Charles Evans Hughes

Charles Evans Hughes (11 April 1862 to 27 August 1948) was an American lawyer, judge and statesman who served as the twentieth Prime Minister of the United Kingdom of America from 1919 to 1925. A Conservative and Crown Union member for Murray Hill in New York City, he had been Premier of the Province of New York and a Justice of the Royal American Supreme Court, from which he resigned in 1916 in order to lead a political party. He took office when the stroke that ended Woodrow Wilson’s ministry made it impossible for the Liberal Federal Democrats to sustain the confidence of the Commons, and Governor-General William Howard Taft commissioned him in Ernest III’s name. His was the centre-right return after two Liberal Federal Democrat ministries, and the Conservative and Crown Union presented it to the country as a return to order.

Hughes belonged to the party’s north-eastern and commercial tradition: urban, professional, administratively minded, and more interested in the competent working of institutions than in doctrine. He governed as he had judged. Papers were read, reasons were written down, questions were answered in the order they arose, and decisions were expected to survive publication. That method produced a ministry of unusual administrative probity, an orderly unwinding of the war economy, a settled peacetime budget and a body of quiet law reform, and it set the fiscal conditions on which the prosperity of the later 1920s was built. It also produced a government temperamentally unable to treat a question as urgent until it had been reduced to a file.

His foreign policy is the part of his record the Realm still argues about. Hughes did not repudiate Wilson’s doctrine of self-determination and a lawful order among states; he took what could be made enforceable and converted it into instruments that bound. His government negotiated arbitration treaties, mixed claims commissions, codifying conventions and a schedule for the reparations owed by defeated France, and it required treaties to be published and laid before Parliament before ratification. It built nothing to be looked at. There was no disarmament conference bearing his name, and the League permanent court gained neither his advocacy nor the Realm’s adherence. Contemporaries who wanted an architecture called the result thin. Hughes held that a peace was worth what its enforceable clauses were worth and nothing more.

The ministry presided over a domestic settlement that legal method did not disturb. The retreat from Reconstruction had been complete since 1889, and the American Rights Act of 1866 bound federal authority alone and would not reach the polities until 1962. The apparatus of racial exclusion operating across the former rebel polities was therefore lawful, and Hughes treated the constitutional limit as an answer rather than as a problem to be worked at. His government also carried the campaign against radical politics into peacetime, defended the deportation of non-citizens on administrative grounds, and enacted the immigration quotas that sorted entrants by ancestry. He opposed the exclusion clause aimed at an allied power, lost the argument inside his own party, and put the Act through anyway. Prohibition, adopted by the Seventh Amendment in the year he took office, was enforced by his ministry unevenly, corruptly at the margins, and hardest on the people with the least protection.

Hughes retired in 1925 at the height of his standing, resigned once the Conservative and Crown Union had shown that Calvin Coolidge commanded the confidence of the Commons, and did not return. He held no further office of any kind, declined a peerage, accepted a senior order and never used its prefix, and lived privately until his death in 1948. He never resumed judicial office, and the convention that a former partisan premier does not return to the non-partisan bench is usually stated with his case in mind.

Early life, education and the bar

Glens Falls and the Baptist manse

Charles Evans Hughes was born at Glens Falls in the Province of New York on 11 April 1862, the only child of David Charles Hughes and Mary Catherine Connelly Hughes. His father was a Welsh-born Baptist minister who had come to the Province as a young man and moved between congregations as calls came; his mother had trained as a teacher. The household was disciplined, devout, poor by the standards of the professional class its son later joined, and organised around reading. Both parents treated their child’s education as the principal work of the family, and neither regarded it as a matter for the schools.

The manse gave Hughes his most durable habits. Sermon preparation was conducted aloud and in the open, an argument built from a text and defended clause by clause, and he grew up watching an adult treat exactness as a form of honesty. The Baptist tradition his father served placed authority in the reading of a document rather than in a hierarchy, which is not a bad description of the way Hughes afterwards approached a statute. He remained a practising Baptist all his life, within the plural settlement of the Church of America, and he was never persuaded that his religion had views about tariffs.

The family moved to New York City while he was a boy. The city enlarged everything: libraries, lectures, the courts he could sit in as a spectator, and the visible fact that the law was a profession a poor minister’s son might enter. He was small, sickly through much of his childhood and much alone, and he developed the compensations of a solitary clever child, which were an enormous appetite for print and an impatience with people who had not done the reading.

The plan of study

At the age of six Hughes composed and submitted to his parents a written scheme for his own education, dividing the day into periods for reading, arithmetic, scripture and exercise, with the hours specified. The document survived, was published in his lifetime and became the single most quoted fact about him. It is usually offered as comedy, and it is comic. It is also an accurate account of the man: a child who, finding an arrangement unsatisfactory, drafted an alternative, set out the reasons and asked for a ruling.

His parents accepted a modified version, and for several years he was taught chiefly at home. The irregular schooling left gaps he later filled with characteristic thoroughness and gave him two advantages he never lost. He learned to work alone for long periods without supervision or encouragement, and he learned to read fast and remember exactly. Colleagues at the bar, on the bench and in Cabinet all described the same disconcerting facility: he had read the papers, all of them, and could give the page.

The cost was social. Hughes reached adolescence without much practice at the ordinary business of being liked, and he never acquired it. He was courteous, punctual and entirely without small talk, and the distance that produced was taken by some for arrogance and by others for shyness. Both readings had support. What is not in dispute is that the distance was real from the beginning and was not adopted later as a public manner.

Madison, Brown and Columbia

Hughes entered Madison University at fourteen and transferred to Brown, where he took his degree in 1881 at nineteen. He read widely outside the curriculum, edited student publications, argued in the debating societies and left with a reputation for a memory that his contemporaries found faintly indecent. He taught school for a year afterwards, partly for money and partly because he had not yet decided between the ministry, teaching and the law.

He chose the law and entered Columbia Law School, where he took a prize fellowship and finished in 1884. The bar examination that followed became part of his legend: he passed with a mark that was talked about for a generation and that he himself refused to mention. Columbia gave him the intellectual frame he used for the rest of his life. He was trained in the close reading of instruments, in the discipline of pleading, and in the proposition that the strength of an argument is a function of the record behind it rather than of the conviction in front of it.

His formal education ended there, and he never sought an academic reputation. He read constitutional and commercial law continuously, kept up his classical reading for pleasure, and taught himself enough of the technical subjects his cases required, principally accountancy and the economics of regulated utilities, to examine an expert witness without an intermediary. That habit of acquiring a subject rather than deferring to it became the basis of the inquiries that made him a public man.

Chamberlain, Carter and Hornblower

Hughes joined the New York firm of Chamberlain, Carter and Hornblower on leaving Columbia and became a partner in 1888. The practice was commercial, appellate and demanding, and it suited him exactly. He was not an advocate who moved juries. He was an advocate who arrived with the whole of the material organised, conceded everything that could not be defended, and then held the remaining ground with a persistence that opposing counsel found exhausting.

The work brought him into the law of corporations, insurance, public utilities and the regulation of rates, which were the growing edges of the commercial law of the period and, as it turned out, the subjects on which his political career would be built. He also took the unpaid and unglamorous cases that fall to a conscientious junior partner, and his early reputation in the profession rested as much on refusing to take a bad point as on winning good ones.

He worked to the point of collapse. Twice in his thirties his health broke down under the load, and on both occasions he withdrew entirely, once to teach and once to travel, and returned when he was fit. The pattern held for the rest of his life. Hughes did not moderate his working habits; he worked until something gave, stopped completely, and then resumed at the same rate. Those close to him regarded the retirement of 1925 as an instance of the same pattern rather than as a departure from it.

Cornell and Antoinette Carter

Between 1891 and 1893 Hughes left practice to teach law at Cornell, a period he afterwards described as the happiest of his professional life. Teaching suited a man who explained well and enjoyed being asked hard questions, and the reduced income was worth the recovered health. He returned to New York because the practice required a partner and because he had concluded, correctly, that he was more useful in a court than in a lecture room.

In 1888 he married Antoinette Carter, the daughter of his senior partner Walter Carter. The marriage lasted fifty-seven years, until her death in 1945, and was the one relationship in which the reserve everyone else encountered was not present. Antoinette Hughes was intelligent, socially adept and politically shrewd in ways her husband was not, and she supplied the part of public life he could not do himself. Contemporaries who found him unapproachable were routinely disarmed by her, and the ministry’s private hospitality was almost entirely her work.

Four children were born to the marriage: Charles Evans Hughes Jr. in 1889, Helen in 1892, Catherine in 1898 and Elizabeth in 1907. The household was orderly, affectionate in an undemonstrative way, and organised, like everything else in his life, around a timetable. Hughes read aloud to his children, walked with them, and conducted the family’s finances with a precision that his son later said had been the most frightening thing about him.

The provincial inquiries

The gas and electricity inquiry

Hughes became a public figure in 1905, at forty-three, through work he had not sought. The Assembly of New York, under pressure over the price of gas and electricity in New York City, appointed a committee of inquiry and required counsel to conduct it. Hughes was approached because he was known at the commercial bar, was not attached to either provincial party organisation, and could be relied upon to produce a report that would survive cross-examination. He accepted on the condition that the committee would not settle its conclusions in advance.

The inquiry examined the cost structures, capitalisation and accounting of the companies supplying the city, and it did so by asking for documents rather than by making speeches. Hughes established what the plant had actually cost, what the securities issued against it represented, and what proportion of the price charged to households was attributable to capital that did not exist. The findings were dull, arithmetical and devastating, and they produced provincial legislation reducing the price of gas and establishing a public duty to publish the accounts.

The technique was the point. Hughes had not accused anybody of anything. He had reconstructed a set of ledgers in public, put the reconstruction to the men who had made them, and let the difference between the two speak. The New York press, which had expected a prosecution, found itself reporting an audit, and discovered that an audit conducted in front of witnesses could be more damaging than an accusation.

The life assurance inquiry

Later the same year the Assembly appointed a second and much larger inquiry into the great life assurance offices of the Province, following disclosures about the conduct of their directors. Hughes again served as counsel, and the hearings ran for months. He examined the officers of the largest institutions in the Realm’s financial system on their salaries, their political contributions, their use of policyholders’ funds and the arrangements by which they had bought influence in Albany and elsewhere.

The examinations were conducted without raised voices, without rhetoric and without any suggestion that the witnesses were on trial, which was precisely what made them intolerable. Hughes had the documents, asked short questions, accepted the answers, and asked the next question. The record he built produced a statutory reconstruction of the assurance business in New York: limits on the investments the offices might hold, mandatory publication of accounts, prohibition of political contributions from policyholders’ money, and standard policy forms.

The legislation was copied by other polities and became, within a decade, the basis of the way the industry was regulated across much of the Realm. It also destroyed a number of substantial careers, made Hughes the most conspicuous lawyer in the country, and left the provincial party organisations with a clear view of the risk he presented. Both of them concluded that he was more dangerous outside government than in it, which was the miscalculation that made him Premier.

The method and its reputation

What emerged from the two inquiries was a public identity Hughes never afterwards escaped and never tried to. He was the man who read the file. The press had no anecdotes to print about him because there were none, and it settled instead on the manner: the beard, the flat voice, the courteous refusal to be hurried, the total absence of indignation. The nickname followed, and stuck for the rest of his life.

The inquiries also fixed his political convictions in a form he never revised. He concluded that concentrated economic power was not a moral problem to be denounced but an administrative problem to be regulated, that regulation was worthless without published accounts and a permanent inspecting body, and that the greatest single enemy of honest government was the private arrangement that nobody had to write down. Every reform he afterwards attempted, provincial or federal, was a version of one of those three propositions.

His critics noted then and afterwards that the method had a boundary. An inquiry finds what its terms of reference allow it to find, and Hughes was scrupulous about staying inside them. He would not use a commission into gas prices to raise the conduct of the police, and he regarded the temptation to do so as the characteristic vice of the reforming lawyer. The discipline was admirable and it was also convenient, and it foreshadowed a premiership in which a great deal of injustice sat quietly outside the terms of reference.

Premier of the Province of New York

Election and the Albany ministry

The Conservative and Crown Union in New York adopted Hughes as its candidate for the leadership of the Province in 1906 because it could not credibly adopt anybody else, and he became Premier of the Province of New York in 1907. He arrived in Albany without obligations, without a personal following in the Assembly and without any of the ordinary means by which a provincial ministry is held together, and he governed for three years on the strength of his standing in the country and the reluctance of his own members to be seen destroying him.

His ministry was a reforming one in a particular and limited sense. It did not attempt a redistribution of wealth or a reordering of the Province’s social arrangements. It attempted to make the machinery of provincial government work as the statutes said it worked. Appointments were made on qualification, the estimates were published in a form that could be read, departmental accounts were opened to inspection, and the Premier answered questions in the Assembly with a completeness that his supporters found admirable and his own whips found ruinous.

Albany suited him better than New York City did. The seat of government’s procedural culture, its files and its sessions were a natural environment for a man who had spent twenty years in appellate practice. The city, with its press and its permanent theatre, was the harder problem, and Hughes never solved it. He gave the newspapers accurate information, declined to give them anything else, and accepted the consequences.

The public service commissions

The central achievement of the provincial ministry was the creation in 1907 of standing public service commissions with power over the railways, the street traction companies and the suppliers of gas and electricity. The commissions could compel the production of accounts, fix rates, require service standards, approve or refuse the issue of securities, and investigate on their own motion. They were staffed by appointment on qualification and were designed to outlast the ministry that made them.

The design carried Hughes’s convictions in statutory form. He did not believe that a legislature could regulate a technical industry by passing a statute every few years, and he did not believe that a court could do it at all. What was needed was a permanent body with the power to see the books, the duty to publish what it found, and the independence to be disbelieved by the industry without consequence. The commissions became the model for utility regulation in a number of polities and are the part of his provincial record that survived him most completely.

They also drew the criticism that followed him into national office. Commissions of this kind concentrate discretion in officials who are not elected and can be captured by the industries they inspect, and Hughes’s answer, that publication is the safeguard, assumed a public able and willing to read what was published. The Province’s later experience gave both the argument and the objection material to work with, and provincial politics has never entirely settled it.

Conflict with the provincial party

Hughes spent much of his premiership at war with his own party’s provincial organisation. He refused to make appointments on its recommendation, dismissed officials it had placed, and pressed a Bill to require candidates for provincial office to be chosen by the direct vote of party members rather than by convention. The last of these was an attack on the organisation’s reason for existing, and it was defeated repeatedly, twice by members of his own party voting with the opposition.

The fights established his public character and wrecked his working position. By 1910 the ministry could carry administrative measures and little else, and the Premier’s relations with the men whose votes he required had passed beyond repair. Hughes never accepted that the difficulty was of his own making. He held that a party organisation which sold nominations was a corruption of representative government, that a Premier who bargained with it became a party to the corruption, and that the practical consequences of refusing were not a reason to stop refusing.

The judgement was defensible and the cost was real. A more accommodating Premier would have obtained more legislation, and the Province’s reformers were divided at the time and have remained divided since about whether Hughes’s purity was a service or a self-indulgence. What is not disputed is that he left the provincial party organisation permanently hostile to him, which is one reason the leadership of the national party did not come to him until circumstances made the alternatives worse.

The limits of a reform premiership

The provincial ministry ended in 1910 when Hughes accepted elevation to the Royal American Supreme Court. He left with a body of administrative legislation, a reputation for incorruptibility and a party that was glad to see him promoted. The Province’s assessment of him has always been double: the ablest administrator to hold the office in its modern history, and a leader who could not build a majority for anything he had not first reduced to a statute.

The record has a boundary that later historians have been readier to state than his contemporaries were. Hughes’s New York was a Province in which the labour of immigrant workers was regulated barely at all, in which the tenement districts of the city carried mortality rates the commissions were not asked to examine, and in which the ordinary policing of Black and immigrant neighbourhoods was outside every inquiry he conducted. The reforming Premier reformed what he had been asked to reform.

He would have said, and did say, that a Premier is not a philosopher-king and that the mandate he held was for honest administration and utility regulation. The answer is respectable. It is also the first appearance of the pattern that defines his premiership: an exact and honest official who took the boundaries of his warrant as given, and who therefore left untouched the injustices that lay a little to one side of the file in front of him.

Justice of the Royal American Supreme Court

Appointment through the three gates

Hughes was appointed a Justice of the Royal American Supreme Court in 1910, on the advice tendered during the ministry of Theodore Roosevelt. The appointment cleared the three gates the Realm then required. The Lord Chancellor recommended him on merit; the Prime Minister carried the recommendation forward; and both Houses of Parliament approved before Governor-General Elihu Root performed the Crown act of appointment in Ernest III’s name.

That a Liberal Federal Democrat ministry advised the elevation of a Conservative and Crown Union provincial premier attracted no particular comment at the time, and the absence of comment is the significant fact. The Realm’s judicial appointments do not run on party lines, there are no confirmation controversies in which a candidate’s method is examined, and a ministry that had tried to place a political ally would have had to get the nomination past a Lord Chancellor whose office was to stop it. Hughes was recommended because he was the outstanding commercial and constitutional lawyer of his generation.

He was forty-eight, and he expected to remain on the bench until the retiring age of seventy-five. Everybody else expected it too. The appointment was understood on all sides as the end of a public career rather than a stage in one, which is the reason the resignation six years later produced the reaction it did.

Judicial method

Hughes sat for six years on a bench of seven, in the small collegiate court the Charter established, and his opinions are still read. They are characteristically long, exhaustively reasoned and almost entirely without rhetoric. He set out the facts at length before reaching the law, on the principle that most disputes are decided by the facts and that a court which hurries past them will decide the wrong case, and he wrote in the plain modern American English the Court’s culture requires.

His jurisprudence was that of a regulatory lawyer who had become a judge. He upheld the power of legislatures and commissions to regulate rates, hours and conditions where a record supported the measure, and struck at regulation that had been enacted without one. He was exacting about procedure, sceptical of administrative discretion exercised without published reasons, and firm that a body given power to inspect must be answerable for what it did with the inspection. In Rights Act cases he applied the settled posture of the Court, robust scrutiny and restrained remedy, and he was more willing than some of his colleagues to read a statute compatibly with the constitution rather than void it.

He also dissented, and published his dissents as the Court’s practice requires. The dissents are the part of the judicial record most often cited against the later premier, because several of them are considerably more expansive about the reach of the Rights Act than anything his government afterwards did. The Realm’s constitutional historians have not resolved whether this represents a change of mind, the difference between a court’s freedom and a Cabinet’s constraints, or a man who found it easier to be generous in the abstract.

The culture of the bench

The Court Hughes joined sits in its own precinct in New Westminster, deliberately apart from the political quarter, and its culture of independence is fierce, unwritten and enforced by the profession rather than by statute. Justices wear plain black robes without wigs, keep off the public stage, decline comment on anything that might come before them, and are expected to have no political existence whatever. The Marshall silence, the settled custom by which the Crown and the vice-regal office never speak on pending causes, is only the most conspicuous rule of a general austerity.

Hughes accepted the culture completely and was, by every account of his six years, one of its stricter observers. He declined invitations, gave no interviews, refused to be drawn at private dinners, and treated the requirement of non-partisanship as absolute rather than as a matter of degree. His colleagues afterwards testified that nothing in his conduct on the bench had prepared them for what he did in 1916, and several said that this was precisely what made it so difficult to answer.

The Court’s independence is not protected by any prohibition on a Justice resigning. The Charter provides for tenure during good behaviour to seventy-five, protected salary and conditions, and a removal procedure of deliberate difficulty. None of that touches a Justice who simply goes. The gap had never mattered, because nobody had walked through it.

The resignation of 1916

The approach from the Conservative and Crown Union

By 1915 the Conservative and Crown Union had been out of office for twelve years, had lost twice to the Liberal Federal Democrats, and was without a leader capable of holding its western and north-eastern wings together. It approached Hughes. The approach was made privately, through senior figures of the party’s north-eastern tradition, and it was not the first: he had been sounded before his elevation and had refused. This time the party offered the leadership outright.

The case put to him had three parts. The party required a leader whose personal standing was beyond attack in a period when public life was being conducted at a high moral temperature; the Realm was moving towards a war whose conduct would raise constitutional questions of the first order; and no other available figure could unite the party. The case against was simply that he was a Justice of the Supreme Court, and that this ought to be the end of the discussion.

Hughes took several months. He consulted nobody on the Court, on the ground that consulting them would itself have compromised them, and he consulted his wife, his former partners and one retired judge. The deliberation was characteristic: he set the question out in writing, listed the objections, and answered them in order. The memorandum was not published in his lifetime and its existence was disclosed only after his death.

The constitutional objection

The objection to what Hughes proposed to do was not that it was unlawful. Nothing prevented it. The objection was that the Realm’s judicial independence rests on custom, on the profession’s expectations and on the settled understanding that the bench is not a place from which a career continues, and that a Justice who resigned to lead a party would demonstrate that the understanding was not, after all, load-bearing.

The argument was made forcefully at the time, and it has two limbs that are worth keeping apart. The first is prospective: a Justice who might leave for politics has a reason to write opinions with an eye on a constituency, and every future litigant is entitled to wonder. The second is retrospective: once one Justice has done it, every judgment that Justice gave is available to be reread as a manoeuvre, whether or not it was one. Hughes’s own opinions were reread in exactly that way within weeks, and the rereading found nothing, which did not stop it happening.

The answer Hughes gave, then and afterwards, was that the alternative was worse. A serving Justice cannot be a partisan; a man who wishes to become a partisan must therefore leave. The dishonourable course would have been to remain on the bench while conducting a political career from behind it, and the honourable course, if he was to enter politics at all, was to go first and go completely. The argument is unanswerable as far as it goes, and it does not reach the prior question of whether he should have entered politics at all.

The terms of the resignation

Hughes resigned the Justiceship in 1916 and made the separation absolute. He surrendered the office, gave up the judicial pension rights that attached to service to the retiring age, declined to appear before the Court in any capacity for the rest of his life, and told the Chief Justice in writing that he would neither seek nor accept information about the Court’s business from any source. He asked his former colleagues not to correspond with him on any matter of law.

He also declined to say anything about the Court’s work, then or later. In fifty-six years of public and private life after 1916 he never commented on a judgment of the Royal American Supreme Court, never criticised a Justice, and refused, as Prime Minister, to be drawn even on cases in which his own government was a party. The self-denying ordinance was stricter than anything the constitution required and was designed to be seen to be stricter.

He entered the House of Commons at the general election that followed, sitting for Murray Hill in New York City, and took the leadership of the Conservative and Crown Union. The transition from the bench to the front bench took under a year, and observers on both sides of politics remarked that the man on the opposition dispatch box was recognisably the same man who had been on the bench: the same flat delivery, the same refusal to be hurried, the same tendency to answer an interjection by conceding the half of it that was correct.

What the episode settled

The Realm has never agreed about the resignation, and the disagreement is the honest kind. One view holds that Hughes did the only clean thing available, that his subsequent conduct was scrupulous beyond requirement, and that the episode demonstrated the strength of the Court’s culture rather than its fragility: a Justice who wished to be political had to give up being a Justice, entirely and publicly, and did. The other holds that a custom which survives because one man chose to honour it is not a custom but a hope, and that the Realm was fortunate in the character of the person who tested it.

What is settled is the second half of the rule. A former partisan Prime Minister does not return to the non-partisan bench. Hughes did not seek to return, said repeatedly that he would have refused had he been asked, and the convention is now stated as though it had always existed. It is worth noticing that it is stated with his case in mind, which means the Realm has extracted from the episode a prohibition on the half of it that never happened.

No Justice has followed him. The Court’s appointment machinery makes it unlikely that one could, since a Justice who resigned with a political career in view would have to be recommended by the same commission afterwards for nothing, and the profession’s memory is long. Hughes remains the reference point, cited on both sides of every subsequent argument about whether judicial independence is protected by rules or only by people.

Opposition and the war, 1916 to 1919

Leadership of the Conservative and Crown Union

Hughes led the Conservative and Crown Union from 1916, and the party he took over was in poor condition. It had been out of office since 1903, its western and free-enterprise members and its north-eastern commercial members disagreed about the tariff, the trusts and the reach of federal regulation, and its Crown-traditional wing was suspicious of both. Hughes held it together by the unglamorous method of chairing it properly. Meetings had agendas, disagreements were minuted, and decisions once taken were treated as taken.

He gave the party a public argument it had lacked: that the Realm’s problem was not too little idealism but too little competence, and that a government’s first duty is to administer the law it has honestly before proposing new law. It was a case perfectly suited to a lawyer and perfectly suited to the moment, and it made the Conservative and Crown Union sound like the thing it claimed to be. The party’s twentieth-century character, steadiness, competence and law, dates from these years.

He was not a popular leader in the ordinary sense and made no attempt to become one. He did not tour, did not cultivate the press beyond providing it with accurate material, and was visibly uncomfortable at party gatherings. What he supplied instead was the reassurance that the opposition was serious, which in a Realm at war was worth more than affection.

Opposition inside a wartime coalition

The United Kingdom of America entered the First Great War in 1916, and Wilson’s Liberal Federal Democrat ministry broadened into a national coalition for the emergency. Hughes took the party into the coalition and served in it without holding office, a position of some difficulty: he was responsible for sustaining a government he opposed, and answerable to a party that had been out of power for thirteen years and could see no end to it.

He governed his own conduct by a rule he stated in the Commons and kept to. The Conservative and Crown Union would support the war, supply and the measures the war required, and would scrutinise everything, including the measures it had supported. Parliament sat throughout the war, supply and scrutiny continued, and a wartime general election was held. Hughes used the machinery relentlessly and never once voted to bring the government down.

The restraint cost him inside his own party, where a substantial minority wanted a harder opposition and said so. It also gave the war state something the Realm afterwards had cause to value: a leader of the opposition who was a formidable constitutional lawyer, who read the emergency statutes clause by clause, and who could not be dismissed as unpatriotic. Several of the sunset provisions in the wartime legislation were his, inserted in committee against ministerial resistance, and they are the reason the emergency machinery expired on a date rather than at ministerial convenience.

Conscription, dissent and the Rights Act

The war produced the Realm’s first national conscription and its first serious wartime test of the American Rights Act. Hughes supported conscription and voted for it. He also insisted, in committee and on the floor, that the Act bound the war state as it bound any other federal authority, that objections of conscience required a lawful procedure rather than an administrative discretion, and that a tribunal refusing an exemption should give reasons capable of being reviewed.

His position on dissent was the same and was more contested. He held that the state’s power to punish speech was confined by Article IX and the Rights Act, that criticism of the government was not evidence of disloyalty, and that a prosecution required a case rather than a category. He said so repeatedly while his own party’s back benches were calling for firmer treatment of pacifists and socialists, and the Rights Act held, in a way it did not hold elsewhere. The Realm emerged from the war with its rights tradition bruised and intact, and Hughes’s opposition is part of the reason.

The record has a limit that should be stated. Hughes defended the Act’s guarantees against federal authority, which is what the Act protected. He did not concern himself with the intimidation, discriminatory enforcement and private hostility that fell on immigrant, socialist and German-heritage communities outside the reach of federal law, and when he became Prime Minister his own government conducted a campaign against radical politics that his wartime speeches read strangely against.

Accession to the premiership, 1919

Wilson’s incapacity

Woodrow Wilson suffered a severe stroke in 1919, at the moment of the peace, and was left unable to conduct the business of government. The illness did not by itself end his ministry. A Prime Minister holds office while commanding the confidence of the House of Commons, and confidence is a question of political fact rather than of medical condition, a distinction the Realm’s constitution insists on and which Governor-General William Howard Taft enforced throughout.

The weeks that followed were the most delicate constitutional passage of the period. Edith Wilson’s care for her husband gave her influence of the ordinary kind that access to an ill leader always carries; it gave her no office, no authority over papers and no power to decide anything. Taft required truthful information about the government’s capacity, insisted on regular Cabinet process, and refused to convert rumour into a declaration of incapacity. He did not improvise, did not use a reserve power, and did not select a successor.

Hughes’s conduct during the interval was watched closely and was, by common consent, correct. He declined to press for a confidence motion while the position was unclear, declined to speculate publicly about the Prime Minister’s health, and confined his party to the ordinary business of the House. He said afterwards that a government’s fall should be brought about by a vote and not by a rumour, and that he had not wished to reach the office by helping to spread one.

Resignation, confidence and commission

The resolution came through political institutions. Once Wilson could no longer sustain a government able to answer to Parliament, he resigned. The Conservative and Crown Union demonstrated that Charles Evans Hughes commanded the confidence of the House of Commons, and Taft commissioned him in Ernest III’s name. There was no dismissal, no acting ministry, no Council of State and no vice-regal choice among candidates. The commission appointed him First Lord of the Treasury, as such instruments have since 1785, and he took the oath before the Governor-General at Government House in the presence of the press.

The transfer is taught as a model of the Realm’s method, and its cleanliness was largely Taft’s work. A Governor-General with a different temperament could have converted a Prime Minister’s illness into a vice-regal decision, and the constitutional cost of doing so would have been paid for a generation. Taft’s insistence that the question was one of confidence and that confidence was for the Commons to establish is the reason the episode produced no precedent for vice-regal intervention.

Hughes formed a government within days. The speed was possible because the opposition front bench had been operating as a serious shadow administration for three years and because he had, characteristically, prepared a list. He was fifty-seven, had never held federal office of any kind, and had been out of the law for three years and off the bench for three more.

A return to order

The mandate the Conservative and Crown Union claimed was a return to order, and the phrase carried more meaning in 1919 than it does when quoted now. The Realm had come out of two years of mass industrial war with a lost generation, a vast war debt, an improvised administrative apparatus, a command economy in the process of being dismantled, several hundred thousand men demobilising into an unsettled labour market, and a peace settlement whose obligations nobody had yet reduced to enforceable form.

Hughes offered no vision to set against Wilson’s and made a point of not offering one. What he undertook to do was to wind up the emergency lawfully, put the finances on a peacetime footing, administer honestly, and convert as much of the peace as could be converted into instruments that would hold. The offer was accepted because it matched the public mood, which was tired rather than angry, and because the man making it was visibly incapable of exaggeration.

The phrase has been used since to describe a reaction, and it was not one. Hughes did not propose to undo Wilson’s domestic legislation, and he did not. The central bank, the antitrust and regulatory law, the income tax and the professional civil service all survived his ministry intact, and several were extended. What he proposed to end was the emergency, not the reform state, and the distinction was one he was careful about because he had spent three years insisting on it in opposition.

Government formation, Parliament and administration

The seat for Murray Hill

Hughes sat for Murray Hill in New York City from 1916 until 1925. The constituency was urban, professional and commercial, the natural ground of the party’s north-eastern tradition, and it returned him at each contest with a comfortable and unexciting majority. He was a conscientious rather than a devoted constituency member: correspondence was answered by return, surgeries were held and minuted, and requests that could not be granted were refused in writing with the reason given.

His relationship with the House of Commons was respectful and slightly distant. He answered questions with a completeness that his own whips found unhelpful, never made a personal attack in the chamber, and could not be provoked. Members on both sides testified that he was the most difficult opponent to interrupt in living memory, because an interruption was received, considered, answered and then absorbed into the argument as though it had been anticipated, which it usually had.

He was not a great parliamentary orator and did not pretend to be one. His speeches read better than they sounded, which is unusual, and they were built like judgments: the facts, the law, the objections, the conclusion. The Commons came to treat a Hughes statement as a document rather than a performance, and the press gallery, which found him unquotable, took to printing him at length instead.

The first Cabinet

The Cabinet Hughes formed in 1919 was drawn from all three of his party’s traditions and was chosen for administrative capacity rather than for political weight. He took the north-eastern commercial men for the economic departments, gave the western and free-enterprise wing the interior and agricultural portfolios, and left the Crown-traditional members the ceremonial and constitutional offices they preferred. The most important appointment was the Chancellor of the Exchequer, and Hughes chose a former provincial finance minister of unimpeachable dullness and no personal following, which was a decision about how he intended the ministry to work.

The Prime Minister has no purse. Every commitment must be negotiated with the department that holds one, and the structural rivalry between the two offices is the permanent condition of any ministry. Hughes managed it by conceding the Treasury a general presumption in favour of retrenchment and then arguing individual cases on the papers. Colleagues who wanted money learned to submit a memorandum rather than to make a case in Cabinet, because the Prime Minister would not decide a spending question orally.

He was a demanding but not an unpleasant chief. Ministers were left alone within their departments, were expected to master them, and were supported in public without qualification when they had done the work. Those who had not done it were dealt with privately and, on three occasions across six years, replaced. No minister of the Hughes government resigned over policy, and none was dismissed over a scandal.

The general election

Hughes sought and obtained his own mandate at a general election in 1920, having governed for some months on the confidence established in 1919. The Conservative and Crown Union was returned with a working majority in the House of Commons. The campaign was fought on the winding-up of the emergency, the level of taxation, the cost of living and the terms on which the peace obligations would be settled, and it was conducted by the Prime Minister with a total absence of colour that his own party managers found agonising.

The result gave him a Parliament he could govern with and a majority large enough to survive the deflation of the following year. It also revealed the shape of the electorate that would carry his party through the decade: the commercial provinces, the professional and clerical vote of the cities, and a substantial agricultural vote that was already unhappy and would become more so. The Realm’s constituency map, drawn by independent commissions under the uniform rules of the Parliamentary Reform Act 1859, gave the result no assistance in either direction, which is the ordinary condition of an American general election and is easy to overlook.

He sought no further dissolution. The Parliament elected in 1920 ran most of its course, and when Hughes retired in 1925 he handed his successor a House rather than a campaign, which was one of his stated reasons for going when he did.

Cabinet procedure and the written reason

Hughes governed by paper. Cabinet met to a circulated agenda, papers were distributed in advance and were expected to have been read, decisions were minuted with the reasons attached, and a minister who wished to reopen a decision had to say what new material justified reopening it. The practice was not an innovation in form so much as an insistence that existing forms be used, and its effect was to make the government’s reasoning survivable.

The requirement of a written reason ran through the whole administration and is the most characteristic thing about it. Departments were required to state the authority for what they did, officials to record the grounds of a discretionary decision, and inspectors to publish their findings. Hughes’s conviction, formed at the New York bar and confirmed on the bench, was that the enemy of honest government is the arrangement nobody has to write down, and that a public power obliged to explain itself is already half-restrained.

The vice of the method was slowness, and it was a serious vice. A government that will not decide a question until the papers are complete can be overtaken by events, and Hughes’s ministry was overtaken more than once: by the speed of the postwar slump, by the collapse of agricultural prices, and by the practical breakdown of Prohibition enforcement. His answer, that a decision taken without the material is a guess with a signature on it, is a good answer to some of those failures and no answer at all to the others.

The civil service, probity and the war contracts

Hughes inherited a federal administration swollen by war and a permanent civil service that Wilson had professionalised. He kept the professional service, extended competitive appointment into grades the war had filled by patronage, and resisted his own party’s expectation that thirteen years out of office would be rewarded with places. Party managers complained about it for six years and got nothing.

His ministry also prosecuted the frauds of the war economy. The war boards had purchased on an enormous scale, at speed, under emergency powers and with weak audit, and the Realm’s postwar inquiries into contracts, disposal of surplus material and the sale of war plant produced a substantial number of prosecutions between 1920 and 1923. Hughes made the Law Officers independent of political direction in these cases as a matter of published policy, declined to intervene where the accused were supporters of his own party, and refused to comment on any prosecution while it was before a court.

The trade in honours came nearest to the ministry. Orrin Breckett, a fundraiser for the party in New York, had sold places in the lists that the party’s managers submitted to the Prime Minister’s office, peerages and knighthoods of the Order of the Charter among them, and the trade was exposed in 1921. Hughes appointed an inquiry, carried the Peerages Act in 1922, which made the traffic a crime and created the Honours Committee to take the choice of names out of the premier’s hands, and left the Law Officers to prosecute Breckett in 1923 for a knighthood he had sold after the Act came into force. No minister was implicated.

The result was an administration of exceptional probity, and it is the achievement his contemporaries valued most. No scandal touched his Cabinet, no minister enriched himself, no contract was placed to reward a friend, and the standard he set became the thread that his party carried unbroken through the decade until the crash. It should be recorded alongside the fact that the same government’s record on lawful injustice was very much less impressive than its record on unlawful gain.

Finance and the postwar economy

War debt, taxation and the estimates

The First Great War had been financed by mass borrowing and bond drives in American Pounds, and it left the Realm with a national debt of a size the peacetime state had never carried. Hughes treated its reduction as the ministry’s first fiscal duty, on the reasoning that a debt contracted for an emergency should be discharged when the emergency ends and not converted into a permanent charge on the ordinary revenue.

The programme had three parts: the reduction of the wartime surtaxes and excess profits duties, the maintenance of a substantial primary surplus, and the systematic retirement of debt. It was accompanied by the reform of the estimates, which consolidated departmental demands into a single Treasury budget presented to the Commons as one document with the whole of the government’s spending in it, and strengthened the independent examination of the accounts that the Second Amendment of 1809 had established. Both measures made the public finances legible for the first time since 1914.

The tax reductions were regressive in their incidence and were criticised as such at the time by the Liberal Federal Democrats and by the labour movement that would organise itself into the Labour and Social Democratic Party in 1921. Hughes defended them as the removal of emergency taxation rather than as a redistribution, which was true of the excess profits duty and much less true of the surtax reductions. The debt was reduced substantially across the six years, and the reduction is real; so is the fact that the burden of the adjustment was not distributed evenly.

The slump of 1920 to 1921

The postwar boom broke in 1920. Prices fell hard, the Royal American Reserve raised its rate to defend the currency and check speculation, and the Realm passed through a short and violent deflation in which output fell, businesses failed and unemployment rose sharply before recovery began in 1921 and 1922. The episode was severe, and it is the largest economic event of the Hughes ministry.

The government did not attempt to arrest it. Hughes accepted the orthodox position of the period, that a postwar deflation was a necessary correction of wartime prices, that the Reserve’s independence in monetary matters was to be respected, and that the Treasury’s duty was to hold the budget rather than to spend against the cycle. There was no relief programme, no public works, and no treatment of unemployment as a federal responsibility. Such assistance as existed was provided by the polities, by charities and by employers, unevenly and inadequately.

The recovery came, and it came quickly, which is the defence usually offered. The cost fell on people who had no say in the decision and no protection against it, and the ministry did not measure that cost because it had not asked anyone to collect the figures. Hughes was not indifferent to hardship and said so in Parliament more than once. He did not regard it as a thing a government could act upon, and the Realm’s answer to that proposition would have to wait for the Depression and the ministry of Franklin D. Roosevelt.

Agriculture and the uneven recovery

The agricultural provinces did not recover. Wartime prices had encouraged expansion, borrowing and the ploughing of marginal land; the collapse of 1920 broke the price level and left the debt in place; and the prosperity of the middle 1920s largely passed the farming districts by. Farm foreclosures, rural bank failures and the depopulation of the poorer agricultural counties ran through the whole decade and were already visible while Hughes was in office.

His government’s response was legal and financial rather than structural. It extended credit facilities for agricultural cooperatives, adjusted the terms on which farm mortgages could be refinanced, funded marketing and grading services, and commissioned reports. It declined to support price guarantees or purchase schemes, on the ground that the Realm could not sustain a permanent public obligation to buy a commodity at a price the market would not pay.

The farm members of his own party’s western wing pressed him hard, and he did not move. The refusal was intellectually consistent and politically expensive, and the agricultural distress it left untreated became one of the conditions of the collapse that broke over his successor. Coolidge inherited the problem, took the same view, and the two ministries between them left the farming districts out of the boom entirely.

The foundations of the boom

The prosperity of the later 1920s was seeded in the war, which made the Realm the arsenal of the alliance and left it a dominant creditor and industrial power with its rivals exhausted. What the Hughes ministry supplied was the framework in which that advantage was realised: a stable currency, a reducing debt, a lowered tax burden on business, a settled schedule for the war debts owed to the Realm, and an administration that could be relied on not to steal.

Hughes took very little credit for the boom and disliked the claim being made on his behalf. He held that governments do not create prosperity and can only avoid destroying it, a position he shared with Coolidge and which the Realm found convincing for as long as the prosperity lasted. His name is nevertheless attached to the decade’s foundations in most accounts, and the attachment cuts both ways: the ministry that established the conditions of the boom also established the regulatory posture under which the speculation of the later decade built up unchecked.

The judgement of the Realm’s economic historians has moved since 1929 and has not settled. Some hold Hughes largely blameless, on the ground that the speculative excess belongs to the years after he left and that the machinery of financial supervision he would have needed did not exist and was not then thought necessary. Others hold that a ministry which took financial regulation as seriously as his took utility regulation could have built that machinery, and chose not to look.

The lawyer’s peace

Inheriting Wilson’s doctrine

Wilson’s postwar vision had been a genuinely universal association of states in which quarrels would be settled by right rather than by arms, and what actually emerged at Berlin was a loose concert of the Allied victors, orderly, conservative and far short of the universal dream. The League of Nations entered into force on 10 January 1920, in Hughes’s first year, and its early failures were already visible before he left office.

Hughes did not repudiate the doctrine and was careful never to be heard mocking it. What he did was to separate the parts of it that could be reduced to obligation from the parts that could not, and work only on the first. Self-determination as a principle he regarded as a statement of political morality that no instrument could enforce; the peaceful settlement of a boundary dispute between two consenting governments he regarded as a piece of legal work that could be done properly or badly. His ministry did the second and said as little as possible about the first.

The relationship between the two men’s records is therefore not one of reversal but of division of labour, and Hughes said so. Wilson had supplied a principle that made settlements thinkable; the drafting, bargaining and enforcement machinery was for others. The Realm’s later historians describe Hughes as having salvaged what could be salvaged of Wilson’s internationalism by legalising it, which is accurate, and which contains the whole of the argument about whether salvage was the right ambition.

Arbitration treaties and the compromis

The core of the ministry’s foreign policy was a programme of bilateral arbitration treaties. Between 1920 and 1925 the Realm concluded or renewed a substantial series of them, with the sister realms of the personal union, with the German Empire and the other victorious Central Powers, with the Byzantine Federation formed in 1922, with the Latin American republics, and with a number of the eastern states that had emerged from the war.

The treaties were built on consent and were deliberately modest. Each provided that justiciable disputes between the parties, meaning disputes turning on the interpretation of a treaty, a question of international law or the existence of a fact constituting a breach, should be submitted to arbitration; and each required a separate special agreement, a compromis, defining the question, naming the tribunal and settling the procedure before any particular dispute went forward. Questions of vital interest, honour and independence were reserved.

The reservations are what critics attacked and what Hughes regarded as the reason the treaties worked. A general obligation to arbitrate anything, he argued, would either be refused by every government that read it or accepted by governments that would break it, and neither outcome was worth having; whereas a narrower obligation that states actually honoured accumulated a practice, and practice was the only material from which international law had ever been made. The Realm arbitrated boundary questions, fishery rights, salvage claims and treaty interpretations across the decade, and its record of compliance was complete.

Claims commissions and the Mexican conventions

The second instrument was the mixed claims commission, and it did more practical work than the arbitration treaties. The war and its aftermath had left an enormous mass of private claims: American property destroyed in France and Russia, foreign property taken in the Realm under wartime powers, shipping losses, insurance disputes, and the claims of nationals caught up in the collapse of the Russian and Ottoman states. A commission of two national members and a neutral chairman, sitting on an agreed schedule and applying stated rules of evidence, could dispose of thousands of them.

The most consequential were the conventions concluded with Mexico in 1923, which established parallel commissions for general claims and for claims arising out of the revolutionary period, and which were negotiated alongside an understanding about the position of American holdings under Mexico’s subsoil provisions. The settlement restored ordinary diplomatic relations, protected existing interests without conceding that the Realm might dictate Mexican constitutional law, and left the underlying question of expropriation open. It was Hughes’s method in its purest form: no principle proclaimed, a mechanism established, and a quarrel converted into a docket.

The commissions were slow, produced awards smaller than claimants expected, and left many people worse compensated than a political settlement might have made them. Their defenders point out that the alternative to a slow docket, in the period, was frequently a gunboat, and that the Realm’s abandonment of coercive debt collection in the Caribbean and in the United Provinces of Central America, where it had held the customs houses of Nicaragua and Honduras since 1909, under Hughes was a real change in practice whatever its motives. Its critics point out that the change was uneven, that the Realm’s commercial position in the region was not disturbed by it, and that a creditor who has secured a tribunal has less need of a fleet.

The League, the permanent court and the limits of adherence

The United Kingdom of America was not a member of the League of Nations, the Commons having rejected the Covenant with the treaty that contained it, and Hughes’s ministry took part in exactly the areas where the League worked. The Realm participated fully in the League’s technical bodies, on public health, on communications and transit, and on labour standards, and it paid for them without argument. Hughes regarded this as the most valuable thing the League did and said so.

He declined the political commitments. The Realm under his ministry accepted no general obligation to apply economic sanctions, undertook no guarantee of the territorial settlement, and adhered neither to the compulsory jurisdiction of the League’s permanent court nor to the optional clause by which states accepted it. The reasons Hughes gave were constitutional and were consistent with everything else he believed: that a Parliament cannot bind itself in advance to make war or to impose sanctions on facts it has not seen, and that submitting the Realm’s disputes to a standing tribunal whose members it did not appoint, on questions it could not define in advance, was a transfer of judgement rather than a settlement of disputes.

The refusal is the single most criticised decision of his foreign policy, and the criticism has grown rather than diminished. It was made by the Realm that had supplied the League’s principal intellectual sponsorship, it weakened an institution that failed in the interwar years, and it is difficult to separate from the general withdrawal of the great powers from the obligations they had written. Hughes’s defenders answer that the Realm’s technical participation was substantial and continuous, that the political commitments the League asked for were honoured by nobody who gave them, and that a court whose jurisdiction states accepted and then evaded would have taught the world a worse lesson than a court it never joined. The Realm has not resolved the argument.

War debts and the French reparations committee

The Realm emerged from the war as the alliance’s principal creditor, and Hughes’s ministry settled the terms on which its allies would repay. A funding commission negotiated schedules with each debtor government, running over sixty years at concessional rates of interest graduated by capacity to pay. The Realm reduced the burden substantially in present value and refused, absolutely, to cancel. Hughes held that a debt lawfully contracted between governments was a legal obligation, that its cancellation would be a gift disguised as a principle, and that a gift should be voted by Parliament as a gift if the Realm wished to make one.

The position was legally impeccable and diplomatically corrosive. The Realm’s allies had spent lives where it had spent money, said so publicly and at length, and the war debts embittered relations with Great Britain and the continental victors for a decade. Hughes did not deny the moral force of the complaint. He denied that a Prime Minister was entitled to remit money owed to the Realm’s taxpayers on a moral argument that had not been put to Parliament, which is a narrower answer than the question deserved.

The linked question was reparations. The Treaty of Berlin had imposed a heavy burden on defeated France, the schedule was beyond France’s capacity, and the resulting crises threatened the settlement itself. In 1924 the Realm proposed, and the victorious powers accepted, that the question of what France could actually pay should be referred to a committee of financial experts sitting without political instructions. Its report produced a revised schedule, a foreign loan to stabilise the French currency, and a supervisory arrangement for the transfer of payments. It was the most successful thing the ministry did abroad, it held for five years, and it was a committee of accountants rather than a conference of statesmen, which was exactly the point.

Prohibition and the Seventh Amendment

The amendment and the enforcement statute

The Seventh Amendment to the Charter, prohibiting the manufacture and sale of intoxicating liquors, was carried in 1919, the year Hughes took office. It was the work of a temperance movement that had organised for two generations, and it had cleared an amendment procedure designed to be nearly impossible: both Houses without qualification, a national majority at referendum, and a majority of the polities. Hughes inherited it as settled constitutional law.

His ministry was therefore obliged to put through the enforcement statute, defining the prohibited liquors, creating the offences, establishing the enforcement service and providing the penalties. Hughes had not supported the amendment and had said in the Commons in 1918 that the Charter was not an instrument for questions of ordinary policy. He accepted without qualification that his private opinion was irrelevant once the Realm had amended its constitution, and he put the Bill through.

The enforcement Act was drafted with the ministry’s usual care and was, on paper, a good statute: offences precisely defined, powers of search and seizure bounded, penalties graduated, appeals provided. It was also, from the day it commenced, being asked to suppress an activity that a large part of the population intended to continue, using a service that Parliament declined to fund at anything approaching the scale required.

Enforcement and its failures

Enforcement failed, and the ministry’s own inspectors reported that it was failing within two years. The federal enforcement service was too small, badly paid and thoroughly corruptible; the Royal American Constabulary and the polity forces were drawn into work that diverted them from ordinary policing; the federal courts were congested to a degree that delayed every other class of case; and organised criminal supply developed with a speed that took the government by surprise and outran every estimate it had made.

The enforcement also fell unequally, and the inequality was documented at the time. Immigrant districts of the cities were policed hard; commercial premises catering to the professional classes were policed lightly or not at all; rural production in the poorer polities was prosecuted with vigour, and the private cellars of the wealthy were not touched at all because the amendment did not prohibit possession. The people arrested for the offence, throughout the Realm and throughout the period, were disproportionately poor, immigrant or Black, and the ministry knew it.

Hughes’s response was administrative and was inadequate. He reorganised the enforcement service twice, tightened its recruitment, prosecuted corrupt officers, published the enforcement statistics and pressed Parliament for money it would not vote. He did not propose repeal, did not propose to nullify the amendment by declining to enforce it, and did not tell the Realm that the measure was unenforceable, which by 1923 his own department’s papers show he privately believed.

The cost to the authority of law

The episode is the sharpest test of the man’s governing philosophy and, on the evidence, it defeated him. Hughes held that the authority of law rests on its being administered honestly and evenly, and he presided for six years over a statute that was administered dishonestly and unevenly and could not have been administered otherwise. He held that a law which cannot be enforced corrodes respect for every law around it, which is what happened, and he continued to enforce it because it was the constitution.

The defence available to him is a real one. A Prime Minister who declines to enforce a constitutional amendment because he thinks it foolish has claimed a power that no minister in a constitutional state should hold, and the alternative to Hughes’s obedience was not repeal but government by ministerial taste. Repeal was for the Realm, and the Realm eventually took it, by the Ninth Amendment of 1933, the only repeal in the Charter’s history.

The criticism available against him is equally real. He had a national standing greater than any other figure of the period, a formidable public argument, and six years in which to make the case that the Charter was being used for something it was not for. He never made it publicly. The Realm spent fourteen years undoing an amendment that its most respected constitutional lawyer thought a mistake from the beginning, and he never said so where it would have counted.

Labour, dissent and immigration

Industrial conflict and the injunction

The early 1920s were years of severe industrial conflict. Wartime production had strengthened organised labour; demobilisation, the price collapse and the employers’ campaign to recover the ground they had lost produced strikes in coal, on the railways, in steel and in the ports, several of them national in scope. Hughes met them as a lawyer. His government appointed boards of inquiry, published their findings, offered voluntary arbitration and, where a stoppage threatened a service Parliament had declared essential, sought injunctions in the federal courts.

The injunction is the part of the record his critics return to. Used against a strike, it converts an industrial dispute into a question of obedience to a court order and puts the whole authority of the judicial system on one side of a bargain between unequal parties. Hughes’s ministry used it repeatedly, defended it as the ordinary process of law applied without favour, and did not accept that a remedy available in practice only to employers was a remedy applied without favour.

His government also did some things the labour movement valued. It refused to use federal troops in industrial disputes, insisted that the right to organise and to bargain peacefully was lawful and protected, prosecuted employers who used private armed guards in ways the criminal law reached, and established a permanent statistical service for wages, hours and the cost of living whose figures the unions used against it for a generation. The record is genuinely mixed, and the mixture reflects a Prime Minister who believed in the equal application of a law that was not equal.

The campaign against radical politics

The postwar campaign against radical politics is the darkest part of the ministry’s domestic record. Raids on the premises of political organisations, surveillance of socialists, anarchists and pacifists, informal blacklists circulated to employers, and prosecutions built on membership rather than on conduct were features of the Realm’s public life in the years after the war, and much of it happened under Hughes’s government and on the authority of his ministers.

Hughes’s own position, stated repeatedly in public, was that violence and conspiracy were crimes and unpopular belief was not, that the American Rights Act bound every federal officer, and that a prosecution required evidence rather than a category. Where the Act’s protections applied, they largely held: the federal courts struck down the worst of the prosecutions, the ministry’s law officers refused several that were pressed on them, and the Realm did not acquire a general political offence.

That is the most that can honestly be said for it. The raids happened. The surveillance happened, and was extended. Immigrant organisers, socialists and pacifists faced unequal policing, lost employment on the strength of official lists they could not see and were not told about, and had no effective remedy. A Prime Minister who had spent the war insisting that criticism was not disloyalty presided over a peacetime administration that treated it as evidence, and his private instructions to his ministers, which survive, were considerably less firm than his public speeches.

Deportation and the reach of the Rights Act

The instrument that did the most damage was deportation, because it fell where the Realm’s rights guarantees were weakest. The American Rights Act bound federal authority, and federal authority acting against a non-citizen in an administrative proceeding was subject to far less scrutiny than federal authority conducting a prosecution. Hearings were held before officials of the department that had brought the case, evidence rules were loose, counsel was often absent, and the remedy was expulsion from the Realm rather than a punishment a court had to justify.

Several thousand people were removed on political grounds in the years after the war. The proceedings were lawful in the sense that they complied with the statute, and the courts, when they were reached, corrected a number of the worst cases and left the machinery standing. Hughes defended the machinery on the ground that the admission and removal of aliens is a matter for Parliament and the executive rather than for the courts, which is orthodox constitutional law and was, in this application, a way of not looking.

His government did decline to introduce a general peacetime sedition statute, resisted proposals to strip naturalised citizens of citizenship for political opinion, and refused to treat ancestry as evidence of disloyalty. Those refusals mattered to the people they protected. They do not answer for the people the deportation machinery reached, whose treatment his ministry designed, defended and administered.

The immigration quotas and the Japanese clause

The Realm restricted immigration during the Hughes ministry, first by a temporary quota statute in 1921 and then by the permanent Act of 1924. The Acts fixed annual limits and allocated them among countries of origin by a formula calculated from the composition of the Realm’s existing population, an arrangement whose purpose was to admit migrants from northern and western Europe and to exclude, so far as the arithmetic allowed, migrants from southern and eastern Europe. This was stated openly by the Acts’ supporters in both Houses, and it was the reason the formula was chosen.

Hughes supported restriction in principle and defended the quota system as a lawful exercise of a power that plainly belonged to Parliament. He fought one provision and lost. The 1924 Bill as introduced in the Commons contained a clause excluding by name a class of migrants that included the nationals of the Empire of Japan, an allied power that had fought beside the Realm in the war and with which the Realm had a subsisting understanding on the movement of persons. Hughes told his party that the clause would be read in Tokyo as a national insult, that it would injure a relationship the Realm needed, and that it broke faith with an ally. His own back benches carried it against him.

He put the Act through with the clause in it. It was the single clearest defeat he suffered inside his own party, he took it without public complaint, and the diplomatic damage he predicted arrived exactly as he had described. The episode is the sharpest illustration of the limits of his method: a Prime Minister whose foreign policy rested on the proposition that obligations bind was unable to prevent his own Parliament from repudiating one, and having failed to prevent it, administered it.

Race and the exclusionary settlement

The federal limit of 1866

The American Rights Act of 1866 bound federal authority and did not bind the polities, and it would not do so until the Eleventh Amendment of 1962. That limitation, the price paid in the House of Lords to get the Act through, is the central fact of the Realm’s racial history and it was operating at full strength throughout the Hughes ministry. The retreat from Reconstruction had begun in 1877 and was complete by 1889, and the former rebel polities had spent the intervening decades constructing an apparatus of exclusion that no federal court could reach.

The apparatus was lawful. Registration rules, jury selection, poll administration, vagrancy and labour offences, the discretion of sheriffs and the refusal of counties to prosecute private violence all sat squarely inside a polity’s own competence. Nothing had to be defied. Black Americans in the affected polities were excluded from the vote, from juries, from public employment and from equal treatment in the courts by measures that a federal government could not strike down, and were subject to violence that a federal government did not prosecute.

Hughes understood this with complete clarity. He was among the best constitutional lawyers in the Realm and he had sat on the court that would have heard the cases. His government’s position, stated in Parliament and in correspondence, was that the Rights Act did not reach the polities, that the Charter’s guarantees ran against the Union and not its parts, and that the remedy lay with the polities or with an amendment. It was a correct statement of the law, and his ministry treated it as though it disposed of the question.

Lynching and the Bill that failed

Lynching in the former rebel polities continued through the Hughes ministry at a rate that was recorded, published and known. Members of the House of Commons brought forward a Bill in the early 1920s to make it a federal offence, on the constitutional theory that where a polity systematically declines to prosecute a class of murders, the Union may act to secure the equal protection that the Fourth Amendment of 1873 guarantees against it. The Bill was argued, amended and passed by the House of Commons.

It died in the House of Lords, where it was opposed as an intrusion into the criminal jurisdiction of the polities by the same argument that had confined the Rights Act in 1866. The government did not make it a government measure, did not use the ministry’s time to press it, did not treat its defeat as a matter of confidence and did not bring it back. Hughes voted for it and said, in the Commons, that the constitutional foundation was arguable rather than secure.

The judgement was honest and it was also convenient, and the two things are not in conflict. A Prime Minister with a working majority, a national reputation as the Realm’s foremost constitutional lawyer, and a settled view that the Charter’s equal protection guarantee bound the Union, could have argued the case for the federal power himself and made the Lords defeat it in the open a second time. He did not. He treated a contested constitutional question as though it were a closed one, in the single instance where the answer determined whether people were murdered with impunity.

The federal service and Black veterans

Where federal authority did reach, Hughes’s record is better and is not good. The Rights Act bound the Union, and the re-segregation of the federal service that was attempted elsewhere was not lawfully available in the Realm; his ministry maintained formal equality of access to federal employment, appointment by competitive examination, and equal pay for equal grade. Complaints of discrimination in federal offices were investigated and were sometimes upheld.

Beneath the formal rule, placement, grading and promotion were administered by officials whose assumptions the ministry did not examine. Black civil servants were concentrated in the lower grades and in particular departments, were promoted more slowly, and were kept out of supervisory positions over white staff by informal practice that no published rule authorised and no inspection was directed to find. Hughes’s own doctrine, that a public power obliged to publish its reasons is already half-restrained, was never applied to this.

Black veterans of the war returned to a Realm that had conscripted them, honoured them in ceremony and left them without equal housing, employment, policing or protection. Governor-General Pershing received their delegations at Government House and pressed ministers privately; the ministers were Hughes’s, and the government’s answer was that the matters complained of lay with the polities. It is the plainest case in the record of a ministry that could state a constitutional limit with great precision and could not be moved to test it.

Constitutional maintenance and law reform

The Eighth Amendment of 1924

The Eighth Amendment to the Charter of Union was carried in 1924, under Hughes’s ministry. It wrote the core provisions of the Parliamentary Reform Act 1859, being the constituency quota, the independent commissioners, the criteria on which boundaries are drawn and the unamendable resolution, into the Charter itself, placing them beyond repeal by ordinary legislation. Its schedule also carried in, by a drafting error that nobody noticed until 1931, Part VI of the Act, which had created the Order of the Charter, so that the Order Hughes joined in 1925 had been entrenched by his own amendment the year before. It attracted very little attention at the time and was carried on the argument that the machinery had been observed for sixty-five years and might as well be acknowledged.

It is a characteristic Hughes measure and one of the more consequential things his government did. The Realm’s freedom from gerrymandering rests on the 1859 machinery, and until 1924 that machinery was a statute that a determined majority could have amended. After 1924 it could be altered only by the amending procedure: both Houses without qualification, a national majority and a majority of the polities. The Realm has never had to test the protection, which is the intended condition of such protections.

The manner of its passage is as characteristic as its substance. Hughes did not present it as a great constitutional reform, did not campaign on it, and allowed it to be understood as tidying. He remarked privately that an amendment nobody is excited about is an amendment that will be honoured, which is a fair statement of his whole constitutional philosophy and sits oddly beside his silence on the amendment of 1919 that everybody was excited about.

Law reform and the consolidation of the statutes

The ministry conducted a programme of unglamorous legal reform across its six years. It consolidated the federal statutes, which had accumulated since 1783 in a condition that required a specialist to establish what the law on any subject actually was, into a single arranged and indexed body with the repealed material removed. It reformed the procedure of the federal courts, standardising pleadings and interlocutory practice across the circuits. It codified the Realm’s law on bankruptcy, on the carriage of goods by sea and on commercial arbitration, in each case adopting the conventions the Realm had also concluded internationally.

The most contested measure gave the Royal American Supreme Court control of its own docket. The Court’s appellate work had grown until it was hearing appeals it had no reason to hear and taking years to reach the ones that mattered, and the Bill required most appeals to come by leave of the Court itself, leaving a narrow class of direct appeals as of right. The measure was prepared by the judges, carried by the ministry and passed with cross-party support, and it produced the modern practice by which the Royal American Supreme Court takes the cases whose importance to the law or the constitution warrants the last word.

Hughes’s part in it raised a question of propriety he took seriously. A former Justice was legislating on the working of the Court he had left, at the Court’s request, and could be represented as delivering to his old colleagues a discretion they had asked for. He answered it by staying out of the Bill’s preparation entirely, requiring the Minister of Justice to carry it, declining to speak on it in the Commons beyond a formal statement, and publishing the judges’ memorandum so that the Realm could see who had asked for what.

The Court he had left

Hughes’s conduct towards the Royal American Supreme Court in office was fastidious to a degree that struck contemporaries as excessive and was intended to. He never referred publicly to his own judicial service, never cited his own opinions, never discussed a pending case with anyone, and never met a serving Justice socially throughout his ministry. When his government was a party to litigation he declined to be told anything about it beyond what the law officers put in writing.

He observed the Marshall silence with the exactness of a man who knew he was being watched for a lapse. Not one is recorded. The Realm’s constitutional commentators, who had predicted in 1916 that a Justice turned partisan would find the boundary impossible to keep, were reduced to observing that he had kept it, which they did with a slightly baffled admiration.

The scrupulousness had a public purpose. Hughes had done the thing that threatened the Court’s culture, and the only reparation available was to demonstrate that a man who had done it could still be relied upon to respect what he had troubled. Whether the demonstration is sufficient is one of the questions the Realm has never settled, and it turns on whether one thinks a custom is repaired by an individual’s good behaviour or only weakened by having required it.

The Crown and the Governors-General

Ernest III

Hughes served under Ernest III throughout, and the relationship was correct, distant and entirely untroubled. The King was by 1919 the Mourning King, transformed by the scale of the war’s death into the figure who gave national loss a fixed constitutional form, resident in Britain, ageing and increasingly formal in a decade that was becoming informal. Hughes was a Conservative and Crown Union man for whom the constitutional position of the Crown was a settled part of the law he had spent his life reading.

There was no prerogative friction of any kind. The King neither supplied a programme nor sought one, policy rested exclusively on the advice of American ministers, and Hughes tendered advice through the Governor-General as the Charter settlement requires. The two men met rarely and corresponded formally. What warmth existed was of the kind two reserved men produce by finding each other unobjectionable.

The King’s later assessment, recorded in his household papers, was that Hughes represented a return to order after the strain of the war and its peace, which is the phrase the ministry used about itself and the phrase the Realm has kept. Ernest III’s own judgement of his premiers was rarely expressed and never in a way that could reach politics, and the comparative comfort of the reign’s constitutional relations in these years is generally credited to the King’s method rather than to anybody’s charm.

William Howard Taft

Governor-General William Howard Taft had been Chief Justice of the Royal American Supreme Court before entering Government House in 1913, and he commissioned Hughes in 1919 and served with him until his retirement on 17 August 1921. The two men had known each other professionally for twenty years and shared a temperament: both valued written reasons, exact law and institutions built to survive the people who happened to be running them.

The working relationship was candid and intellectually easy, and it stayed inside its bounds. Taft did not become an adviser inside the government. Papers returned from Government House might carry a request for the relevant authority, a question about unequal administration, or an invitation to explain why an urgent measure required the breadth claimed for it; Hughes answered them, and then decided. Taft used no reserve power in eight years, withheld no formal act to force reconsideration, and made no attempt to convert access to official papers into a source of policy.

Their joint concern in these years was the winding down of the war emergency. Taft pressed privately for statutory expiry, auditable disposal of emergency property, veterans’ transition and the restoration of ordinary administration; Hughes had come into office intending exactly that and did most of it. The shared limitation was equally visible. Two men so committed to orderly institutions could validate each other’s caution, and where rights demanded urgency or labour challenged settled power, correct procedure could become a mutual refuge.

Two former judges

For the two years between 1919 and 1921 the Realm was governed by a Prime Minister who had been a Justice of the Royal American Supreme Court and represented by a Governor-General who had been its Chief Justice. The arrangement had no precedent, was not designed, and attracted a good deal of comment at the time, most of it uneasy.

The unease was constitutional rather than personal. The Realm’s institutions are built on the separation of the Court from the political quarter, and the presence in the two most conspicuous offices of the state of two men who had left the bench for public life could be read as evidence that the separation was porous in one direction. Both men were plainly aware of it, and the conspicuous strictness with which each observed the Marshall silence in those years is generally understood as a joint answer to the criticism.

There was a practical consequence as well as a symbolic one. Two former judges conducting the constitutional business of the Realm between them produced a period of unusual procedural exactness: transitions completed without vacancy, formal acts performed on stated advice, emergency powers allowed to expire on their terms. The transfer from Wilson to Hughes and from Taft to Pershing are both taught as models, and it is not a coincidence that the men conducting them had spent their working lives establishing what a record ought to look like.

John J. Pershing

Taft retired on 17 August 1921, and on Hughes’s advice Ernest III immediately commissioned John J. Pershing, the commander of the American Expeditionary Force, as the eighteenth Governor-General. Pershing had retired from active service and relinquished every command before installation. The commission was not a military reward, and Hughes was careful to say so publicly: the case rested on national trust and organisational achievement, and on the confidence that a commander accustomed to authority could accept strict constitutional restraint.

The partnership was a productive one between austere institutionalists. Neither man required theatrical intimacy and neither mistook ease of manner for constitutional trust. Pershing supplied formal Crown acts, private counsel and public continuity; Hughes directed policy through Cabinet and answered to the Commons. Pershing received lawful defence briefings, never directed appointments, readiness, procurement or the serving military leadership, and used no reserve power in eight years.

Their real disagreement was over defence economy. Pershing’s experience of mobilisation had convinced him that national capacity could not be improvised after danger arrived, and he warned privately that the ministry’s retrenchment was consuming trained structures and institutional memory that would take a decade to rebuild. Hughes weighed military preference against other public claims, held the estimates down, and accepted Parliament’s authority to choose economy. Pershing accepted the decision, never lobbied publicly, and was proved substantially right within twenty years.

Political positions

Constitution and the rule of law

Hughes’s constitutional position can be stated in three propositions he never varied. Public power must be able to show its warrant. A government is bound by the law it administers, including when the binding is inconvenient. And the constitution is not the property of the majority that happens to hold the Commons, which is why he supported the entrenchment of the 1859 machinery and opposed the use of the amending procedure for questions of ordinary policy.

He was a federalist in the strict sense: the Union has the powers the Charter gives it and the polities have the rest, and a federal government which stretches its warrant because the cause is good has established that warrants can be stretched. This was the intellectual foundation of his position on the exclusionary settlement, and it is the point at which his admirers and his critics part company. The doctrine is coherent, it is the orthodox reading of the Charter, and it produced, in his hands, a government that could not be moved to act against the greatest injustice in the Realm.

He regarded the courts as the guardians of the settlement and was, unusually for a Prime Minister, entirely comfortable with being defeated in them. His government lost cases, complied without complaint, and legislated again in narrower terms where it thought the objection could be met. He never once criticised a judgment in public.

Economy and the state

In economic matters Hughes belonged to the north-eastern commercial tradition of his party: sound money, a balanced budget, a reducing debt, moderate taxation and a regulatory state that inspects rather than directs. He was not a laissez-faire politician in the sense his successor was. He had built his career on the proposition that concentrated economic power must be regulated by permanent public bodies with the power to see the books, and he never abandoned it.

What he did not believe was that the state could manage the level of activity, distribute income or accept responsibility for employment. Those propositions were outside his intellectual world and outside the orthodoxy of his generation, and when the slump of 1920 tested them he applied the orthodoxy without hesitation. The Realm’s answer to the question came a decade later from a different party, in different circumstances, and he never publicly commented on it.

On the tariff, the perennial quarrel of his party, he was a moderate protectionist by conviction and a pragmatist in office, and he handled the question mainly by referring it to a permanent commission empowered to investigate costs and recommend adjustments. It is a small example of a general habit: confronted with a political question, Hughes reached for a body with the power to compel evidence.

The world and the treaty

Hughes’s internationalism was procedural and it was sincere. He believed that the relations of states could be made lawful in the same incremental way that the relations of merchants had been made lawful, by treaties that were honoured, tribunals whose awards were paid, and a practice that accumulated into custom. He distrusted institutions built ahead of the willingness to use them, and he held that an obligation which states accepted and then evaded did more harm than an obligation never undertaken.

He required treaties to be published and laid before Parliament before ratification, made the practice a rule of his ministry, and defended it against departmental resistance on the ground that a Realm bound in secret is not bound by consent. The rule outlasted him. He also declined to conclude the sort of general political understanding, unwritten and between statesmen, that the diplomacy of the period ran on, telling his Foreign Minister that an understanding which cannot be drafted is an understanding that will be denied.

The limits of the position are the ones his critics have always identified. Legal method is available only to parties who wish to be bound, works best on quarrels that are already small, and offers nothing at all against a government that has decided on force. The interwar decades supplied a great deal of evidence for that criticism, and the Realm’s assessment of the lawyer’s peace has been coloured ever since by what happened after 1933 to a world of arbitration treaties and claims commissions.

Personal life

Antoinette and the children

The Hughes household was the one place where the public manner was absent, and every account from inside it says the same thing. He was affectionate, funny in a dry way his colleagues never saw, and entirely dependent on his wife’s judgement about people. Antoinette Hughes ran the family’s social life, told him when he had been rude without noticing, and was widely understood in New Westminster to be the more perceptive politician of the two.

The children were raised to the same standards their father had been raised to and with considerably more warmth. Charles Evans Hughes Jr. became a lawyer of distinction; his father, in six years as Prime Minister, made no appointment that touched him and declined to write him a reference, a scruple the son found excessive and observed anyway. Catherine and Elizabeth were educated to a standard unusual for daughters of the period, on their father’s insistence and their mother’s arrangement.

Hughes kept his family entirely out of public life. His wife appeared at official occasions and nowhere else, his children were photographed at family events and never quoted, and no member of the household held any position, received any official paper or was permitted to become a route to the Prime Minister’s favour. The rule was applied with the rigidity that governed everything else he did.

Helen’s death and Elizabeth’s illness

Helen Hughes, the elder daughter, contracted tuberculosis and died in 1920, at twenty-eight, in the first full year of her father’s ministry. The loss was devastating and was borne in the manner the family’s friends expected: Hughes took four days, returned to his desk and never mentioned it publicly again. Those who worked with him said the reserve deepened after 1920 and never lifted, and that the coldness the Realm read as temperament acquired, from that year, a component of grief.

Elizabeth, the youngest, developed diabetes as a child, at a time when the disease was untreatable and the only management available was a starvation regime that bought a year or two at a terrible cost. She was gravely ill through the first years of the ministry. In 1922 she was among the early patients to receive the new pancreatic extract, and she recovered, grew, and lived a long life. The family regarded it as a deliverance and said so privately, and Hughes, who had spent his career declining to be moved in public, wrote a private letter of thanks to the researchers that is the least characteristic document he ever produced.

Neither episode entered his public conduct. He did not use his daughter’s death in a speech, did not appear at charitable occasions connected with either illness while in office, and refused to allow the family’s circumstances to be reported. The refusal was consistent with everything else about him and it also cost him. A Realm that knew what those years had contained might have found the Bearded Iceberg easier to like, and he would have regarded being liked on those terms as a form of dishonesty.

Religion, recreation and manner

Hughes remained a practising Baptist all his life, attended regularly, taught in a Sunday school for many years before entering national politics, and treated his religion as a private obligation with no bearing on the advice he gave the Crown. He was scrupulous about the plural settlement of the Church of America, refused to allow religious tests to enter any appointment his ministry made, and declined invitations to speak on public questions from a pulpit.

His recreations were walking, reading and mountains. He walked daily whatever the weather and at a pace his detectives complained about, holidayed in the same place each summer, and read history and biography for pleasure. He did not play cards, did not shoot, was mildly bored by horses, and had no interest whatever in the sporting culture that surrounded political life. He drank almost nothing before the Seventh Amendment and nothing at all after it, on the ground that a Prime Minister enforcing a prohibition should not be capable of being photographed evading it.

The beard was the most discussed thing about his appearance and had become, by the 1920s, an anachronism. Full beards had gone out of fashion in public life two decades before, and cartoonists used it as shorthand for the whole man: an implacable nineteenth-century probity that the jazz decade found faintly absurd and entirely reassuring. He was asked several times whether he would remove it. He gave the same answer each time, which was that it had been there since he was twenty-three and he saw no argument for the change.

Retirement, later life and death

The decision of 1925

Hughes announced in 1925 that he would retire, and the announcement surprised almost everybody. He was sixty-three, in good health, at the height of his standing, and led a government with a majority and no immediate crisis. Nothing had forced the decision, and no scandal, defeat or illness explains it.

The reasons he gave were characteristic. He had done what he had undertaken to do: the emergency was wound up, the finances were on a peacetime footing, the peace obligations had been reduced to instruments, and the administration was clean. He held that a Prime Minister should leave while his successor still inherited a Parliament rather than a campaign, and that six years was long enough for any man to hold an office of that kind. He also, on the evidence of his own working pattern, knew the point at which he was about to break, and had spent his life leaving before he reached it.

Those closest to him added a fourth reason he did not state publicly. Hughes had come into office to perform a set of tasks, and he did not enjoy the parts of the premiership that were not tasks. He disliked the party management, disliked the ceremonial, and had never once in six years appeared to want the office for its own sake. Retirement, to him, was not a sacrifice but the natural end of a piece of work.

The transfer to Coolidge

The Conservative and Crown Union elected Calvin Coolidge to the leadership, and the transfer proceeded through ordinary responsible government. Hughes resigned once the party had demonstrated that Coolidge could command the confidence of the House of Commons, and Governor-General Pershing commissioned Coolidge in Ernest III’s name. There was no vacancy, no acting premiership and no vice-regal selection: a new leader requires a fresh commission founded on fresh confidence, and nothing passes automatically from one holder to the next.

Hughes said nothing whatever about his successor’s policies for the remaining twenty-three years of his life. He declined every request to comment, refused to be drawn on the crash of 1929 or on the Depression that followed, and did not respond publicly when his own ministry’s regulatory posture was criticised as having prepared the ground for it. The silence was a deliberate rule, stated once privately: a former Prime Minister who criticises the government of the day is asking to be treated as an alternative to it, and there is no such office.

The two ministries have been read together ever since. Where Hughes governed like a judge, Coolidge governed like an auditor, and between them the Conservative and Crown Union ran an unbroken thread of clean, thrifty, minimal government from 1919 until the crash ended it in 1929. The party’s twentieth-century public character was made in those ten years, and the greater part of it was made in the first six.

The order and the refused peerage

The Crown offered Hughes a peerage on his retirement and he declined it. He was appointed Knight Grand Cross of the Order of the Charter in 1925, the senior grade of the Realm’s principal order, awarded for distinguished service to the constitutional order. The grade carries the right to the prefix, and Hughes never used it. He signed himself as he always had, was addressed in his own household and by his former colleagues as Mr Hughes, and corrected people who tried the alternative.

The refusal is more interesting than it first appears, because his party was the party of the Crown and might have been expected to accept elevation as a matter of course. The Liberal Federal Democrats’ citizen premiers had refused peerages on democratic principle. Hughes refused his on no principle at all that he was willing to state, which left the Realm to conclude what it liked. The likeliest explanation, and the one his family gave, is that he had been a poor minister’s son who became a lawyer, that a lawyer is what he had remained, and that he could see no reason to be described as something else.

Coolidge afterwards went further and declined everything, order included. The pattern by which the Realm’s premiers leave office with less than they might have taken is well established and is genuinely unusual among monarchies, and Hughes belongs in the middle of it: he took the order, wore it once, and kept the name.

Private years and death

Hughes held no office after 1925 of any kind. He did not return to the Royal American Supreme Court, would have refused had he been asked, and said so more than once. He did not return to practice at the bar, declined every offer of a chairmanship, commission, university headship or public inquiry, and refused all requests to write a memoir. He deposited his papers, with a direction that the political material be closed for twenty-five years, and lived privately in New York and on Cape Cod.

He was not idle. He corresponded extensively on the consolidation of statutes and on commercial law reform, gave unpaid advice to the bodies conducting them, read voraciously, and kept up with the international arbitration awards for the rest of his life, filing them. He watched the Depression, the collapse of the interwar League, the rise of fascist France and the Second Great War in silence, and made no public statement on any of them.

Antoinette Hughes died in 1945, after fifty-seven years of marriage. Those who saw him afterwards said that the reserve which had contained everything else did not contain this, and that he did not really recover. He died at Osterville on Cape Cod on 27 August 1948, at eighty-six, having outlived his wife, his eldest daughter and all but two of his Cabinet colleagues.

Public image and historical reputation

The Bearded Iceberg

Hughes was known throughout his public life as the Bearded Iceberg, a name that attached to him during the provincial inquiries of 1905 and that he never disputed, resented or attempted to soften. It described exactly what the public encountered: an austere, formidable, visibly cold man who mastered the brief, stated the conclusion and never performed warmth. He was also called the Settlement Premier for the instruments his ministry produced, and the phrase the lawyer’s peace attached itself to his foreign policy while he was still conducting it.

The coldness was not a manner adopted for effect and was not a pose concealing a warmer man. It was the actual temperament, produced by a solitary childhood and hardened by a professional life in which detachment was the instrument, and the people who knew him privately did not describe a different person so much as the same person with the reserve set aside. What they added was that the reserve was in part a discipline: Hughes believed that a public officer who displays feeling is inviting the public to decide on feeling, and he declined to do it.

The Realm’s affection for him, such as it was, ran on those terms. He was not loved and was not expected to be. He was trusted absolutely, which in 1919 was the scarcer commodity, and the general view of the period was that the country had got the man the moment required rather than the man it would have chosen in a happier one.

Press, platform and the wireless

Hughes was the despair of the press gallery. He supplied accurate information promptly, answered every question he was entitled to answer, never briefed against a colleague, never leaked, and never said anything quotable in six years. Political correspondents accustomed to a premier who could be provoked found themselves reporting the substance of government policy, which several of them complained about in print.

He was a competent rather than a compelling public speaker, with a flat, clear delivery and no gift for phrase-making, and his speeches gained in print what they lost on the platform. The New York press, whose tabloid culture can make or destroy a provincial premier before lunch, never found a purchase on him, chiefly because there was nothing to find and partly because he declined to notice.

The wireless arrived at the end of his ministry and he made almost no use of it. His voice recorded well and the broadcasters were eager; Hughes read a small number of formal statements and refused everything else, on the ground that a medium which rewards intimacy would tempt a Prime Minister to establish a relationship with the public that bypassed Parliament. It is a serious constitutional objection, it was made twenty years before anybody else made it, and it also happened to spare him something he would have hated.

The contemporary verdict

The Realm’s judgement in 1925 was high and close to unanimous. Hughes had taken office in the wreckage of a war and a broken ministry, wound up the emergency lawfully, restored the finances, run an administration in which no minister stole anything, converted a great deal of the peace into instruments that held, and gone at the height of his standing without being asked. Opposition figures who had fought him for six years said so in the Commons on his retirement, and the tributes are unusually free of the customary insincerity.

The Liberal Federal Democrats’ complaint, made at the time and maintained since, was that the ministry had been a competent custodianship of a settlement it should have been challenging: that it had taxed the rich less, left the farmers to fail, met a slump with orthodoxy, and treated the exclusion of Black Americans from citizenship as a jurisdictional question. The infant Labour and Social Democratic Party, founded in 1921, made the same case in blunter terms and made it about the injunctions.

Both complaints were substantially correct and neither dented his standing while he lived, because the Realm in the 1920s was measuring him against the war and the collapse that preceded him rather than against what a government might have attempted. The reassessment came later, and it came, as reassessments usually do, from a country that had been through something else.

Later reassessment

The modern reputation is divided, and the division is a real one that the Realm has not resolved. On the constitutional and administrative side the verdict has held and has if anything risen: the Eighth Amendment, the consolidation of the statutes, the Court’s control of its own docket, the published-treaty rule, the standard of ministerial probity and the clean transitions of 1919, 1921 and 1925 are all his, and they are the kind of achievement that becomes more visible the longer it lasts.

On the lawyer’s peace the argument is live. One case holds that Hughes did the only durable thing available in a decade of collapsing idealism, that his arbitration treaties and claims commissions were honoured while the grand instruments were not, and that the reparations committee of 1924 held a settlement together for five years that nothing else could have held. The other holds that a Realm which had sponsored the League and then refused it every political commitment, including adherence to its court, helped ensure the institution’s failure, and that method without architecture was a way of appearing to act while declining to be bound. Both cases are made by serious people and neither has prevailed.

On the domestic record the modern judgement is harder than the contemporary one and has been getting harder. The exclusionary settlement operated at full strength through his ministry, entirely lawfully, and a Prime Minister who was among the ablest constitutional lawyers the Realm has produced treated the limits of federal authority as a conclusion rather than a question. The deportations, the campaign against radical politics and the ancestry-based quotas of 1924 were his government’s work. The Realm’s more recent historians have put the point sharply: a ministry organised around the proposition that public power must show its warrant proved unable to ask what warrant a county sheriff had, and the failure was not an oversight in the method but a demonstration of what the method could not reach.

Chronology

Trivia

See also

• Woodrow Wilson, nineteenth Prime Minister; the rival Hughes opposed and finally succeeded
• Calvin Coolidge, twenty-first Prime Minister; the successor who carried the same thread to the crash
• Royal American Supreme Court, the bench Hughes served on and resigned for politics
• William Howard Taft, the former Chief Justice who commissioned him in 1919
• John J. Pershing, Governor-General from 1921 and his partner in constitutional service
• Ernest III, the King in whose name he was commissioned and served
• Conservative and Crown Union, the party whose twentieth-century character he made
• Province of New York, the polity he governed as Premier from 1907
• The First Great War, the conflict whose settlement his foreign policy was built to enforce
• American Rights Act, whose federal limit shaped and excused his domestic record
• Charter of Union of the American Colonies, amended twice during his public life
• Parliamentary Reform Act 1859, entrenched by the Eighth Amendment of 1924
• League of Nations, the institution he supported technically and declined politically

Categories

People · Prime Ministers · Conservative and Crown Union · Law and the Charter · Twentieth Century