the Four Courts executive [anti-Treaty IRA leaders] and to prevent the use and abuse of the power they had unlawfully usurped. I believed that for the purposes of doing so the government had every right to use military force as well as other legitimate means, including the taking of human life, if necessary … Many attacks, in a sense all attacks, upon members of the government forces were made by men whom those attacked had every right and reason to regard as civilians. The Catholic hierarchy in a statement made from Maynooth in April [1922] had condemned the usurpation of power by the Four Courts executive; and in a joint pastoral letter of October 10 had stigmatised such attacks as being ‘morally only a system of murder and assassination’.38
It is reasonable to suggest that Hearne would have shared many, if not most of the sentiments recorded by Davitt relating to the circumstances facing the government and the response of Cosgrave and his ministers to them. Like their author, Hearne was loyal to the Free State and would likely have agreed with the view of the Civil War articulated by O’Higgins at Oxford University in 1924: ‘The right of the people to found a state on the basis of the Treaty which had been signed by their plenipotentiaries and endorsed by their parliament had to be vindicated beyond question.’39
As the Civil War petered out in 1923, the command legal staff officers became increasingly concerned about their future prospects. In May, they expressed these concerns in a letter sent to Cahir Davitt and signed by six officers, including Hearne.40 In response, Davitt met with them but could not offer any reassurances.
As for Hearne, his career in the army ended when he tendered a letter of resignation, dated 19 November 1923, to Davitt, who recommended its acceptance, adding ‘I do so with great regret, as this officer has been in every way satisfactory.’41 His commission was terminated on 20 December.42 He took up new employment in the Office of the Attorney General, as assistant parliamentary draftsman, in 1924.
Assistant parliamentary draftsman, 1924–9
In 1956, John Hearne reflected on his joining the civil service, recalling:
It happened that when I was of three years standing at the Bar an event took place which changed the course of the lives of many Irish lawyers and gave the legal profession a new place, and a new responsibility and a new influence in the country – I mean the establishment of the Irish Free State in the year 1922. For my own part, I was invited to work with the first Attorney General and spent five years in that department of the new government.43
The civil service John Hearne joined was a British type in miniature.44 On the establishment of the Irish Free State, 21,000 of 28,000 civil servants transferred to the service of the new government.45 The effect of this was administrative continuity both in terms of personnel and practice, a fact acknowledged in an official report in 1934:
The passing of the state into the control of a native government, however revolutionary it may have been as a step in the political development of the nation, entailed, broadly speaking, no immediate disturbance of any fundamental kind in the daily work of the average civil servant. Under changed masters the same main tasks of administration continued to be performed by the same staffs on the same general lines of organisation and procedure.46
This was a formidable inheritance for the new state, given the tradition of the British civil service and the quality of professionalism it displayed.47 The newly formed Irish civil service contributed to the establishment and consolidation of parliamentary democracy in the Free State.48 That post-independence generation of civil servants was imbued with profound loyalty and commitment to public service,49 being determined to ensure the survival and vitality of the new state.
As assistant parliamentary draftsman, John Hearne worked under Arthur Matheson, described by Maurice Hearne as ‘legendary’, and who was ‘reputed to be the most skilful legal draftsman not only in Ireland but throughout these islands’.50 According to the same source, Hearne formulated much of the legislation establishing the institutions of the state sector, notably the Electricity Supply Board (ESB).51 The draft bill relating to the ESB was described by Matheson as ‘highly technical, very detailed and very lengthy’.52 In an accompanying memorandum to the Attorney General, he wrote that the draft ‘far transcends in magnitude and difficulty anything which was contemplated by you, or in this office (or, I imagine, by the minister) when the work was undertaken two months ago’. He continued:
I am glad to take this opportunity of letting you know that much the larger share of the credit for having produced this draft in the short time and on the meagre instructions available belongs to Mr Hearne; the draft bill as it now stands is not a draft prepared by me with Mr Hearne’s assistance, but is a draft prepared by him under my supervision, a very different thing and one for which he should be given full credit.
Matheson explained, in some detail, the difficulties faced and included a timetable of meetings with various officials.53 He was determined to leave the Attorney General in no doubt as to the problems associated with the drafting of the bill. The skills Hearne learned as a draftsman were to serve him well when working on constitutional matters later in his career.
John Hearne and the Imperial Conference, 1926
In his capacity as assistant parliamentary draftsman, Hearne attended the 1926 Imperial Conference. Between 1922 and 1932 the foreign policy of the Cosgrave government was dominated by the paramount objective of achieving full and unrestricted sovereignty for the Irish Free State.54 This was to be realised by seeking to transform the British Commonwealth into a free partnership of sovereign independent states,55 all equal in terms of constitutional and international status. In practical terms, this meant equality between the United Kingdom and the self-governing Dominions. For Cosgrave and his ministers the international recognition of Irish sovereignty would represent the true measure of independence. The Irish Free State, however, could not be regarded as a full international entity because of the limited sovereignty of the Dominions in foreign relations.56 In fact, the degree of legal sovereignty they enjoyed in terms of international law was a matter of real controversy.
Notwithstanding these obstacles, there was a vital factor that was to work in favour of Irish policy. The Free State had acquired the status of a Dominion at a stage of development of the British Empire when the Dominions, ‘which had long enjoyed unfettered control of their domestic affairs and, more recently, limited treaty-making powers, were moving, if unevenly, towards autonomy generally, including autonomy in their foreign relations’.57 Such a development was viewed favourably and enthusiastically by a government ruling a country where Dominion status had never enjoyed popular support, having been imposed as part of the Treaty settlement.58 In a very real way, therefore, the Free State was never a member of the Commonwealth, in the sense of accepting it freely and warmly;59 and British beliefs that the country would become a Dominion psychologically as well as constitutionally were mistaken.60
The forum in which the Irish state pursued its policy and engaged in controversy with the government of Great Britain was the Imperial Conference, a gathering of the leaders of Dominion governments, held at periodic intervals. It was regarded as ‘the chief buttress of imperial unity and the tangible expression of imperial co-operation’;61 it was to be the stage on which the Dominions advanced towards full equality and sovereignty. The Irish first attended in 1923, but it was the Conference of 1926 where the Irish delegation played a full role. At this and other Conferences, the Free State delegates, in co-operation with other Dominions, notably South Africa and Canada, expanded the meaning of Dominion status.
John Hearne was among five civil servants who attended the 1926 Conference. The others were Diarmuid O’Hegarty, secretary to the Executive Council, Joseph Walshe, acting secretary of the Department of External Affairs, and two typists.62 Apart from the latter, Hearne was the most junior of the officials.63 This did not mean, however, that he was an unimportant member of the group. A small team such as the Free State delegation had no room for a superfluous member; all would have been expected to make a real contribution and were chosen accordingly. His expertise as a draftsman, together with his legal knowledge, were the determining factors in his selection. His presence in London was probably on the recommendation of the Attorney General, John A. Costello, in whose office he worked and who was an adviser to the ministerial delegation comprising Cosgrave, O’Higgins, Desmond FitzGerald, Minister for External Affairs and Patrick