of the Commonwealth, one of the most complex areas was that of merchant shipping legislation.126 This fact was acknowledged in the report of the 1926 Imperial Conference, when it was observed that ‘it was difficult to reconcile the application, in its present form, of certain provisions of the principal statutes relating to merchant shipping, the Merchant Shipping Act, 1894 … with the constitutional status of the several members of the British Commonwealth of Nations’.127 This fact certainly concerned the Irish delegation, whose main concern was that the Free State should be able to fly its own flag on its ships, and that these be recognised internationally as Irish not British ships, as under existing laws.128 The Conference decided to refer the issue of merchant shipping to a special sub-conference which was to meet at the same time as the committee of experts reviewing Dominion legislation.129
Hearne produced a memorandum on merchant shipping, dated 24 July 1929,130 while also referring to it in his preliminary memorandum. In the former he asserted the power of the Oireachtas to legislate in regard to merchant shipping131 and that any bill so enacted would require all ships registered in the state to fly the national colours.132 He was very aware, however, of the fact that there existed throughout the world an administrative machinery established by the existing Merchant Shipping Act, which was of enormous advantage in the commercial life of the Free State.133 He was of the view, therefore, that Free State legislation would be determined by ‘considerations of expediency and practical convenience’.134 ‘Theoretical exactitude’ in the legal position of the Free State would have to take account of practical realities, Hearne summarising the situation thus: ‘In the event, all our problems may merge into one: the problem of how far the British government will allow us to enjoy the benefits and advantage of their merchant shipping system, while permitting us to depart in important particulars from the theoretical basis around which the system swings.’ In place of the existing system, Hearne envisaged the enactment by members of the Commonwealth of a series of reciprocal statutes to establish a system of merchant shipping laws based on mutual co-operation.135
This idea was developed in a memorandum entitled ‘Proposals for Reciprocity’.136 Merchant shipping laws should be enacted in a series of reciprocal agreements, the enforcement of which should be on the basis of mutual recognition and assistance. The authority of a statute of one member of the Commonwealth should, as far as practicable, bind all or at any rate be enforceable in the courts of all. According to Hearne, ‘merchant shipping laws should be enacted as conventions of the Commonwealth association’.137 The laws of all Commonwealth members should ‘hold good’ in the ports of the United Kingdom and in the ports of other member states.138 It is evident why this suggestion appealed to Hearne – the principle of reciprocity recognised the co-equal status of all Dominions and the consequent right to regulate their own merchant shipping laws, while preserving a mutually beneficial system of administrative machinery.
Arguably, the most interesting of Hearne’s memoranda was an undated one entitled ‘Reservation and Disallowance of Acts’.139 He was categorical in his view that reservation and disallowance ‘must be deleted absolutely’,140 as their existence ‘imperilled’ the constitutional position of the whole Commonwealth.141 He submitted that the Dominions were ‘now so completely independent that each can validly amend its constitution by legislation’.142 In an opinion strongly influenced by a spirit of nationalism and the autochthonous redoubt from which the Irish argued their view point, he continued:
The colony status is at the root of the whole attempt to perpetuate the idea that the status of the member states of the Commonwealth is a thing conceded by the British parliament rather than a thing asserted, claimed and achieved by the states themselves … Any compulsory limitation at all upon its [a Dominion’s] self-rule deprives it of the right to be recognised as a member of international society. The states of the Commonwealth must shed all the disabilities which marked the separate stages of their development. The removal of these disabilities is fundamental to the continued existence of the Commonwealth. The member states of that organisation have grown out of the scheme in which they came into being; the scheme itself, in fact, no longer exists and the principles which held it together do not apply at all to the scheme or system which has superseded it. Once the idea is grasped that the sovereignty of the Irish Free State, the sovereignty of Canada, the sovereignty of South Africa etc. exist prior in the order of thought to the group called the Commonwealth of Nations, so much so that if the sovereignty of those states disappeared the Commonwealth of Nations could not continue to exist, it becomes clear with what vigilant care the sovereignty of those states must be safeguarded.143
He then turned his attention to the role of the Crown in the Commonwealth. He did this because he believed that opponents of recent constitutional developments in the Commonwealth, particularly in Britain, would focus on the King’s position as a means of stymying progress towards Dominion equality. Hearne stated with absolute forthrightness that ‘there falls on the Commonwealth states no shadow of a feudal king’ but that, when some British statesmen spoke of the ‘king bond’, they were using language of ‘absolute loyalty’144 and this had no place in a modern association of equal states. If the King were to retain a role in the Commonwealth, he was firm about what it should be:
If you must continue the kingship as so characteristic a note in the old system that it could not be abandoned, you must refashion it to fit the accepted facts of the new system. You tool it, first of all, as it has stood for some hundreds of years before in the United Kingdom, an entity without initiative, a constitutionally unconscious automaton, in practice controlled by the executive, or the legislature, or the judiciary.145
Hearne conveyed the essence of his view when he described the position of the King in the United Kingdom as ‘a constitutional form’.146
In an important part of the memorandum, he turned his attention to a consideration of the matter of the sovereignty of the Irish Free State. His submission was again stated with certainty and conviction:
I do not know of any definition of a sovereign state in the post-war organisation of the world but this: a sovereign state is an organised political community which is independently capable of undertaking international obligations and which is recognised as so capable by international society. Is there any doubt whatever that the Irish Free State is such a community? … Is there any doubt whatever that there is no limitation upon the internal sovereignty of the Irish Free State and no limitation upon its external sovereignty save those which are freely self-imposed on every full international person by reason of their acceptance of the obligations of the Covenant of the League of Nations.147
Having defined the Free State as a sovereign entity, Hearne turned his attention to the contention that the Treaty of 1921 imposed ‘disabilities’ on the newly established state. It was essential to address this central matter, as the British preliminary memorandum, prepared for the Conference, argued that there was an ‘express limitation’ on the Free State that its legislation must conform to the Treaty.148 He contended that ‘if the Treaty of 1921 was a treaty at all, it presupposed the antecedent competency of this country – by whatever name it was called – to exercise the treaty-making power’. He continued: ‘And if that be so, the “limitations” imposed by the Treaty are not in fact limitations at all, but obligations of exactly the same character as those accepted by other states when they became parties to an international treaty.’149 In effect, as in the preliminary memorandum, he submitted that the Treaty of 1921 was an agreement between two independent states. Furthermore, regarding Article 50 of the Irish Free State Constitution, which stated that amendments to it had to be within the terms of that Treaty, he rejected this provision as a status-limitation upon the law-making competency of the Oireachtas; rather it amounted ‘simply to a declaration by the provisional government of the Treaty obligations of the state’.150 In amending the Constitution, the Irish state would have regard to the fact that there were obligations between it and another state but this did not mean that these obligations precluded the right of changing the Constitution.151
Hearne’s memoranda: an overview
Having considered many of Hearne’s memoranda, it may be useful, at this juncture, to give an overview of them by way of summary and assessment. He submitted that the Irish Free State was a sovereign, independent country and that the Treaty was an agreement between two such states. The corollary of this assertion