Legal eagle behind the Constitution
Biography: John Hearne: Architect of the 1937 Constitution of Ireland, Eugene Broderick, Irish Academic Press, hbk, 362 pages, €29.99
This well-researched book will go some way to giving credit long overdue to one of the architects of the 1937 Bunreacht na hÉireann.
Perhaps marginally more people in the 1930s knew the name of John Hearne than do today. This is as undeserved now as it was then, because Hearne was a vital part of the machinery that went into the drafting of the Constitution of Ireland of 1937. This well-researched book will go some way to redress that, however. Though a product of its time, the Constitution has largely served the Irish people well.
The author of this new book, Eugene Broderick, has previously written on the internal tribulations of the then nascent Fine Gael Party and on inter-Church relations in 20th-century Ireland.
Hearne, the subject of this book, was steeped in the Redmondite tradition. He and his father, elected mayor of Waterford in 1901, were part of the new class of educated Catholics who were being readied to "take over" under Home Rule. Different from the "Castle Catholics" typified by Denis Henry - the Catholic unionist from Derry who became Northern Ireland's first chief justice - they were heirs to the parliamentary tradition of Charles Stewart Parnell. University College Dublin was their incubator. Their leader was John Redmond, MP for Waterford, who was a close associate of Hearne' s father. The Irish Revolution of 1914 to 1921 would presage a very bleak political future for that "lost generation" of Home Rulers, who would eventually wistfully watch the Cosgraves and the FitzGeralds and then the de Valeras and the Ryans take over instead of them.
Hearne, the author tells us, cut his political eye-teeth on the by-election following Redmond's death in March 1918. Sinn Féin had won two by-elections in 1917 and had to be stopped. Elections then were, by all accounts, very dirty affairs. In the East Clare by-election in 1917, it was claimed that barrister and Redmondite candidate Patrick Lynch had "defended half the murderers in the county and was related to the other half". The Waterford by-election was even worse. The Redmondite machine used violence and the Sinn Féin candidate spent a week in the hospital following an assault. Éamon de Valera was attacked during the campaign. Units of the Irish Volunteers from other counties had to be drafted in to protect Sin Féin election workers, according to the author.
The young Hearne made his first political speech exhorting the people of Waterford to "smash Sinn Féin" and restore "political sanity" to Waterford, later calling Sinn Féin "the enemies of civilisation". Hearne's Redmondite candidate won the by-election and won again in Waterford in the December 1918 General Election. But the Irish Parliamentary Party was washed out in the Sinn Féin tide in that election. Hearne's star, having shone so brightly, waned.
Tim Healy, Redmondite politician and later Governor General of the Free State, told him that his political career was "short, brilliant and disastrous". But luckily for Hearne, he was one of the relatively few of the "lost generation", along with John Dillon's sons, who would go on to play a significant role in Irish life. So did Patrick Lynch, who "turned Sinn Féiner" within a year of the by-election and later became de Valera's Attorney General during the drafting of the Constitution.
Despite his opposition to the Irish Republic, Hearne acted as a barrister in the Republican Courts, thereby defying the barristers' rule against participation there. He joined the Free State Army during the Civil War. In 1924, he became a parliamentary draftsman and in 1929 joined the Department of External Affairs as its legal advisor. On the election of Fianna Fáil in 1932, Hearne, mindful of his prominent role during the by-election in Waterford 14 years before, expected to be dismissed. Instead, he was to collaborate with de Valera over that decade in drafting the first constitution ever written by, and for, Irish people.
This book inevitably suffers in comparison with The Origins of the Irish Constitution, 1928-1941, the magisterial work of Gerard Hogan which the author regularly cites. It is probably fair to say that without Hogan's book this book would not have seen the light of day, at least in its present form.
Not a lawyer himself, Broderick displays a sound grasp of legal principles, especially the contentious issue of the appeal to the Privy Council, one of the main legacy issues from the Anglo-Irish Treaty. De Valera was probably surprised to learn that Hearne had already drafted a number of bills abolishing that appeal to the Privy Council during the Cosgrave government. When an appeal was taken to the Privy Council against a decision of the Irish Supreme Court, De Valera, correctly, ignored both Hearne's and the then Attorney General's advice and directed that Ireland not participate in the appeal. The decision of the Privy Council, that Ireland was free to abrogate the Anglo-Irish Treaty was eminently acceptable to de Valera, but the premise upon which it was based was not. That unacceptable premise was that it was a British statute that allowed the Irish Free State to abrogate the Treaty.
Eventually, de Valera decided to make a clean break and assigned Hearne to draft a new Constitution based of the principle of popular and national sovereignty. The State was fortunate that it had civil servants of the calibre of Hearne, Maurice Moynihan and Michael McDunphy at the time. The author takes the reader through the drafting process and the different issues, religion, the family, private property, the President and many others before making an assessment of the Constitution.
Hearne served as Ireland's High Commissioner to Canada from 1940 to 1950 and was present at the announcement of the Republic by Taoiseach John Costello in Ottowa in 1948. The author might well have related that controversial incident from Hearne's ring-side seat at that banquet table. It would have completed the circle from Home Ruler within the British Empire to witness to the declaration of the Republic of Ireland.