerged with a Sam Browne belt that creaked its newness and a small holster. Having been issued with a large revolver, he took his place in McEoin’s car to travel to Athlone. As they set off, Hearne suddenly realised that McEoin had no escort and asked rather anxiously where it was. McEoin laughed. ‘Haven’t I got you?’ he said and, pointing to the revolver added, ‘and that’.30
Hearne was commissioned at the rank of commandant, effective from 12 October 1922.31
The duties of a command legal staff officer were to advise the general officer commanding on all matters relating to military law and courts martial; to direct and generally supervise the administration of military law in the command area; and to provide for the attendance of a legal officer at every court martial held in that area.32 The position was an important one in a country experiencing major civil disturbance, where military courts took the place of civilian ones. The courts had jurisdiction to try persons for offences such as attacks upon the national army; unauthorised possession of arms, ammunition or explosives; and the seizure and destruction of property.33 These same courts had powers to inflict punishments which included fines, penal servitude, imprisonment, deportation, internment and death.34 As legal officer of the Western Command, Hearne was responsible for the conduct of military courts in an area which included the western seaboard counties, as well as Longford, Roscommon, Sligo and Leitrim.35
His son, Maurice, has recorded that his father’s military promotion and attendant duties ‘placed Dad in somewhat of a dilemma’. He did not believe that capital punishment acted as a deterrent to criminality, especially in times of armed conflict, and that it left no margin for human error. The matter became a subject of discourse between them when they lived in Washington during Hearne’s tenure as Ambassador to the United States. In 1951, both of them went to hear the unsuccessful appeal of Julius and Ethel Rosenberg against the death sentences imposed on them for espionage. According to Maurice, it was to his father’s great relief that he was never appointed to conduct any case before a military court involving capital punishment.36
In considering Hearne’s attitude to his role and to the prevailing disorder, recourse must be had to surmise in the absence of personal papers. Cahir Davitt offers us an insight. Referring to those to whom he offered positions as legal staff officers, he commented that ‘once they had been given the opportunity of serving the state when it appeared to be in some danger, they felt it to be their duty, as citizens, not to refuse it [the position]’.37 Furthermore, reflecting on the position in the country, he observed:
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. I believed that in order to do