a preliminary memorandum, dated 15 July 1929,98 Hearne gave an overview of some of the issues facing the Free State’s representatives. He emphasised that the new character of the Commonwealth found expression in the formula ‘freedom and constitutional equality’, thus indicating the freedom of the members to co-operate or act separately and equally in the exercise of every function of government – legislative, judicial and executive.99 The rapid development in the constitutional relations between the Dominions and the British parliament had resulted, however, in a situation in which the laws governing that relationship did not always reflect the new reality.100 Hearne explained this in almost poetic terms:
The statute book of the British parliament is crowded with imposing but antiquated legal structures in the shadows of which the new group of buildings – as it were – erected in the course of world reconstruction are lost to view. The Commonwealth will not appear to the world in its true perspective for the group of constitutional edifices which it is – each unit in the group, although not symmetrical with each other, yet splendidly proportioned to the ends and aims of all – unless and until the shadows cast upon it out of a dead age are lifted. ‘The state’, ‘the Commonwealth’, ‘status’ are spoken words. The written text of the statute law either belies them or gives them legal sanction, life and permanence. Step by step the written law must form up with the advances of the new constitutional doctrines.101
He had the Balfour Declaration in mind when he wrote of ‘momentous developments’ resulting ‘in a constitutional situation in which the United Kingdom as at present constituted is no more than one of the self-governing states of the Commonwealth’.102
Hearne addressed a fundamental issue in terms of the relationship between Commonwealth states and, in particular, their relationship with Britain – the extent of the legislative powers of Dominion parliaments. Regarding the Free State, the matter had to be viewed in the context of the situation resulting from the Treaty of 1921. Citing legal opinion, that of Justice Murnaghan in the High Court in 1925, the effect of Article 1 of that instrument was to create an independent state.103 Therefore, Hearne asserted a fact which ‘needed no emphasis’, that the Treaty was an agreement between two independent nations104 and, in theory, there could be no limitation to the legislative power of an independent state.105 He declaimed the view that ‘to speak of a disability to legislate arising out of the status of “an independent state” seems to do violence to the plain meaning of words’.106 He accepted that British legal theory might not accept his arguments but this was not material to the purpose of his memorandum. Indeed, he realised that the student of British constitutional history was familiar with the long-drawn-out controversy as to the extent of the legislative power of Dominion parliaments.107 He highlighted the two areas of particular contention where the British government insisted on the limitation of the power of these parliaments – the extra-territorial effect of legislation and the application of the Colonial Laws Validity Act 1865.
According to prevailing British legal theory, laws enacted by a Dominion legislature operated only within its territorial area, except where extra-territorial operation was given by the British parliament. In his memorandum, Hearne contended that nothing in the constitutions of the Dominions imposed any territorial limitation on the operation of any law made by a member of the Commonwealth. When necessary for ‘the peace, order and good government’ of a Dominion, its legislature was able to enact laws with extra-territorial effect. In his view, the words of the Dominion constitutions were wide enough to sanction such operation and, therefore, it followed that an act of the Oireachtas was not necessarily ultra vires if it had extra-territorial effect.108
Hearne’s interpretation, however, was not the main reason why the Irish government asserted the extra-territorial effect of Free State legislation. Rather, it was founded on a deep-seated perception of sovereignty and the consequent rejection of a Dominion status which denied this.109 Hearne articulated opinions informed by such beliefs in a subsequent memorandum, dated 26 August 1929, devoted entirely to the subject.110 He restated the view given in the preliminary memorandum that the right of extra-territorial legislation ‘must be regarded as inherent in the parliament of a Dominion’ and any contrary opinion111 had its origins, according to Hearne, ‘in the arbitrary limit set to the powers of the Dominions by judicial minds steeped in the law-lore of the British colony’.112 He asserted that ‘whatever the parliament of the United Kingdom can do, the parliament of any other of the associated states can do’.113 He advised, with certainty and conviction, on the necessary course of action to be pursued by the Irish delegates at the Conference: ‘The law must become and be this: that a member state of the British Commonwealth is in precisely the same position as is the United Kingdom or any other state in the world.’114
The second limitation on the powers of a Dominion parliament insisted upon by the British government had its basis in the Colonial Laws Validity Act 1865.115 Section two declared that any law made by the legislature of a colony, which was repugnant to any act of the imperial parliament extending to that colony, was, to the extent of the repugnancy, void and inoperative. Successive British governments insisted that the act applied to the Free State, an opinion rejected by the Irish government.116 Nor were the provisions of this act regarded by the latter as an abstract threat. In 1926, the Judicial Committee of the Privy Council used the statute to invalidate a section of the Canadian Criminal Code 1888. This decision had a particular resonance in Ireland, linked as it was to the constitutional position of Canada by the terms of the 1921 Treaty. Many observers on both sides of the Atlantic believed that the Privy Council was sending a message to the Free State, in the parliament of which there had recently been debates on the matter of retaining the right of appeal to the Privy Council from Irish courts.117 The Canadian case confirmed the Irish belief that the act was a direct threat to, and indeed a usurpation of, the attributes of sovereignty of the Free State, since its laws could be declared null and void if found to be repugnant to statutes passed by an external parliament.
In his preliminary memorandum, Hearne rejected the application of the Colonial Laws Validity Act to the Irish state, citing section three of the Irish Free State Constitution Act 1922,118 enacted by the British parliament on 5 December 1922, to give legal effect to the Constitution of the Irish Free State. This section stated that, if the parliament of the Free State made provision to that effect, any act passed before the Constitution Act, which applied to the Dominions, would also apply to the Free State. Hearne submitted that this section was based on the assumption that imperial statutes passed before the act did not apply to the Irish state; they could only do so if adopted by the Oireachtas.119 The Irish parliament had not adopted the Colonial Laws Validity Act.
In another memorandum, dated 3 September 1929, he developed his views on the Colonial Laws Validity Act.120 He was trenchant in his condemnation of it:
What is meant when it is said that the Colonial Laws Validity Act 1865 is repugnant to the legislative independence of the member states of the Commonwealth of Nations? Just this: that, as there is now in fact no supremacy of the British parliament over the parliament of, say, Australia or the Irish Free State, the retention on the British statute book of the Colonial Laws Validity Act is inconsistent with, in the sense of being irreconcilably opposed to, the constitutional fact.121
Its presence on the imperial statute book was contrary to the notion of an association of co-equal states and ‘the whole theme and theory of status and statehood as it exists in the Commonwealth today’.122 As in the case of extra-territorial legislation, Hearne was definite as to the approach the Free State must take at the forthcoming Conference: ‘But we must at least go to the length of seeking a formal repeal of the offending sections of the act of 1865 with something in the nature of a renunciation declaration in the recital of the repealing statute.’123 This suggestion was the least he could make in relation to a law he had forcefully described in figurative terms as ‘the sword of contingent invalidity hanging over Dominion legislation’.124
The essential legal import of Hearne’s submissions contained in the four memoranda regarding the extra-territorial operation of Dominion legislation and the Colonial Laws Validity Act was that ‘there exists no limitation of the legislative power of the Irish Free State arising out of status’.125 This was a powerful statement in the context of a state which was asserting its sovereignty and preparing for a conference which would be critical in