Letter from John J. Hearne to Martin Eliasoff (London)
(469/549) (Copy)

Dear Eliasoff,

I have your letter of the 11th instant¹ in the matter of the points raised by Miss Eleanor Hull. I have been unable to reply until to-day. Miss Hull could, I think, be informed in the sense of the following observations.

The legal authority for the Constitution of the Irish Free State is a statute (namely, the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922) passed by Dáil Éireann sitting as a constituent assembly in the Provisional Parliament. That statute contains the text of the Treaty of 1921 which is set out in the second schedule thereof. It gave the force of law to the Treaty of 1921 in the Irish Free State. The Irish Free State (Agreement) Act, 1922, passed in the British Parliament gave the force of law to the Treaty of 1921 in Great Britain. The Acts of the two Parliaments constitute their ratification of the instrument signed in December 1921 by the plenipotentiaries of the two countries.

The Irish Free State was, therefore, as you say, established by resort to an international method, namely by a treaty concluded between representatives with plenipotentiary powers and ratified by Acts of Parliament. The other States of the Commonwealth were established as 'Dominions' by Acts of the British Parliament only. And it would appear that in law the Canadian Parliament has not the power to amend the British North America Act, 1867, which contains the Constitution of Canada. The Oireachtas, on the other hand, could [be] harmful. The Government of the Irish Free State take the view that the Judicial Committee is not a judicial tribunal or court in the strict sense; that their decision in a given case is an advice given to His Majesty the King by a number of Privy Councillors and not the judgment of a Court of Law; that the said advice enables His Majesty to perform an executive act, namely, make an Order in Council directing certain courses of action as a result of and in uniformity with the advice tendered; and that the only authority competent to advise His Majesty to perform an executive act relating to the Irish Free State is the Executive Council of the Irish Free State. In other words, the true position is that the continuance of the Judicial Committee is a menace to the judicial sovereignty of the Irish Free State, and that executive acts performed by His Majesty on the advice of that body are an infringement of the executive sovereignty of the Irish Free State. In addition to that statement of the fundamental constitutional position, you have the experience (already referred to) of the past few years where the members of the Judicial Committee displayed in the cases which came before them a perfectly criminal ignorance of the laws in force in the Irish Free State, and even of the historical facts surrounding its establishment and Constitution.

It would not be wise to advert in your conversation or correspondence with Miss Hull that the whole question of the continuance of the Judicial Committee will be discussed at the forthcoming Commonwealth Conference. Do you not think so?