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Published online by Cambridge University Press: 17 February 2017
1 Author's interview with Hon. Edmund L. Palmieri, May 29, 1975. Judge Palmieri was Hughes’ law clerkat The Hague.
2 Hughes seemed to believe that constitutional and statutory law recognized as much as created fundamental rights. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937) (speaking of the right of employees to organize and select representatives for collective bargaining and self-protection: “That is a fundamental right.“); Bailey v. Alabama, 219 U.S. 219, 239 (1911) (“those fundamental rights and immutable principles of justice which are embraced within the conception of due process of law.“).
3 Mark Sullivan, Our Times 54 (1930).
4 Quoted in Betty Glad, Charles Evans Hughes and the Illusions of Innocence: A Study in American Diplomacy 98 (1966).
5 For a trivial, but rather amusing, illustration of this quality, consider Hughes’ explanation of why he grew a beard: He had never learned to shave himself, and going to the barber daily took too much time. 1 Merlo J. Pusey, Charles Evans Hughes 88–89 (1951). Then compare an early picture of Hughes, revealing a moderately receding chin, with any picture of him in maturity, bearing the bristling beard that in later years was said to make him resemble “a Victorian child's image of Almighty God,“ Current Biography, 1941, at 417.
6 Note, Governor on the Bench: Charles Evans Hughes as Associate Justice, 89 Harv. L. Rev. 961 (1976).
7 An extensive collection of clippings on this incident may be found in the New York Public Library under the heading “Ahearn“ in Vol. 1 of the series of scrapbooks prepared by Robert H. Fuller, Hughes’ Secretary when he was Governor.
8 See, e.g., United States v. Morgan, 298 U.S. 468, 481 (1938) (asserting “a duty akin to that of a judge“: “The one who decides must hear.“). Note his speech to the American Law Institute in 1938, reported in the N.Y. Times, May 13, 1938, p. 8, speaking of the “helpful influence“ of the “judicial tradition“ in guiding the action of administrative agencies, and insisting that
the spirit which should animate that action must be the spirit of the just judge.... Administrative agencies... will [succeed] to the extent that they perform their work with the recognized responsibility which attaches to judges and with the impartiality and independence which is associated with the judicial office. . . . [Deliberation, fairness, conscientious appraisal of evidence, determination according to the facts, and the impartial application of the law—these are the safeguards of society.
9 1 Pusey, supra note 5, at 100.
10 Charles Cheney Hyde, Charles Evans Hughes, Secretary of State, in 10 The American Secretaries of State and Their Diplomacy 233 (Samuel Flagg Bemis ed., 1928).
11 ASILProc. 139(1925).
12 The Development of International Law [hereinafter, Hughes, Development], in 19 ASIL Proc. 3–4 (1925).See also his 1923 speech The Pathway of Peace, in the volume of the same name (1925), at 16 (“All things are possible if nations are willing to be just to each other.“)
13 Glad, supra note 4, at 94–95, 160, 211. (“In equating the positive law and the mores of his day with reason and justice, he avoided many difficulties. He never had to consider the possibility that law and custom might sometimes codify the interests of the stronger.... [T]he relationship of power to the definition of policy was never in the forefront of his mind.... His basic assumption—that the evolution of reason means the overcoming of special interest and force—blinded him to the positive role that power plays in the development of legal and political institutions.... Nor was he aware of the extent to which all specific international arrangements depend on the structure of power, including the potential for using force....“).
14 Thus, Hughes understood that the restraints that free peoples “may be willing to place upon themselves will always be subject to such conditions as will leave them able to afford self-protection by force,“ and so the outlawry of war “implies a state of mind in which no cure is needed.“ Hughes, Development, supra note 12,at 3–4.
15 Note, for example, his speech to the 1928 Pan-American Conference in opposition to a proposed resolution that “no state has the right to intervene in the internal affairs of another.'’ Report of the Delegates of the United States of America to the Sixth International Conference of American States (1928), at 13–15.
16 See Glad, supra note 4, at 181 (“Hughes was not so pure as he claimed to be. He was in many ways a flexible, a politic man, though he found it difficult to admit this, especially when the admission might indicate that he had elevated personal or partisan interest above the general welfare.“). Probably the most important manifestation of Hughes’ sanctimonious quality in the international sphere was his defense of Harding's refusal to seek entry into the League of Nations, and of his own decision not to resign from the Cabinet in protest. Hughes maintained that his was the only defensible course of action, see 2 Pusey, supra note 5, at 431 -34—even though he had joined other leading Republicans in urging the election of Harding as the best way to ensure entry into the League subject to mild reservations.
17 See Hyde, supra note 10, at 235 (“The outstanding quality of the man, which his previous experience had served to intensify, was his passion for justice.... None believed him callous to any plea based on a denial of justice, or insensible to any equitable demand. The members of diplomatic corps looked upon him as their friend and counselor and were almost prepared to accept him as their judge.“); 2 Pusey, supra note 5, at 618 (“Hughes'passion for justice was no less in evidence in his foreign policy than in his work on the supreme bench....That high moral attitude... lifts Hughes into the select company of our best and wisest molders of foreign policy.“).
18 See, e.g., his message to the Norwegian Minister, Feb. 26, 1923, 2 Papers Relating to the Foreign Relations of the United States, 1923 (1938), at 626 [hereinafter Hughes, Norwegian Arbitration Message],acquiescing in an arbitral award because of the United States Government's “devotion to the principle of arbitral settlements even in the face of a decision proclaiming certain theories of law which it cannot accept.“
19 Hughes, Development, supra note 12, at 4.
20 See, e.g., Hughes, Norwegian Arbitration Message, supra note 18, at 627 (arguing that “[d]ue process of law applied uniformly... suffices to meet the requirements of international law,“ and treating “just compensation“ as an aspect of due process).
21 See, e.g., United States v. Bekins, 304 U.S. 27, 52 (1938).
22 See 2 Pusey, supra note 5, at 546–549, for a description of Hughes’ work in arbitrating boundary disputes between Peru and Chile and between Guatemala and Honduras; note also the detailed resolution of the latter dispute, in Guatemala-Honduras Special Boundary Tribunal, Opinion and Award (1933).
23 N.Y. Times, Aug. 1, 1916, p. 6.
24 See, e.g., Crowell v. Benson, 285 U.S. 22 (1932).
25 See PCIJ, Ser. A, No. 20 (Case of Serbian Loans) (1929) (joining majority over dissents contending that the court had no jurisdiction, that the issues were not of a juridical nature, and that the case was concerned only with domestic law); No. 21 (Case of Brazilian Loans) (1929) (similar; joining majority over dissent contending that the court should decline jurisdiction, leaving the matter to direct agreement or arbitration); No. 22 (Free Zones of the Upper Savoie and the District of Gex) (joining majority over a dissent contending that the court was rendering an improper Advisory Opinion). The inferential significance of these cases is bolstered by the fact that Hughes was a member of every drafting committee during his term on the court. 2 Pusey, supra note5, at 644.
26 Hughes, Development, supra note 12, at 6–7, 12–13.
27 See Glad, supra note 4, at 272; 2 Pusey, supra note 5, at 481.
28 See Glad, supra note 4, at 270; 2 Pusey, supra note 5, at 471; Hughes’ speech at the opening of the Conference is reprinted in his volume The Pathway of Peace 20 (1925).
