The government of the Irish Free State had accepted the principle of arbitration as a method of settlement. The two governments were definitely agreed on that; they had not agreed on the method of constituting the arbitral tribunal. But in that state of facts the British government brought in the Import Duties Bill against Irish Free State goods and produce. While discussion of ways and means of arbitration – the principle already accepted – was going on this bill was introduced. It would be difficult to find an instance of mishandling of a difficult situation so extraordinary as that.
In his contention that both governments had definitely accepted the principle of arbitration, Hearne was overstating the level of agreement and understanding. The fact was that, at best, ‘arbitration was a half-hearted compromise about which both governments had serious reservations’.60 Regarding Britain’s insistence on a Commonwealth tribunal, Hearne declared that the Irish government refused to regard the report of the 1930 Imperial Conference pertaining to this putative tribunal as ‘the edict of a super-parliament’. Hearne was correct in his view. The report, while agreeing to the composition and remit of the proposed body, recommended the adoption of a voluntary and not an obligatory system.61 Speaking in parliament on 3 July 1932, Labour MP Clement Atlee attacked British demands for a Commonwealth tribunal; the conclusions of the 1930 Conference were, according to him, ‘a pious view’.62 McMahon was accurate in her comment that British ministers were ‘clearly ignorant of the chequered history of the Commonwealth tribunal’.63
Hearne was definite in his opinion of the implications of the British refusal to consider a tribunal composed of non-Commonwealth representatives: it was a denial of the Free State’s international sovereignty: ‘If the Irish Free State had any international existence at all it was entitled to an international tribunal to arbitrate an international financial issue.’ In his discussion with Batterbee he referred to an earlier statement made by the British civil servant:
You say that the people of the Irish Free State must decide the question of membership of the Commonwealth. What considerations will operate in their minds when taking that decision? You know that since the Treaty was signed they have been assured that membership of the Commonwealth in no way derogates from the substance of international statehood. If you steadily decline to accept that situation, if you insist that membership of the Commonwealth does derogate from statehood and does deprive members – other than great Britain – of certain elementary international rights, what decision do you think the Irish people will take?
Batterbee was unmoved, the memorandum recording his reaction: ‘Sir Harry said that the Commonwealth tribunal will be insisted upon: it was fundamental.’ Hearne utterly disparaged this notion: ‘Was the half-worked-out idea of a Commonwealth tribunal going to be set up as a sort of judicial constitution of the British Commonwealth?’ Showing an understanding and appreciation of the evolution of Dominion status over the previous ten years, he informed the British official that ‘the existence of the Commonwealth in the future would depend upon the very fact of its having no judicial constitution or other constitution of any kind’.64 Throughout this meeting John Hearne defended the position of the Irish Free State, employing arguments which displayed a consummate, even prescient knowledge of Commonwealth development, while Batterbee articulated the views of a dying imperialism.
Governor-General controversy
In 1932, de Valera found himself embroiled in a controversy involving the Governor-General, James McNeill. The manner in which he dealt with it contrasted sharply with his handling of the matters of the oath of allegiance and the annuities. He was certain and considered in dealing with them; the situation with McNeill took what McMahon has described as ‘a maverick course’.65 This was due to the fact that the matter arose unexpectedly.
Fianna Fáil regarded the position of Governor-General with unrelenting hostility. Representing the King, it was a tangible symbol and reminder of the hated Treaty settlement. It was also attacked as being too costly and as an absolutely useless office, filled by a ‘rubber stamp’.66 De Valera did not initially intend to act against the representative of the monarch in 1932; that was for the future. Events, however, conspired otherwise.
Confrontation arose between McNeill and the government because of his disrespectful treatment by ministers. Shortly after their appointment in March, Sean T. O’Kelly, Vice-President of the Executive Council, and Frank Aiken, Minister for Defence, made a pointed departure from a reception at the French legation on the arrival of the Governor-General. McNeill complained to de Valera and demanded an apology but without satisfaction. Tensions came to a head in July after a series of petty snubs during the Eucharistic congress. McNeill published his correspondence with de Valera, in spite of warnings to the contrary from the Executive Council. The Fianna Fáil government decided to force his resignation,67 which took effect in November.
De Valera decided to use the opportunity to diminish the status of the office by appointing an acting Governor-General. His subsequent handling of events was confused, even haphazard. Ill-prepared because of the unexpectedness of this controversy, he was also distracted by more pressing matters, such as the oath and annuities. Chief Justice Hugh Kennedy was considered for the position but was unwilling to serve.68 De Valera proposed that he himself assume the role in an acting capacity. However, the King’s secretary replied that the Treaty and Constitution appeared to make it impossible for the offices of President and Governor-General to be held by the same person.69 De Valera then made the proposal that the powers be vested in a commission, composed of himself, the Ceann Comhairle and the Chairman of the Senate. The King refused to consider this.70
Hearne became involved in the controversy surrounding the Governor-General. He prepared a memorandum on the letters patent constituting the office for the assistant secretary at the Department of External Affairs Seán Murphy.71 In another memorandum, he advised abolition of the office and that the government deal directly with the King. He was very clearly of the mind that the government should take a firm stand on that basis in any possible future negotiations.72 De Valera was not ready for such a course of action at this stage – it simply was not on his agenda of constitutional change for the year 1932. The most significant part played by Hearne in this affair was his accompanying the Attorney General, Conor Maguire, to a meeting with Chief Justice Kennedy. A memorandum, prepared on 20 November for the Executive Council, recorded that both men called on the judge ‘with a view to discussing with him the question of his assumption of the duties of office of acting Governor-General pending the appointment of a successor to McNeill’.
De Valera’s emissaries were singularly unsuccessful, the memorandum noting that ‘the Chief Justice stated that in his opinion it would be obligatory to take the oath of office and the oath of allegiance and that he did not desire to take these oaths’.73 This unequivocal refusal thwarted de Valera’s plans to use the opportunity of McNeill’s resignation to nullify the office he was vacating. The President was effectively forced to appoint Domhnall O’Buachalla.74 Even though O’Buachalla was to discharge the office in an anonymous fashion,75 thus marginalising its public significance, de Valera nevertheless was forced to make this appointment in 1932, having gone to great trouble to avoid making a permanent appointment in that year.76
De Valera’s decision that Hearne accompany the Attorney General suggests that the President increasingly appreciated his knowledge, competence and abilities. He was probably the obvious choice, given his position in the Department of External Affairs, but, considering the urgency of the situation, indeed its near crisis proportions, de Valera would not have entrusted this sensitive and important task to a civil servant in whom he did not repose confidence, simply because of that civil servant’s position. That he did was an indication of the growing professional closeness between the two men.
Privy Council appeal
On 9 September 1932, John Hearne wrote a secret memorandum listing outstanding issues between the Irish and British governments. The second item on the list was the Privy Council appeal.77 Its inclusion was unsurprising given that it was an ongoing source of discord. During his July meeting with Batterbee, Hearne had expressed his frustrations on this matter, as recorded in the official memorandum: