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.
(ii)Territorial limitation of Dominion legislation:
a.The meaning of the limitation.
b.Recent interpretation of the doctrine.
c.Its removal at the forthcoming conference.
The length gave them a comprehensiveness and completeness. To refer again to the memorandum on extra-territorial jurisdiction, it is full of references to legal enactments and the case law of Dominions. The memorandum on merchant shipping contains a detailed summary of merchant shipping legislation in the Commonwealth.
Finally, in considering Hearne’s legal submissions, there is an overriding and overarching fact which must not be forgotten. These legal opinions served a political purpose and were written to inform and reinforce the policies of the government. Therefore, they were, at times, as much political as legal documents.
Conference deliberations and report
The Conference on the Operation of Dominion Legislation eventually began on 8 October 1929 and continued until 4 December of the same year. The Irish Free State delegation included Hearne, Joseph Walshe, Diarmuid O’Hegarty, John A. Costello and Patrick McGilligan, all of whom had attended the 1926 Imperial Conference. There were seventeen plenary meetings155 and Hearne attended most, if not all of them.156 In addition, he was appointed to a committee to draft a declaration pertaining to extra-territorial legislation157 and acted as an adviser on a committee considering the Colonial Laws Validity Act.158
The minutes of the plenary sessions suggest the extent to which Hearne’s memoranda informed, supported and summarised the arguments and contributions of the Irish delegates. In his opening statement, McGilligan emphasised the coequality of all participating Commonwealth states and that the United Kingdom was no more than a coequal member of the association.159 The second meeting considered the extra-territorial operation of dominion legislation, with the Irish minister asserting that the legislative power of dominion parliaments should be as wide and unfettered as that of the United Kingdom parliament.160 As noted earlier, Hearne was a member of a committee selected to draft the relevant declaratory clause for inclusion in future legislation. This was composed of four civil servants and it considered a number of submissions, including one from McGilligan. The clause produced by the committee and approved by the Conference was entirely consistent with the views expressed by Hearne in his memorandum on the matter: ‘It is hereby declared and enacted that the parliament of a Dominion has full power to make laws having extra-territorial operation.’161
The fourth meeting, held on 11 October, discussed reservation of legislation. McGilligan rejected the retention of this power in any Dominion constitution. Furthermore, he argued that the power of reservation contained in the Merchant Shipping Acts did not apply to the Free State as the Oireachtas had not adopted them.162 On 15 October, the Irish minister attacked the Colonial Laws Validity Act. This enactment he described as ‘anomalous and an anachronism’, and he asserted that it could not be reconciled with the constitutional practices of the Commonwealth. He reiterated Hearne’s characterisation of it as ‘the threat of contingent invalidity’ hanging over Dominion statutes.163 At another meeting of the Conference on 31 October, the Free State’s Attorney General, John A. Costello, asserted the right of Dominion parliaments to amend their constitutions. Regarding the provision in the Irish Free State’s Constitution that legislation enacted by the Oireachtas could not be repugnant to the Treaty, he placed on record the contention of the Irish government that this was not so much a limitation of the state’s legislative power as a recognition of its obligations under the Treaty.164
The committee on the Colonial Laws Validity Act, of which Hearne was a member, had a demanding workload. Its terms of reference were: ‘To consider and report what action in relation to the provisions of the Colonial Laws Validity Act and matters ancillary thereto will be necessary to give effect to the principles laid down in the report of the inter-imperial relations committee, 1926.’ The first meeting, held on 31 October 1929, proceeded to consider seriatim the act’s provisions.165 There were fourteen meetings and several revisions of its final report before its work was completed166 and incorporated as ‘Part V’ of the Conference report.167 McGilligan was to describe this part as ‘the critical portion of the report’,168 a view reflecting the central part the act had played in the constitutional and legal architecture of the British Empire. The committee produced a declaration consistent with the recommendations and spirit of Hearne’s memorandum on the subject: ‘The Colonial Laws Validity Act of 1865 shall cease to apply to any law made by the parliament of a Dominion.’169
From the very start of the Conference, the Irish delegation was determined to make its point and ‘to invest every corner of the Commonwealth framework with that autonomy and equality declared in 1926’.170 It was demanding and strenuous work171 and the Irish had to be constantly vigilant to resist what Diarmuid O’Hegarty described as ‘the usual attempts to introduce into the documents words and phrases of a sapping nature’.172 The report of the Conference, released in all the Dominion capitals on 3 February 1930, contained much to please the Free State. It acknowledged that the principles of freedom, equality and co-operation had slowly emerged from the experiences of the self-governing communities constituting the Commonwealth. The Conference considered that it was its task to apply those principles to areas where law and practice were inconsistent with them.173 Therefore, it recommended the abolition of the powers of disallowance174 and reservation.175 Dominion legislation should have extra-territorial operation176 and the Colonial Laws Validity Act should no longer apply to such legislation.177 There were many recommendations relating to merchant shipping,178 but arguably the most important was the one that there be no longer any doubts as to the full and complete power of Dominion parliaments to enact legislation in this area.179
John