would like to say to Sir Harry Batterbee that he had always regarded the Privy Council issue as a test issue, a test of the reality of Commonwealth Conference decisions. He had expressed a certain view to Sir Edward Harding [permanent under-secretary, Dominions Office] previously when Sir Edward was in Dublin with Mr Thomas [Dominions Secretary]. He would repeat it now. It was this. If those whose duty it was to carry out the directions of successive governments had been able to say to President de Valera when he took office that the Privy Council had been regarded by the British government as a Treaty issue, just as the oath was now so regarded by the British government, but that the Privy Council issue had been settled by agreement without any difficulty whatever because of the wishes of the Irish people in the matter, what a difference that might have made. But what had been the position? The President had to be told – if indeed he had not known it already – that negotiations lasting over years had been a failure, and that an absurd interpretation of the Treaty was solemnly advanced over and over by successive British law officers to defeat the Privy Council policy of the government and people of the Irish Free State.78
In January 1933, Éamon de Valera called a snap general election. Fianna Fáil won an overall majority in a campaign dominated by Anglo-Irish relations. With a renewed and stronger mandate, de Valera continued what British ministers, implacably wedded to the status quo, regarded as his ‘constitutional rake’s progress’.79 On 9 August 1933, he introduced three bills to amend the Constitution, thus demonstrating his steely determination to dismantle the Treaty settlement. All of them were enacted by November. The Constitution (Amendment No. 20) Act transferred from the Governor-General to the Executive Council powers relating to the appropriation of money under Article 37. The Constitution (Amendment No. 21) Act removed from Article 41 provisions about the withholding, by the Governor-General, of the royal assent to bills and the reservation of bills for the signification of the King’s pleasure. The third measure (Amendment no. 22) abolished the right of appeal to the Privy Council contained in Article 66. Hearne prepared a memorandum on the matter of the appeal,80 which he was directed to send to the Attorney General, in whose department the bill was being drafted. He also sent copies of the bills he had prepared for the Cosgrave government, which are noted in Chapter 2. On 15 November 1933, this amendment completed its passage through the Houses of the Oireachtas.81
That same evening, the Erne Fisheries Company announced its intention to appeal a judgement of the Supreme Court to the Privy Council in defiance both of the amendment and the wishes of the Irish government.82 As part of the appeal, the company requested that the Privy Council determine the legitimacy of the abolition of the right of appeal.83 This was a crucial case for the Free State: at issue was the right of its parliament to amend the Constitution and the validity of this and other constitutional amendments. Should the Privy Council reject the legitimacy of the constitutional amendment abolishing the right of appeal, this would have the effect of subverting the state’s claims to full judicial sovereignty and, by extension, its claim of being an independent sovereign state.
De Valera received conflicting advice from the Attorney General and Hearne as to what the government’s response should be to the decision of the Privy Council to hear the appeal. Maguire favoured making a diplomatic protest, while the legal adviser advocated tendering advice to the King to accept the terms and significance of the amendment.84 The monarch, according to Hearne, had no constitutional option but to accept the advice of his government in the Irish Free State. Hearne’s advice was informed by his conviction of the state of the constitutional development of the Commonwealth, which was founded on the fundamental principle of the coequality of all members:
Their [the government’s] action must be based on the supreme authority of the Oireachtas to regulate and control the prerogatives of the King. The whole issue is a constitutional issue between the parliament and government of Saorstát Éireann, and the King. The correct course for the government to take will be to advise the King in terms of the Constitution (Amendment No. 22) Act … The government should firmly decline to be drawn into any discussion with the British government on the question of the propriety or otherwise of advice tendered to the King … The King will not refuse to accept the advice of the government of Saorstát Éireann. This advice would be correct on every conceivable ground. It would be correct on the legal ground of the statute of the Oireachtas barring the prerogative of appeal in express terms; correct on the constitutional ground of the relations which exist between the King and the government of Saorstát Éireann in an opinion so obviously internal as the organisation of the judicial system; correct on the political ground of a unanimous Dáil and practically undivided public opinion; correct on the international ground of the judicial sovereignty of the Irish Free State and its responsibility in international law for the acts of its judicial tribunals.85
De Valera did not accept the advice of either official; rather, he instructed that the Free State ignore the proceedings of the Privy Council.86 The case was heard in April 1935.87 Finally, on 6 June of the same year, the Privy Council ruled that the Irish Free State had the right to abolish the appeal. It summarised its judgement in one sentence: ‘The simplest way of stating the situation is to say that the Statute of Westminster gave to the Irish Free State a power under which they could abrogate the Treaty, and that, as a matter of law, they have availed themselves of that power.’88
This judgement resulted in the collapse of British legal arguments concerning the maintenance of the Treaty settlement. While the British government would continue to oppose de Valera’s constitutional reforms, it could never again seriously challenge the legality of the measures.89 This decision must have given Hearne great satisfaction, even pleasure. It vindicated his view, expressed in many memoranda, regarding the sovereignty and coequality of all members of the Commonwealth. As a man of the law, he would likely have concurred with Thomas Mohr’s assessment: ‘As a result of this decision the date of June 6, 1935 can be considered the day in which Ireland finally won undisputed judicial sovereignty and therefore can be considered a great victory for Irish sovereignty as a whole.’90
The ‘nationality code’
One of the most complex issues which faced the Commonwealth was that of nationality, a fact noted earlier in accounts of Imperial Conferences. De Valera believed that each member state had a distinct and separate nationality91 and decided to give a legal basis to Irish nationality in the Free State. On 15 November 1934, the Dáil began debating the Nationality and Citizenship Bill. This was an area which usually came within the remit of the Department of Justice, but de Valera, as Minister for External Affairs, promoted the legislation92 because it had implications for Anglo-Irish and Commonwealth relations. Speaking in the Dáil, the President explained that the bill contained proposals for the regulation throughout the world of Irish citizenship and sought to govern the conditions for its determination and acquisition.93 De Valera’s involvement meant that Hearne became involved in the legislative process, by virtue of his position as legal adviser. On 2 January 1935, in reply to queries from Stephen Roche, secretary of the Department of Justice, regarding the effects of the bill on the validity of certain wills, Hearne explained some of the consequences if it were to be enacted. He stated categorically that ‘No person shall be a citizen of Saorstát Éireann and a British subject thereunder.’94 The bill heralded the end of the notion of common status among Commonwealth citizens as far as the Free State was concerned.
On 14 February 1935, the Dáil began consideration of the Constitution (Amendment No. 26) Bill, pertaining to Article 3,95 which was concerned with citizenship. Hearne had explained the bill’s purpose in a memorandum in November 1934: it was to remove the territorial restriction on citizenship created by this article. Under it, a citizen of the Free State was only such ‘within the limits and jurisdiction of Saorstát Éireann’. The amendment proposed ‘to delete the quoted words so that in future the citizenship created in Article 3 will have extra-territorial effect and will follow those who possess it throughout the world’.96 On the same day, the Dáil also debated the Aliens Bill. De Valera stated that it contained proposals ‘to deal with those who are not regarded as citizens’.97 Hearne had also explained its purpose in an earlier memorandum: ‘The proposed bill is necessary having regard to the fact that we require a new definition of “alien” in the light of the new Citizenship Bill and a new code to regulate the position of aliens in Saorstát Éireann.’98 On 3 December 1934, he issued another memorandum on the Aliens Bill, which repeated much of