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Full text of "Sixty years in law, public service and international affairs : oral history transcript / and related material, 1977-1979"

University of California • Berkeley 






Herman Phleger 
SIXTY YEARS IN LAW, PUBLIC SERVICE AND INTERNATIONAL AFFAIRS 



Regional Oral History Office 
The Bancroft Library 




Herman Phleger 
January 1953 



Regional Oral History Office 
The Bancroft Library 



University of California 
Berkeley, California 



Herman Phleger 
SIXTY YEARS IN LAW, PUBLIC SERVICE AND INTERNATIONAL AFFAIRS 



With an Introduction by 
J.E. Wallace Sterling 



An Interview Conducted by 
Miriam Feingold Stein 
in 1977 



Copy no. 



Copyright (c) 1979 by The Regents of the University of California 



TABLE OF CONTENTS — Herman Phleger 



INTRODUCTION by J.E. Wallace Sterling 

INTERVIEW HISTORY 

VITA 



i 
iii 



I BACKGROUND AND EDUCATION 
Forebears 
Growing Up in Sacramento 

Sacramento at the Turn of the Century 

Schoolday Memories 

High School Days 
University of California 

Fraternities 

Student Life 

Clubs and Extracurricular Activities 

Playing Rugby Football 

Honor Societies 

Administering the University 

Boalt Hall 

Graduation Exercises 

Dormitories 
Harvard Law School 
A European Tour 

II BROBECK, PHLEGER & HARRISON 

Getting Established: A Law Firm and Lodging 

Continuing Associations with the University of California 

The Bar Examination 

Teaching 

Early Cases 

World War I 

Pre-war Experiences 

The Outbreak of War and the Mocney-Biilings Case 

Enlistment and Training 

On Duty Aboard the Destroyer Beale 

Resigning from the Navy 

From Morrison, Dunne i Brobeck to Brobeck, Phleger & Harrisoa 
Labor Cases 

The Carpenters' Strike and the Industrial Association 

Waterfront Strikes and Controversies 

During World War II 

An Aside: The Liquidation of the Panama-Pacific 
Exposition Company 

The 1934 Longshoremen's Strike and Arbitration 



1 
1 
3 



10 
14 
14 
17 
18 
19 
21 
23 
25 
26 
27 
23 
30 

34 
34 
37 
40 
.41 
42 
45 
45 
48 
49 
51 



63 
63 
69 



76 
77 



Maurice Harrison and the U.S. Supreme Court 

The Di Giorgio Cases 88 

The Hawaiian Islands and the Matson Navigation Company 92 

Representing the Hawaiian Sugar Planters Association 96 

Public Utilities Cases 100 

Banking Cases and Contacts 107 

Union Oil Company 112 
Representing the William Randolph Hearst Family 

John Francis Neylan 117 

Trustee, Mills College 119 

Recollections of Earl Warren 122 
Yosemite Park and Curry Company 

Stanford University 131 

Associations with Dr. Donald B. Tresidder 131 

Service on the Board of Trustees 132 

Disposition of the Stanford Farm 138 

Selecting Dr. Tresidder 's Successor 140 

Associations with Herbert Hoover 142 

Stanford Medical School 146 

The Stanford Linear Accelerator and Other Federal Grants 147 

III ASSOCIATE DIRECTOR, LEGAL DIVISION, U.S. MILITARY GOVERNMENT 

OF GERMANY 149 

Appointment, Arrival in Berlin, and Settling In 149 

Organization of the Military Government of Germany 153 

Some Observations on Germany After the War 155 

Drafting the Laws for the New Germany 158 

Conditions in Berlin After the War 160 

The Frankfurt Conference, August 28-30, 1945 163 

Sports and Spectaculars 165 
The Problem of Vesting German External Assets: An 

Inspection Tour 166 

The Nurenberg Trials 168 

A Visit to Hitler's Bunker 173 

Germany Revisited: 1965 175 

Further Recollections of the Associate Legal Directorship 179 

IV LEGAL ADVISER, U.S. DEPARTMENT OF STATE, 1953-1957 183 

An Interlude of Practicing Law 183 

An Invitation to Join the Eisenhower Administration 184 

Inauguration and Confirmation 188 

Protocol 138 

Secretary Dulles, the Undersecretaries, and the Foreign Service 191 

The Confirmation of Chip Bohlen as Ambassador to Russia 195 

The Status of Forces Treaty 196 

Senator Joseph McCarthy and the State Department 197 

The Bricker Amendment 199 

Executive Privilege and the Imperial Presidency 201 



International Conferences 205 

Tenth Inter-American Conference at Caracas, Venezuela 205 

The Indochina Conference, 1954 206 

The Manila Conference, 1954: the Creation of SEATO 208 

A Treaty with the Republic of China 211 

The Geneva Summit Conference, 1955 212 

A Visit to Tito's Yugoslavia 218 

The Suez Crisis and Conferences, 1956 219 

The Formulation of the Eisenhower Doctrine 229 

The Near East Resolution and the Eisenhower Doctrine 230 

The Bermuda Conference, 1957 232 

Resignation from the State Department 233 

State Department Attitudes Toward the French 236 

Sputnik and the Legal Ramifications of Orbiting Objects 238 

V CONTINUING CONTRIBUTIONS TO FOREIGN AFFAIRS, 1957-1975 240 
Representative to the Permanent Court of Arbitration of the 

Hague Conventions 240 

U.S. Representative at the Thirteenth General Assembly of the 

United Nations 244 

Antarctica Conference, 1959 247 

The Conference 247 

Senate Ratification of the Antarctica Treaty 251 

Review of Herman Finer, Dulles Over Suez 255 

Eleventh Dominion Legal Conference, 1960 257 

Dedication of Kendrick Hall, University of San Francisco, 1962 259 

European-American Assembly on Outer Space, 1962 259 

Clay Committee, 1962 260 

Arms Control and Disarmament Advisory Committee , 1962-1975 262 

VI PUBLIC AFFAIRS, COMMUNITY, AND FAMILY 270 

American Bar Association Commission on Electoral College Reform 270 

Opportunities Rejected 272 

Clubs 274 

Being in the Right Place at the Right Time 275 

Charitable Activities 276 
Mary Elena Macondray Phleger and Her Family 

Homes 282 

APPENDIX A - Remarks by Herman Phleger at the 100th Anniversary 

of Sacramento High School, June 2, 1956 285 

APPENDIX B - Remarks by Herman Phleger at Funeral of Newton B. 

Drury, December 18, 1978 295 

INDEX 299 



INTRODUCTION 



I first met Herman Phleger in the summer of 1948 at the California Club 
in Los Angeles. At that time I was reasonably active as a student of 
international affairs. Knowing this, the late Dr. Seeley Mudd of Caltech 
invited me to lunch to meet Mr. Phleger who, said Dr. Mudd, might have much 
of interest to report on the Nuremberg trials of Nazi war criminals. I was 
unaware that Mr. Phleger was a trustee of Stanford University and, indeed, 
on the Trustees Committee to select the university's fifth president. 

The luncheon was a happy occasion. There was discussion of the trials, 
but somehow it moved to matters of higher education. Even so, I remained 
utterly innocent of the fact that I was being "looked over." I did not even 
know that Dr. Mudd was also then a Stanford trustee. 

After my election to the Stanford presidency, my wife and I received 
several letters of welcome; none conveyed more warmth and assurance than the 
letter from Mr. Phleger. Since then, more than thirty years have passed, 
during which time my wife and I have repeatedly learned how really genuine 
was the warmth of that welcoming letter. Again and again we have been guests 
in the Phleger home, frequently to meet persons of distinction with whom 
Mr. Phleger had worked at more than a few high-level international conferences, 
and always to enjoy elevating conversation. My wife and I treasure the 
abiding friendship thus born and sustained. 

Mr. Phieger's distinction as a lawyer, his manifold services to the 
Bay Area community, his tours of duty as a ranking officer of our national 
government, his broad experience in the business world — all these need no 
comment or elaboration from me, except an emphatic word of admiration and 
gratitude, because they speak for themselves. 

His long membership on the Stanford Board of Trustees made me the 
beneficiary of just one of his many good works, and it was in this association 
that I knew him best. He was faithful in attendance at meetings, with his 
homework well done. Even during the four years he served in Washington as 
legal adviser to the Department of State, he kept in close touch with Stanford 
affairs . 

As a trustee, he was a force to be reckoned witn: He was formidable in 
debate of critical university policies, but laughter came as readily from 
his lips as did probing questions. My particular admiration and appreciation 
of bis trusteeship stemmed from his genial but firm insistence that recom 
mendations from the president's office be scrutinized and justified. This 
made for more careful staff work by the executive officers of the university 



ii 



which, in turn, made for better administration. As the university grew in 
strength and stature, attendant problems arose to the solutions of which 
Mr. Phleger contributed a succession of original and useful ideas. 

The honors that have come to him from his alma mater, from his 
profession, from the worlds of education and government, have been richly 
deserved, more so than he would ever mention: I congratulate the University 
of California on having such a distinguished alumnus and for placing on 
record his oral history of so varied a career; also I thank my good fortune 
in having had not only his counsel and support in his capacity as a Stanford 
trustee, but also his personal friendship. Given his wide-ranging 
accomplishments, it is a joy to observe that the passing years have neither 
dimmed the sharpness of his mind nor dulled the youthfulness of his spirit. 
I am proud and grateful to have been given the opportunity of writing this 
introduction to his oral history as a personal salute to Herman Phleger. 



J.E. Wallace Sterling 
Chancellor, Stanford University 



12 March 1979 
Stanford University 
Stanford, California 



iii 



INTERVIEW HISTORY 



Herman Phleger, a member of the University of California's illustrious 
class of 1912, was interviewed to document his distinguished career, spanning 
five decades, in law and public service. He has served as counsel to many 
prominent businesses in San Francisco and the western United States; as 
associate director of the United States military government in Germany after 
World War II; as legal advisor to the United States Department of State under 
John Foster Dulles; as U.S. representative to the Indochina Conference, the 
Suez Conference, Summit Conferences, the Antarctica Conference, and others; 
and as trustee to Stanford University, Mills College, and Children's 
Hospital. 

With this memoir he joins several Class of 1912 alumni whose 
interviews are part of The Bancroft Library's collection, among them: 
Newton Bishop Drury, Horace Albright, and Earl Warren. 

In mid-1977, when the Chancellor's office invited Mr. Phleger to work 
with ROHO in tape recording his memoir, he graciously accepted with the 
proviso that the interviews would focus on events in his education and 
career that offered eye-witness historical information or insight otherwise 
largely unavailable. 

After an initial planning session, a series of interviews, conducted by 
Miriam Stain, was commenced on September 16, 1977, and continued at more or 
less weekly intervals for a total of eleven sessions. The interviews were 
conducted in Mr. Phleger' s office at the law firm of Brcbeck, Phleger and 
Harrison, San Francisco. 

Mr. Phleger prepared carefully and thoroughly for the interviews by 
reviewing his extensive collection of papers and extracting documents 
relevant, to each session, which he referred to during the course of the 
interviews. As part of his effort to preserve this information for future 
scholars, he donated his papers to The Bancroft Library. This rich 
collection includes diaries, government documents, clippings, photographs, 
and valuable memorabilia. 

The transcription of the taped interview was first lightly edited by 
the interviewer for clarity, and was then carefully reviewed by Mr. Phleger. 
He made a number of thoughtful additions and corrections, with the goal of 
providing a document as historically accurate as possible. 

The Phleger collection of papers and interviews illuminates not only 
his distinguished career, but also life in turn-of-the-century Sacramento, 
education at the University of California, and the history of the Atherton 
and Macondray families, from whom Mrs. Fhleger is descended. 



iv 



On deposit in The Bancroft Library as part of the Phleger papers are two 
shorter interviews, one conducted by the John Foster Dulles Project, Princeton 
University, and one by the Herbert Hoover Oral History Project for the Hoover 
Institution, Stanford University, and the Herbert Hoover Presidential Library. 



Miriam Feingold Stein 
Interviewer-Editor 



19 April 1979 

Regional Oral History Office 
486 The Bancroft Library- 
University of California at Berkeley 



CURRICULUM V1TAE 
HERMAN PHLEGER 

Born Sacramento, California, September 5, 1890 
University of California, Berkeley, B.S. 1912, LL.D. 1957 
Mills College, LL.D. 1938 

Alumnus of the Year, University of California, 1958 
Regent Professor, University of California, Berkeley, 1965 
Boalt Hall Alumni Association Annual Citation Award, 1964 
The Berkeley Citation, University of California, 1970 

Legal Education: University of California, Berkeley, and 

Harvard Law School 

Lieutenant (J.G.) U. S. Navy, 1917-1918 

Associate Director Legal Division, U. S. Military Government 
of Germany, 1945 

President Pacific-Union Club, 1952-1953 

The Legal Adviser, Department of State, 1953-1957 

U. S« Member Permanent Court of Arbitration under The Hague 
Treaties, 1957-1963, 1969-1975 

U. S. Representative, 13th General Assembly United Nations, 1958 

Chairman of Antarctica Conference and U. S. Representative 
with Rank of Ambassador, 1959 

Member U. S. Arms Control and Disarmament Advisory Committee, 
1962-1970. Appointed by President Kennedy and Johnson. 

Member U. S. Delegations 

Tenth Interamerican Conference, Caracas, 1954 

Indo-China and Korean Conferences, 1954 

Sea to Conference, Manila, 1954 

Summit Conference and Foreign Ministers Conference, 

Geneva, 1955 

Suez Conferences , London, 1956 
Bermuda Conference, 1957 



vi 

Trustee Stanford University, 1945-1965, Emeritus 1965- 
Mills College, 1927-1939 
Irwin Charity Foundation, San Francisco 
Roth Charity Foundation, San Francisco 
President, Board of Trustees, Children's Hospital 
San Francisco, 1930-1950 

Member Council on Foreign Relations 
Links Club (N.Y.) 
Metropolitan Club (Washington, D.C.) 
Pacific-Union Club (President 1953) 
Bohemian Club 
Burlingame Country Club 

1963 Committee to Strengthen The Free World (Clay Committee) 
Appointed by President Kennedy to prepare 1963 Program 
for Foreign Aid 

1965 Regents Professor, University of California, Depart 

ment of Political Science 

1966 Member American Bar Association Commission on Electoral 

College Reform 

Partner Brobeck, Phleger & Harrison, San Francisco, 1926-1976 
Counsel 1977- 

Member American Bar Association (Fellow); American Society 
of International Law, International Law Association 

Office 111 Sutter Street, San Francisco,, California 94104 
Residence Mountain Meadow, Woodside, California 



Sometime Corporate Directorships 

- T_-L_T I ^-•mH^^M^M 

Wells Fargo Bank - Wells Fargo & Co. (American Trust Cocapa 

Fibreboard Corporation (Pabco Products) 

Union Oil Company of California 

United States Petroleum Company 

The California-Oregon Power Company 

Matson Navigation Company 

Oceanic Steamship Company 

Moore Dry Dock Company (Moore Shipbuilding Company) 

Cypress Lawn Cemetery Association 

The Newhall Land and Farming Company 

White Investment Company 

Gladding, McBean & Company 

Las Posas Orchard Company 

Crocker Hotel Company 



vii 

Tillman & Bend el Inc. 

Parkside Realty Company 

Dumbarton Bridge Company 

California-Arizona Bridge Company 

Italian Swiss Colony 

Holly Sugar Company 

Moore Investment Company 

Moore Securities Company 

Pacific Securities Company 

Empire Company (Roy N. Bishop) 

Green Investment Company (C. E. Green) 






I BACKGROUND AND EDUCATION 

[Interview 1: September 16, 1977] 
[begin tape 1, side 1] 



Forebears 

Stein: Can you trace your family as far back as your grandparents or 
farther? 

Phleger: I was born in Sacramento on September 5, 1890. My father was 
Charles W. Phleger and my mother was Mary McCrory. 

My father was born in Findlay, Ohio and as far as we can 
learn, had several brothers and sisters, none of whom catne out 
here. As you would judge from the name, he was obviously of 
German descent but we have never attempted to trace his family 
very far back. His ancestors evidently came to America a long 
time ago and first settled in Baltimore and then moved to Findlay, 
Ohio. 

My mother was born in New Orleans of Irish parents. On a 
trip to Europe in 1914 we visited the house in County Mayo, 
Ireland, where her ancestors came from, an area described by my 
grandmother as so poor that even a chicken couldn't scratch a 
living. 

My father died when I was two years old, leaving my mother 
with four children to support and bring up, which she did, putting 
them all through the University of California. After my father's 
death, she became a teacher in the Sacramento grammar school where 
she taught physiology for many years until she retired in the 
early 1920s. I was in her class in due course and found she 
devoted a considerable time to teaching the horrors of drink, a 
prescribed subject in the curriculum of our schools of that day. 
As I remember it, my mother never received a salary of more than 
ninety dollars a month during all the time she taught school. 



Phleger: Fortunately, my father had left some real estate which helped 
out, but we were on meager rations during our childhood, which 
didn't hurt us a bit. 

Stein: Who were your brothers and sisters? 

Phleger: My oldest sister was Inna, who graduated from the University of 

California and taught for a few years before she married George G. 
Pollock, a successful engineer and owner of Pollock Construction 
Company. She had three sons, two of whom are now living. 

My older brother, Carl, also went to Berkeley where he was 
quite a famous football player. After graduation he entered 
business with the firm of E. Clemens Horst, growers and sellers 
of hops. After service in the army in World War I, he went 
into the oil business in Ventura and continued until his retirement 
many years later. He died at the age of eighty-five. 

My younger sister, Marie, also went to Berkeley and on 
graduation taught school for a number of years until she married 
another graduate, Forrest Plant, who later became superior judge 
in Yolo County, having studied at Boalt Hall. Her son Forrest is 
now a leading lawyer in Sacramento where he is the senior member 
of the Diepenbrock firm. He has served as president of the State 
Bar of California and is currently president of the Alumni Associa 
tion of the University of California. 

Stein: What sort of training or education did your mother have to prepare 
her for teaching school? 

Phleger: She was a graduate of the school system of Sacramento and was a 
good student but she had no training beyond high school. In 
those days, most teachers did not have the benefit cf either a 
normal school or university education. In fact, I think that few 
of my teachers in grammar or high school were graduates of a 
university. 

Stein: That's a comment on a whole era. Do you know much about hew her 
family came to settle in California? 

Phleger: No, I don't. They came from Ireland and after stopping a few 

years in New Orleans, came to California. My father died at the 
age of thirty-four. He was the manager of the Monument Ranch, 
Senator James Fair's ranch on the Sacramento River, and also had 
real estate interests. We never attempted to trace my family 
back any distance but the name Phleger, while not a common one, 
is borne by Rear Admiral Charles C. Phleger who has communicated 
with us, and there is also an eminent oceanographer and educator, 
Fred B. Phleger. 



Phleger ; 



Stein: 



Phleger: 



Some years ago when I was in New York a friend who collects 
etchings gave me a D'urer etching. The etching is of Ferdinand 
Pfleger and shows him in his regalia as an official of Nurnberg 
in the 1400s. I do not know whether he was an ancestor or not 
[laughs]; I have never claimed him. 



Who is going to say, without any evidence to the contrary, 
can always claim him and he certainly wouldn't deny it. 1 



You 



Do you have any idea how your father's family happened to 
settle in California or why your father came out here? 

I think he came out here because he was seeking his fortune in 
the West and settled in Sacramento. 



Growing Up in Sacramento 



Sacramento at the Turn of the Century 



Stein: That brings us, then, to your growing up as a child in Sacramento 
at the turn of the century. Could you describe briefly what 
Sacramento in that period was like? 

Phleger: When I was a child Sacramento was an attractive city to live in. 
There were, as I recall it, about thirty thousand residents. It 
was surrounded by levees on four sides: on B Street, Y Street, 
Front Street, and 31st Street. Almost every winter the city 
would be entirely surrounded by flood water. I would climb up to 
the top of the dome of the state capitol and see water in all four 
directions. Over the years, with the building of the bypasses 
and the reclamation districts, the flood waters are carried past 
Sacramento and it is no longer an island in the winter. The 
elevated causeways that still lead from it give evidence of how 
much water used to flow by in the wintertime. 

There was a considerable Chinese population in Sacramento at 
that time. The men all wore braided pigtails that came down below 
their waists and most of them wore stiff round black skull caps 
with a little red button on the top. They handled most of the 
vegetable business. Every morning a wagon filled with vegetables 
and driven by a Chinese would come to your house and we would go 
cut and buy vegetables for the day. 

Food was plentiful. In the summertime the boys would pick 
fruit in the surrounding orchards. It was, of course, very warm 
in die summer and very rainy in the winter. In the summer the 



Phleger: children with few exceptions went barefoot. When school started 
in the fall we would put on stockings and a little later, our 
long Johns. 

The houses had no heating except wood stoves, one usually in 
the living room and one in the kitchen. There was no such thing 
as central heating and air conditioning hadn't even been invented. 

Food was plentiful and cheap. I recall you could buy a brace 
of wild duck at Dierssons Market on J Street for fifty cents. The 
market hunters would bring in wild duck by the hundreds, shot by 
what was known as ground sluicing—shooting an oversize shotgun at 
sitting ducks, the gun loaded with buckshot or nails. 

Our home, where I was born and lived until I went to college, 
was at 6th and M, which is now 6th and Capitol Mall. Across from 
us was a building known as the Pavilion, the second or top floor 
of which was a large auditorium. The ground floor was filled with 
old Wells Fargo stagecoaches which belonged to Ben Crocker, a 
member of the Crocker family. The Pavilion was a continuous source 
of entertainment as it was used for everything from political 
rallies to prize fights. I had the advantage of seeing many 
famous fighters, such as Joe Cans and Stanley Ketchel, fight in 
the Pavilion. I had the privilege of a secret entrance. 

Many political rallies were held there. A political rally in 
those days was an exciting occasion. I remember when William 
Jennings Bryan spoke in the Pavilion. (I think it must have been 
in 1896.) He was escorted to the Pavilion by a torchlight parade, 
in which every marcher carried a little lighted can of kerosene at 
the end of a pole. Outside, at the intersection of 6th and M 
Streets, a large bonfire was built, a common practice whenever 
there was a political rally. After the meeting, the boys would 
gather and roast potatoes in the embers of the fire. 

Of course, there were no automobiles. I remember the first 
automobile I saw. It was about 1900 and belonged to Charlie Fair, 
who was the son of Senator Fair. He was killed years later in an 
automobile accident in France. The word spread that there was an 
automobile in town up at the blacksmith's shop on 6th between J 
and K and we went up to see it. The car had broken down and the 
blacksmith was trying to repair it. 

Stein: What did the rest of you use to get around in? 

Phleger: There were streetcars in Sacramento, but transportation was bicycles 
for the children and horse and buggy for the older people. 
Sacramento was almost a level plain so when automobiles first 
came in, almost all were electric, because it took little power 
to run them. 



Stein: You mentioned the streetcars. Were they electric? 

Phleger: Sacramento enjoyed electricity earlier than almost anyplace in 

California. The first hydroelectric power plant in the state was 
at Folsom. That power was transmitted from Folsoui to Sacramento 
over wires and was, at the time, one of the longest electric 
transmission lines in the country. As a result, we had electric 
streetcars and also electric lights in Sacramento in the 1890s. 

Sacramento also enjoyed gas, natural gas, probably the first 
city in the state. A gas field had been discovered between 
Sacramento and Stockton and the gas was brought in, distributed, 
and sold by the Sacramento Natural Gas Company. It was years later 
before gas from Southern California came in. 

Stein: When you were talking about the levees, earlier, did the water 
effectively isolate Sacramento from surrounding communities in 
the winter? 

Phleger: In Sacramento in the wintertime the only access was by rail. The 
railroads built up embankments or trestles so you could get in and 
out, but for considerable periods in wee winters there was no 
other access. 

There were two great trips for the high school football teams: 
one to Woodland and the other to Auburn. We had to leave on Friday 
and stay over Friday night and Saturday night and return on Sunday. 
The schedules were not of such frequency that you could make the 
trip both ways in one day. So it was always great fun to go to 
those games, because we had to stay overnight and we'd have dances 
and otherwise enjoy ourselves. 



Schoolday Memories 



Stein: Talking about your school experiences, where did you start out in 
school? 

Phleger: I went right through the public schools in Sacramento from the 

first grade and maybe the kindergarten and through grammar school 
and high school. The grammar school was quite an imposing 
structure at 16th and J Street:. There I made a number of lifelong 
friends, including Newton Drury. He has made a great contribution 
to the nation in founding and managing the Save -the -Redwoods 
League as well as serving as Director of National Parks and later 
as Director of State Parks and Beaches. 



Phleger: As for amusement: there were, of course, no radios, TV's, 
movies, automobiles, or anything like that; it consisted mostly 
of self -entertainment . Everyone could recite a bit of poetry, 
sing, play an instrument, or otherwise entertain. One of the 
amusements in which Newton Drury was active was the minstrel 
show. It consisted, as you may remember, of a row of performers 
made up as darkies with blackened faces and an interlocutor 
dressed in all-white sitting in the middle. We had one group 
called the Looney Minstrels which performed frequently and provided 
a great deal of entertainment. There were dances ad_ nauseum. 
But we had a good time. 

Currency consisted of coin of the realm; larger denominations 
of gold, smaller of silver. We had plenty of big silver dollars, 
but no pennies, they were too small. Paper money was rarely seen 
and was regarded with suspicion. 

Of course, pocket money was a problem. I would deliver news 
papers, usually the San Francisco Examiner on Sundays, or work as 
a bill collector. For two years in high school I was head chairman 
on a state surveying crew that surveyed what is now Route 50 to 
Lake Tahoe. I also was one of the party that surveyed for a road 
around Emerald Bay on Lake Tahoe, there being no road in those 
days between Tallac and Tahoe Tavern. 

Stein: At these dances who would provide the music? 

Phleger: Well, the music was provided by adult orchestras. There were no 
student orchestras. The favorite dance hall was Gambrinous Hall, 
the local Turnverein located over a saloon en K Street. It had 
what we called a spring floor. The annual school dances were 
elaborate affairs. The boys rented hacks in which they escorted 
their partners. Each boy had a dance card and dances were traded 
days in advance so that by the night of the dance everybody knew 
who they were going to dance with. An essential requirement was 
a bouquet for the girl. We saved for weeks to put on a big show 
at the appropriate time. 

Prices were not high in those days. I remember as a youngster 
getting my hair cut at a barbershop on K Street next to the livery 
stable by an elegant gentleman named Jake Wilson. He charged 15«f 
a haircut and gave you a bag of candy to boot. 

Stein: That must have been quite a treat then. 

Phleger: It sure was I We would have hayrides in the summertime and sometimes 
barge trips on the Sacramento River. The river was a great feature. 
At the foot of N Street there was a fish cannery which canned local 
salmon. During many years after that, because of increasing 
pollution and decreasing flow, salmon and all game fish disappeared 



Phleger: from the river. Now with the building of the Shasta Dam, with 
plenty of cold water even in the summertime, and the decrease 
in pollution, game fish, including the salmon, have returned. 
Before the dams, so much water was taken out of the rivers for 
irrigation in summer they were almost reduced to a trickle, 
particularly the American and the Sacramento. 

There was a great deal of freighting on the Sacramento 
River, freight being transported as far north as Red Bluff, 
usually on barges. The pilots were expert and some of the tow 
boars would tow a string of barges that might be a quarter of a 
mile long. 

Stein: When you mentioned these dances being held at that hall above the 
saloon, I wondered, especially with your mother's stern lectures 
in school about the evils of alcohol, if there had been any 
concern among the parents about their children going to a dance 
in such a location. 

Phleger: There was no such thing as drinking among the students. When we 
were in high school, maybe once in awhile someone would buy a 
beer at Rhustaller's Brewery for 5«( a twenty-six-ounce glass. 
There was also another brewery in Sacramento, the Buffalo Brewery. 
Maybe once a year we would make a tour of the Buffalo, which was 
generous in giving us a glass of beer as we went through to see 
the machinery. But drinking was not something that was indulged 
in by the students. Socially it wasn't the thing to do and besides 
that, nobody had enough money to buy liquor. 

Stein: So , in other words, the parents would have no worry. 

Phleger: I never saw an intoxicated student in all the years I went to 
school in Sacramento. Maybe the lessons my mother gave in 
physiology about the horrors of alcohol had some effect on that. 
[Laughter] 

Stein: Who would sponsor these dances and the hayrides? 

Phleger: They would usually be planned by the students. That is, a committee 
in the school would plan the dances and everyone would pay his 
share. They were not expensive, I might add. 

Stein: I think that Newton Drury in his oral history memoir made some 
reference to a newspaper that you and he worked on in grammar 
school.* 






*See Newton Bishop Drury, Parks and Redwoods, 1919-1971, Regional 
Oral History Office, University of California, Berkeley, 1972, p. 42 
Courtesy, The Bancroft Library. 



8 



Phleger: We did. When I was in grammar school and Newton Drury was in 

my same class we started a newspaper. It consisted of about four 
pages and would come out at odd times. We had a set of type and 
a small press and between the two of us we would writs the contents, 
set the type and print it. 

Stein: What sort of news would you be reporting? 

Phleger: [Laughter] Well, it was so inconsequential, I can't remember. It 
was about the doings in the school; maybe the Looney Minstrels 
were scheduled to play and so forth. 

Stein: School happenings, in other words. 

Phleger: School happenings, yes. We did not attempt to deal with inter 
national affairs. 

The community entertained and amused itself. I remember what 
a big day the Fourth of July was. It started off early in the 
morning in front of a saloon on 6th and L where the men would come 
out from the bar and borrow two anvils from the blacksmith shop 
next door. They would go out in the dirt street and place one 
anvil on top of the other, fill the space between with black 
powder and set it off with a loud explosion. 

Later in the day there was a parade and civic exercises in the 
Clunie Opera House. I remember on one Fourth being given the 
honor of reading the Declaration of Independence from its stage. 
This reading was always part of the Fourth of July program. 

Various racial groups would celebrate on their national 
holidays. The Caledonians would have a picnic in one of the 
parks, replete with Caledonian dances and sports, which everyone 
would go to. Of course, the State Fair in September was a great 
event. 

The State Legislature met every other year and it was fim to 
sit in the gallery of the senate or the assembly and listen to 
the proceedings. I got to know a number of the governors: [James 
N.I Gillett of Eureka; Dr. [George C.] Pardee of Oakland, who had 
two attractive daughters, and, of course, Hiram Johnson, who had 
been a classmate of my mother in high school and whom I got to 
know well when he became U.S. Senator. 

Stein: So he had grown up in Sacramento also? 

Phleger: Yes, he was the son of Grove L. Johnson, who was a lawyer in 
Sacramento. My mother always said that the "L" in Grove L. 
Johnson stood for "lacrimous" because on occasions when he 
addressed the jury, tears would course down his cheeks. [Laughter] 



Phleger: He was also responsible in a way for my locating in San 

Francisco rather than Sacramento to practice law. In 1914, when 
I went to Europe with my mother, we met Grove L. Johnson in 
London. He asked me what I was going to do and I told him I 
hoped to be a lawyer. He said, "Well, when you are ready to 
start practice, don't locate in Sacramento. Locate in San 
Francisco. In Sacramento if you file suit to collect a note, 
it's usually a thousand dollar note. In San Francisco when you're 
asked to collect a note, it's usually for $100,000, which isn't 
any more work than collecting the thousand dollar note, and you 
can charge a much larger fee." As you can see, it was quite 
practical advice. 

Stein: Getting back to your school days, to finish up the newspaper 

story, I believe that Mr. Drury mentioned something about your 
ingenuity in making up for the lack of sufficient type. 

Phleger: We had a font of type that was not complete. One day when we ran 
out of commas, I found that we had a surplus of semicolons, so I 
made commas by chiseling off the period on the top of the semicolons. 
He always thought that was a great invention. [Laughter] 

I mentioned how cheap food was. All year around there were 
street vendors, including the chicken tatnale man. He had an 
orange box with four wheels which he would push around, ringing a 
small bell and crying out--"Hot chicken tamales ten cents'" We 

always claimed that it wasn't chicken but sea gull. Anyhow we ate 
them and enjoyed them. In the corn season we had street vendors 
who sold "sweet Alameda hot corn" for ten cents a cob. 

Stein: When you say Alameda corn, is that a reference to its having been 
grown in Alameda? 

Phleger: I'm sure that's what it was intended to mean, whether the corn was 
grown in Alameda or not, but that's what they used to cry out. 

One of my first jobs during the summertime in Sacramento was 
at the warehouse of the Central California Canneries at Sixth and 
B Streets. The job was trucking cases of canned fruit or vegetables 
from one spot to another with a special kind of hand truck. The 
pay was twelve and a half cents an hour for a ten hour day, 
including Saturdays. So I earned the munificent sum of $1.25 for 
a ten hour day and it never hurt me a bit. 

There was no visible evidence of the federal government when 
I was a child in Sacramento except the postman and the money. The 
post office was the only federal building in Sacramento. 



10 



Phleger: Because of the hot weather in summer we would look forward 
every year to a two-week vacation at Pacific Grove where we 
could enjoy the cool weather and the fog. We went usually in 
August for two weeks and stayed at the El Carmelo Hotel where 
we ate at long tables seating sixteen people. There was always 
plenty of milk and other wholesome food and I imagine the cost 
was moderate indeed. 

Stein: How would you make the trip from Sacramento to Pacific Grove? 

Phleger: Well, because of my mother's friendship with some of the officers 
in the railroad, we would get passes. We would take the 8 a.m. 
train in Sacramento and come ninety miles to San Francisco, which 
took four hours. After lunch in San Francisco we would take the 
Del Monte Express, to Monterey and Pacific Grove. It was a whole 
day's journey. The stopover at San Francisco was one of the 
features of the vacation. 

Stein: That really is quite an undertaking for a woman alone with four 
children and all the luggage for a two-week vacation. 

Phleger: It sure was.' That's right, it was indeed. 
Stein: She had quite a bit of stamina. 



High School Days 



Phleger: 
Stein: 



Phleger: 

Stein: 
Phleger: 



I don't know whether you want me to deal with the high school. 

I was just going to say that you have sent me the remarks you 
made at the 100th anniversary of the high school and we will 
include that with the interview.* I think that there you give a 
very nice description of your education and some of your teachers, 

Yes. That's much better than my present recollection because 
that was done some years ago. An interesting thing about that; 
most of those teachers were in the audience when I spoke. 



You mentioned that you played football, 
high school? 



Was that all through 



We had athletics at high school. There was a football team and a 
track team and a tennis team. We had no gymnasium, and physical 
education had no place in the school curriculum. We used to 



*See Appendix A. 









Phleger : 



11 



Phleger: practice football on the capitol grounds on the grass. Our coach 
was a kindly druggist by the name of George Lichthart, who 
received no salary. We would have a regular schedule in the fall 
which included Stockton, Woodland, Auburn, Marysville, and Chico. 

The money requirements were minimal. We would charge an 
admission at the games which was sufficient to cover our travel 
expenses and a certain amount of advertising to get the crowds. 
Of course, we played on a baseball diamond which was as hard as 
cement but we didn't suffer any grievous, permanent damage. 

Stein: In terms of your academic career in the Sacramento schools, were 
there any subjects that you particularly enjoyed or excelled at? 

I wouldn't say that I excelled at any of them, but I enjoyed 
them all. I was lucky enough to take part in the graduation 
exercises at both grammar school and high school. Our high school 
graduation was in the assembly chamber at the state capitol, that 
being the best auditorium available. 

Stein: What was the nature of your participation? 

Phleger: We usually put on a play or you would recite poetry or do something 
like that. I remember dressing up in a Japanese costume for 
graduation from grammar school. 

Stein: That's quite exotic for a small, country school. Before we leave 
the subject of Sacramento, one other question I had concerned what 
sort of religious education and upbringing you had. 

Phleger: There were a number of churches, of course, in Sacramento. My 
grandmother, my mother's mother, was a Catholic. The story is 
that I was taken at an early age and baptized in the Catholic 
faith but it evidently didn't take because I never practiced 
Catholicism or went to the Catholic church. 

[end tape 1, side 1; begin tape 1, side 2] 

Stein: You were saying that you used to go to Sunday school in the 
Congregational church from time to time. 

Phleger: Yes, I was usually lured by the prospect of winning some sort 
of reward for attendance and I alternated between the various 
churches depending upon the program which seemed to offer the 
greatest reward. I'm afraid I was not much of a prospect for 
religion. 

I might mention again the low cost of living in Sacramento. 
We had a hotel there called the Land Hotel where the charges were 
$1.25 a day for board and room and single meals were 25^. Coffee 



12 



Phleger: was sold by Lindley and Company, wholesale grocers, for 25d a 
pound. At some of the grocery stores, you could buy a flat of 
freshly picked tomatoes for 15^. A flat was a small wooden box 
holding one layer. 

When we were in high school there was a campaign to move 
the state capitol from Sacramento to Berkeley. Mason-McDuf f ie, 
a real estate company in Berkeley, conceived the idea and made 
some inducements in the way of land and so forth. The question 
was decided finally in a statewide election in which the people 
voted by not too large a margin to keep the capitol in Sacramento. 

Stein: Did you get involved in the electioneering at all? 

Phleger: I participated in most elections to the extent of passing out 

bills and pamphlets. One job I had over a period of years was on 
Saturday mornings to deliver the Store News put out by Weinstock, 
Lubin & Company, a local department store. We would go to the 
store early on Saturday morning and get the Store News, which was 
a four or eight page folder describing the sales they were going 
to have the following week. We would then go out on our assigned 
routes and deliver them to every house, being required to put the 
news under the front door, this requiring running up the front 
stairs. 

That was more of a job than you'd think. Sacramento had been 
inundated by floods so often that almost all of the homes were 
built so the living floor was fifteen or twenty feet above the 
ground and reached by a long flight of steps. So as we went around 
to distribute the Store News, we had to run up a long flight of 
stairs at each house to make proper delivery. 

Stein: Would the houses be built on piles? 

Phleger: No, the bottom floor would be closed in and used for storage or 
laundry or some purpose such as that. The living quarters floor 
would be so high that a nine or ten foot flood would not reach 
the living quarters. The sidewalks in Sacramento were originally 
built of wood planks and when cement sidewalks came in, planks 
at our house were taken up and put into the basement, so-called. 
It was my job for years to saw and split these planks to make fuel 
for the stoves. 

The residential streets were made of dirt. Later, they were 
macadam and then when asphalt came in, they turned to asphalt. 

Stein: Did the earthquake in San Francisco have any effect? 



13 






Phleger: My mother, who was very enterprising, had gone down to San 
Francisco a few days before the earthquake, to hear the 
Metropolitan Opera with [Enrico] Caruso. On April 18, I was 
awakened by a sound like rushing wind accompanied by a series 
of shakes. A little later we learned of the earthquake in San 
Francisco. Our mother had to spend a couple of nights in Golden 
Gate Park. The first news we had that she was safe was when 
she came in on a train three days later. In the meantime, we 
had met every train from San Francisco. 

Stein: That must have been terrifying. 

Phleger: It was indeed. 

Stein: Did she tell stories afterward of her experiences? 

Phleger: Oh, she had stories like everybody who went through the earth 
quake: how they got out and how they lost most of their belongings 
and how they cooked in the street. 

Stein: Where was she at the time of the earthquake? 

Phleger: She was in the Hotel Argyle on McAllister Street, near the City 
Hall. 

Stein: Did she have any difficulty getting out of the hotel? 

Phleger: No, just the difficulty that everybody had. Of course, it was not 
only the earthquake but the fire. In Sacramento the earthquake 
made a very definite sound and while there was no physical damage, 
we suffered with the San Franciscans since we received news of 
the spread of the fire and the other horrors as they occurred, and 
we had no news of our mother. 

That summer of 1906 I got a job with the Southern Pacific 
Railroad. It consisted of going to Rocklin, which was then a 
division point forty miles east of Sacramento, with a good 
friend and schoolmate of mine, Joe Dillman. He and I alternated 
twelve hours day and twelve hours night in the railroad yards, 
taking down the number and description of the freight cars that 
came in from the east bound for San Francisco. There was such 
confusion and so much freight was shipped west that the railroad 
lost track of where the cars were. So it hired us to list and 
identify the cars when they arrived at Rocklin so they could be 
directed to various destinations around the bay and the consignees 
notified of the expected time of arrival. 

Stein: That sounds like quite a job. 



14 



Phleger: Well, it was an interesting job. I used to have fun years later 
telling the presidents of the Southern Pacific, whom I got to 
know, that I had worked for the Southern Pacific before they had. 
[Laughter] 

Stein: Of course, later on you did some work for the Southern Pacific, 
didn't you? 

Phleger: Yes, I did some work for the Southern Pacific. I don't know 

whether this is the place to put this in or not, but after I had 
been practicing for some years (I was quite young), I got a 
telephone call from Guy Shoup, who was the general counsel of the 
Southern Pacific. He was the brother of Paul Shoup, the 
president of the railroad. Guy Shoup asked me if I would come 
down and talk with him about a possible employment by the railroad. 
This must have been in the early 1930s. 

When I got down there, he said that the railroad had a 
contract with the Standard Oil Company for the delivery each day 
into the company's tanks at Tracy of 50,000 barrels of oil, the 
principal supply of fuel for the railroad. The contract provided 
that the price to be paid was the posted price in a certain oil 
field in Southern California. He wanted to know whether or not 
the contract was enforceable as it developed that the posted price 
at the specified field was fixed by Standard Oil. 

I told him I'd be delighted to render an opinion. He asked 
me what I would charge and added that the fiscal affairs of the 
railroad were run in New York by an executive committee headed by 
Julius Kruttschnitt and no expenditure of more than $5,000 could 
be made without the approval of the executive committee. I there 
upon told him that the fee for the opinion would be $4,500. I had 
the feeling that if the matter was submitted to New York for its 
approval, the work would probably end up in some New York law 
office. I got the employment, I delivered the opinion, and 
received the $4,500. 



University of California 



Fraternities 



Stein: I wonder if any more needs to be said about Sacramento? 

Phleger: I think we've covered that pretty well. Do you want to go on today 
with the University of California? 



15 



Stein: Okay, why don't we get started on that. How did you decide to 
go to the University in the first place? 

Phleger: Well, I had the ambition to be either an engineer or a lawyer 
and you couldn't be a good one of either unless you went to a 
university. At that time there were only two universities that 
we knew about, California and Stanford. Stanford charged no 
tuition, because income from its endowment was sufficient to run 
the university without charging the students. 

However, my older sister had gone to the University at 
Berkeley three years before, so I and my brother, who graduated 
in the same class from high school, decided to go down to the 
University at Berkeley, which we did. There were no entrance 
examinations in those days. You were admitted automatically if 
you passed the high school courses with adequate marks. So we 
went down to the University and engaged a room at the home of a 
retired minister who'd been in China for years. After we'd been 
there two or three months we were fortunate to be invited to join 
the Phi Delta Theta fraternity, which we did and moved to the 
fraternity house and spent the balance of our undergraduate years 
there. 

I must say that my fraternity experience was most fortunate 
and I don't think fraternities have been given due credit. They 
have been criticized as too exclusive and tolerating poor scholar 
ship an/3 drinking. They've had their ups and downs, but my 
fraternity experience was a valuable one and I wish other students 
could have a similar experience. 

We supplied our own food and lodging and entertainment. I 
think the amount I paid for food and lodging during the unversity 
years was about $35 a month. My total expenditure while I was in 
college did not run much over $50 a month, which I covered with 
my summer work and what I could pick up in Berkeley. 

You could have a suit made to order by Louis Scheeline, 
the college tailor, in Oakland, for $50 and it was a fine suit. 
Other costs were comparable. We had good food and the other 
members of the fraternity were fine men whom it was a pleasure 
to live with and with whom I have maintained lifelong friendships. 

Another valuable benefit was meeting the alumni and graduates 
of the fraternity. They were good about coming to fraternity 
dinners and affairs and giving it support. We had a fine group 
of alumni including Duncan McDuffie, of Berkeley; Wiggington 
Creed, who was a prominent businessman and later president of 
Pacific Gas and Electric Company and the East Bay Water Company; 
William Waste, who became chief justice of the Supreme Court of 



16 



Phleger: California; and a group of younger alumni. It was always a 
privilege to meet and talk with them when they dropped in, 
which was frequently. 

We had an athletic group in the fraternity. I think there 
were four of us on the football team, three on the crew, the 
captain and two or three others on the track team. I have a 
picture that shows that at one time we had eleven men in the 
house who were wearers of the Big C.* 

Now, I don't think we had any Phi Beta Kappas, but we 
were all reasonably good students. There were two or three 
from Tacoma and Seattle and five or six from Southern California: 
San Diego and Los Angeles. I kept up contact with my fraternity 
brothers for many years but most of them are now, of course, dead. 

I don't think college fraternities have ever gotten an 
adequate or fair appraisal. In my time, there were no dormitories 
at Berkeley. All the student housing was in boarding houses or 
in fraternities, sororities, or clubs. Anybody who went to college 
who didn't join a club, a fraternity, or a sorority lived at home 
or in a boarding house and many chose that course. I've heard much 
criticism of fraternities, but I don't know anybody who was hurt 
by belonging or not belonging to a college fraternity. 

I was, for at least two years, a member of the University 
Dormitory Committee charged with the task of providing dormitories 
for the University. Needless to say we were not successful, for 
during my entire college career there was never any dormitories. 

The first dormitory on the campus was provided through the 
generosity of Regent Philip Bowles of Oakland and, I think, was not 
built until the twenties. 

Stein: I believe you are right. How did you decide to join Phi Delta Theta 
or how did they decide on you? 

Phleger: The practice then was that when the new students arrived in 

Berkeley, they were looked over by the fraternities for desirable 
new members. They found out who you were and where you came from 
and whether you were an athlete or a good student, or a relative 
of a former member, and other relevant facts. If a student 
appeared to be a good prospect, he was invited to the fraternity 
house. If on this examination the student seemed a desirable 
addition, he was invited to join. If you wanted to join, you 



*See photo, 



17 



Phleger: accepted. I think my brother and I received bids from two or 

three fraternities, but we decided on Phi Delta Theta. I never 
regretted our choice. 



Student Life 



Phleger: The University in those days was considered a large one, but 
was small in terms of today's enrollment. I think there were 
all together about 3,500 students of whom 3,000 were undergraduates 
and 500 were graduates, so you got to know pretty nearly everyone. 
Many students who came from Alameda and Berkeley and Oakland and 
San Francisco continued to live at home and commute on the public 
transportation, which was cheap. You could travel on the Key 
Route, boat and train, or the SP [Southern Pacific] boat and train 
for ten cents. The streetcar fare from Alameda and Oakland was 
five cents. So the cost of getting to the University was not 
great . 

As far as books were concerned, they were handed down from 
class to class, usually in the fraternities or you could buy 
secondhand books at a cheap price. 

As for entertainment, we had no radio, no TV, no motion 
pictures. There were, I think, only two or three automobiles 
owned on the campus. You provided your own amusement, which was 
of a great variety. We had many acting and literary societies. 
We published magazines. There was hardly a student who couldn't 
recite long verses of poetry. Kipling was very popular; John W. 
Service, The Lure of the Yukon, and all that type of poetry was 
much in vogue. 

As far as liquor is concerned, there were few who imbibed 
very much. In our fraternity it was absolutely prohibited to 
have any liquor of any kind in the house and I do not know during 
my four years that this rule was ever broken. Some of the 
fraternities once or twice a year would have a beer bust, which 
consisted of going down in the basement and having a couple of 
barrels of beer and inviting your friends in. We would have a 
lot of fun singing and drinking beer, but I don't remember that 
there was any terrible abuse of the hospitality. 

We would go over to Oakland or San Francisco on rare occasions 
for an evening. At Newman's College Inn you could get a beer or 
a cocktail and a free lunch that was magnif icent--for fifteen cents. 
You could buy a quart bottle of Budweiser in the Thalia for fifty 
cents. It was one of the Barbary Coast places and much milder 
than rumor would have you believe. You could spend most of an 
evening sitting there drinking up a fifty cent bottle of beer. 



18 



Clubs and Extracurricular Activities 



Stein: 



Phleger : 



Stein: 



Phleger: 



Stein: 



Speaking of various college activities, the Blue and Gold listed 
you as a member of a number of clubs including the English Club 
and the John Marshall Law Club. 

There were dozens of clubs, social, literary, legal, and dramatic. 
Student plays were given frequently in the Greek Theater and I 
would say they were good ones. We had a drama department that 
would stage Shakespearean plays and pageants. A number of 
students went on in later years to be good professional actors, 
as a result of their start in college. There was always something 
going on. 

We had a number of debating societies but the two principal 
ones were the Congress and the Senate. They had debates 
internally and also with each other. I was a member of the 
Senate and have a highly polished gavel with a silver label on 
it recording that I was once president. I doubt that there is 
anything like the debating activity now, that there was at that 
time. It was helpful training for law school and later the 
practice of law. 

I would imagine. The Blue and Gold said that in 1911 on the 
debating team you debated the subject, "resolved: that judges 
should be exempt from recall." 

The University at that time had a fine department of public 
speaking headed by Professor Martin C. Flaherty. He was always 
available to advise and coach the debaters. We had debates with 
the other universities, one of which was the Carnot debate with 
Stanford, in which I never participated. This dealt with a 
subject in current French politics revealed to the debaters only. 
on the day of the debate, so that the debate was more or less 
extemporaneous. Newton Drury won one year and was a fine debater. 

I was on the debating team two years when we debated Stanford. 
First, during my junior year I was an alternate, but in my senior 
year I was a member of the team. As you remarked, the subject we 
debated was whether or not judges should be subject to recall. The 
debate was held at Stanford the night before the Big Game which I 
played in the following day. Just as the debate was about to 
start I received a telegram from Berkeley sent by the football 
team training table, cheering me on. The team took quite an 
interest in my debating. [Chuckles] 

I gather that your influence was very beneficial in both cases, 
because you won both of them, didn't you? 



19 



Phleger: Yes, we won the debate and also the football game the next day. 
We played Rugby in those days, and had some fine players, 
including my brother, Carl. Several became my lifelong friends. 
We played teams from Australia and New Zealand, including the 
Warataws from Australia and the All Blacks from New Zealand. The 
All Blacks had just won the world Rugby championship. I was a 
member of two teams that went to Canada to Victoria [British 
Columbia] to play the teams up there. My brother was on a team 
of Stanford and California players that made a tour of Australia 
and New Zealand. 

In the years following graduation, my brother and I kept in 
touch with our teammates. Beginning in 1937, we gave a dinner 
at ten year intervals, usually just before the Big Game, for the 
members of our team. These were held at the Bohemian Club and 
we not only invited the team but usually two or three of our 
close friends like Earl Warren and Newton Drury and Farnham 
Griffiths. We had dinners in 1937, 1947, and 1957. In 1966, the 
fiftieth anniversary of the 1911 game, which was in our senior 
year, we entertained the team at my home at Woodside. I think 
almost all who were still living were present. That was the last 
dinner because so many were crippled and couldn't come that it 
didn't seem worthwhile to continue. 

I have pictures here of some of those reunions that you 
might be interested in. [Locates photographs]* 

[ end tape I, side 2] 



Playing Rugby Football 



[ Interview 2 : 
[begin tape 1, 



September 23, 1977] 
side 1] 



Stein: You were going to tell me again about the football team. As I 

understand it, none of you had any financial aid for being on the 
team. 

Phleger: In my days at the University, the football players, indeed all 
athletes, were Simon Pure amateurs. I know of no university 
athlete in my time who received anything by way of a subvention, 
even a scholarship, unless it was a real scholarship based on 
scholarship requirements. Most of the football players were 
anxious to acquire an education that would be good for their 
lifetime. Several were in medical school; a number were in 



*See photos, next page. 



20 



Phleger: engineering; some were in agriculture. After their graduation, 
I do not know of anyone who pursued anything other than a useful 
occupation or profession. We formed strong friendships in 
college and these persisted, helped somewhat by our reunions. 

I might say a few fords about the so-called honor societies 
at the University. 

Stein: Before we do that, one of the things that you did last was to 
run down a list of names of some of the people on the team and 
to tell what they went on to do. Could you repeat that now on 
tape? 

Phleger: [Referring to list of football team members]* Jimmy Schaeffer 
retired as football coach and for years was superintendent of 
grounds at UCLA. Cedric Cerf was a successful farmer in the 
Stockton area. Milton Farmer was a Superior Judge and later a 
well-known attorney in San Francisco. Jay Dwiggins went into 
business. Stirling Peart became a farmer and cattleman in Yolo 
County. Clinton Evans continued as a coach at the University over 
a long period, particularly baseball. Louis Watts was a chemist 
with the Hercules Powder Company. Tom Dills was a dentist. Chet 
Allen went into business but continued his interest in music. 
John Stroud became graduate manager of athletics. Amos Elliott 
became a school teacher and participated with a group in the 
original development of Kettleman Oil Fields and spent the rest of 
his life in the oil business. Monty Morris became a well-known 
doctor. Irving Markwart moved to Chicago and had a successful 
business career there. David Hardy went into teaching and became 
a school official in San Francisco, and an officer in the National 
Guard achieving the rank of general during World War II. 

Harold Ashley was a lawyer and was associated with the Standard 
Oil Company in India for a number of years. Ray Jordan went into 
business. Bert Schwartz was a fanner and owned and ran a large 
farm near Clarksburg and was appointed a Regent of the University 
by Governor Warren. Charles Wheeler was a lawyer and cattle raiser. 
Myron Harris was a well-known lawyer in Oakland. Clarence "Nibs" 
Price continued coaching at California. Jim Black was a prominent 
businessman, president of the Pacific Gas and Electric Company, 
and director of a number of national corporations. Steve Malatesta 
was a prominent insurance agent in San Francisco. Howard Fleming 
was a well-known doctor in San Francisco. Jack Abrams became a 
farmer in Colorado. Dave Brandt owned one of the largest pure-bred 
dairies in the country at Canoga Park, Los Angeles. Darrell 
Bogardus went into the investment banking business in Los Angeles. 



*See pages 20a and 20b. 




Back row: 

1. David Brandt 

2. Harold Ashley 

3. Ray Jordan 

4. William King 

5. George Hansen 

6. Myron Harris 

7. David Hardy 

8. Tio Emerson 

9. Thomas Dills 



Middle row: 

10. Edward Watts 

11. Carl Phleger 

12. Irving Markwart 

13. Burton Schwartz 

14. Charles Pauly 

15. Amos Elliott 

16. Clinton Evans 



Front row: 

17. Herman Phleger 

18. Charles Wheeler 

19. Chester Allen 

20. Jan Dwiggins 

21. John Stroud 

22. Stirling Peart 

23. Laird Morris 




The U.C. football squad, 1910. 




Phi Delta Theta holders of Big "C" , 1914, at Phi Delta 
Theta House, 2401 Durant, Berkeley. From left to right: 
Leland Rathbone (track), Albert Rathbone (track), Walter 
Schroeder (crew) , Harold Ashley (crew and football) , 
Carl Phleger (football), Herman Phleger (football), 
Irving Markwart (crew and football), Charles Pauly 
(football) . 




Back row: 

1. David Brandt 

2. Harold Ashley 

3. Ray Jordan 

4. Myron Harris 

5. David Hardy 

6. Thomas Dills 



Middle row: 

7. Edward Watts 

8. Carl Phleger 

9. Milton Farmer 

10. Cedric Cerf 

11. James Schaeffer 

12. Clinton Evans 

13. Walter Christie 



Ho* H./13T 

Front row: 

14. Herman Phleger 

15. Charles Wheeler 

16. Chester Allen 

17. Jan Dwiggins 

18. John Stroud 

19. Stirling Peart 

20. Laird Morris 




Back row: 

1. David Brandt 

2. Harold Ashley 

3. Ray Jordan 

4. Milton Farmer 

5. Myron Harris 

6. Walter Christie 

7. Thomas Dills 



Middle row: 

8. Cedric Cerf 

9. Carl Phleger 

10. Irving Markwart 

11. Burton Schwartz 

12. James Schaeffer 

13. John Stroud 

14. Chester Allen 

15. David Hardy 



Front row: 

16. Edward Watts 

17. Herman Phleger 

18. Charles Wheeler 

19. Chester Allen 

20. Amos Elliott 

21. Stirling Peart 

22. Laird Morris 




The 1911 football squad at its first reunion on the 25th anniversary 
of its Big Game victory, November 19, 1937. 




The second reunion, ten years later, November 21, 1947. 




Back row: 

1. David Brandt 

2. Harold Ashley 

3. Myron Harris 

4. Walter Christie 

5. Thomas Dills 

6. Stirling Peart 



Middle row: 

7. Edward Watts 

8. Carl Phleger 

9. Burton Schwartz 

10. James Schaeffer 

11. Clinton Evans 



Front row: 

12. Herman Phle.ger 

13. Charles Wheeler 

14. Chester Allen 

15. Clarence Price 

16. Amos Elliott 



o 




Back row: 

1. Thomas Dills 
Edward Watts 
Russell O'Hara 
Jim Black 



2 
3 
4 



5. General LeRoy Hunt 



6. Amos Elliott 

7. Herman Phleger 

8. Robert Sproul 

9. James Schaeffer 
10. Newton Drury 



11. Clinton Evans 

12. Carl Phleger 

13. Harry Lawton 

Front row: 

14. Stirling Peart 

15. Charles Wheeler 




The 1911 football squad at its third reunion, 1957, 




The 1911 football squad's reunion on the 50th anniversary of its 
Big Game victory, 1961. 



\ c\ «. 



20a 



James G. Schaeffer 
Cedric S. Cerf 
Walter Christie 
Milton T. Farmer 
Jan Dwiggins, Jr. 
Stirling B. Peart 
Clinton W. Evans 
Edward Louis Watts 
Thomas H. Dills 
Chester A. Allen 
John A. Stroud, Jr. 
Amos W. Elliott 
Laird M. Morris 
Irving J. Markwart 
David L. Hardy 
Harold H. Ashley 
Ray P, Jordan 
Burton A. Schwartz 
Charles S. Wheeler, Jr. 
Myron W. Harris 
Clarence M. Price 
James B. Black 



253 Qulncy Ave., Long Beach. 

2821 Steiner St., San Francisco. 

Berkeley. 

Balboa Building, San Francisco. 

2715 Shasta Ave., Berkeley 

RedBluff 

47 Alvarado Road, Berkeley. 

52 Eucalyptus Road, Berkeley. 

1569 Jackson St., Oakland. 

1151 Sepulvedo St., San Pedro. 

The Uplands, Berkeley. 

Mill Valley 

1940 Broadway, San Francisco 

6820 Merrill St. Chicago, 111. 

125 Claremont Blvd., San Francisco, 

612 So. Lorraine Blvd. L.A. 

Visalia, California. 

Clarksburg, California. 

Russ Building, San Francisco 

Easton Eldg., Oakland. 

5233 Broadway, Piedmont. 

P.G. & E. San Francisco. 



Lawrence J. Dolan '14 



No address 



20b 



William King 
Kenneth L. Carpenter 
George D. Hans en 
Charles W. Pauly Jr. 
Martin A. Mini 

Stephen Mala testa 
Dr. Howard W. Fleming 
Tio S. Emersen 
Russell P. O'Hara 
William M. Hale 
William H. Abrams '15 
David 0. Brandt -- 
Darrel J. Bogardua '15 
Clifford G. Canfield '15 
Joseph L. McKim '15 
LeRoy P. Hunt 
Harold A. Fletcher 



Deceased 
Deceased 
Deceased 
Deceased 
Deceased 

2042 Leavenv/orth St. San Francisco 
584 Post St., San Francisco 
Susanville, California, 
50 LaCrescenda St. Vallejo 
Federal Reserve Bank, San Francisci 
629 South Hill St. Los Angeles. 
Canoga Park, Los Angeles Co. 
629 South June St. Los Angeles 
737 H St., Fresno. 
Route #1, Box 66, Imperial, Cal. 
Lt. Col. U.S. Marine Corps, Washingto: 
490' Post St. San Francisco. 



2. 



21 



Phleger: Clifford Canfield became a farmer near Fresno. Joseph L. McKim, 
known as "Chalk," became one of the most prosperous and important 
farmers in Imperial, California. Leroy Hunt became a full general 
in the United States Marine Corps and was one of those who landed 
on Guadalcanal. 

Harold Fletcher was a doctor with a large practice in San 
Francisco. My brother, Carl Phleger, went into the oil business 
in Ventura County and spent most of his life there. 

Stein: That's quite a line-up. 

Phleger: Yes, it is. It shows, I think, that these athletes were all 

legitimate students who received professional and other training 
at the University, valuable to them in later life. 



Honor Societies 



Phleger: I might, in passing, mention something about the so-called honor 
societies at the University of California. I was fortunate to 
become a member of the Winged Helmet, a junior honor society, 
of the [Order of the] Golden Bear which was a senior honor society, 
of the Skull and Keys which was a social organization and of Phi 
Delta Phi which was a legal honor society. 

The Golden Bear played a valuable role in the University. It 
was founded originally by Professor [Charles M.] Gayley and 
Professor [Henry Morse] Stephens and had the support of President 
[Benjamin I.] Wheeler and important members of the faculty. It 
met regularly in Senior Hall and at its meetings, university 
problems, particularly those affecting students, were freely 
discussed by the faculty members and the students. On many 
occasions, problems which unless handled with understanding might 
have developed into real problems for the faculty and the 
University, were discussed and settled in Golden Bear. 

Stein: What sort of problems would come up? 

Phleger: All sorts of problems like cheating or student discipline or 

alleged professionalism in sports or unfair treatment of students. 
All the problems that interest and concern the students and 
sometimes erupt in clashes with the administration were discussed 
and usually solved because if there was agreement in the Golden 
Bear, its members had enough influence in the student body to 
carry the point. 



22 



Phleger: I can't speak too highly of what the Golden Bear contributed 

to the University and with what good spirit the president of the 
University and prominent members of the faculty participated with 
the students in the discussion of student affairs and university 
problems. 

Stein: What was the problem of professionalism that you mentioned? 

Phleger: If there was a rumor that money or the promise of jobs was being 
used to recruit athletes--things of that kind. If there weren't 
sufficient tennis courts for the students to play tennis, or if 
the student publications were showing favoritism, or the 
gymnasium was not being run as it should be, or the Co-op wasn't 
being managed properly. I remember one time the University 
prohibited the use of the University tennis courts on Sunday. 
That was solved by an agreement that they could be used on Sunday, 
afternoons but not on Sunday mornings. 

Stein: So as not to conflict with religious services? 

Phleger: That's right. Eventually, of course, they were used all day 
Sunday . 

We had an active YMCA in Stiles Hall, which operated with 
varying success. I recall a remark of President Wheeler one time 
when we were raising money for the YMCA. He described Stiles Hall 
as an institution which served bad food downstairs and poor 
theology upstairs. [Laughter] 

Stein: I noticed in my reading that you were also involved in an honor 
society known as Sword and Scales. 

Phleger: Yes, that was still another junior society. But of all these 
societies, the one that I think made the greatest contribution 
to the University was Golden Bear, largely because of the interest 
and participation of the faculty. 

Stein: Do you remember who some of the other people were in the Golden 
Bear? 

Phleger: Well, its members included all of the leading students like 
Newton Drury, the president of A.S.U.C., the chief student 
officers, the outstanding athletes—all who were prominent in 
the student body. So when there was a consensus among the 
members of the Golden Bear about what the students should do, 
the members had sufficient influence to bring it about. An 
interesting fact which bears upon the career of Earl Warren that 
I'll mention later is that he was not a member of Golden Bear 
when a student. He was not prominent when a student; I think, 
as Newton Drury said, he was a late bloomer. 



23 



Stein: As I understand it you were also on the student senate. 

Phleger: That was a debating society. As I mentioned earlier, we had 

two principal debating societies, the Congress and the Senate. 
They debated within each organization and between themselves 
and carried on lively debating activities. 

Stein: My notes also say that you were associate editor of the Daily 
Cal and on the Blue and Gold staff. 

Phleger: As I mentioned in my article in the Centennial book, There Was 
Light, edited by Irving Stone,* when I got to the University 
from Sacramento, I went out for many student activities, but I 
don't think my participation in the Daily Californian extended 
beyond my freshman year. 



Administering the University 



Phleger: The University had an able and distinguished Board of Regents, 
most of whom were from San Francisco and the Bay cities. I 
remember Garret McEnerney, James K. Moffitt, Father [Charles] 
Ramm, William H. Crocker, Guy C. Earl, Sidney Ehrman. These men 
were active and supported the University financially and in every 
other way. 

I have often thought that it is unfortunate that the 
University is now so fragmented that each campus does not have 
a body of local regents who can participate in the running of the 
institution and make the kind of contribution they did when I was 
at Berkeley. 

At that time, or shortly thereafter, there was a movement to 
establish a state university in the South. Throop Institute in 
Pasadena supported by Southern Californians, I think in 1919, made 
a determined drive to secure legislative authorization for the 
establishment of a state university in the South. President 
Wheeler and the Berkeley faculty opposed this and the student body 
joined in and also the alumni with the result that it was defeated. 

It did have one result, however. I suggested to President 
Wheeler that this was a warning that sooner or later there would 
be a southern state university and it would be wise to allocate or 



*Irving Stone, editor, There Was Light (New York, 1970), pp. 399- 
403. 



24 



Phleger: segregate the endowment funds which had been given to Berkeley so 
that in the event of further state universities, those funds 
would remain with Berkeley. Also how important it would be in 
future years when gifts were made to the University to segregate 
them physically so that the donor would be sure that when he gave 
to a particular university, Berkeley or another university, the 
funds would be applied to their intended purpose. 

Stein: What were the objections at that point to accepting Throop 
Institute's offer? 

Phleger: After all, there were less than 4,000 students at Berkeley. The 
population of California then was about three million, not enough 
to require more than a one-campus state university. There were 
already universities in the South--USC [University of Southern 
California] and Throop, which later became the California Institute 
of Technology. As the state population grew and as the standard 
of living rose there was such pressure for additional educational 
facilities that it was natural that the state university system 
should be enlarged to include other campuses. But in 1912 and '13 
and '14, the state wasn't ready for it. 

The question of adequate university financial support was 
always facing the University. It had to depend on appropriations 
from the state legislature and sometimes it was difficult to get 
the funds the University administration thought were required. 
This led, about 1916, to a proposal for a constitutional amendment 
that would allocate a certain percentage of state revenue directly 
to the University. The amendment was given the title of Amendment 
12 and allocated a fixed percentage of state revenue to the 
support of the University. There was a vigorous campaign by the 
alumni and University supporters to secure the adoption of 
Proposition 12, but it was defeated, by a small margin. 

I remember I participated to the extent of engaging in a 
public debate in the Civic Auditorium in San Francisco with Clyde 
Seavey, Chairman of the State Board of Control, who opposed the 
measure. We had a lively debate and at the end a vote was taken 
of the audience and the University won. Unfortunately, the public 
didn't follow the same pattern. 

Stein: What were the arguments that Mr. Seavey offered? 

Phleger: Seavey 's argument was that the University was a state agency and 
should be under the control of the state legislature, which 
would not have been the case if Amendment 12 was adopted. 

Stein: Do you feel that its failure has affected the development of the 
University? 



25 



Phleger: No, I do not. On reflection I believe it is appropriate that the 
funds for higher education in the state should be subject to the 
control of the legislature. 



Boalt Hall 



Phleger: I entered Boalt Hall when a senior, which was permitted in those 
days, and after graduation I continued my law studies there. The 
faculty at Boalt Hall was a distinguished one, with William Carey 
Jones as dean, Professors [Orrin Kip] McMurray, [Alexander Marsden] 
Kidd, [Matthew Cristopher] Lynch, and other men of similar quality. 

The method of teaching was the case book method similar to 
that used at Harvard Law School. I must say that not only was 
the curriculum adequate but the standards were high and students 
at Boalt received a fine legal education. 

At that time I was earning my way through college, my chief 
source of income being my salary as secretary of the Alumni 
Association and editor of the Alumni Weekly. For this I think 
I' received a salary of $100 a month. I not only had to run the 
alumni office, but edit and actually write most of the alumni 
news. I used various artifices to fill out the paper, including 
a weekly column by a fictitious person named Pogfar, who actually 
was Farnham P. Griffiths, whose name we condensed into Pogfar. 
Each week he would write a column about some person interested in 
the University or known to the alumni or students. The column 
was a great success. 

While studying at Boalt I lived in an apartment on Ridge 
Road with a number of other law school students. Our habitation 
was known as the "shyster's retreat" [laughter] and we had a happy 
time there. Among those who lived there or was a regular visitor 
were Morse Cartwright, later secretary to President Wheeler; 
Farnham Griffiths, who at the time was secretary to President 
Wheeler; Harold Ashley, Arch Tinning, Newton Drury, Ernest Clewe, 
and Joe Sweet, all of whom had distinguished careers. I don't 
know whether you're interested in this picture-- [hands interviewer 
photo of "shyster's retreat"*]. 

Stein: This must have been before prohibition. 
Phleger: It sure was] 



*See photo 



26 



Stein: This is a delightful picture. Archibald Tinning went on to become 
district attorney of Contra Costa County. 

Phleger: He did indeed. He was my roommate at Harvard Law School, an 

intimate friend. I was best man at his wedding. He was a good 
friend of Earl Warren and when Earl was governor he appointed 
Arch president of a state board which had charge of the 
classification tenure, and compensation of state employees — the 
State Personnel Board I think was the name. 

Stein: What happened to the others? 

Phleger: Ashley became a lawyer. Joe Sweet became a prominent lawyer in 
San Francisco. Cartwright became secretary to President Wheeler 
and later served for years with the Carnegie Foundation in New 
York as the head of its adult education programs. Clewe was a 
prominent lawyer who later moved to Oroville. 

Stein: Was this a large private home that you were living in? 

Phleger: No, it was an apartment house on Ridge Road. We had a Chinese 
servant as you see in the photo. We had our meals there and a 
generally good time. 

Stein: Yes, it certainly looks in this picture as though you're having 
quite a jolly time of it. 



Graduation Exercises 



Phleger: Did I tell you about graduation? 

Stein: No, you didn't. Why don't you tell me about graduation? 

Phleger: At the end of my four year term at California, the class of 1912 
graduated with exercises in the Greek Theater. In those days and 
perhaps still, they had student speakers at commencement and I was 
fortunate enough to be selected as one of the speakers. 

I remember working with Professor [Martin] Flaherty on my 
speech, which had the high sounding title of "Conservatism and 
Reform." I would hesitate now to write on that subject [laughter] 
but it went off in good shape. 

Years later, when I attended a University commencement at 
the football stadium, there were some student speakers, and I 
noticed a difference. When I was graduated the student speaker 




The residents of "Shysters 
Retreat" at dinner, 1913. 
From the left: Herman Phleger, 
Morse Cartwright, Farnham 
Griffiths, Harold Ashley, 
Arch Tinning, Newton Drury, 
Ernest Clewe, Joe Sweet. 



The Phleger family at 
2201 H Street, Sacramento 
at Thanksgiving, 1915. 
From left to right: Carl 
Phleger, Mrs. C.W. Phleger, 
Irma Phleger Pollock holding 
Gordon Pollock, Marie Phleger 
Plant, and Herman Phleger. 





Mary Elena and Herman Phleger on 
their Golden Wedding Anniversary, 
April 2, 1971 at their home 
"Mountain Meadow" in Woodside, with 
their children and grandchildren. 
Left to right 3 front vow: 

Elena Dean Phleger 

Virginia Offutt Gates 

Maraquita Anne Gates 

Susan Inez Gates 

Anne Phleger Gates 

Mary Elena Macondray Phleger 

Herman Phleger 

Milo Sedgewick Gates, Jr. 
baok TOW: 

Milo S. Gates 

Elena Atherton Gates 

Peter Macondray Phleger 

Michael Atherton Phleger 

Atherton Macondray Phleger 

Amanda Goodan 

Mary Elena Phleger Goodan 

Joan Casserly Phleger 



27 



Phleger: stood up and without notes or otherwise, proceeded to deliver his 
address without benefit of a loud speaker or any physical aid. 
This latter time, I noticed that the speaker read from a manuscript 
and spoke into a microphone. 

Stein: Yes, the art of public speaking, I think-- 
Phleger: Yes, has declined. 

Stein: Do you remember at all the points that you made in this talk on 
conservatism and reform? 

Phleger: No, only that progress to be worthwhile had to be slow and steady, 
not revolutionary in character, and that a conservative attitude 
toward change was better in the long run than radical revolutionary 
movements. 

Stein: That certainly is a timeless message. 

Phleger: Yes, but it's more honored in the breach than in the observance. 



Dormitories 






Stein: You mentioned last time that you were on a dormitory committee, 
but we didn't get a chance to pursue that. I wondered what the 
objection was on the part of the University in building dormitories. 

Phleger: During my time as a student, there were no dormitories. The 

students lived in the fraternities and club houses or in boarding 
houses or in their own homes. There was always a great desire 
for dormitories but there simply were not available funds. Year 
after year, the ASUC would appoint a dormitory committee to plan' 
and promote the building of dormitories, on the campus if possible. 
However, during my time in college we were unable to get a single 
one. 

I think the first dormitory on the campus was a gift by Regent 
[Philip E.] Bowles some years after my graduation. The second 
large student housing was International House, given by John D. 
Rockefeller, Jr. Since then, there have been a number of dormitories 
which have filled an important need. I had the pleasure some years 
ago of joining with a group to provide a portrait of Regent Farnham 
P. Griffiths for the dormitory named for him. 



28 



Harvard Law School 



Phleger: When I reached the end of my second year in law school, three 
being necessary for the completion of the course, I paused to 
appraise my situation. I had spent a good part of my time 
editing the Alumni Weekly and functioning as secretary of the 
Alumni Association. In addition I was acting as campus sport 
correspondent for the San Francisco Call, and after each athletic 
event wrote a column with a byline, for which I was paid the 
magnificent sum of $1.00 per inch. Needless to say, I spun out 
my columns to as many inches as possible. 

I had had reasonably good marks in law school, but after my 
appraisal I decided I was doing too much outside work to permit 
adequate attention to my law studies. So I decided to go my 
last year to Harvard Law School, having accumulated sufficient 
funds to permit this. In those days Harvard Law School had a 
liberal policy of admitting students to" second and third year 
classes. 

Arch Tinning, who was my classmate at Boalt, made a similar 
decision, so in 1913 we entered Harvard in the third year class. 
I had never been east of Reno, so it was a great adventure. We 
went to Cambridge at the appointed time, got a room in Perkins 
Hall, one of the university dormitories, and spent a valuable and 
interesting year at Harvard Law School, at that time probably the , 
best law school in the country. 

We found that as Boalt Hall had followed the same curriculum 
as Harvard, we had no difficulty in fitting into the third year 
class, taking the same courses we would have taken had we remained 
at Boalt Hall. The school was large, the faculty was distinguished, 
and the professors taught large classes. Thayer was the dean. We 
had outstanding professors like [Samuel] Williston, [Austin] Scott, 
[Joseph] Beale, [Roscoe] Pound, [Edward] Warren, and others. I 
can't speak too highly of the instruction we received. 

We didn't spend all our time studying. One day I was walking 
down Tremont Street in Boston when an attractive young lady came 
over and kissed me. On looking more closely I realized she was a 
Sacramento girl named Donna Shinn who had been in school with me 
there. I found that she had changed her name to Donna Dolores 
and was now an opera singer of some repute. She introduced the 
gentleman she was with as Mr. Russell, the managing director of the 
Boston Opera, which was then at its zenith. Its principal 
conductor was Carl Muck, internationally famous. The stage 
designer was Joseph Urban who was later to help design the Panama 
Pacific Exposition. 



29 



Phleger: Donna said that often opera tickets were available when 

regular boxholders indicated that they did not plan to attend and 
she, with the help of Manager Russell, would be glad to give 
some to me. So on numerous evenings during that year I and my 
friends from law school occupied the boxes of Theodore N. Vail 
and other prominent Bostonians and saw many of the great operas. 
There was only one requirement. We had to wear formal dress. 

Stein: Did you have those sort of clothes? 

Phleger: Listen, speaking of clothes, all you have to do is look at 

photographs to know that in those days college students were well 
dressed. It is true at Cal they had idiosyncrasies like the 
senior plug and the junior plug and the freshman beanie and the 
sophomores wore corduroys, but they always wore coats and ties 
and were properly dressed. I remember in our fraternity we had a 
rule that no one could sit at the table without a coat and tie. 
Stiff collars were the order of the day. As you will note from 
the photographs of that day, the men generally wore stiff starched 
collars, coats, and ties. 

Stein: I noticed that even here in your dining room at "shysters' retreat" 
you're all sitting there with your collars, ties, and vests. 

Phleger: There were more white tie and tails at Berkeley than there were 
black ties and tuxedoes, the reason being that white ties and 
tails were absolutely required at some social events and nobody 
could afford both tuxedoes and white tie and tails. So students 
almost universally owned white tie and tails and wore them at the 
university dances and other formal occasions. White tie and tails 
were more prevalent in Berkeley when I was there than at the 
diplomatic receptions at the White House when I was in Washington. 

Stein: So the white tie and tails must have stood you in good stead at 
the opera house. 

Phleger: They did indeed and we wore them and matched up with the rest of 
the boxholders. [Chuckles] One of our great experiences was 
living through a New England winter with its cold and snow and ice. 
We who were brought up in California and never lived through a New 
England winter have no realization of what winter in the East is, 
particularly in the Northeast. I have recommended to friends who 
have children entering boarding schools, that they send them to a 
New England school so they can live through a New England winter, 
which I think is part of the education of every American. 

Unfortunately for me, Harvard Law School had an inflexible 
rule, that no one could get a law degree who had not studied the 
full three years at Harvard. So when I finished my year, I was 



30 



Phleger: not eligible for a degree. I was fortunate, however, to get an 

"A" grade, which is a high mark at Harvard. This has stood me in 
good stead over the years as a substitute for a law degree. 

When I returned to San Francisco, as I'll point out later, 
and taught at the Golden Gate Law School and later at Boalt Hall, 
nobody ever asked me whether I had a law degree. In fact, I 
have gone through sixty years of the practice of the law and 
have never suffered so far as I am aware from the fact that I 
don't have a law degree. I found that when my name appeared in 
the announcement of courses at Boalt Hall when I was teaching, they 
put B.S. after my name, which was un undergraduate degree, because 
I had no professional degree. 

Stein: Well, you had all the requirements for one. Backing up to the 

University of California for a moment: was Mrs. [Phoebe Apperson] 
Hearst still holding receptions for the seniors when you were 
there? 

Phleger: I met Mrs. Hearst when I was a student. She attended receptions 
at Hearst Gymnasium and two of my classmates, Charles Wheeler and 
Robert Waybur, were frequent guests at her home at Pleasanton. 
Mrs. Hearst—she was then a Regent—was interested in everything 
that had to do with the University and gave the Women's Gymnasium. 
Her family, also, contributed generously to the University, 
including the Hearst Mining Building and the Greek Theater. 



A European Tour 



Phleger: When I finished at Harvard, which was in June of 1914, my mother 
and my sister, who was a student at Berkeley, planned a European 
trip and included me. So in June we sailed from New York on the 
[S.S.] Saxonia through the Mediterranean, disembarking at Naples. 
After visiting Pompeii, the Amalfi Drive and Capri, we proceeded 
to Rome. 

[end tape 1, side 1; begin tape 1, side 2] 

Rome was then a city of about 400,000. We lived at a pension, 

a former palace, run by a lady in reduced circumstances. Every 

night the doors were locked at 10 p.m. as was the custom all 

through Rome because it was dangerous to be on the streets after 
that hour. 

Stein: What would happen to you if you were? 



31 



Phleger; 



We were told we'd be sandbagged or beaten up or robbed, 
security was to be home by ten. 



The 



Stein: 
Phleger: 



Stein: 
Phleger: 



We were fortunate to be granted an audience with the then 
Pope, Pius X, a huge man dressed in a long white robe, who 
blessed us and our corsses and relics. He was very pleasant but 
spoke no English. 

Years later in 1948 when we were in Rome our guide pointed 
to a catafalque on the main floor of St. Peters. He said that it 
contained the casket of Pius X, which had formerly been in the 
crypt below the high altar, adding that this indicated that the 
Vatican was considering beatifying Pius X and within a few years 
one might expect him to become a saint. I followed the matter 
with interest and true enough, some years later, Pius X was made 
a saint, so I have the distinction of having met a saint in person. 

And being blessed by one to boot. 
Yes, being blessed by one to boot. 1 

From Italy we went to Zermatt, Switzerland where I had the 
interesting experience of climbing the Matterhorn. This was a 
dangerous climb in those days and was expensive because you were 
not permitted to go up without hiring two Swiss guides who were 
quite expensive. Indeed, the guides would not take you on the 
climb until after they had shown you the cemetery of Zermatt full 
of people who had perished in the climbing, and also had taken 
you on a practice climb, to determine your capability. Well, 
after I had climbed the Rifflehorn and one or two other smaller 
peaks, we made the ascent. 

The chief difficulty in those days was the weather (and I 
guess it still is) because the weather on the Matterhorn is 
unpredictible, with sudden violent storms. 

What sort of climbing equipment did you have? 

I bought the usual shoes with hobnails and an alpenstock and a 
rope which the guides and I used to string ourselves together 
during the climb. I think since that time, there have been some 
improvements on the trail to the Matterhorn so that more people 
make the climb now. On our ascent we had to start one day and 
stay overnight at the Schwartz Hojf, which was part way up, and 
make the final ascent early the next day before the ice got too 
slippery. 



32 



Phleger: From Zermatt we went to Interlocken. I might remark that 
when we were in Rome and about to visit the gardens at Tivoli, 
we were told that we could not go because Archduke Ferdinand of 
Austria had just been assassinated and since he was the owner of 
Tivoli, the gardens would be closed. After a stay at Interlocken 
and when we were about to get into a horse-drawn bus to go to the 
railroad station to go to Germany, we found as we got in the back 
of the bus that Swiss soldiers were taking the horses off the 
front of the bus and hitching them to an artillery piece down the 
street. That was our first knowledge that the war was on and the 
Swiss were mobilizing. I think Archduke Ferdinand was assassinated 
on June 28 when we were in Rome and war started on August 1 when 
we were in Interlocken. After several days in Interlocken we went 
to Lucerne where we arranged to get passports to Paris and on to 
England. In those days, no Americans carried passports, as they 
were unnecessary except in Turkey. 

We proceeded into France with our temporary passports issued 
at Berne and spent the night on a railroad train. I recall getting 
off the train in Dijon about midnight and seeing thousands of 
French troops boarding trains on their way to the front. In those 
days the standard uniform of the French soldier was a long, dark 
blue overcoat with the lower edges buttoned back, bright red 
trousers, and a uniform cap. Also, a canteen which the soldiers 
were filling with wine. The contrast between the uniforms of the 
French soldiers and the dark grey of the helmeted Germans was 
indicative of the difference between their armies. 

We proceeded on to Paris, which at that time was blacked out. 
The government had moved to Boulogne and the German Uhlans were 
only sixteen miles from Paris at Saint-Cloud, this being the 
farthest penetration of the Germans during World War I. 

From Paris we went to London. Conscription was not yet in 
effect, and we saw the recruiting posters for "Kitchener's first 
100,000." A few days later, Kitchener, on his way to Russia on 
the Cruiser Hampshire, lost his life when his ship was torpedoed. 
London was struggling with the adjustment to a war economy. 

We were able to go to Ireland for a few days. We saw the 
rebellious attitude of the Irish. Ireland at that time, though 
part of Great Britain, was openly expressing the hope that Great 
Britain would be defeated. It was the time of Sir Roger Casement 
and other subversive acts. We saw a uniformed and armed Irish 
Republican Army parade through Dublin. 



33 



Phleger: We returned to London and found that getting back to the 
United States was not easy. Finally, I went down to the Savoy 
Hotel where Herbert Hoover had formed a committee to look after - 
Americans and get them passage home. Through the efforts of 
his committee we got passage on the [S.S.] Adriatic and sailed 
back to New York in November of 1914. The ship, of course, was 
blacked out and sailed under war conditions. So I had the 
distinction of being in Europe when the war started and, as 
I'll remark later, I was also there when World War I ended. 

We came back to California- 
Stein: Before you go on to that I have one question about when you were 
traveling in Europe. When you traveled from city to city how did 
you travel? 

Phleger: Automobiles were scarce in Europe and all our travel was by 
railroad. You could get an automobile for a trip like from 
Rome to Tivoli or to nearby places of interest but distance 
travel was by train. There were no airplanes; airplanes weren't 
used for civilian travel until many years later. 

We got back to New York--! 1 11 tell an interesting thing 
about currency. It was before the day of traveler's checks. 
We had a letter of credit issued by a bank. This told how much 
credit you had and consisted of a long paper with spaces in 
which the banks at which you drew on the letter would write down 
the amounts you had drawn. 

When we were about to leave London I thought to myself, 
having read that gold was in great demand and our letter of 
credit was for dollars in gold, that I might make some money by 
selling my letter of credit in London. I had $1,500 left so I 
went down to Lombard Street and sold that $1,500 letter of credit 
for $1,500 in American dollars, plus a premium of $420, all 
payable in New York. When I got to New York, I collected the 
$1,500 and the $420 premium, which I took in St. Gaudens $20 gold 
pieces and put in my safe deposit box. When Congress in the 
thirties made it a crime for any one person to own gold in excess 
of $100, I still had the $420 in gold coin in my box, so I gave 
$100 in gold to each of my three children and to my wife and kept 
the $20 myself. I found recently that the children still have the 
five $20 St. Gaudens gold pieces I gave each of them. At various 
times these have been worth as much as $1,500, a $20 St. Gaudens 
gold piece having sold as high as $300. It shows how the paper 
dollar has depreciated. 



34 



II BROBECK, PHLEGER & HARRISON 



Getting Established; A Law Firm and Lodging 



Phleger: When we got back to California, my mother and sister remained in 
Sacramento and I came down to San Francisco to get a job. As I 
have already related, I had learned from talking in London with 
Grove L. Johnson, the father of Hiram Johnson, that a lawyer 
could do a lot better in San Francisco than he could in Sacramento. 
So I came down to San Francisco to look for a job. 

While in Boalt Hall I had made friends with Orrin Kip McMurray 
who was then a professor and later dean, a scholar and a gentleman. 
I asked him how I should go about getting a job. He said he 
thought the best law firm in San Francisco was Morrison, Dunne & 
Brobeck; that he knew one of the partners, Edward Hohfeld, well, 
and also knew the other partners, and if I wished, he would take 
me over and introduce me, which he did. As a result, I was offered 
employment, which I gladly took, my salary being $50 a month. I 
stayed eleven years with Morrison, Dunne & Brobeck. 

I first got lodging in Berkeley, but with Arch Tinning I soon 
made arrangements to join Henry Taylor in a rented house at 21 
Macondray Street in San Francisco on Russian Hill. Macondray 
Street is a one -block street between Taylor and Jones, Union and 
Green. The house was a rustic house owned by Cadenasso, a well- 
known artist who lived next door. Henry Taylor was a prominent 
printer in San Francisco, a partner in Taylor and Taylor; a 
bachelor who never married. He had been a graduate student in the 
Harvard Business School in Cambridge where we had met him. I 
lived in 21 Macondray Street with time out for service in World 
War I until 1921 when I got married. 

Arch Tinning lived with us at 21 Macondray, until he was 
married in 1916, when his place was taken by Victor Cooley, a 
classmate. Tinning was for a number of terms district attorney of 
Contra Costa County, and also served as head of the State Personnel 






35 



Phleger: Board by appointment of Governor Warren. Cooley, with time out 
for service in World War I, lived at 21 Macondray until his 
marriage in 1922, when he moved to New York with the telephone 
company for whom he had worked since leaving college. He served 
for years as Vice President of the New York Telephone Company 
and then advanced to Chairman and Chief Executive of Southwest 
Bell Telephone Company in St. Louis, where he served until 
retirement. His son, Richard Cooley, is President and Chief 
Executive of Wells Fargo & Company and Wells Fargo Bank. 

Henry Taylor's father was Edward Robeson Taylor who had been 
mayor of San Francisco following the graft prosecution. He was 
not only a medical doctor but also an eminent lawyer who at that 
time was dean of Hastings Law School and a poet as well. 

Our house was delightful with a beautiful view of the Bay. 
We had a Scotch lady as housekeeper. She was a good cook and 
baked us shortbread and other Scotch favorites. When we got 
into prohibition she learned how to make beer, which we bottled 
under a label printed by Taylor and Taylor, under the name of 
Margaret's Ale, the housekeeper's name. We gave it in suitable 
quantities to thirsty friends during prohibition. [Hands inter 
viewer a sample label.*] 

Stein: Oh, yes, this is one of the labels. 

Phleger: That's it. It's a work of art. Also, I have here a poem and 
picture of 21 Macondray which may have some interest. Henry's 
father, Edward Robeson Taylor, came up to our house now and then 
and on one occasion composed a sonnet about it. Ed Dassonville, 
who was one of our friends and a fine photographic artist whose 
photographs are prized in many collections, took a photograph out 
the window. Henry Taylor designed a Christmas card with 

Dassonville 's view out the window and the sonnet, which is well- 
suited to aspiring young people. You might glance through --[hands 
interviewer the card.**] 

Stein: That's a very impressive view you have there. 
Phleger: Read the poem. [Pause while poem is being read] 
Stein: That's quite a poem. 

Phleger: Particularly for a bunch of young fellows trying to get along. 
[Laughter] 



*See page 36a. 
**See page 36b. 



36 



Stein: I suppose you could always come back and read it for inspiration. 

Phleger: Why surej 

Stein: I don't imagine that the "hushful quiet" that he talks about here-- 

Phleger: Well, it was a quiet place. It was really, yes. We entertained 
frequently but that's quite an appropriate poem. 

Stein: May we have it to include with the interview? 

Phleger: Sure. That poem may not be otherwise available, may never have 
been published. 

Stein: The printing is beautiful and we have a series of interviews with 
fine printers. 

Phleger: Well, then you must have a number designed by Taylor. He was a 

partner in Taylor, Nash, and Taylor at one time. Nash was a noted 
printer and so was Taylor. He designed that as a Christmas card. 
What year is it? 

Stein: I'm not good at reading Roman numerals. 
Phleger: 1916. 

Stein: With this beer label, I notice at the bottom it says, "General 
gifts agent, Frank English." 

Phleger: Frank English was an officer of the Southern Pacific railroad and 
one of our frequent visitors and handled the distribution of 
Margaret's Ale. 

Stein: I also notice that there are testimonials here. Are these people 
real people? Bush Finnell and Porter Garnett? 

Phleger: Yes, yes. Porter Garnett was a playwright and a popular Bohemian 
and Bush Finnell too. 

Stein: And J.B. ".0017." Layton? 
Phleger: Yes, he was a prominent Bohemian. 

Stein: His testimonial says, "I have found Margaret's Ale most useful 
in affecting favorable settlements of claims against the 
Municipal Railway." 

Phleger: He was claims agent for the Municipal Railway. 



36a 




HARMONY ALE 



'Margaret's Own' 



From i wcrtt recipe imported by a Scotch lady in whose family it wu handed down 
- |or hundredf of jean 



THE UNIVERSAL PACIFIER AND COM 
FORTER OF THE WORLD'S AFFLICTED 

• READ THE TESTIMONIALS: 

For many yean I suffered from extreme irritability, my disposition being such that 
I was in constant rowi, even resulting on one occasion in my having to keep to my 
self for thirty days, but since taking the first swig of your ale these infirmities and 
inconveniences hare entirely disappeared. I now boast such placidity of temperament 
and sweetness of disposition, that all men hail me "Brother! " — Buih Fintull. 

1 hare found your ale, with just a dash of Wynner Bitten added, to be a most 
delightful soothing syrup, conducive to reverie and srfhitinn. — Paner Gfrmttt. 

I have found "Harmony Ale" mostbseful in effecting favorable settlements of 
claims against the Municipal Railway. — J. B.(".ooor Per Cent") Ldgkun. 



NOTE : Thi» Ale i* thoroughly aged, none having been made lince 
June 30, 1919. Alcoholic content, 7% by volume. 



jf rank 



.General Gifts Agent 
SAN FRANCISCO 






36b 







37 



Continuing Associations with the University of California 



Stein: I wanted to get some place on tape the story of your participation 
in the Alumni Association at Cal. 

Phleger: This might be a good time to say something more about my 

connection with the University. I'll finish up on that. I was 
secretary of the Alumni Association in my senior year and first 
graduate year at Berkeley and editor of the Alumni Weekly. When 
I returned from Harvard and Europe I resumed my interest in the 
Alumni Association and served as a counselor or whatever the title 
is for some years. 

Indeed, I might have resumed the secretaryship. About 1922, 
when Charles Merrill was president of the association, he 
concluded that if the association was to fulfill its proper 
purpose it must have a full time secretary with adequate funds to 
build the association up. It was realized that it would be 
impossible to get a first class secretary unless he was assured 
of an adequate salary over a reasonable period during which he 
could build up the association to the point where it could pay 
an adequate salary. 

We hit upon Robert Sibley, then a professor of engineering 
in the University and with whom I had frequently played tennis, 
as being an ideal person to be permanent secretary. We worked up 
a plan to raise a sufficient sum of money to insure Sibley, if 
he took the office, of getting at least three years' salary and 
to provide some additional funds to build up the association. 

The plan provided for the circulation of subscription lists 
to be signed by one hundred alumni who would guarantee to pay 
the association at least $100 a year for three years. The total 
sum guaranteed was about $50,000 and on the basis of that Sibley' 
was induced to give up his professorship and become the full time 
secretary of the Alumni Association with an initial salary of 
$10,000 a year. As the going salary for a full professor in the 
University at that time was $5,000 or $6,000 a year the salary 
paid the secretary of the Alumni Association caused considerable 
comment among the faculty. 

But anyway Sibley took the office and was an outstanding 
success. He was an ideal secretary and served for many years, 
building the association into one of the largest university 
alumni associations in the country, publishing a monthly magazine 
of outstanding quality, and with many other activities. Charles 
Merrill and some of the others interested in the Alumni Association 
at that time are to be credited with the ingenious plan of putting 
the University Alumni Association on a firm basis. 



38 



Phleger: I might add in this connection that my interest in the 
University has continued over the years. In addition to 
teaching in the law school for two years, I became president 
of the Boalt Hall Law Association. Indeed, I was one of its 
founders, at the suggestion of Dean McMurray, and its first 
president. Of course, I always remained an active member. 

In 1964 I was awarded the Boalt Hall Alumni Association 
citation and have received various other honors from the 
University over the years which I have much appreciated. At 
Commencement on June 7, 1957,1 was given the honorary degree of 
Doctor of Laws and at Charter Day in 1958 I was named Alumnus of 
the Year. In 1965 I served as Regents Professor in political 
science for the spring term. In the centennial year of 1970 
I received the Berkeley Citation and have been for some years a 
member of the Berkeley Fellows. 

Stein: What is that? 

Phleger: That's a group that meets annually at the Chancellor's home in 

Berkeley. They are Berkeley graduates with some honorary members 
such as ex-Governor Pat Brown. We have a fine dinner and the 
Chancellor tells us of the events of the past year, of his 
problems and of other University items of interest. 

I have been greatly appreciative, as have my brother and 
sisters, of what the University has done for us. In 1953, we 
established the Mary Phleger Memorial Scholarship Fund at Berkeley, 
which provides scholarships at Berkeley for graduates of the 
schools in Sacramento and vicinity, and fifteen to twenty students 
every year receive scholarships from the fund. 

Some years ago, I presented to Boalt Hall a portrait of my 
partner Maurice Harrison painted by Arthur Cahill. Maurice, 
after graduating from the University, taught at Boalt Hall for 
some years, and later became Dean of Hastings Law School. When 
he became my partner, he retired from that position and was one 
of my partners until his death in 1951. He was a distinguished 
lawyer and served for some years as Regent of the University. 

I have also contributed to various projects at the University 
as the occasion arose, the last being toward a professorship in 

government named after Earl Warren--the Earl Warren Professor of 
Government. 

Now I'm a $50 a month employee of Morrison, Dunne & Brobeck 
[chuckles] and I'll proceed from there. 



39 



Stein: Let me just ask one or two more questions about the University. 
First of all, I have a clipping here from the Berkeley Gazette 
that shows you receiving the Walter Gordon Award. 

Phleger: Earlier this year, in April of 1977, the Berkeley Breakfast Club, 
which is a civic organization in Berkeley, made an award to me. 
The award was established to honor University athletes who had 
made a success in later life. The first recipient was Walter 
Gordon, a fine football player, an All-American, later governor 
of the Virgin Islands, and United States District Judge. The 
second holder was Stanley Barnes, a member of the Wonder Team, 
who had been a judge in the Los Angeles Superior Court, Assistant 
Attorney General of the United States, and Judge on the Ninth 
Circuit Court of Appeals of which he became Senior Circuit Judge. 
He was the second recipient of the award and I was the third. 

Stein: You also mentioned last week the role that Jesse Steinhart 
played . 

Phleger: In the raising of the money for the Sibley subvention, a number 

of alumni participated. Two who were active and secured numerous 
subscribers were Jesse Steinhart, later a Regent, and John 
Calkins, a prominent lawyer. There were a number who circulated 
these subscription lists and who are entitled to credit for having 
established the Sibley regime at the Alumni Association. 

Stein: There's one last question about the University. We talked a little 
bit about setting up a southern campus and the problem of having 
Regents now ruling over such a large empire, and I wondered what 
your feelings were generally about the question of centralization 
versus decentralization. 

Phleger: I suppose that the present set-up we have for a statewide 

university and a statewide governing board is probably the best 
solution for a difficult problem. I think the University has 
done well with its new campuses, each of which seems to have 
distinguished itself and established a definite personality and 
character. My definition of a university is a congregation of 
scholars and it is difficult for a university to have ten 
congregations of scholars and be one university. However, I think 
the present system is probably the best that can be devised for a 
state the size of California. One of my longtime partners who 
has now passed away was Ted Meyer, who was Chairman of the Board 
of Regents of the University for a number of years during a 
difficult period. 

I have always maintained an interest in education, having been 
a trustee of Mills College for twelve years and for many years a 
trustee of Stanford. I'll tell more about those later. But I have 
always maintained a great interest in the University. 






40 



The Bar Examination 

Stein: Before we go back to Morrison, Dunne & Brobeck, I think that 
there's still one story untold, of your navy service. 

Phleger: Chronologically I'll come to that. I'm presently in San Francisco 
having returned from Harvard and my European trip and employed as 
a clerk in Morrison, Dunne & Brobeck for $50 a month. My first 
problem was getting admitted to practice. 

In those days attorneys were admitted to the bar after an 
oral examination by the Court of Appeals. There were no written 
examinations. I thought it would be a good idea to take my 
examination in Sacramento where I knew one of the members of the 
court. So I went up to Sacramento shortly after I got back from 
Europe, having in the meantime prepared for the examination by 
studying the books which were prescribed. These consisted of 
Blackstone, Lubet's Equity Pleading, and a number of other classics, 
some of which were already out of print. Having struggled through 
the required reading, I presented myself in Sacramento and sat 
with a number of other applicants in the courtroom of the Court of 
Appeals with its three justices, one of whom I knew. 

The examination consisted of asking questions of the candidates, 
seriatim down one row and up the other. You answered as best you 

could. I remember the first question I was asked was, "What is a 
tenement," the answer to which I think is, "That which may be 
holden" — not a rabbit warren type of housing but "that which may be 
holden." The next question was, "What is a hereditament," the 
answer to which is, I think, "that which may be inherited." 

Fortunately, I was then asked a question having to do with 
California water law. Having just worked on a water law problem 
with Morrison, Dunne & Brobeck, I launched forth with a dissertation 
on California water law starting with Lux v. Haggin. and continuing 
with Katz v. Walkinshaw. the Law of Underground Waters, the Law of 
Riparian Rights, and the Law of Appropriation. As I panted in 
exhaustion after about ten minutes, the judges said, "That will be 
all, Mr. Phleger." 

After the session adjourned, I was told that I had been 
admitted to practice, fortunately having been asked the right 
question at the right time. So having my admission to practice 
I went back to San Francisco to my work with Morrison, Dunne & 
Brobeck. 



41 



Teaching 



Phleger : 



Phleger : 

Stein: 
Phleger: 



Always looking for a bit of additional income, I became a 
teacher in the night school of Golden Gate Law School, which 
was an activity at the San Francisco YMCA. I taught bankruptcy, 
which at Harvard I had studied under Professor Williston. My 
students were older than I was [chuckles] and some of them went 
on to become prominent San Francisco lawyers. Golden Gate is now 
a university with an excellent law school, business school and 
other schools, and I think has just finished raising five million 
dollars for new buildings. 

After I had taught for a year at Golden Gate Law School, 
either through O.K. McMurray or the dean of the law school, 
William Carey Jones, I was engaged as a lecturer in law at Boalt 
Hall. I taught a one-hour class on two days, for which I received 
$100 per month. One term I taught bankruptcy and the next term 
quasi-contracts. I did not want to interfere with my active 
practice so I arranged to teach my classes from 8:00 to 9:00 a.m. 
As I was living in San Francisco, I used to catch the 7:00 a.m. 
Key Route boat to Berkeley, eating my breakfast en route. 

[end tape 1, side 2; begin tape 2, side 1] 

The fare was then ten cents. My breakfast consisted of a hard 
roll, a cup of cofee, and some apple butter, which cost me 
fifteen cents. 

On the Key Route they sold food? 

That's right. They had a lunch counter on the boat. I would be 
back in my office by 10:00 a.m. so I only missed from 9:00 to 
10:00 a.m., two days a week. 

I had as students a number of men who later became prominent 
lawyers in California. One I remember was Matt Wahrhaftig, who 
became a leading lawyer in Oakland, and another was Al Diepenbrock, 
who became head of one of the largest firms in Sacramento. 

It was a good experience. Sometimes I was only one lesson 
ahead of the class, but if you want to learn a subject well, just 
teach it. 



42 



Early Cases 



Phleger: During my early career at Morrison, Dunne & Brobeck, I was 

fortunate to meet a number of fine men. I cherish particularly 
knowing Alexander F. Morrison, the head of the firm, who was a 
leading lawyer, and a graduate of the University of California. 
He had an intelligent attractive wife, May Treat. She survived 
Mr. Morrison and as there were no children, their fortune of 
some millions was left to Edward Hohfeld as trustee, to be 
distributed to various charities. The Morrison Library at the 
University is part of their benefaction and substantial sums were 
given to Mills College and to the Academy of Sciences and other 
charities. Mr. Morrison was not only one of the leading lawyers, 
but he was attorney for many important people in San Francisco. 

One of my early experiences was being called in by Mr. 
Morrison and introduced to Henry T. Scott. Henry T. Scott was 
President or Chairman of Mercantile National Bank, Mercantile 
Trust Company, and Pacific Telephone and Telegraph Company; he 
was the guardian of Templeton Crocker and his sister, and supervised 
the St. Francis Hotel, which they owned. He had unwisely become 
a director of Western Mortgage and Guaranty Company. 

Shortly before, the State Insurance Commissioner had 
discovered that Western Mortgage and Guaranty was in serious 
financial shape. Its business consisted of making mortgage loans 
and reselling them with its guarantee of payment. Due to care 
lessness in appraisal procedures, many of these had fallen into 
default and the Insurance Commissioner had filed charges against 
the directors, so they were in serious trouble. 

I conceived the idea of reorganizing the company so the 
guaranteed mortgages could eventually be paid and convinced the 
directors that it was better to put up some more money and make 
the mortgages good than be sued and have their reputations 
besmirched. It was a difficult task because there were fifteen 
directors, but they finally agreed to a voluntary assessment and 
raised a very substantial amount--! would say two or three hundred 
thousand dollars initially, which was used to buy back mortgages 
in default and otherwise arrange the affairs of the company so 
that it could operate on a solvent basis. 

I mention this case because through it I got to know Mr. 
Scott well. He was a fine man and over the years befriended me 
in many ways, although he was much older than I was. [Shows 
interviewer portrait photo of Scott.] 

Stein: What a lovely portrait. 



43 



Phleger: This was him in his heyday. I was the attorney for his estate 

when he died and I became attorney for Temple ton Crocker and the 
St. Francis Hotel. Also, Mr. Scott was president of the banks of 
which we were counsel and I later came to be their counsel. In 
my early practice I met a number of important people through Mr. 
Morrison who were very helpful over the years. 

One of the first important matters I worked on was for the 
California-Oregon Power Company, which operated in northern 
California and southern Oregon. I was in the habit of working 
rather late and I remember one afternoon after 6:00 p.m. Mr. 
Morrison asked me to step into his office. He introduced me to 
John D. McKee, who was then president of the California -Oregon 
Power Company and of the Mercantile Trust Company, as well as 
president of the symphony orchestra. Mr. McKee then introduced 
his son Paul, who had just graduated from Stanford where he had 
been captain of the track team. 

He told me that Paul was about to go to work for California- 
Oregon Power Company (COPCO) and Mr. Morrison had suggested that 
I become attorney for that company. Thus began a lifelong 
friendship with Paul McKee, who became a leader in the public 
utility business. He went on from president of COPCO to be the 
representative of the Electric Bond and Share Company in South 
America managing its interests there. Following that he returned 
to the Pacific Coast and was for years president of Pacific Power 
and Light Company, which operated in the Northwest and which later 
acquired COPCO. 

One of the first things I did was to make a trip to the 
Klamath River with Mr. McKee where the company was completing 
a power plant known as Copco Number One. It represented an 
investment of several million dollars and had been designed by 
Herman Schussler, the famous engineer who built the Crystal 
Springs Dam in San Mateo County. Being of an inquiring nature, I 
asked about their water rights and they pointed to the river and 
said, 'Veil, this river has been here many years and it's got a 
lot of water in it and we simply plan to use the water." I said, 
"Have you ever looked up your water rights?" They answered, "No." 

So I proceeded to examine their water rights and found that 
the entire flow of the Klamath River had already been appropriated 
in Oregon by the United States Reclamation Service to provide 
water for the Klamath Irrigation Project. When the project was 
developed there wouldn't be any water for COPCO ' s big, new 
expensive dam. I then worked out a theory that as the United 
States appropriation was in Oregon and the dam was in California, 
California was being deprived of its water without its consent 
and at the least was entitled to an equitable division of the 
river's flow. 



44 



Phleger: Paul McKee was very resourceful. He found that Upper 

Klamath Lake, in Oregon, which was the source of the Klamath 
River, had a surface area of 100,000 acres; that at its outlet 
where the Klamath River had its source there was a rock ledge, 
and by replacing this rock ledge with a dam, it would be 
possible to get 100,000 acre-feet of storage by raising the 
level of the lake one foot and another 100,000 acres of storage 
by lowering it one foot. This would provide enough additional 
water for the power plant, after providing water for the Klamath 
Reclamation Project. 

We then conceived the idea of proposing to the Department of 
Interior that if the government would cooperate with us in the 
building of such a dam and using Upper Klamath Lake as a storage 
reservoir, COPCO would sell power generated at its plant to 
settlers in the Klamath irrigation district at a very low rate. 
After considerable negotiation the government agreed to this and 
early in 1917--February--Paul McKee and I went east and executed 
a contract between the Department of Interior and COPCO, providing 
for the building of the dam (Link River Dam) , the use of Klamath 
Lake as a reservoir and the supplying of cheap electricity to the 
Klamath Project for the period of fifty years. 

As we came back on the train, we slapped each other on the 
back and said, 'Veil, there's something we'll never hear of again 
because this contract runs fifty years." Strange as it may seem, 
everything runs out and when the contract had run about forty-five 
years and had demonstrated its worth, my partner, Gregory Harrison, 
who was then attorney for the power company, went back and 
negotiated a fifty year renewal, so the contract is still in 
effect. It convinced me of the desirability of seeking some 
practical solution to serious problems, rather than depending on 
litigation. 

As a result of that work, I got to know the directors of 
COPCO, which was really in serious financial trouble when it 
was found that its water rights were not secure. Joseph D. 
Grant, one of the founders of the Save-the-Redwoods League, 
Joseph Donohoe, Christian de Guigny, and a number of other 
prominent businessmen were directors of COPCO. As a result of 
this early work, I became personally acquainted with them and in 
later years did a great deal of work for them. 

About this time an opera house was being planned for San 
Francisco. There had been a few opera performances in the Civic 
Auditorium under the direction of Getano Merola, and those who 
were interested in music and the opera thought San Francisco 
should have an opera. A committee was formed to raise the 
necessary money. On the committee were William H. Crocker, John 



45 



Phleger: Drum, Walter Martin, Robert I. Bentley, and a number of other 

prominent people. Mr. Morrison called me in one day and said he 
had offered my services gratis to this committee and so until 
World War I came along, I acted as its attorney. 

It raised over two million dollars and bought a piece of 
property on Van Ness Avenue as a site for the Opera House. I 
remember John Drum, who was an activist, saying "Now, let's 
show the public that we mean business. Let's start excavating 
the site." So they started excavating the site and for years 
there was a hole out there on Van Ness Avenue. World War I came 
along and all activities ceased. But the committee did select 
the architects and plans were drawn. 

To continue the story, after the war was over, it was found 
that the amount raised was inadequate and the only feasible way 
to raise the necessary money was to get the City to take over the 
project. A War Memorial in the form of an opera house was then 
conceived and Charles Kendrick, a war veteran and prominent 
citizen, was induced to lead a program for a bond issue to build 
a War Memorial in the form of an Opera House. With the enthusiasm 
generated by the desire of the public to show its appreciation of 
the veterans' war service and by the desire of opera lovers to 
have an opera house, the bond issue passed. The buildings were 
then built under an agreement that the veterans were to have as 
much money for their Veterans Building as the opera would have 
for the opera building. I didn't have anything to do with the 
activity after the war, but I did meet some interesting and 
important people when the project was first being planned. 

[end tape 2, side 1] 



World War I 



Pre-War Experiences 

[Interview 3: October 4, 1977] 
[begin tape 1, side 1] 

Stein: I have a couple of questions about the University. One is about 
President Taf t ' s visit to campus. 

Phleger: Yes, he spoke at the Greek Theater and, of course, I was present 
as were all the other University students, but I don't have any 
clear recollection of the event. I do recall two other visits, 
one by Woodrow Wilson in which he made an eloquent address. I 
think that that was after World War I when he was urging the U.S. 



46 



Phleger: 



Stein: 
Phleger: 



Stein: 

Phleger: 
Stein: 

Phleger: 



to join the League of Nations. There was also a famous speech 
made there by Theodore Roosevelt in which he boasted that while 
Congress was debating he had taken the Panama Canal. Those 
were important speeches and made a lasting impresson on the 
students. 

The audiences in those cases were almost exclusively 
University students and faculty. 

You were there in what capacity? 

I was there as a student. When I was at Berkeley we had University 
meetings in Harmon Gymnasium on Fridays. I don't know their 
frequency. They were at least once a month and they were inspiring 
occasions. The president was always present. We would have some 
visiting speaker or some member of the faculty and sometimes a 
student. But the University meetings were held regularly and were 
largely attended and the programs were enthusiastically received. 
1 don't think they have such meetings anymore. 

I don't think they could get everybody into a single building. 
Was this during the day? 

This would be at 11:00 a.m. on Fridays. 

A couple of other things I wondered if you remembered. One was 
the campaign for woman suffrage which was going on at about that 
time. 

The woman suffrage amendment as I recall was adopted in 1920. I 
remember a debate we had on woman suffrage, I think possibly 
between the Congress and the Senate, in which I was on the Senate 
team. We opposed woman suffrage and won the debate upon the 
following syllogism: Voting is not a right but a privilege 
granted for the benefit of the state. Therefore, if giving women 
the ballot is not beneficial to the state it should not be granted. 

The education and independence of the voter largely determines 
the quality and value of his vote. As you go up the scale 
of education, social, and economic advantages, the wife becomes 
more and more independent of the husband. Therefore, as the 
quality of the voter goes up there is a tendency of the husband 
and wife to vote on opposite sides of a question, thus cancelling 
their votes. But as the economic and educational standards go 
down the husband becomes the dominant figure in the family and the 
wife tends to vote with him, thus doubling the less educated and 
less independent vote. Evidently the judges decided that the 
syllogism was correct and had been proved and so just a few years 
before women got the ballot we won the debate by proving that 
they shouldn't have it. 



47 



Stein: I know that in California women had the vote before the 
constitutional amendment. 

Phleger: They did. 

Stein: Was your debate before women in California were voting? 

Phleger: I think so. 

Stein: What did you and your other debaters think about it when it did 
come? 

Phleger: Well, we had a good laugh. [Laughter] Today I feel our 

syllogism would not be accepted. The public now believes that 
universal suffrage is a right, not a privilege. 

Stein: My only other question of this period is if you visited the 

International Panama -Pacific Exposition in San Francisco at all. 

Phleger: As the debate over the proposed Panama Canal Treaty becomes 

more intense, I hark back to the Panama-Pacific Exposition in 
1915 which was to celebrate the opening of the Canal.* Today 
people don't remember the tremendous impact the opening of the 
Canal had on the Pacific Coast, particularly California. 

The Isthmus of Panama for many years afforded the best 
route between the West and East Coasts. In the Gold Rush many 
Forty-Niners walked across the Isthmus. Since 1850 the United 
States has had a route across the Isthmus followed by a railroad 
and finally by the Canal, built under the provisions of the 1903 
Treaty between the United States and Panama, which granted the 
United States in perpetuity a strip of land ten miles wide 
between the oceans upon which the Canal was built. 

The products of the West Coast — lumber and canned goods and' 
ores and other products--f ind their way to the East Coast and to 
Europe through the Canal. The argument that the Canal is no 
longer of economic value to the United States is not valid, and 
its military and strategic value to our country is irreplaceable. 
The principal factor in keeping down transcontinental railroad 
rates has been the Canal. In World War II the Canal was the 
principal route for supplies from the East Coast to the Pacific 
and for our troops who had gone to Europe, to come back and go 
into the Pacific war theater. 



*In 1977, intense debate over the Panama Canal was sparked by a 
new treaty which proposed to turn the Canal over to Panama. 



48 



The Outbreak of War and the Mooney -Bill ings Case 

Phleger: Now, if it's all right, I'll go on to World War I. World War I, 
of course, commenced in 1914 and I've already told I was in Rome 
when Archduke Ferdinand was assassinated and in Switzerland when 
the war actually started. After I returned to San Francisco, we, 
of course, followed the war in Europe with great interest. As 
the United States became more and more involved, we (particularly 
the unmarried males) followed it with even greater interest. 

I remember marching in the Preparedness Day parade. On July 
22, 1916, we formed down near the Ferry Building and marched up 
Market Street. A large crowd running into the thousands watched 
from the sidewalks. I was near the head of the parade and as we 
got to about Second and Market, I heard the explosion of the 
bomb which killed nine people and injured fifty. The parade did 
not break up but continued to its destination. 

I followed the Mooney-Billings trial with great interest. 
The judge, Judge [Franklin A.] Griffin, was from Sacramento and a 
friend of mine. I recall meeting him one night at the Palace 
Hotel after [Frank C.] Oxman, one of the principal witnesses who 
came from Woodland, had testified. Judge Griffin told me what a 
fine impression Oxman had made and how convincing his testimony 
appeared. Years later, the Mooney-Billings Defense Committee made 
Oxman's testimony one of the principal objects of its attack. 

For years I followed the Mooney-Billings case until finally 
[Tom] Mooney and [Warren] Billings were pardoned by Governor 
[Culbert] Olson. I have here the decision of Governor [James] 
Rolph on April 21, 1932, denying the application of Mooney for a 
pardon. It reviews the Mooney-Billings trial and concludes that 
the trial was fair and no basis existed for granting a pardon. 
It also relates how the Mooney Defense Committee collected large 
amounts of money from all over the world to support its agitations 
for a Mooney pardon. Fund raising for Mooney became a full time 
paid occupation for Mooney relatives and supporters. After Mooney 
was pardoned and the money raisers had lost their meal tickets 
it was rumored that they were disappointed that he had been 
pardoned. 






49 



Enlistment and Training 



Phleger: Now to continue about World War I: as the war progressed and the 
United States became more involved and German submarines started 
attacking and sinking American ships, I, as a healthy unmarried 
male began thinking about what role I should play. After war was 
declared, which I believe was in April of 1917, I decided that I 
should enlist forthwith instead of waiting to be drafted and thus 
have some choice over what I was going to do. 

I decided I would prefer being in the navy to being in the 
army. My college connections stood me in good stead. I got a 
recommendation from Major J.T. Nance, who was the U.S. army 
officer who had been commandant of the University cadets, and 
although I had never progressed beyond the rank of private he 
wrote a fine letter to the naval authorities describing my 
military qualifications. I also got a helpful letter from 
President Wheeler which was probably composed by Newton Drury, who 
was then his secretary. 

Armed with these letters, and helped by a friend in the navy, 
Captain Emmanuel Lofquist, I was enrolled as an ensign in the 
United States Naval Reserve and took the oath on June 17, 1917. 
I was ordered to report to San Diego at the U.S. Naval Training 
Station there and for the next several months taught close order 
drill to the naval recruits and paraded down the streets of San 
Diego, following the band. 

After I had been down there for some time, I heard that the 
navy was setting up what has since been known as the "ninety-day 
wonder" program. Under this, university graduates were taken 
to Annapolis and given a three months cram course, on the 
completion of which they were given temporary commissions as 
ensigns in the regular navy. The problem was to get in. There • 
again my University connections were helpful because I had become 
acquainted with Regent James K. Moffitt, who was Vice President of 
the First National Bank and a friend of Senator [James D.] Phelan. 
He got the Senator to endorse my application for admission to 
Annapolis, with the result that I was admitted. I reported to 
Annapolis on October 11, 1917, and became a member of the second 
"ninety-day wonder" class. 

There were two hundred in the class, made up entirely of 
university graduates, mostly single men. We were housed in 
temporary barracks and wore cotton khaki uniforms, although that 
winter proved to be the coldest in many years. We rose at 6:00 
in the morning, reported to breakfast at 7:00 a.m. at Bancroft 
Hall, where we ate with the regular midshipmen, and spent the rest 
of the day in classes, drill or study. 



50 



Phleger: Our course consisted of what was the whole fourth year 
curriculum of the regular midshipmen with the exception of 
engineering and other technical courses like mathematics. We 
took seamanship, navigation, ordnance, signaling and communica 
tions. We also received training in small boats, in close order 
drill and on the rifle range. The classes were taught by the 
same regular naval officers who taught the midshipmen in the 
Naval Academy. The usual classroom work consisted of being 
examined on the twenty or thirty pages in each of the texts which 
had been previously assigned for study. When a class assembled 
we stood at attention until the Lieutenant Commander or Commander 
came in. At the order of "seats" we all sat down and proceeded 
with a written examination on the twenty or thirty pages of text 
that had been assigned for that day. That was the instruction. 

At the end of each session, all papers were picked up and 
later graded. Each month the grade of every student was computed 
out to five places and a list was prepared and posted, showing 
the grade of each student from top to bottom. It was quite 
different from the Harvard or Berkeley methods of instruction, 
but I must say that we learned what was in the books and I think 
a lot can be said for this method of instruction for people who 
are expected to follow a set formula or military pattern. It 
trains each person to respond like every other to the same order, 
or in the same situation. There was no variation and no room 
for your own special idea of what the order meant or what ought 
to happen. 

Fortunately, when we reached the end of the three months 
term I ranked eight out of the two hundred. This was particularly 
helpful because the first ten were granted the option of being 
assigned to service in European waters on the destroyer squadrons 
based at Queenstown* or Brest. I was assigned to the destroyer 
S.S. Beale, Number Forty based at Queenstown, Ireland. 

Here's the roster of the reserve officers training class at 
Annapolis and the officers who were teaching.** We were all 
college graduates, all quite young, mostly unmarried and from a 
great variety of universities. Here is a picture of the pasteboard 



*Later renamed Cobh. 

**See "Register of Second Reserve Officers' Training Class, 
U.S. Naval Academy, Annapolis, Maryland, January, 1918," in the 
Herman Phleger Papers in The Bancroft Library. 



51 



Phleger: dormitories we lived in. Here is a photograph of my company. 

There were four companies. Here's a photo of the ships we used 
to go out on for training. Here we're all in formation.* 

The "ninety-day wonder program" is a good example of how 
much can be accomplished in a short time in the basic military 
training of a group of young educated men who are anxious to 
learn. The program turned out usable naval officers in three 
months. A similar program was followed in World War II, when 
they took men out of the officer training corps at the universities 
and turned officers out like cupcakes. Most of the men in our 
class were from Harvard, Yale and other eastern universities. 

Stein: Yes, here's a list of the schools and colleges and the numbers 

from each school. Yale, Harvard, and Wesleyan are at the top of 
the list. 

Phleger: I've never seen anything written about the "ninety-day wonder" 

officer training program. I doubt that there's any record, except 
probably in some archives in the Navy Department. 

Stein: This is a valuable document with wonderful photographs. These 
photographs are of your company in training, I suppose? 

Phleger: Yes, there we are at the small arms range learning how to shoot. 

Oh, boy, I'll tell you we were kept busy. We got up at 6:00 

in the morning and went to bed at 9:00 or 9:30 p.m.: it was a 
rough, tough, exciting experience. 

Stein: I can imagine that you were going all the time. 

Phleger: Well, particularly people like myself. I had never been to sea. 
[Laughter] 



On Duty Aboard the Destroyer Beale 



Phleger: I was ordered to report to Queenstown and sailed for Liverpool on 
February 15, 1918, on the [S.S.] St. Paul. This was one of the 
two passenger ships which the United States was operating at that 
time. 



*Photographs are in the "Register of Second Reserve Officers' 
Training Class." 



52 



Phleger: Fortunately, on the train to New York, which was seven hours 
late, I happened to sit next to an attractive older woman who 
turned out to be Mrs. Daniels, the wife of Josephus Daniels the 
then-Secretary of the Navy and we got to be friends, which stood 
me in good stead when it came time to get out of the navy at the 
end of the war. I also found in the same car Judge Ben Lindsay, 
the famous juvenile court judge who had shown me through his 
courtroom in Denver. I introduced Judge Lindsay to Mrs. Daniels 
and we had a pleasant trip to New York. 

When I got to Queenstown I discovered that the Beale was in 
refit at Cammell Laird's, a shipyard in Liverpool. So I proceeded 
there and was introduced to the officers and men of the Beale. 
As I have mentioned, the Beale was Destroyer Number Forty, being 
the fortieth destroyer which the United States had built. The 
destroyer numbers are now approaching one thousand so you can see 
how many destroyers have been built in the interim. 

The Beale had been built at Cramps in Philadelphia, and had 
a complement of about ten officers and two hundred men. Most of 
the crew were regular navy men. Of the ten officers, seven were 
graduates of the Naval Academy. 

At the time, the Scale's principal assignment was to escort 
the fast single ship troop transports coming from America through 
the submarine zone to their European destinations. We would go 
out five hundred or seven hundred miles from Queenstown or Brest, 
pick up the [S.S.] Leviathan or the [S.S.] Aquatania or the [S.S.] 
Olympic or one of the other large ships and at about twenty-seven 
knots and zigzagging, we would escort them into Liverpool, 
Southampton, or Brest, protecting them in that way from submarine 
attack. While there was considerable firing from the escorted 
ships, none was successfully torpedoed. 

We also escorted large merchant ship convoys, sometimes as 
many as forty ships, which proceeded at slow speeds, about ten 
knots. We were present at a number of torpedoings where we 
rescued the ship's crew. I recall one torpedoing where we 
rescued the captain and on the way into Liverpool he got seasick, 
saying this was the first time he had gotten seasick in his forty 
years at sea. 

The Beale . judged by present standards, would be considered 
quite primitive. There were no gyroscopic compasses in those 
days. We navigated by a standard compass which we compensated 
from time to time when in port at Queenstown. The radios were 
all silent and no running lights were lit at sea. No lighthouses 
or other aids to navigation were operating. We had fog in the 
English and Irish channels and in the Bay of Biscay most of the 



53 



Phleger: time and there were tidal currents that sometimes ran up to 

eight knots. So you can see that our business was cut out for 
us. We rarely took our clothes off during our seven to ten day 
trips at sea. After some months I was promoted to navigator and 
had the experience of trying to figure out where we were at times 
when you couldn't see and had no way of knowing where you were 
except by dead reckoning and by piloting. When we had clear 
weather we would take sun and star sights, which was heaven indeed. 

The atmosphere at Queenstown reflected the intense animosity 
of the Irish toward the British and the war. Cork, which was a 
large city, only about twenty miles from Queenstown, was off 
limits for military personnel and the Irish on every opportunity 
showed their antagonism for the British and their hope that they 
would lose the war. The food situation was bad, particularly in 
the British navy. Rationing was, of course, in effect throughout 
England and Ireland. 

We had plenty of food in the navy but some of it was not very 
good. I remember one occasion when we only got a dozen good eggs 
out of an entire case. The rest was spoiled. Our food was a form 
of currency in trade with the British naval officers, who had no 
white bread at all. We were usually able to trade two loaves of 
white bread for one bottle of scotch, which was a good deal from 
our standpoint. [Laughter] 

The Lusitania had been torpedoed just off Queenstown and I 
remember going up the hill to the cemetery where hundreds who 
lost their lives in its torpedoing were buried in a common grave. 

When I got leave I went to London where we were entertained 
by the British and shown the sights. I was invited to an 
investiture at Buckingham Palace, where I met King George. He 
was pinning medals upon a number who had distinguished themselves 
in the British naval service. On this occasion, he bestowed two' 
Victoria Crosses and also gave medals to the widows and children 
of officers who had lost their lives in action. 

I also met John Burns, the famous labor leader, who was a 
member of the British cabinet. He was a short, squat man with a 
grey beard and told with gusto of the time he had led 200,000 
striking dock workers through the streets of London. He recalled 
with pride that there had been no violence in this strike. He was 
self educated and said he had educated himself primarly out of 
[Thomas] More's Utopia, a copy of which he had bought in Cairo 
when he was working there as a laborer. He still had this copy 
and showed me his collection of More's Utopia, which he said 
included more than two hundred editions; more extensive than that 
in the British Museum. 



54 



Phleger: The Beale sailed once or twice with the United States Third 
Battle Fleet, which was based in Bantry Bay. Its mission was to 
protect convoys against German battle cruisers, which from time 
to time would sally out into the Atlantic and attack troop convoys. 

We were at sea on November 11 excorting the [S.S.] Olympic 
when the Armistice was declared. When the news reached the 
Olympic, it turned on all its lights, which was the first time in 
months we had seen a ship with lights. 

The Beale. with a large number of other U.S. warships, 
destroyers and the battle fleet, were ordered to meet and escort 
the [S.S.] George Washington, carrying President Wood row Wilson , 
on his way to the peace conference in Paris. We met about one 
hundred miles out of Brest, formed a line led by the Battleship 
Pennsylvania followed by the George Washington with the destroyers 
and battleships forming an escort column on each side. It was a 
great spectacle. 

After we had left President Wilson in Brest, we escorted the 
Battleship Wyoming with John W. Davis, the newly appointed U.S. 
Ambassador to the Court of St. James, on board, to Plymouth where 
I was detached and ordered to the Wyoming for passage to the 
United States. On the way home on the Wyoming I bunked in the 
officer quarters with good food and no duties, and it being a 
battleship, I was most comfortable. 

I must say that on the Beale I was most uncomfortable at 
the beginning. I had never been to sea before and on a small 
destroyer in rough weather I was frequently seasick. I remember 
the first time I was up on the bridge and I could smell the smoke 
and other odors from the galley and I got violently sick. I 
thought the thing to do was to go below. But the captain who was 
on deck said, "You stay up here. You've got a job to do. Just 
go over to the lee side and relieve yourself. Be sure you don't 
go to the windward side." 

That's just what I did on that occasion and on numerous 
occasions thereafter. I could tell you the contents of the 
human stomach from the first pale yellow bits that came out until 
it got so that it was actually black. But I survived it all and 
got to be a good sailor. So when I came home on the Wyoming I 
had to smile when some of the battleship sailors got mal de mer. 
and I felt like I was sitting in the Palace Hotel. 

Stein: About how long did it take you to get accustomed to tossing 
around? 






55 



Phleger: I would say it was about a month before I got along quite well 
and then I gradually got better, so I've never been seasick 
since. But it was a tough experience. 

Stein: I can imagine. You must have been skin and bones. 



Resigning from the Navy 



Phleger: The Wyoming , joined by the rest of the U.S. fleet from Scapa 

Flow and Bantry Bay, crossed the Atlantic on a southerly course, 
which was quite smooth. We proceeded at a slow pace and were 
disappointed when we arrived off New York the afternoon of 
Christmas Day. We could easily have gotten to New York in time 
for Christmas but the powers that be ordered us to stand off 
New York and to enter on the day after Christmas, which we did 
to much celebration. That afternoon thousands of sailors from 
the battle fleet paraded up Fifth Avenue to the acclaim of large 
crowds who filled the sidewalks. 

I had received orders, when I was detached from the Beale 
and ordered to the Wyoming , to proceed to the Pacific Coast 
where I was to join a new destroyer then under construction. I 
didn't look forward to this with any enthusiasm as the war was 
over and I had other things to do. 

My orders allowed me time enough to go down to Washington 
where I went into the Navy Department and into the Bureau of 
Navigation, which has charge of personnel and officer assignment. 
I explained to the officer in command there that I was not in 
the navy as a lifetime occupation, that the war was over, and I 
would like to resign. He curtly remarked that my enlistment had 
been for the war and six months after the peace, that peace had • 
not been negotiated and that I was in for the next several months 
at the very least. 

I asked him if I could see the Secretary of the Navy. He 
said no, I could not. So I said, "What would happen if I did see 
him?" He said, "You would be disciplined and dismissed from the 
navy." I replied that I thought this was a very good way of 
getting out of the navy. So I went in to see Josephus Daniels 
who was then the secretary. 

On meeting him I told him of having met his wife on the 
train going to New York and he showed great interest. I explained 
that I was on leave from teaching at the University of California 
Law School, and I thought the students needed me more than the 
navy did. 

[end tape 1, side 1; begin tape 1, side 2] 



56 



Phleger: This appealed to Secretary Daniels and he forthwith issued me 
orders to the West Coast and directed that my resignation 
should be accepted on my arrival there. When I got my orders I 
found they had been signed by Assistant Secretary of the Navy 
Franklin D. Roosevelt. 

My experience in the navy was one of the highlights of my 
life. I met fine men and the associations I made there continued 
for many years. The officers on the destroyers based at 
Queenstown formed a Queenstown Association which met from time 
to time for many years thereafter under the leadership of Junius 
Morgan, who had been on one of the ships. On one of these 
occasions we entertained Admiral Sir Lewis Bayley of the British 
Navy who had been in overall command of the destroyers in 
Queenstown, including the Americans. 

I was particularly fortunate in the officers I met on the 
Beale. This is a picture of the Beale at Queenstown. [Shows 
photograph] You see how small it was and the camouflage it bore. 
Here is a picture of Lt. [Edward] J. Moran and myself on the 
Beale. [Shows photograph]* 

Moran was a graduate of the Naval Academy and a famous 
athlete there. He had a distinguished career in the navy, 
reaching the rank of admiral. He was captain of the cruiser 
Helena, which was lost in the battle of Savo Island and thereafter 
was in command of all the torpedo boats around Guadalcanal, 
including the one on which [John F.] Kennedy (who was later 
president) was an officer. When he retired after World War II, he 
settled in San Francisco. We were good friends until his death 
some years ago. 

I also met a number of other fine officers in the navy. 
Many of the admirals in World War II, like Halsey, were destroyer 
captains at Queenstown. I joined the U.S. Naval Institute before 
I resigned and have been a member ever since. 

Stein: What's that? 

Phleger: The U.S. Naval Institute is the professional association of the 
navy, and publishes a monthly magazine. Members after fifty 
years are excused from further dues, so, in 1969, I graduated 
into the emeritus class with a nice letter from Admiral [Thomas 
H.] Moorer, who was then chief of naval operations. 



*See next page. 




Herman Phleger (left) and Mike 
(later Admiral E.J.) Moran, 
aboard the USS Beale. 1918. 




The USS Beale at Oueenstown, 
Ireland, 1918. 



Stein: 



Phleger : 



Stein: 



Phleger: 



Stein: 
Phleger; 



Stein: 

Phleger: 

Stein: 

Phleger: 



57 



Is this Lieutenant Moran any relation to the Moran family in New 
York? 

No, but I know the Moran family in New York. Eddie Moran was an 
admiral during World War II and his family were the owners of 
the Moran Tugboat Company. He was a friend of Frazer Bailey of 
the Mat son Navigation Company. Through Bailey I met Moran, who 
was probably the most experienced tugboat operator in the United 
States. 

Let me ask you a couple of questions about the navy before we 
move on. I showed you this letter several weeks ago. It is a 
letter you wrote to Newton Drury and Drury saved it and sent it 
to us knowing we would be interviewing you. I wondered if you 
could put the letter in context.* 

This was written in May of 1918 after I'd been over there for 
three months. It tells of the several thousand miles a month 
that we sailed doing escort duty on the North Atlantic. 

Now, I also have here a diary that I kept after I finished 
my course at Annapolis. It tells about my meeting with Mrs. 
Daniels on the train to New York, my voyage to England and 
generally about my experiences during the war. This was written 
at the time. It contains some extraneous material and clippings 
and the condition of my finances and such things. I don't know 
whether you're interested or not.. 



Yes, I am. 
Bancroft . 



That will be a very important part of your papers at 



This latter part, I think, is extraneous, but the rest of it is 
a picture of what it was like to be on a destroyer in World War I. 
I haven't seen any similar document. It covers some of the 
events you'll find in Drury's letter. 

What inspired you to keep a diary? 
I thought it was a good idea. 

This is wonderful. It is so carefully done. You have diagrams 
in here and everything. 

I haven't seen a similar document about the destroyers and it might 
be something you'd be interested in. I wouldn't want you to have 
it unless it is kept with my papers. 



*See pages 58a to 58e. 



58 



Stein: Yes, it will absolutely. Something like this is an enormously 
important part of a collection and this would be kept in The 
Bancroft Library.* 

Phleger: Also I think you might be interested in the pictures of Moran 
and myself and of the Beale. 

Stein: Yes. I was talking to Horace Albright a couple of months ago 
and I mentioned that I would be interviewing you and he said 
that he had played a role in helping you get out of the navy. 

Phleger: I don't recall that but I'll tell you what he did do and I'm 

glad you brought it up. When I was in Washington, after I had 
finished my course in Annapolis and on my way to Queenstown, I 
saw Horace Albright who was then in the Department of the Interior. 
He suggested that it was a good opportunity for me to get 
admitted to practice before the United States Supreme Court. 

Horace, who is a doer, arranged with an officer of the 
United States Court of Claims, whom he knew, to move my 
admission. So with Horace and my sponsor, I appeared before 
the United States Supreme Court, which then sat in the Capitol 
in what was the former Senate Chamber. Chief Justice Edward D. 
White was then Chief Justice and Oliver Wendell Holmes, John 
M. Harlan and a number of other distinguished justices sat on 
the Court. 

When my name was called, I stepped forward and my sponsor 
moved my admission. I was in uniform which got me more 
expeditious treatment than expected, and I was sworn in as a 
member of the bar of the Supreme Court of the United States in 
February of 1918. That was almost sixty years ago. So I am 
indebted to Horace for my early admission to practice before the 
Supreme Court. 

Horace was a good friend of mine and we have kept up our 
friendship over many years. 

Stein: He had also told us that he had appealed to a certain admiral 
while you were in the navy to help you get out. 

Phleger: That may be true but what got me out was my interview with the 

Secretary of the Navy and the fact that I had met his wife before 
I had gone abroad. 

Stein: So Albright's help was strictly secondary. 



*The diary is on deposit in the Herman Phleger papers in The 
Bancroft Library. 



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59 



Phleger: Well, I don't know and I'm very appreciative of it but the thing 
that did the trick was the secretary himself who was much 
attracted by the fact that I was anxious to get back to resume 
my work as a lecturer at the law school. He responded immediately 
to the suggestion that you shouldn't keep law school teachers in 
the navy after the war was over. 

Stein: One other thing that Mr. Albright told me (this may be from a 

somewhat later period): he told me a little bit about a group that 
met with Assistant Attorney General Thompson to discuss world 
affairs and Christianity and that met in a Presbyterian Church 
on Sundays. Mr. Albright introduced you to the group and he 
himself was introduced to the group. Does that ring a bell? 

Phleger: It may very well be. But the fact is I haven't any recollection 
of it. Horace had a distinguished career, as you know, as 
director of national parks and I saw him frequently. I was for 
many years attorney for Yosemite Park and Curry Company, which 
operated Yosemite which was under the jurisdiction of the National 
Park Service. 



From Morrison, Dunne & Brobeck to Brobeck, Phleger & Harrison 



Stein: Now that you're leaving the navy, this brings you back to the West 
Coast and to law school again. 

Phleger: This brings me back to San Francisco at the end of the war. I 
went back to live at 21 Macondray with Henry Taylor. I went 
back to Morrison, Dunne & Brobeck as a clerk and continued my 
practice there. My law work soon required so much time that I 
gave up lecturing at Boalt Hall. I couldn't carry on both at the 
same time. 

I was admitted to partnership in Morrison, Dunne & Brobeck 
on January 1, 1920. As I have mentioned, my starting salary was 
$50 per month and had been increased from time to time. My 
participation in the firm was fixed on five percent of the net 
profits with a guarantee of $6,000 per annum, which indicates how 
moderate, according to today's standards, the earnings of first- 
class law firms were. Now the beginning salary of a lawyer is 
about $18,000 a year. 

Mr. Morrison, my friend and benefactor, died in 1921 and on 
April 2 of that year, I married Mary Elena Macondray and moved 
out of 21 Macondray. 



60 



Phleger: On December 31, 1924, Morrison, Dunne & Brobeck dissolved. 

It was succeeded by two firms: Morrison, Hohfeld, Foerster, 
Shuman & Clark and Dunne, Brobeck, Phleger & Harrison. On 
December 31, 1925, Peter F. Dunne withdrew from our firm and its 
name became Brobeck, Phleger & Harrison. In June, 1927, Mr. 
Brobeck passed away, leaving myself and Maurice Harrison as sole 
partners. 

I was then thirty-seven years old and Mr. Harrison was 
thirty-nine. We had, at that time, six associates and eleven 
employees, making a total of nineteen. We remained in the 
Crocker Building until 1941, when we moved into this building, 
111 Sutter Street. Unfortunately, we're going to have to move 
out of here before the end of this month to Spear Street Tower, 
One Market Plaza. As of this date, we have fifty partners, 
seventy lawyer associates, twenty-one paralegal associates (all 
women), seventy-five secretaries, and thirty-four librarians, 
computer operators and others. That's over 250. 

Stein: That's quite a bit of growth. 

Phleger: It is indeed, but there are other firms here that are larger. 
However, to reasonably cover the whole spectrum of the law 
practice, you must have specialists in at least ten or twelve 
different fields. It would be difficult for a lawyer to practice 
alone because there are so many different fields that he probably 
would not be able to adequately serve even one substantial client. 

Stein: Let me ask you a little bit about the formation of the firm. One 
of the things that we're interested in is documenting the history 
of private law practice in San Francisco and one of the things 
that we have noticed is that in the Teens and the Twenties there 
were a considerable number of firms coming together and breaking 
up; in other words, more fluidity than there is today. I wondered 
if you had any ideas about why that was so. 

Phleger: That is true, due to the fact that in those days there were many 
single practitioners, and most firms did not have more than five 
or ten lawyers, gathered around one or two leading practitioners. 
When the single lawyer died, his practice scattered, and when 
the leading lawyer in a firm died, his partners often joined other 
firms or started new firms. 

Today firms are much larger, and their individual clients 
are much larger, with more extensive and diversified legal needs. 
The requirements--f inancial and business wise—of a firm are so 
much greater these days that there is a greater tendency for 
firms to become institutionalized, so when leading partners die, 
their places are taken by other partners, and the firm continues 



61 



Phleger: to grow and expand, so that in most large firms none of the 

original partners are left; indeed in numerous firms none of the 
partners is a descendant or relative or bears the same name as 
any of the founding partners. The original firm names are often 
retained for years though all the original members have passed 
away. 

In the old days, before you had labor law, income tax law, 
this myriad of government regulations, SEC [Security and Exchange 
Commission] and all the rest, a lawyer was much more independent 
and could go out and tack up his shingle and start practice and 
a firm of four or five lawyers was quite a firm. Now some of the 
firms have a hundred or more lawyers. 

Stein: In the early days of Brobeck, Phleger & Harrison, would you 

picture yourself as more or less three independent lawyers who 
were sharing space and secretaries? 

Phleger: Oh, no, the firm was much in the pattern of our present-day firms. 
There were partners and there were lawyers who were salaried 
associates. For years our partnership agreements were oral. Now 
they're written documents. A firm today has files, and extensive 
records and bookkeeping departments, and an expanding and expensive 
library. Larger firms even have to have a computer. All this 
makes it difficult for an individual to start up a firm. 

I've given you a copy of my recollections of the earlier years 
of this firm,* which shows how many people go through the mill 
in a firm. Ordinarily, a lawyer graduates from law school and 
goes to work for a firm and if he is able and industrious, he 
becomes a partner in seven or eight years. If he isn't that good, 
he usually moves on to other firms or to other occupations, often 
as house counsel for a corporation or into public service, or 
business. I think you will see in my account of the early years 
of our firm how many lawyers entered Brobeck, Phleger & Harrison 
and how many went on to other associations and activities and how 
few became partners. 

Stein: How would you make the decision about when to hire new people or 
how many to hire? 

Phleger: We were always on the outlook for lawyers of outstanding ability. 
In the old days the graduates of the law schools would call and 
ask for employment. We would constantly be surveying the field of 



*See Herman Phleger, "Brobeck, Phleger & Harrison: The Earlier 
Years," November, 1973, on deposit in the Herman Phleger papers 
in The Bancroft Library. 



62 



Phleger: lawyers who had been out four or five years and were particularly 
able and offer them employment if we had need for additional help. 
Oftentimes these men were in government, like Mr. [Theodore] Meyer, 
who was deputy corporation commissioner when we employed him. 
Whenever we saw an able young lawyer who we thought was compatible 
and attractive, we would offer him a job. 

Today, able young lawyers are in demand and we have a 
committee which is charged with the responsibility of employment. 
They visit the law schools and interview students. We even have 
a trial course where we employ second and third year law school 
students for the summer so that we can look them over and they 
can look us over. 

It's a continuing task to maintain a staff qualified and able 
to keep up with the burden of work of the firm. If you're 
successful, your firm grows and the number of lawyers increases. 
If you're not successful, why, you bring down the number of your 
lawyers to match the requirements. 

Stein: How would these new lawyers be trained once you brought them into 
the firm? 

Phleger: Of course, the graduate of a law school isn't of any great value. 
When he first starts to practice, he's had all the theory but 
little or no practical experience, so for the first years he 
concentrates on obtaining experience. If he is interested in a 
particular field such as corporation law, or litigation, or 
probate, or taxes, he becomes associated with an older lawyer in 
the firm who specializes in that field. Or he may try his hand in 
a number of fields before he makes his decision as to his specialty. 

The compensation a beginning lawyer receives exceeds his 
worth. The firm invests its time and money in a beginning lawyer 
in the hope that he will develop into an able, productive 
associate who will produce enough to compensate for all the time, 
effort and money you've expended in training him. I would say 
that it's a few years after a man leaves law school before he is 
of any particular value to a firm. Of course, some men are abler 
than others and progress more rapidly and you're always looking 
for the hard-to-find able, personable, well-trained young man in 
the hope that he'll become a star. 

Stein: Would that lead you to be more apt to recruit experienced lawyers 
from other firms? 

Phleger: Some of the best lawyers in our firm are men who came from other 

firms, or who practiced alone, or came from government. Sometimes 
when a lawyer is not satisfied with what he is doing and would like 



63 



Phleger: a change, if we think he is able and would fit in, he's offered 
a position. We have, as I say, gotten a number of men from 
government. That's particularly true in the tax field, when we 
get men who've been in the Internal Revenue Bureau, because of 
their experience. 

If possible, our new partners are men who joined us when 
they graduated from law school and have progressed through the 
firm. But we have on occasion gone out and invited lawyers to 
become partners because they had some particular skill or a 
situation arose which made it desirable to bring them in. 

You will find in my account of the Early Years a number of 
instances where experienced lawyers have joined us and have been 
great successes. For instance, Mr. [Alvin J.] Rockwell is one 
of our senior partners. I met him in Germany in 1945 in military 
government. He had served in Washington as general counsel for 
the Labor Board and later as an assistant to the Solicitor General 
of the United States. Finally, he became legal advisor to 
General [Lucius] Clay, U.S. Military Governor of Germany. I had 
been impressed with his ability and character and we invited him, 
when his service was over in Germany in 1948, to join us and he's 
been with us ever since. 

I mention him only as an example. Our principal admiralty 
lawyer, Mr. J. Stewart Harrison, came from the Department of 
Justice, where he had been trying admiralty cases. 



Labor Cases 



The Carpenters' Strike and the Industrial Association 



Phleger: One of the fields in which I early gained experience, not by choice 
but as a result of circumstances, was in labor law. Originally 
there was no such field as labor law. We didn't even have a 
Secretary of Labor when I started practice. But with the develop 
ment of labor unions, the extension of federal jurisdiction into 
local areas by broader interpretation of the commerce clause, the 
enactment of an ever increasing flood of federal labor law, such 
as the Minimum Wage Act, the NLRA, labor law became an important 
field of law practice. 

San Francisco was always known as a union town, where labor 
was highly organized. In fact, following 1905 we had a labor 
party government here. Eugene Schmitz, who was mayor at the time 



64 



Phleger: of the graft prosecutions, was a member of the Union Labor Party. 
Later P.H. McCarthy, who was a member of the Union Labor Party, 
was elected mayor. Some of the unions, like the Teamsters Union, 
were particularly strong. 

Early in the 1920s, San Francisco had a series of strikes 
in the building trades and construction industry. There's a 
great fiction about free collective bargaining — it 's supposed 
to consist of union representatives on one side negotiating with 
employer representatives over hours, wages, and working conditions, 
and after some give and take finally arriving at an agreement. 
The fact is that the labor union, if it's well organized, has 
strong discipline and if it doesn't get what it wants a strike is 
called. Now, the theory of collective bargaining is that if the 
union strikes, the employer is free to hire whomever will take 
the job on the terms which the employer has offered, and the 
union has refused. 

That's good in theory but in practice it doesn't work that 
way and I don't think it ever existed. What happens is that the 
union proceeds by fair means or foul to force, if it can, the 
employer to employ the union workmen on the terms the union has 
demanded. The first move is to put out pickets, which under the 
First Amendment is an exercise of the right of free speech. You 
can inform the public that there is a strike and the issues in 
dispute. But soon the pickets are physically preventing ingress 
or egress to the employer's premises and physically assaulting 
those who continue to work. If that isn't sufficient to force a 
settlement they go out and locate the homes of the workers who 
dared to continue to work and throw rocks and stink bombs through 
the window and abuse the wives and children and telephone at odd 
hours and otherwise harrass whoever dares to continue to work. 
Of course, this doesn't happen in all cases, but it has become 
increasingly the pattern. 

The classic example in the automobile industry was the sit- 
down strikes in Detroit. Usually the unions are strong politically 
because they recognize that if they have government on their side 
their power to force the employers to give in to their demands is 
greatly enhanced. The result is that unions are active participants 
in politics. You sometimes see pickets assaulting workers with 
the police standing by doing nothing. 

We had a carpenters' strike in the Twenties in San Francisco. 
It tied up practically all construction and was accompanied by 
widespread violence. The employers finally got together and 
organized an association, called the Industrial Association, led 
by prominent citizens. I remember Frederick J. Roster, head of 
the California Barrel Works, was president at one time; Atholl 
McBean and Wiggington Creed , later president of the PG&E , were also 



65 



Phleger: officers. During this time their executive secretary was Albert 
Boynton, former state senator, and a highly respected man. 

The carpenters' strike went on and on and it would be the 
strikers' practice to gather each morning in the union hall and 
set up squads who would go out to the various work sites and 
beat up those who continued working. For one reason or another-- 
I guess because we were a small firm and we were young--they 
employed myself and my partner, Maurice Harrison to represent the 
Industrial Association and the employers. We soon filed a series 
of suits leading to injunctions against the unions and their 
members restraining them from their acts of violence. 

One interesting incident concerned the Carpenter's Union, 
which was one of the most active in this strike. During its 

course, "Big Bill" Hutcheson, who was the president of the 
International Carpenters Union, came to town to urge on and 
advise the carpenters. When we discovered that he was in San 
Francisco, we thought it would be a good idea to take his 
deposition and see how much he was involved in all this violence. 
He was staying at Whitcomb Hotel out on Market Street. 

In the lawsuit which was pending, I got out a subpoena to 
take Hutcheson 's deposition and had a process server serve 
Hutcheson. When the subpoena was handed to Hutcheson he took it 
and threw it on the floor and said he would not respond to it. 
When I learned this, I located a provision in the Code of Civil 
Procedure which provided that when a witness has been served 
with process to appear as a witness and is about to leave the 
state to avoid compliance, he can be arrested. So I got out the 
necessary papers to arrest the great Hutcheson, president of the 
International Union. 

I went out myself to the City Hall to get the judge's order 
of arrest. The presiding judge at that time was Judge Timothy 
I. Fitzpatrick, a fine man and a good friend of mine. When I 
walked in to his chambers with my paper, he said, "Herman, what 
do you want me to sign?" I said, "I have this order here to sign. 
He said, "All right, I'll sign it." I said, "Now, just a minute. 
You should not sign this until you know what it is." He said, 
"I don't need to know what it is. I know whatever you ask is 
proper and I will sign it." So he signed it. 

Well, I got the sheriff to go out with the order of arrest 
and he found Mr. Hutcheson and arrested him, whereupon the 
afternoon newspapers got cut noon editions with big headlines 
reading, "International President of Carpenters Union Arrested." 
I went to lunch and when I got back to my office, I found a call 
from Judge Fitzpatrick, asking me to come to see him, to which I 
responded immediately. 



66 



Phleger: When I got out to Judge Fitzpatrick's court he said, "Why, 
Herman, that order was to arrest the president of the Inter 
national Carpenters Union." I said, "Yes, it was. I asked you 
if you wanted to know about it and you said you didn't." "Well," 
he said, "you should have told me about it." I said, "I don't 
understand that it would make any difference who it was. I was 
brought up to believe that the law is no respecter of persons." 
He handed me a paper immediately discharging the order of arrest. 
Thus I learned that the law is a respecter of persons. The judge 
remained one of my good friends, but the incident shows the 
difficulties we had in dealing with these unions. 

However, we persisted and we got injunctions and did all of 
the other necessary things. Sometimes Harrison and I would 
go out ourselves to the picket lines and serve the injunctions. 
Finally the strike was settled on terms that were mutually 
acceptable. 

It was not very long before there were more strikes in the 
building trades and the Industrial Association, to protect the 
employers and workers, established a permit system, conceived by 
its attorney, Max Kuhl, a fine lawyer and a good citizen. This 
plan was for the Association to set up a central bureau where 
permits would be issued to builders desiring to buy rock, sand, 
and gravel and cement — locally produced building materials 
essential in building—and denied to any contractor or builder 
who enforced the closed shop. If the contractor or builder ran 
an open shop with an open union that anybody could join and where 
the employer could hire people whether they were union or non 
union and if the worker wanted to join the union he could, the 
bureau would issue a permit. But if he had a closed union shop 
where no one could work who did not belong to a union, he couldn't 
get a permit to buy these materials. 

I don't think the public has any real conception of how the 
labor monopoly works. Control of the job is probably the single 
most important factor in union organizing. 

tend tape 1, side 2; begin tape 2, side 1] 

Stein: There has been a great deal written about it, but most of it is 
from the union point of view. 

Phleger: That is correct. There's been little written from the employer's 
point of view because people are frightened to death at the power 
of the unions. 

Well, anyhow, to proceed: In the building industry if an 
employer has a contract with the carpenter's union fixing wages, 
hours and working conditions but is still free to hire any qualified 



67 



Phleger: worker as a carpenter whether he belongs to the union or not, that 
is known as the open shop or right to work. But if the employer's 
contract with the union provides that the employer can only hire 
members of the union, you have what is termed a closed shop. The 
employee as a condition of employment must not only pay dues, but 
he subjects himself to the discipline of the union and really 
isn't a free agent. 

On the waterfront, the longshoreman is ordinarily a casual 
laborer. He works intermittently. When a ship is here to be 
unloaded, he gets a job unloading it and he unloads it and after 
it sails, he is out of a job and must find a new one. When the 
great waterfront strike started and [Harry] Bridges came over 
from Australia, it was during the Great Depression and there was 
a surplus of labor and a scarcity of jobs. The great issue was 
who could select the workers, the shipowner who had the job to 
give or the labor union. 

. The basic controversy in all the waterfront strikes and in 
other strikes that involve casual labor is who selects the man 
who gets the job. In the waterfront strikes, the union's first 
move was to demand contracts establishing hiring halls where one 
who wanted a job had to come and apply. The union objective was 
to control the hiring halls, so that the union could give out the 
jobs. By a series of strikes Bridges was able to force the 
employers to make contracts with the unions which provided that 
the waterfront workers would be selected in the union controlled 
hiring halls, and the unions saw to it that no one got a job 
unless he belonged to Bridges' union, and voted for Bridges as 
union president. 

The result is that on the Pacific Coast and indeed on the 
Atlantic Coast, but particularly in San Francisco, nobody could 
get a job without joining Bridges' union, and supporting his 
administration. So their loyalty is entirely to the union and its 
officers, and none to their employer. 

In that way the union leaders not only hand out the jobs but 
ensure themselves of being elected, and continued in office. 
Workers can't continue to get jobs without the approval of the 
union administration, so union officers become perpetual holders 
of the executive jobs in the union. 

Anyhow, during the period of the building strikes in the 
1920s, the permit system was working very well when the building 
trades unions induced the U.S. Department of Justice to file 
suit in the United States District Court in San Francisco against 
the Industrial Association and its members, charging that the 



68 



Phleger: Industrial Association, through its permit system, was restraining 
interstate trade and commerce in violation of the Sherman Antitrust 
Act and praying that the Industrial Association be dissolved. 

The case was tried before Judge [Maurice] Dooling with Max 
Kuhl representing the Industrial Association. The court held 
that the Industrial Association, through its permit system and 
its control and restraint on the purchase of rock, sand, cement, 
and gravel was in violation of the Sherman Act, and ordered its 
dissolution. 

Stein: I have a question here. You said before that the Industrial 

Association in the permit plan had taken special care that these 
would just be firms that dealt within the state. How, then, would 
the United States District Court have jurisdiction? 

Phleger: Because the federal government took the position that while the 

rock, sand, gravel, and cement might originate and be used within 
the state, that business sufficiently affected the' trade and 
commerce in those and other building commodities in interstate 
commerce as to bring it within the perimeter of the Sherman Act. 
Beginning with the Roosevelt New Deal, there was a rapid extension 
of federal jurisdiction into state affairs upon the ground that 
the activities while confined within a state had such an effect 
on interstate commerce that they came within the purview of the 
commerce clause of the Federal Constitution. This furnished the 
basis of a broad extension of federal power into the states. 

At about that time Max Kuhl died and the Industrial Association 
had to find another attorney to represent it in its appeal of the 
Federal Court's decision that it dissolve. I had some friends 
who were active in the Industrial Association, particularly Atholl 
McBean and Wiggington Creed, who asked me to represent the 
Industrial Association in the appeal. 

That was my first case in the United States Supreme Court. 
It was a direct appeal to the United States Supreme Court and I 
prepared the case and went on to Washington and argued it. The 
Court was still sitting in the Capitol, in the original Senate 
Chamber. William Howard Taft was then Chief Justice. The Court 
room was a beautiful room with marble walls and fine acoustics. 
I don't think there were seats for more than sixty people. There 
was a fire in a fireplace burning over on the left side. 

I argued the case and Assistant Attorney General Augustus 
T. Seymour argued for the United States. I stressed the outrageous 
tactics of the unions. They would not permit a painter to paint 
with a brush that was wider than four inches. They wouldn't 
admit anyone to the plumber's union except the sons of plumbers. 



69 



Phleger: A plumber could not do any work on the job--he couldn't wipe a 

joint; the work had to be taken back to the plumber's shop. They 
would not permit workers to sweep with brooms wider than a 
certain size. They would not permit the use of spray guns to 
paint. Their practices were simply outrageous. 

The Court was interested in my description of the tactics and 
methods that the unions were using, not only to interfere with 
work but to prevent progress in the adoption of more economical 
methods and materials. The justices were particularly interested 
in the unions' violence. The Supreme Court unanimously decided 
the case in our favor, Mr. Justice [George] Sutherland writing 
the opinion. It's reported as U. S. v Industrial Association 
268 U.S. 64 (1925). The Court adopted our theory that, as all the 
rock, sand, gravel, and cement were locally produced and consumed 
there, the Industrial Association was not interfering with inter 
state commerce. That case changed the whole climate in San 
Francisco in the building trades and labor fields and for a period 
of years there was comparative tranquility. 

When I came to write my brief in the Supreme Court, I asked 
my good friend, Orrin Kip McMurray, who was then dean of Boalt, 
to look it over and make suggestions. This he did and his name 
is on the brief. Years later when he had retired and was not 
well, we put him on a retainer that continued until he passed 
away. I recall "Captain" Kidd coming to me and saying, "Herman, 
you know that Mr. McMurray is not capable of doing any law work 
because of his ill health and I don't want you to be thinking he 
can." I said, "I know very well he can't. That's why we're 
putting him on retainer." [Laughter] 

I remember wondering what I should charge for my argument in 
the Supreme Court and I spoke to Mr. McMurray about it. I said, 
"I think maybe $5,000 is about right." He said, "Oh, Herman, 
nobody should argue a case in the United States Supreme Court for 
less that $10,000." So I put in a bill for $10,000, which, of 
course, was gladly paid. [Laughter] 



Waterfront Strikes and Controversies 



Stein: Considering the significance of the victory you won, that was 
hardly a price at all. 

Phleger: Well, today, of course, the fees are much larger. San Francisco, 
as I have said, was a great labor town and after the carpenter 
strikes and when the Great Depression came on we had a series of 



70 



Phleger: waterfront strikes. In those strikes I represented the Waterfront 
Employers Association, which was the organization of steamship 
companies and stevedoring companies who handled the ships in and 
out and loaded and unloaded their cargos. It was a rough time. 
This was the beginning of Harry Bridges' career as a labor leader. 
I know Harry very well indeed and I believe he has been a bad 
influence in the labor movement, particularly in San Francisco. 
All you have to do is to go down to the waterfront and the marks 
of what he did are evident there, particularly in its inactivity. 

Stein: What specifically did he do? 

Phleger: What he did was to establish the dominance of his union, the 

hiring hall and the closed shop and a program of make-work, less- 
work for more pay, and the discouragement of labor saving devices. 
The result was that the cost of handling cargo on and off the 
ships here made San Francisco noncompetitive with other ports. 
For the slightest reason he would tie the port up often over 
controversies that had nothing to do with economic matters, such 
as shipping scrap iron to Japan. He used his power to tie up the 
port to intervene in all sorts of political matters. 

Anyhow, I represented the Waterfront Employers Association 
and they were a fine group. President Franklin Roosevelt was 
then in office. He had as Secretary of Labor Miss Frances Perkins, 
and her great objective, as was Roosevelt's, was to unionize all 
industry; to accomplish this they used their governmental power 
to favor the unions in every labor controversy. By the way, we 
were told never to call the Secretary of Labor, Madame Perkins, 
but to call her Madame Secretary or Miss Perkins, although she was 
married. 

The strike culminated in Bloody Thursday, July 5, 1934. I 
remember standing at the window at the American -Hawaiian Steamship 
Company office in the Matson Building with Roger Lapham, who was' 
the president of the American -Hawaiian Steamship Company and 
Frazer Bailey, who headed Matson Navigation Company, and Tom 
Plant, who was the president of the Waterfront Employers, and 
looking down on the Embarcadero and seeing the bloody battle down 
there. If you've never been through a general strike, you don't 
know what one is. When the general strike was declared here 
everything stopped: no streetcars, no milk deliveries, no 
grocery deliveries, no taxis. 

The strikers went out on the highways outside the cities and 
stopped traffic. I remember we were over in Marin County for the 
summer at that time. They stopped everybody coming in and out of 
San Francisco over Highway 1, north of San Rafael. The governor 
called up the militia and the militia kept order. 



71 



St.ein: Does that mean the policemen were also on strike? 

Phleger: No, they weren't. The policemen did their best to maintain order 
but were unable to handle the situation, with thousands milling 
about on the streets. Everything was closed down. Finally, I 
remember "Iron Pants" Johnson, who was then head of NRA [National 
Recovery Administration] , came out from Washington and after an 
address in the Greek Theater, participated in discussions called 
to cope with the situation. 

Finally, order was restored. Federal legislation was 
hurriedly enacted at the instance of President Roosevelt providing 
for the establishment of a National Longshoreman's Board for 
which the employers and the strikers were to submit their 
controversy. The board was appointed by President Roosevelt on 
June 26. 

The board consisted of Archbishop [Edward J.] Hanna, Catholic 
Archbishop of San Francisco, as chairman; O.K. Gushing, who was 
a prominent Democrat and a leading lawyer; and Edward O'Grady, 
head of the typographical union in Boston and then serving as 
Assistant Secretary of Labor in the Roosevelt cabinet. This board 
started operations at once and proceeded to hold hearings, take 
testimony, and arbitrate the controversy. The board held public 
hearings up and down the Pacific Coast, in San Franc iso, San Pedro, 
Los Angeles, Seattle, and Portland--! think a total of seventy-five 
hearings in all, with a record of more than 2500 pages and more 
than 100 exhibits. 

I represented the employers in the arbitration and participated 
in all its hearings. 

I remember well the first hearing, which was in the U.S. 
District Court room out in the Post Office Building. The members 
of the board sat up on the judge's bench and [Henry] Melnikow, 
representing the unions, and myself, representing waterfront 
employers, sat at the counsel's tables below. Witnesses were 
climbing into every available seat. 

When the proceeding was called to order by O.K. Gushing, who 
presided, I was invited to present the employers' case and to call 
the first witness. We proceeded with the evidence. One of the 
first witnesses was Harry Bridges, who took the stand and was 
sworn. He had been accused of being a Communist. The Communists 
were very active in the strike and also in the unions and I 
thought it would be a good idea to establish just what his 
connection was with the Communist Party. I paused quite awhile 
before starting my examination. It was very quiet and I walked 
up as close as I could to the witness chair and I took my hand 
and pointed at Bridges. He looked up surprised and my first 



72 



Phleger: question was "Are you a member of the Communist Party?" Bridges 
flushed, stammered, got red in the face and didn't answer. 

At that point, Mr. Gushing came to Bridges' rescue and said 
"Mr. Phleger, I don't think that question has anything to do 
with this arbitration. What is the purpose of your question?" 
I said, "Mr. Bridges has been sworn. I want to know if he 
believes in the sanctity of an oath." Gushing, who was a good 
lawyer, said, "Mr. Phleger, why don't you ask him that question." 

Well, the jig was up insofar as getting Bridges to admit he 
was a Communist was concerned, for his composure soon returned. 
I'm convinced that Bridges had not only been accepting the aid 
of the Communists in the strike but worked closely with their 
organization. Whether he was an actual card-carrying member or 
not I don't know. He always claimed he wasn't, but freely admitted 
he gladly accepted their help. 

Bridges had the reputation of being a great labor leader. 
From the standpoint of having a large following of union members, 
he certainly has been successful as a labor organizer. But his 
success has been based upon the iron discipline of a closed shop 
and a closed union. The discipline in the waterfront unions has 
been such that a worker could not even join his union without 
Bridges' permission and without becoming his supporter. 

Later I had considerable to do with Bridges when his union 
spread down to the Hawaiian Islands. There he organized the 
sugar cane field workers and after a series of strikes, Hawaii 
was paying the highest agricultural worker wage in the world, and 
became a marginal producer of sugar. 

I have here my oral argument on behalf of the waterfront 
employers .* 

Stein: That would be most valuable. That's the arbitration hearing? 

Phleger: Yes, the strike lasted eighty-two days. Hundreds were injured, a 
number killed. This is my oral argument. It gives a pretty 
good and I think honest account of the strike and the issues 
involved. 

Now, when the Longshore Board made its decision, the members 
were greatly influenced by the conditions of the time. It was 
in the midst of the Great Depression, with thousands out of work. 



*See "Pacific Coast Longshoremen's Strike of 1934. Arbitration 
Before National Longshoremen's Board. Oral Argument of Herman 
Phleger, Esq. in behalf of Waterfront Employers, on 9/25/ 34," in 
the Herman Phleger Papers in The Bancroft Library. 



73 



Phleger: The decision established a six hour workday and a thirty hour 
workweek. The object of the short workday and short workweek, 
supposedly, was to spread the work among as many workers as 
possible. But its effect was to make any work on any day over 
six hours overtime, with overtime wages, and any work over thirty 
hours a week overtime work. Bridges, having control of the 
unions and the selection of those who worked, saw to it that 
his longshoremen worked long hours at overtime pay, and thus 
had the finest longshore jobs in the world. It didn't spread 
the work so much as it provided more overtime work for union 
members. 

I have here a copy of the San Francisco Examiner of July 3, 
1934, which shows the Longshoreman's Board and the representatives 
of the Waterfront Employers, also a picture in the San Francisco 
News of the same date, showing myself; Roger Lapham, president 
of the American -Hawaiian Steamship Company; and Tom Plant, 
president of the Waterfront Employers, leaving the Federal Building. 
I think that was after the first session of the National Longshore 
Board. You can see what a good looking fellow I was in those days. 

Stein: Yes, in all of those early pictures you've given us, you are, 
indeed, quite handsome. 

Phleger: If you really want to see what a snappy Naval officer looked like, 

look there. [Shows photograph*] Isn't that pretty good? [Laughter] 

Stein: Was that your dress uniform? 

Phleger: Yes, the whites. Anyhow, the longshore strikes marked the 

beginning of a long relationship with the steamship companies. 
We represented many of them over many years, admiralty and other 
maritime work. Also I made many friends in the steamship 
business, including William P. Roth, who was president of Matson 
Navigation Company; Frazer Bailey; Roger Lapham, who was president 
of American -Hawaiian, Tom Plant of American-Hawaiian, who was 
president of the Waterfront Employers Association, and many others. 
After that we also represented many employer groups in labor 
matters . 

Stein: I've glanced over Paul Eliel's book** about the waterfront strikes. 



*In the Herman Phleger Papers in The Bancroft Library. 

**The Waterfront and General Strikes, San Francisco, 1934; a Brief 
History (San Francisco, 1934). 



74 



Phleger: Yes, that's the only book about these events that I have seen. 
Eliel had access to the facts, but I don't think it's as 
adequate as it might have been. 

Stein: He says in the introduction that it's little more than a sunrmary 
of the newspaper reports. 

Phleger: I don't think he was close enough to the events themselves to 
write a firsthand account. 



During World War II 



Phleger: During World War II there was a great deal of labor trouble. 

The government established a National War Labor Board composed 
of representatives of the public and representatives of the 
employers and the unions. It was supposed to stabilize labor 
conditions and I think it did a good job. Roger Lapham and 
Eugene Meyer, publisher of the Washington Post and a former 
student at Berkeley, were members of the Board. 

Shipbuilding became active on the Pacific Coast due to the 
war and I was asked to represent the Bethlehem Shipbuilding 
Company in labor matters on the Pacific Coast, which soon involved 
a strike by boilermakers and machinists, which tied up the ship 
yards. I spent some time in Washington with the president of 
the Bethlehem Steel Company and its attorneys working on these 
strikes. We appeared several times before the War Labor Board. 
Among those who represented the unions was George Meany, and 
many a time he and I shouted at each other. He was as braw and 
brash a fellow as you ever met. He was a plumber from the 
plumber's union from New York and at this time I think was 
secretary-treasurer of the American Federation of Labor. He and 
I used to shout at each other during our arguments. 

While in Washington I got drawn into the controversy over 
the unionization of the captive mines belonging to the steel 
companies. These mines, which produced metallurgical coal , were 
mostly non-union. The policy of the administration under 
Roosevelt and Miss Perkins was toward unionization. 

I remember our sitting, waiting for the decision of the 
War Labor Board and as we waited I asked, "What are we waiting 
for?" and one of the knowledgeable fellows said, "We are waiting 
for Sidney Hillman, who is over in the White House, to decide 
this." I said, "He isn't a member of the Labor Board. He hasn't 
heard anything." He said, "That isn't what decides these matters.' 
Sidney Hillman, a prominent labor leader, was the president's 



75 



Phleger: right-hand man on labor matters and he was influencing the 
decisions of the War Labor Board. Well, the captive mines 
became union mines. Most of the issues were decided in favor 
of the labor unions. 

I had an interesting experience in Washington, when these 
matters were pending. We used to have hearings at any hour of 
the night or day. I was staying at the Hotel Carlton. One 
night I was worn out and tired and was in bed about 9 p.m. when 
there was a knock at my door and who should come in but Roger 
Lapham and his wife, Helen, who was a delightful, attractive 
woman. 

It happened that before I went east I had talked with my 
partner, Maurice Harrison, who was a Democrat and a knowledgeable 
person in political matters. He had been chairman of the State 
Democratic Committee when Roosevelt was elected. 

I had said to him, "San Francisco needs new blood as mayor." 
The mayor at that time was Angelo Rossi, who was a florist and 
a fine man, but I thought San Francisco required stronger leader 
ship, so I talked with Harrison about it. He said, 'Veil, I'll 
tell you. The ordinary voter likes to vote for, and favors, a 
candidate who has been a success, who's liberal, attractive, 
likeable, and has social position." 

I said, "That's fine. Who in San Francisco fits those 
requirements?" He said, "Roger Lapham." Roger was then on the 
War Labor Board and head of the American-Hawaiian Steamship 
Company and came from a famous family of shipowners and was 
attractive and personable. He had gained prominence during the 
waterfront strikes. I said, "Do you think that Roger could be 
elected mayor?" He said, "I certainly do. Why, the union 
members and the people south of Market would love to vote for 
him." 

So when Roger and his wife came in and woke me up and 
suggested that we have a drink of scotch, which we did, I said 
to them, "Roger, you ought to run for mayor of San Francisco. 
He said, "You're out of your mind." I said, "Now, you think 
about it." Roger's wife was highly interested. She said, "Why 
not Roger? You'd be a fine mayor." That was the beginning of 
the Laphams ' interest in his becoming mayor of San Francisco. 

Roger was on the War Labor Board and he was popular and 
respected by his associates there, including President Roosevelt. 
Roosevelt wrote a letter of commendation for him when he ran for 
mayor. As Harrison had predicted, voters, including the labor 
union members, swarmed to his support. I remember he had a public 



76 



Phleger: debate with Harry Bridges. He'd go anywhere to meet the voters, 
including the balls and other social affairs of the unions. He 
was a fine mayor and gained much respect for the manner in which 
he performed his duties as mayor during the organization meeting 
of the United Nations in the spring of 1945. This was the 
beginning of his distinguished career of public service. 

Stein: I wonder if this might not be a good place to stop, because we've 
been going for a couple of hours now. 

[end tape 2, side 1] 



An Aside: The Liquidation of the Panama -Pacific Exposition Company 

[Interview 4: October 6, 1977] 

[Interview 4 begins on tape 2, side 2 of Interview 3] 



Phleger: You were interested in the liquidation of the Panama -Pacific 
Exposition Company. After I came back from World War I and 
re-entered Morrison, Dunne & Brobeck (I believe it would be in 
1919), Mr. Morrison called me into his office and introduced me to 
Reuben Hale, who was one of the top officials of the Panama-Pacific 
Exposition Company and the head of Hale Brothers, the department 
store chain. Mr. Hale explained to us that the Panama -Pacific 
Exposition was now over and there was left on hand a substantial 
sum of money, I believe somewhere around $200,000; that the 
Exposition Company had many stockholders who had supplied the 
money for the Exposition. The question arose as to what should 
be done with the remaining money, which seemed too small to 
distribute among the thousands of stockholders. 

The Exposition Company also possessed valuable documents 
having to do with the operation of the Exposition and also a 
library dealing with international expositions generally, which 
they had used for information in planning the Exposition. 

The directors were also embarrassed by the fact that a 
substantial amount of money had disappeared through the negligence 
or criminal act of one of the subordinate officers. Mr. Hale 
said that the directors were in a quandry as to what to do. Mr. 
Morrison and I discussed the matter and I suggested that as the 
amount was so small and there were so many people involved, it 
might be a good idea for the exposition company to start a class 
action in which a number of individual stockholders of the 
Exposition Company, as typical of all stockholders, would be made 
defendants. The trustees would then file their accounts and 
suggest their plans for the disposition of the remaining assets. 



77 



Phleger: We would prosecute that suit with notice in the newspaper and 

otherwise to the stockholders, so that anyone who was dissatisfied 
with the proposed plan of dissolution could appear and be heard. 

The directors decided after considering the matter that the 
best disposition of the remaining funds and of the library and 
other papers of the exposition would be to give them to the 
University of California. The suit was thereupon filed setting 
forth the plan of the directors and publication was made as to 
the pendency of the suit so any stockholder could appear. The 
representative stockholders were served with process and after 
the lapse of some time the matter was brought on for trial before 
Judge Sewell in the San Francisco Superior Court. No stockholder 
appeared to object to the plan so the court entered judgment 
approving the accounts of the trustees and their disposition of 
the remaining assets and papers. I have not followed the matter 
since, but these papers must be at the University, probably in 
The Bancroft Library. 

Stein: They probably are. 

Phleger: Class suits were not vogue in those days and I think this 

particular suit was one of the first that had ever been brought 
in San Francisco. 

Stein: What gave you the idea to handle the problem that way? 

Phleger: I was full of ideas in those days. [Laughter] It was a 

satisfactory way to end up a great exposition and no controversy 
has ever risen over this dissolution and disposition of its 
assets. I was fortunate because, as a result of that, I met not 
only Mr. Hale but a number of other prominent people who had been 
directors of the Exposition Company and some of them became my 
good friends. 



The 1934 Longshoremen's Strike and Arbitration 



Stein: I want to ask you a few questions about the waterfront situation, 
if I could. I read your oral argument and I also went over a 
couple of the books that have come out recently that give such 
a very pro-labor point of view on the whole thing. One of the 
big points, I gather, in your argument in objecting to the demands 
of the ILA [International Longshoremen's Association] in the '34 
situation was that in essence they were asking for a closed shop 
and that was in violation of a number of things for which you give 



78 



Stein: citations. One of these things that is brought up in some of 
these books in the way they answer that, is to say that the 
Blue Book Union, which had existed earlier, had also been a 
closed shop situation. 

Phleger: The Blue Book Union consisted of regular employees on the San 
Francisco waterfront. After a man had worked for awhile as a 
longshoreman and established his qualifications and ability he 
would receive a blue book which would give him recognition as 
being a competent workman. The blue book workmen would be 
given preference in hiring. 

Hiring in those days meant shaping up at the dock and the 
workers were selected for each job without previous arrangement. 
There was no objection on the part of the employer to having 
a common method of hiring. There was no objection to the hiring 
hall as a place for prospective workers to congregate. There 
was no objection to the hiring hall being the place where jobs 
were given out. What the employers objected to was control of 
the hiring hall by the unions and the selection of the employees 
not by the employer or by joint action by the employers and the 
union, but by the union alone. 

As a result of the establishment of the hiring halls and of 
the closed shop, the fact was that nobody could work on the 
waterfront after the strike except members of the ILWU [Inter 
national Longshoremen's and Warehousemen's Union] and those who 
had been approved by Bridges and his cohorts. The result was 
that no one could get a job on the waterfront without the approval 
of Bridges. 

Stein: But in the situation of the Blue Book Union, did you have to be a 
member of the Blue Book Union before you could be hired? 

Phleger: No, not at all. Anybody that the employer wanted to hire could be 
hired. The Blue Book was simply a method of showing the employers 
that the person who held the book was qualified to do longshore 
work and was a reliable worker. The employers made no attempt in 
this arbitration to maintain a Blue Book Union or an employer's 
union. They were perfectly willing to have the men join a union. 
What they were interested in was having some freedom after the 
arbitration in the selection of their employees. 

Stein: Is that the way it works in the decasualization situation that 

you describe in your oral argument? I was a little bit unclear 
as to what decasualization meant. 



79 



Phleger: Decasualization was to be a hiring hall under the joint management 
of employers and employees, and the selection of workers on the 
basis of their competence so long as they were union members. But 
the employers realized that this would soon degenerate into a 
situation where the employees would be selected by the unions and 
not by the employers and that is in fact what happened, so that 
at this time and ever since the end of the arbitration, the 
employees on the waterfront have been selected by the unions 
and not by the employers. 

Now, it sounds reasonable to have a hiring hall run by a 
union which the men can join freely, and which promises to give 
jobs to the most competent man, but the fact is that when the 
hiring is done in a union hiring hall the only workers who get 
hired are union members who have been selected by the union 
officials and who thereafter retain the union officials in office 
so they can continue to get jobs. 

Stein: I think one of the points that you make in your oral argument 

is that a union official in that position is really a politician 
more than-- 

Phleger: That is right. He's interested like all politicians in retaining 
his job. To retain his job, he must see that the members of 
the union are beholden to him and the way to get them beholden 
to them is to be the source of their jobs. You hear these 
starry-eyed people tell you about the labor unions and how every 
thing's sweetness and light and free collective bargaining, but 
that isn't what happens at all. There is no such thing, and has 
not been for years, as free collective bargaining in longshore 
employment in San Francisco. 

Stein: How would you characterize what has been? 

Phleger: The labor union movement generally in the United States has 

created a labor monopoly under the control of union officials. 

Stein: A couple of other things that I was curious about: one of the 

books that I read quoted you.* It was in reference to a meeting 

in late June in 1934 of the National Longshoreman's Board. The 

ILA at that point was insisting, as it had all along in the strike, on 

1) a union hiring hall and 2) recognition of the offshore union, 
the seamen's union. According to this book the employers were 



*Irving Bernstein, Turbulent Years: A History of the American 
Worker, 1933-1941 (Boston, 1971), p. 272. 



80 



Stein: rejecting both of those demands and in fact, says this author, 
"Herman Phleger, counsel for the Waterfront Employers Union, 
bluntly told the board that the seamen had no economic power of 
their own and had attached themselves to the longshoremen's 
coattails." 1 was a little unclear as to what that meant. 

Phleger: That meant just what it said. The strike originally was a strike 
by the longshore workers to unionize and to establish a hiring 
hall and to negotiate contracts on behalf of their union members. 
The sailors unions were totally unorganized, but when they saw 
that the longshore workers were making progress, the leaders of 
the sailors union, desiring to obtain the same results that the 
longshore workers might, participated in the strike and eventually 
were recognized, and have by and large obtained the same union 
closed shop as the longshoremen. 

The real fact is that longshoremen would never have won 
their strike except for the assistance of the teamsters. During 
the longshore strike there was no difficulty in getting men to 
unload the ships at the wages that were then in effect. The 
result was that the ships were unloaded and the docks were piled 
high with cargo. But to get the cargo off the docks the teamsters 
had to cooperate. The teamsters refused to take off the docks 
any cargo that had been unloaded by nonunion workers and the real 
economic strength of the longshore strike resided in the teamsters 
union. 

Stein: I remember that after the teamsters went on strike, there was an 
attempt by the Industrial Association to form their own trucking 
company to get some of that cargo off the docks. Did you have 
anything to do with that? 

Phleger: One of the most dramatic events that I recall is the attempt by 
the Industrial Association to move the cargo, that had been 
unloaded from the ships, from the docks to the various destinations, 
The teamsters had struck in sympathy and would not provide trucks 
or permit the removal of cargo. The Industrial Association then 
decided that the cargo would have to be moved off the docks or 
the strike would be lost. Therefore, a group of young business 
executives formed a company called the Acme Trucking Company. 

The day was set when the Acme Trucking Company's trucks 
would move on to the dock to remove cargo despite the picket 
lines of the longshoremen and the teamsters. The first truck to 
move on to the dock had on its driver's seat Reed Funsten, 
president of a large wholesale dry goods company; James Folger, 
president of the Folger 's Coffee Company, and Ward Mailliard, 
president of Mailliard and Schmiedell. They drove on to the dock 
through a barrage of bottles, rocks and other missiles with great 



81 



Phleger: courage, loaded the truck, and drove out of the dock through a 
similar barrage. As far as I remember that is the only cargo 
movement from the dock that took place during the course of the 
strike. This was shortly followed by Bloody Thursday and the 
General Strike, and no doubt precipitated it. 

Stein: Did you advise these businessmen in any way in helping them set 
up the Acme Trucking Company? 

Phleger: I did indeed. I advised the Waterfront Employers, the Industrial 
Association, and all the rest and I will say this: that during 
the entire waterfront troubles, including the General Strike and 
the bloodshed, no criminal act was ever performed on behalf of 
the Waterfront Employers nor were they ever charged with having 
violated any law or was anyone, a member or representative, 
arrested . 

Stein: That says a great deal, considering the provocation. 

Phleger: It certainly does. There were great displays of courage on the 
part of the employers, usually the younger ones. 

Stein: One of the books that I read, by Irving Bernstein, is called The 
Turbulent Years. It is about the labor movement in this period 
and, as I said before, gives a pro-labor point of view. He 
quotes a prominent San Francisco businessman, whom he doesn't 
identify, as saying that this strike was the best thing that ever 
happened to San Francisco because it was his hope that the strike 
would lick the unions, that as a result of the strike the unions 
would lose and that San Francisco would be free of union power 
for quite awhile. I wondered if this was a sentiment that you 
heard expressed? 

Phleger: No, I never heard that sentiment expressed but I understand what 
the speaker meant. It became evident as the strike progressed 
that if the strikers were to win, San Francisco labor on the 
waterfront and back from the waterfront would be a labor monopoly 
under the control of union labor leaders and not of the men, 
that there would be thereafter no free collective bargaining and 
subsequent events have proved the fact with the decline of San 
Francisco as a great port. 

Stein: What were your own opinions then of the Longshore Board's 
findings? 

Phleger: The Longshore Board's findings made no sense because they—perhaps 
that's too broad a statement; there was no employer objection to 
the unionization of waterfront employees under proper circumstances 
or to the establishment of a hiring hall. What was sought to be 



82 



Phleger: prevented was the closed shop and the control of all hiring by 
labor union officials. What eventuated was a decision for a 
six-hour day and a thirty-hour week which presumably was 
intended to spread work among the longshoremen but which had 
the effect of giving overtime to any longshoremen who worked 
more than six hours a day or thirty hours a week. The result 
was that the favorites of the union leaders worked eight, ten, 
and fourteen hours a day and on Sundays and holidays and earned 
an enormous amount. The number of workers on the waterfront did 
not expand but contracted. And the Board's decision for a 
jointly controlled hiring hall resulted in a union controlled 
hiring hall. 

Stein: I know one of the other points of the award was the jointly 
controlled hiring hall which really was in essence a union- 
controlled hall. 

Phleger: Yes it certainly degenerated into that. 

Stein: But one of the points of the award, as I understood it, was that 
the employers had the right to have dispatched to them when 
available the gangs that were in their opinion the best qualified 
to do the work. I wondered if in practice that eventuated. 

Phleger: That practice may have been in vogue for a short while but the 
actual physical control of the hall and the dispatching of the 
gang was entirely in the hands of the union so that the employers 
were forced to take whomever the unions chose to send them. 

Stein: I've also read that there was an attempt made shortly before the 
strike to bribe Bridges to call the whole thing off, the money 
having been put up by officers of the Matson Navigation Company 
and, according to the author of that particular book, Randolph 
Sevier told the author of this book in 1963 that in fact this 
had happened or it had been talked about. I wondered if it was 
anything you knew about? 

Phleger: Well, I know enough about it to know that it never could have 

happened. I was also at the time attorney for Matson Navigation 
Company and later became a director and was a director for many 
years. Matson was then being run by William P. Roth, president, 
and by Frazer Bailey, executive vice president. Neither one of 
them would have countenanced the bribing of anyone. Sevier was 
an employee of Matson and years later became president of Matson. 
I knew him well and I would vouch for the fact that no such 
attempt was ever made. It's amazing how much of the information 
that comes out now is about acts of people who are dead. 

Stein: Who can't refute them. 



83 



Phleger: Yes, who can't refute them. As a sidelight, the fact is that many 
of the labor unions or a number of the labor unions (not a great 
many) and their officials were corrupt. During the course of the 
strike out here, the president of the longshoremen's union on the 
Atlantic Coast came out to the Pacific Coast in an endeavor to 
settle this strike and to pick up the Pacific Coast as part of his 
domain. He was accompanied by his secretary, who was generally 
referred to as "the bag man" because he usually carried a small 
black bag. Rumor had it, and I think it was probably accepted as 
fact, that this longshore president from the East Coast was 
constantly being bribed by the East Coast employers. 

Stein: That was Joe Ryan? 

Phleger: Joe Ryan, it was indeed, and Joe Ryan made no progress in his 

endeavor out here because that was his reputation and the union 
leaders on the West Coast didn't want to be subject to Joe Ryan's 
jurisdiction. 

Stein: What was your impression of Ryan? 

Phleger: Ryan was quite typical of the union leaders in waterfront circles 
in those days. He had almost a perpetual job as a union official. 
He held office for years in New York and the strikes were usually 
settled between Joe Ryan and the representatives of the steamship 
companies and, as I said, rumor was that Ryan was susceptible to 
being influenced by payments to him. 

There was a great deal of corruption in many union circles, 
particularly when the unions are dominated by an officer who has 
been in office for a long time. It's interesting to note that. 
I have never been interviewed by anyone seeking facts on the 
waterfront strikes. There have been numerous articles, books, 
and other accounts written by people who had no direct contact at 
all. I've never found any writer who has been disinterested 
enough to interview me or anybody who represented the employers. 

Stein: I think that's quite true. 

Phleger: I believe as a generality that history is written not by the 
actors or by people who have contact with the actors. It's 
written increasingly by people at a later date who endeavor to 
support some preconceived theory about what happened. 

Stein: That's why I hope in these tape recording sessions we can perhaps 
build a small balance to that. 

Phleger: I think if the records are examined, if the newspapers of the 

time are read and if the documents and evidence, for instance, in 
the matter before the Longshoremen's Board are examined, you 
would get a pretty accurate report. 



84 



Stein: Speaking of records though, one of the things that I've come across 
reference to is the fact that a number of years later the 
Industrial Association was subpoenaed to appear before the 
LaFollette Committee and they were asked to produce a number of 
records about their fund raising just prior to the strike, which 
they could not produce. The records had either been destroyed 
or mislaid and I wondered if you knew anything about that? 

Phleger: I don't recall that at all. I do know that the funds for the 

Industrial Association were in the charge of John Forbes of John 
Forbes and Company, who held a professorship at the University of 
California and was a most distinguished accountant and citizen, 
and I cannot conceive that any funds raised by or under the 
jurisdiction of John Forbes would ever be used for any improper 
purpose or that he would ever conceal records. I don't think he 
kept records for the purpose of keeping records but he was a man 
of the greatest integrity. 

Stein: Was any of that money used to buy any of the tear gas and whatnot 
that was used in some of those situations on the waterfront? 

Phleger: I know of no tear gas that was used by anyone except the police 
and the tear gas they used had been procured by the police 
department. I do recall that in order to provide bodily 
protection of the employer's representatives, in going to and 
from meetings and otherwise appearing on the streets, it was 
necessary to provide protection. I remember I carried a billy 
club for a considerable time and there were other means taken to 
protect the employer's representatives, some of whom were actually 
beaten. I remember a captain of the American-Hawaiian Steamship 
Company was badly beaten. 

Stein: Who was that? 

Phleger: I cannot remember the name. 

Stein: I gather that at the very end of the strike one of the factors 
that brought the strike to a close was John Francis Neylan's 
calling a meeting of some of the waterfront employers at his 
home in Woodside. The difficulty, I gather, was not so much at 
that point with the longshore union but with the offshore maritime 
unions, and my understanding is that Neylan persuaded these 
shipowner representatives to sign or to write a press release in 
which they agreed to negotiate with the maritime unions and that 
this then appeared in the newspaper and that it had the effect of 
forcing all of the other waterfront employers to go along. Was 
that a correct assessment of the situation? 



85 



Phleger: Well, it's a long time ago and I was present at the meeting at 
Mr. Neylan's home. It may very well have been that Mr. Neylan, 
who had a fine sense of public relations, was responsible for a 
statement that the employers would recognize and negotiate with 
the seagoing labor unions, which was their duty to do anyhow. 

But I think that that meeting and some others were called 
primarily for the purpose of keeping the employers in line, 
because as a result of the long strike, a number of the employer 
shipowners were suffering great financial losses. In fact the 
end of the strike came with the defection of some of the 
employers aided and abetted by Mr. Paul Smith, editor of the 
[ San Francisco] Chronicle, who has received great kudos since 
that time, but who was an uncooperative element at the time. He 
got to be a great friend of Bridges and got great publicity, but 
the fact was that he was not a helpful element in the strike. 

Stein: How did he get the shipowners to defect? 

Phleger: He did not get the shipowners to defect. A number of them—not 
a number of them, one of them in particular whom I won't name- 
believed, as was his right, that the cost of continuing the 
strike was so great that his company could not stand it and 
therefore as was his right, he quit. But it was the collapse 
of the uniform front of the shipowners which finally precipitated 
the ending of the strike. 

Stein: In other words, when you say they quit, they agreed to negotiate 
with the unions? 

Phleger: They just refused to go along further with the united front. They 
were ready to negotiate individually directly with the union, 
which meant surrending to the unions. 

Stein: So Neylan could very well have played on that to bring the others 
along? 

Phleger: That would be pure speculation. Neylan was helpful in the strike. 
Stein: What did he do? 

Phleger: As I say, as a public-spirited citizen he communicated with the 
employers and made suggestions which were helpful. I think the 
meeting you refer to was more for the purpose of having a united 
front presented to the public than for any other purpose. This 
is all so long ago now and I haven't a clear recollection of all 
that happened, but there's a lot of history to be written about 
this that has never been written. 



86 



Stein: This story really hasn't been written, but a good deal of raw 

material exists. Our office, for instance, has interviews with 
Roger Lapham and [J. Paul] St. Sure. 

Phleger: Yes, St. Sure came in afterwards. He was a representative of 
the employers in later years. Lapham was a contemporary 
participant. 

Stein: Let me ask you one last question. How much did the Communist 
party or Communist influence have to do with the strike and 
what happened during the strike? 

Phleger: As I told you of my questioning of Bridges, Bridges, while he 

may not have been a card-carrying member of the Communist party, 
certainly embraced its views and welcomed its help. The 
Communists were extremely active during the entire strike with 
help, advice, picketing, and funds to help the strikers. This 
was a worldwide activity that the Communists, left-wingers, and 
others of that ilk were much desirous of helping. 

I think that a number of the labor leaders at that time, 
including Bridges, took the position that any help they could 
get, Communist or otherwise, they were very glad to have. 

Stein: From my reading I get the impression that there were people who 
felt that there was a sinister international conspiracy behind 
it all, that it wasn't just that Bridges was getting help from 
wherever he could get it, but that the Communists were really 
behind it and maneuvering it. 

Phleger: I don't think the Communists controlled the laborers. I think 
they aided, abetted, gave them ideas and support. But the time 
was right to organize the waterfront employees. It was casual 
labor and it should have been organized. What the employers 
were afraid of was that it would be organized in such a way as 
to put the entire operation under the control of labor union 
officials and that, in fact, is what happened. 

As a matter of fact, for years following (and this has not 
been written up at all) we had intermittent strikes. The labor 
unions endeavored to make work by limiting the size of sling 
loads. They would prescribe the maximum number of boxes of 

pineapple that could be put in one sling. They had all sorts 
of restrictive rules which they enforced for the sole purpose 
of making work. 

Indeed, it was not until the introduction of the containers 
that the union, with Bridges still in control, was induced to 
stop its restrictive practices. That came about because the 



87 



Phleger: employers agreed with Bridges to establish a retirement fund or 
pension fund of several million dollars for the pensioning of 
any longshoreman who might lose his work through these labor- 
saving devices, particularly the container. 

As you will note right now, there's a strike on by the 
eastern longshoremen to prevent the use of containers. The 
reason that that has worked out well is the fact that these 
large funds which the employers paid and are paying into the 
union pension funds are actually made up mostly by the savings 
from the reduction in breakage and pilferage that has resulted 
from the use of the container. There were always large 

quantities of goods in transit that were stolen, particularly 
liquor and other valuable goods, and the breakage was enormous. 
Both the pilferage and the breakage were eliminated when containers 
came into use and the amounts thus saved went far toward making 
up the large sums that were required to be paid by employers into 
employee pension funds. 

Stein: Does anything more need to be said about the waterfront situation? 

Phleger: Well, nothing occurs to me at this time, but it's a great story 
and all you have to do is go down and look at the waterfront and 
you'll see what the net result of it has been over the years. 
A great improvement has come about through the introduction of 
containers. Matson Navigation Company is entitled to a great 
deal of credit for having been the company which was among the 
earliest to promote the use of containers. 



Maurice Harrison and the U.S. Supreme Court 



Stein: Would this be a good time to talk about your association with 
Matson? 

Phleger: I thought we had come to where I got out of the navy and got home 
and rejoined my law firm. I was discussing labor law which we 
engaged in. I might remark, because I think it's interesting, 
in 1939 there was a vacancy on the Supreme Court of the United 
States. My partner, Maurice Harrison, who had been dean of 
Hastings Law School before joining me, as well as a professor at 
Boalt Hall, was interested in Democratic politics and had been 
chairman of the Democratic party in California when Roosevelt 
was elected. He was a close friend of George Creel, who was the 
minister of information during Roosevelt's period, and also a 
close friend of Senator [William] McAdoo . 



88 



Phleger: When a vacancy came on the Supreme Court in 1939, Senator 
McAdoo presented Mr. Harrison's name and he also received great 
support from George Creel and other Democrats and lawyers 
generally who knew of his superb qualifications. My best informa 
tion is that Maurice Harrison's name was on the president's desk 
for appointment to the vacancy in 1939, which was filled by 
Justice [Stanley] Reed. 

Shortly after Justice Reed was appointed, a new vacancy came 
and Harrison's name was again among the top names under considera 
tion. Information, which I credit with accuracy, is that the 
president was inclined to appoint Harrison when John L. Lewis 
heard of it and came to the White House and objected to the 
appointment of Harrison on the ground that he was anti-labor, 
citing the record of our firm as having represented the employers 
in the carpenter's and longshoremen's strikes as evidence. The 
result was that Harrison was not appointed and the position went 
to William 0. Douglas. 

[end tape 2, side 2 of Interview 3; begin tape 1, side 1 of 
Interview 4] 



The Pi Giorgio Cases 



Phleger: I think you might be interested, because it has a labor angle: in 

1938 I was employed by Joseph Di Giorgio, agriculturalist and shir>t>er 
and distributor of fresh fruits. He had large farms in Florida and 
in California, being one of the largest growers of grapes, peaches 
and pears. In California he had large farms at Arvin, Kern County; 
at Delano, Fresno County; and near Yuba City, California. 

He owned the Earl Fruit Company, one of the promiment companies 
that shipped fruit to the eastern markets under refrigeration. He 
owned (and when I say "he" I mean the Di Giorgio Corporation) the 
New York Fruit Auction Company; and the Baltimore, and Chicago Fruit 
Auction Companies, where much of the California fruit shipped east 
was sold at auction. 

Mr. Di Giorgio came to see me in connection with a suit that had 
been filed against him by a stockholder, Blumenthal, who was dis 
satisfied with a corporate reorganization of the Di Giorgio Company 
in which preferred stockholders holding stock on which dividends were 
in default exchanged their stock for other preferred stock. 

The trial was held in San Francisco and I was fortunate enough 
to secure a judgment in favor of Mr. Di Giorgio which was affirmed 
on appeal. Thereupon Mr. Di Giorgio requested me and my firm to 
represent his companies, which we did during the remainder of his 
life and which we do today. 



89 



Phleger: The Di Giorgio Corporation has some six thousand employees 
and does business throughout the United States. It has sold 
a good part of its farming properties but is engaged in the 
distribution of food stuffs, manufacturing and other activities. 

Stein: Were there any significant points of law in that case of 
Blumenthal v. Di Giorgio? 

Phleger: No, there was not. In 1947, Di Giorgio 's ranch at Arvin, Kern 

County, became the initial target for the farm labor unionization 
movement, led by the National Farm Labor Union, an American 
Federation of Labor affiliate. Picket lines were put up around 
the Arvin farm, of several thousand acres, on October 1, 1947. 

Di Giorgio employed a great deal of labor, a good part of 
it seasonal. He spent large sums of money trying to make farm 
labor more regular and to stretch employment over a larger period 
and raised some products like asparagus on which he could make 
no profit, so that he could have a year round resident force of 
laborers. 

His farm at Arvin was a model farm. The laborer housing was 
of the best. He provided a swimming tank, tennis courts, 
recreational facilities, and a community center for his employees 
and his relations with his workers were the best. 



Why they selected Di Giorgio as the object of the first 
farm unionization activity I don't know, but it is possibly 
because he was so well known. I remember well when the picket 
lines were put around the Arvin farm. Di Giorgio would ship each 
day from the Arvin farm to the eastern coast as many as twenty 
cars of refrigerated fruit and the strikers realized that if they 
could stop this flow of cars that Di Giorgio would have to give 
up and accept a closed union shop by the AFL union. 

I remember Mr. Di Giorgio coming into my office at 7 o'clock one 
night and saying that the picketers were throwing rocks at the 

engines of the Santa Fe Railroad, which was operating the only 
line at that time into the farm, that the engineers were refusing 
to go through the rock barrage, and that he was in great difficulty. 
I suggested that we should telephone to the president of the 
Santa Fe Railroad in Chicago, whose name I don't remember at the 
moment, although I got to know him quite well in later years (Fred 
Gurley). I reached him at his home in Chicago, it being after 
work hours. I explained the situation to him and that if the 
cars could not be hauled out of the farm the strikers would close 
the place down. 



90 



Phleger: At that time, Mr. Di Giorgio was the largest fruit shipper 
from California to the east, shipping thousands of cars a year. 
I called this to the Santa Fe president's attention and he 
immediately acknowledged the fact and stated that his trains 
would operate if he had to come out and run the locomotives 
himself. He made good on his promise and during the rest of 
that year, the locomotives from the Di Giorgio farm at Arvin 
were operated by railroad superintendents from Los Angeles who 
took turns running the train. 

The National Farm Labor Union, which was conducting the 
strike at Arvin, employed Hollywood writers and a motion picture 
company to write and produce a sound motion picture which was 
supposed to depict conditions at the Di Giorgio farm and was 
planned to be shown to farm labor employees there and elsewhere 
to induce workers to join the Farm Union. This film had the title 

Poverty in the Valley of Plenty and purported to depict conditions 
at Di Giorgio farms. It charged that the housing for farm workers 
there was substandard, that there was no sanitation, that women 
had no laundry facilities and that the workers lived in one -room 
shacks which were frequently overcrowded. It also charged that 
no medical facilities were furnished, that workers were required 
to work twelve hours a day and were paid for only eleven hours 
and also that Di Giorgio employed Mexicans who were smuggled across 
the border by headhunters. 

The fact was that the pictures of housing contained in the 
film were not of housing on the Di Giorgio farm but of houses on 
other farms. This film was shown before congressional committees 
which were taking testimony in Washington on a proposal to repeal 
the Taft-Hartley Act, and as a result a special subcommittee was 
appointed to investigate the facts. 

This subcommittee of the House Committee of Education and 
Labor held hearings in Bakersfield and concluded that the charges 
in the film against Di Giorgio were false and so stated in its 
report printed in the congressional record. Richard Nixon, then 
a member of Congress, was a member of this subcommittee. 

In May, 1950, Di Giorgio filed suit against the union and 
those who were making and circulating the film which had been 
shown widely to farm workers and on many college campuses. 
This suit alleged that the film was libelous and prayed that all 
copies be destroyed and its further circulation prohibited. 
Shortly before the date set for trial, the union, the makers of 
the film and the other defendants consented to a judgment in 
favor of Di Giorgio and agreed to destroy all copies of the film 
and prevent its further circulation. 



91 



Phleger: The union organizing efforts at Di Giorgio were a failure. 
After some years union organizing efforts were resumed and the 
film was resurrected in 1960 and shown at various places. These 
showings were aimed primarily at agricultural workers though the 
general public could and did attend. 

Di Giorgio again filed suit against the AFL-CIO and the 
Agricultural Workers Organizing Committee which was circulating 
the film and prayed for compensatory and punitive damages. This 
suit was filed in San Joaquin County and after trial before a 
jury, judgment was rendered in favor of the plaintiff who was 
awarded the sum of $100,000 as general damages and $50,000 as 
punitive damages. 

The defendants appealed from the judgment and the Court of 
Appeals affirmed, leaving the $50,000 judgment of punitive damages 
untouched but reducing the award of general damages to $10,000 
on the ground that little actual damage had resulted to Di Giorgio. 
This case is reported as Di Giorgio Fruit Corporation v. American 
Federation of Labor and Congress of Industrial Organizations in 
215 Cal. App. 2d p. 560 (1963) where the facts are extensively 
reviewed. 

The union organizing tactics used at Di Giorgio farms were 
fairly typical of the early efforts to unionize the California 
farm workers and it was many years before Cesar Chavez was able 
to organize a substantial number of farm workers. 

Mr. Di Giorgio died in 1951 and named me one of his executors, 
so I was pretty closely connected with his affairs and his ranches. 
Over the years, of course, the movement to unionize farm workers 
has continued and as we know now, Cesar Chavez and his unions 
are the bargaining unit in a number of ranches in California. 

Mr. Di Giorgio was one of the most enlightened employers and 
I never found any criticism of him in his treatment of labor that 
was justified by the facts. Mr. Di Giorgio and his ranch at 
Delano, which was one of the largest grape vineyards in the 
world, was the object of a suit by the Department of the Interior 
and the government to impose upon it the limitation of 160 acres 
for an irrigated farm obtaining its water from a federal project. 
The water for the Delano farm came from an irrigation district, 
some of the waters of which were supplied by a government -financed 
irrigation project and after extensive litigation, a judgment was 
obtained prohibiting, after a certain date, the use of that water 
on farms of more than 160 acres. 



92 



Phleger: The Di Giorgio Company then conceived a plan to sell the 
area in lots of 160 acres or in multiples to members of a 
family. It took us two or three years to get the Department of 
Interior to establish the rules under which these sales could 
be made. In fact, it was only as a result of pressure from us 
that we were finally able to get such rules, and the farm was 
sold with substantial profit to the Di Giorgios. I am uncertain 
as to what actually would happen if the 160-acre limitation were 
finally upheld. Not only would it make a great deal of the 
farming of California uneconomical, but the confusion that would 
result in breaking up these large farms into 160-acre units would 
be great. 

Stein: What were the reasons for the delay of several years that it 
took? 

Phleger: The Department of Interior had no plans whatever for selling 

excess acreage. Although the law had been on the books for many 
years, the Department of Interior had never broken up a farm 
into 160-acre units, had no plans, and seemed to have little 
desire to do it. But they finally did come forward with plans 
and as Di Giorgio was a willing participant, the areas were 
finally sold. 



The Hawaiian Islands and the Matson Navigation Company 



Phleger: Now, I think I might talk about my connections with the Hawaiin 

Islands and with the Matson Navigation Company. When I came back 
after World War I, having sailed on ships [chuckles], I was asked 
to do some work for the Matson Navigation Company. The first big 
thing I did for them was to handle the legal details of the 
purchase from Spreckels of the Oceanic Steamship Company which ran 
to Australia. This was in 1927. 

The Matson Navigation Company had been founded in 1890 by 
Captain Matson, a master mariner of Swedish descent, who was 
wise enough to interest the business men of the Hawaiian Islands 
who were the growers and shippers of sugar and pineapple, to 
join with him in the formation of a company in which he would 
provide the seamanship and the ships and they would provide the 
cargo. So from the inception of Matson, its owners were a 
combination of the ship operators and the owners and producers 
of the cargo. 

It was a happy relationship that continued for many years, 

in fact, until 1964, when the government filed an anti-trust suit 
against Matson and its principal stockholders, who were the so-called 



93 



Phleger: Big Five. As a settlement of that litigation, one of the Big Five, 
Alexander & Baldwin, purchased the interests of the others, so 
that Matson Navigation Company, since 1964, has been owned by 
Alexander & Baldwin. 

Matson Navigation Company was a superbly run transportation 
company and has continued as such down to the present day. As I 
said, it acquired the Oceanic Steamship Company in 1927 and the 
Los Angeles Steamship Company, which had operated passenger ships 
between Los Angeles and Honolulu, in 1930. 

Captain Matson, who was founder and a large stockholder, ran 
the Matson Company. He had as his secretary Frazer Bailey, who 
became a good friend of mine and later became president of the 
company. Captain Matson had an only daughter, Lurline Matson, who 
married William P. Roth of Honolulu. 

Shortly after the marriage of Lurline Matson to William Roth, 
he came to San Francisco and entered the employ of Matson and 
worked up to the position of president. When I married Mary 
Elena Macondray in 1921 we took a honeymoon trip to the Hawaiian 
Islands on a Matson ship, the [S.S.] Maui, and went over to the 
island of Hawaii where the volcano was erupting and stayed in 
Honolulu at the Moana Hotel, which at that time was the only hotel 
on Waikiki Beach. That was my introduction to the Hawaiian Islands, 

Mr. Roth was an enterprising, far-seeing man. He realized 
that for the Matson Company to progress and for the islands to 
grow, it would be necessary to build up a tourist trade and to 
have that tourist trade better transportation would have to be 
provided between the mainland and the islands than the combination 
passenger-freight ships such as the Maui and [S.S.] Matsonia 
which were then operating. It was therefore decided to build 
a new express liner of the latest design, which would make the 
trip between the islands and the mainland in five days and carry 
six or seven hundred passengers. So a contract was made for 
the construction of such a ship by the William Cramps Shipbuilding 
Company in Philadelphia. 

I worked in the drawing of the contract for the construction 
of the ship, which was a printed book of some 280 pages containing 
exact specifications. One of the provisions in it was that all 
of the work should be done to the satisfaction of William Gibbs, 
who was then a young marine architect and who later became the 
most famous marine architect of our time. His firm was Gibbs & 
Cox and they designed not only the [S.S.] United States and the 
other big passenger ships, but they designed most of our destroyers 
and war ships during World War II. The [S.S.] Malolo was of a 
radical design, having greater beam than other ships of its size, 



94 



Phleger: and less depth. Gibbs was a very exacting architect and supervisor 
of construction, so exacting, in fact, that when the Malolo was 
launched, Cramps had lost so much money on its construction that 
it went out of business, although it was the oldest shipyard in 
the United States. 

On its trial trip, the Malolo was in collision off the New 
England coast with a freighter, the [S.S.] Jacob Christiansen. 
I went east in connection with the repair of the ship, this being 
done in a New York shipyard. We soon had a controversy with the 
shipyard and the surety on its completion bond over a penalty 
provision which provided that for every day of delay in the delivery 
of the ship there would be a penalty of $2,500. 

I entered into negotiations regarding the payment of this 
penalty with Root, Clark, Buckner, & Rowland, Elihu Root's firm. 
My negotiation was with Silas Rowland, one of the senior partners. 
After we had negotiated for some days and gotten nowhere, I told 
Mr. Rowland that I was about to file suit, whereupon he said, 
"Don't do that. I don't know anything about litigation. I will 
call in one of my partners who handles litigation, Emery Buckner, 
who had been United States attorney." Rowland said that although 
he had practiced for many years and had participated in many 
large cases, he had never appeared in court. I asked him how he 
could expect to negotiate the settlement of a lawsuit when he 
lacked court experience which would give him some judgment as to 
what the outcome of a lawsuit would be. 

In any event, he later became a partner in Guggenheim & 
Company, the great f inn—copper , lead, zinc, and other minerals-- 
and had a distinguished career in business. Emery Buckner, with 
whom I then negotiated, proved to be a friendly, able lawyer and 
we soon settled the case, I believe by the payment to us of some 
$250,000. 

When the Malolo was being constructed, it was realized that 
to have a tourist business in the islands you not only had to 
have a ship to transport tourists to and fro but you had to have 
hotels in the islands to accommodate them. As there was only one 
tourist hotel in Honolulu, the old Moana, plans were made for the 
construction of a new hotel on Waikiki to be called the Royal 
Hawaiian. 

So the Royal Hawaiian was built with money supplied by Matson 
and Honolulu investors and a merger was made with the Moana Hotel, 
owned by Honolulu residents. I don't think there is any more 
beautiful hotel in the world than the Royal Hawaiian, which is 
still operating and well maintained. Unfortunately, its operations 
were not immediately profitable and as it had a large mortgage it 
became necessary to reorganize the hotel corporation. 



95 



Phleger: I participated in this reorganization, which increased 

Matson's participation because it supplied all of the new money, 
and soon Matson became the sole owner of the combined Moana and 
Royal Hawaiian. Matson continued its interest in the tourist 
trade, building a number of beautiful new ships — the [S.S.] 
Monterey, [S.S.] Mariposa, and [S.S.] Matsonia, as well as other 
ships—and also constructed a number of hotels, including the 
Surf Rider and the Princess Kaiulani. It also acquired properties 
on Waikiki which were intended for hotel expansion. All of these 
properties were sold by Matson to Sheraton Hotel Company. 

Matson also soon realized the importance of air service 
to the Hawaiian Islands, and in 1930 it laid plans to establish 
such service. Over a period of years, I represented it in 
proceedings before the Civil Aeronautics Board seeking a permit 
for this operation. These proceedings continued from 1930 until 
1951, at which time a final decision was made by the Board holding 
that as a matter of public policy a steamship company would not be 
permitted to operate air service and that terminated Matson's 
plan to engage in air operations. 

Matson spent a substantial amount of money in these 
endeavors, even purchasing an airplane, a DC-4, which it operated 
on an experimental basis for a short time between the Pacific 
Coast and Hawaii. I recall flying on the Matson plane from 
Portland to the Hawaiian Islands about 1946 or "47. The pilot 
was Ernest Gann, who developed into a successful author, haying 
written The High and the Mighty and many other best sellers. I 
saw him not long ago and we had a good laugh over our flight from 
Portland to Honolulu. 

Stein: What was the objection of the government to having a steamship 
company build an airline? 

Phleger: They believed the steamship company would operate the airline 
to the advantage of the steamship company and that there would 
not be real competition between the surface ship and the air ship . 
There were two steamship companies which got into the airline 
business. This was before the CAB law was passed. One of them 
was the American Export Company, which flew to the Mediterranean 
and was owned by American Export Steamship Company, and the other 
was Panagra, which operated to South America and was owned in 
equal shares by Grace Steamship Company and Pan American [Airlines] 
Those two companies have since been absorbed by regular airline 
companies. 

The decision about the steamship companies not being 
permitted to own or operate airlines was a philosophical or 
governmental decision and probably had a good foundation, namely 
that they really were competitive and to permit one to be owned 
by the other would stifle competition. 



96 



Phleger: In connection with the work for Matson Navigation Company, 
I became acquainted with a number of important people in the 

islands. Castle & Cooke was the Matson agent and I got to know 
Mr. E.D. Tenney, its president and later chairman, well, and also 
Alexander Budge, who was most successful as president of the 
company for many years. 

As a result of my acquaintanceship with Castle & Cooke and 
its executives, I was asked about 1929 to take over the case of 
Christian v. Waialua, a suit against Waialua Agricultural Company 
in which Castle & Cooke was interested, brought by an Hawaiian 
girl by the name of Eliza Christian. Waialua had purchased a 
large parcel of the Waialua Plantation from Christian, and the 
suit alleged that when the purchase was made she was non compos 
mentis and hence the sale was invalid. 

Stein: What does that mean? 

Phleger: Insane. As a Latin scholar, you read non compos mentis as no 
brain, no comprehension. Anyhow, this case had been tried in 
the islands by counsel imported from New York and had been lost 
and I was asked to take up the appeal. The regular attorney for 
Castle & Cooke was Mr. Alfred Castle, a prominent lawyer of 
Honolulu, and I got to be a good friend of his and we cooperated 
over the nine years of litigation that ensued before we finally 
won the case. 

Stein: Was this Mr. Castle any relation to the Castle of Castle & Cooke? 

Phleger: Oh, yes. The original Castle was one of the original missionaries 
and was one of the founders of Castle & Cooke. Alfred Castle was 
a member of that family and was an attorney. I won't go through 
the ramifications of that litigation, but as a result of it I 
appealed the case to the Supreme Court of Hawaii, got a reversal, 
retried the case before the circuit court in Hawaii where we lost 

again. I handled the appeal before the circuit court of appeals 
of the 9th circuit, which held in favor of the plaintiff, and I 
then conducted an appeal to the Supreme Court of the United States 
where I argued the case and was successful. The case, after nine 
years of litigation, is reported in 305 US 91 (1938). 



Representing the Hawaiian Sugar Planters Association 



Phleger: As a result of this litigation, I got to know a number of people 

in the Hawaiian Islands, most of them connected with the Big Five, 
who were the principal business enterprises in the islands. 



97 



Phleger : 



Phleger: 



In 1934 I was asked by Mr. Alex Budge, president of Castle 
& Cooke, who was then president of the Hawaiian Sugar Planters 
Association, to represent that association which is an 
association of all of the sugar plantations of the Hawaiian 
Islands. They had formed themselves into an agricultural 
cooperative and had purchased the California & Hawaiian Sugar 
Refinery at Crockett, California, which is the largest sugar 
refinery in the world. They shipped (and still ship) most of 
their sugar to Crockett, where it is put through the final 
refining process and distributed largely in the western states 
and in Texas. 



[end 



tape 1, side 1; begin tape 1, side 2] 



In 1934 an amendment to the Agricultural Adjustment Act had been 
passed governing the growing and sale and distribution of sugar. 
This act fixed definite quotas for agricultural sugar producing 
areas in the United States as well as quotas for the importation 
of sugar into the continental United States. As Hawaii was then 
a territory, its quota was fixed under this act and fixed at a 
figure which the growers in the islands felt was grossly unfair 
to them. The Act also contained provisions regarding the 
plantations' relationship with labor that they thought were unfair 
and unreasonable. They therefore filed suit against the United 
States in the courts of the District of Columbia, the title of 
the suit being Eva Plantation et al v. [Henry] Wallace, secretary 
of agriculture. 

/ 

The case was tried in Washington, the sugar plantations 
being represented by a Cleveland firm of which James Garfield 
was a member. I was asked to carry on an appeal with James 
Garfield in association. I went to Cleveland and spent some days 
there working with Mr. Garfield and his partners, learning about 
the case and planning there to continue the case in Washington. 
I found when I got to Cleveland that the attorney who I was to be 
associated with was James Garfield, the son of the president of 
the United States and who himself had been a secretary of the 
interior under Theodore Roosevelt. He proved to be an able, 
attractive man and we got to be good friends, so that he later 
presented me with a four-volume edition of his father's papers. 

In connection with our current inflation this story which he 
told me might be apropos. He said that at the close of the Civil 
War his father, who had gone to the front as colonel of an Ohio 
regiment of volunteers, and who had been breveted a brigidier 
general on the field because of his valor, was coming home with 
his troops on a Mississippi River steamboat. 



98 



Phleger: As they came up the Mississippi, the steamboat, which of 

course burned cordwood, would run out of fuel from time to time. 
This fuel was replenished from piles of cordwood which were 
located at convenient places along the river bank. 

On one occasion the boat, requiring a new supply of fire 
wood, nosed up to the river bank near a huge pile on which a 
Negro was sleeping. The captain tooted his whistle, the Negro 
woke up, and the following conversation ensued: Captain: "You 
got fire wood for sale?" "Yes, sir." "How much?" "You got 
Yankee money, it's $2.50 a cord. You got Confederate money, it's 
cord for cord." [Laughter] I'm sure this is a true story and I 
think it's very apropos of our present inflation. 

In any case, I proceeded to Washington. I must tell you one 
further story at this point, in connection with another case I 
had had before a three judge court in San Francisco, in which I 
attacked a decision of the Interstate Commerce Commission. I 
lost the case there but as I'll mention later I was successful 
later in the Supreme Court. But in the decision by the three 
judge federal court--and the decision was written by Judge St. 
Sure--the opinion started out, "Having carefully reviewed the 
record before the Interstate Commerce Commission, we find 
substantial evidence to support its findings." 

As I was appealing the case, I went out and withdrew the 
record before the court and found that the record which the 
Interstate Commerce Commission had sent up to be reviewed was 
bound by the familiar red tape with a seal that had not been 
broken which showed that the court had not examined the record 
in any respect. I got an affadavit to that effect so that I 
could show it to the Supreme Court in case the question arose. 

I told this story to James Garfield and he laughed and he 
said, "Well, when I was secretary of the interior I had to pass 
upon many controversies in which I would write the opinion after 
reading a voluminous record and the final decision would be made 
by the president. In one such controversy I was over in the 
White House with an opinion which I asked the president to sign 
and in it it said, 'After careful examination of the record, I 
find so and so.' President Theordore Roosevelt said, 'I can't sign 
that very well. I haven't even seen the record. 1 He required me 
to bring the record over to him, which made a big pile on his 
office floor, whereupon he rose and stepped over the record saying, 
'Now I can say that I have gone over the record. ' 

Anyhow, I negotiated for a long time in Washington over the 
treatment of the Hawaiian Islands. I got well acquainted with 
many of the New Deal figures: Rex Guy Tugwell; Jerome Frank, who 



99 



Phleger: later became a circuit judge in New York; [Tom] Corcoran, and 
[Ben] Cohen and others. As we got to be more friendly we made 
progress toward a settlement. I found them to be very attractive, 
intelligent fellows with whom I didn't agree politically but who 
wanted to do the right thing. 

As a final result, instead of prosecuting an appeal to a 
finality we settled the case by an agreed decree, an arrangement 
under which the islands were given a quota which they thought 
was reasonable and we were paid the sum of $7 million representing 
sums which would have been paid under that contract had it been 
in effect from the enactment of the law. There was, of course, 
great joy in the islands when they saw the $7 million and divided 
it up amongst themselves. 

I continued to look after, for some years, the Washington 
affairs of the Hawaiian Sugar Planters Association and was there 
for many months in 1934 to 1935, and through the enactment of 
the Jones-Costigan Sugar Act in 1937, which gave fair treatment 
to the islands. 

Negotiating for the islands was always difficult because the 
islands were then a territory and had no political representation 
in Washington except a non-voting representative in the house. 
It was this situation, in part, that induced the people in the 
islands, particularly the sugar producers, to move toward statehood, 
which came in due course and which now gives them two Senators 
and two congressmen to look after the interests of the islands, 
including its sugar interest. 

During all these periods I got well acquainted with the 
leading businessmen of the Hawaiian Islands for whom I have the 
highest respect. They are extremely able, honorable men. I spent 
weeks with men like Alex Budge of Castle & Cook, John Russell of 
Theo Davies & Company, H. Alexander Walker of American Factors, 

John Waterhouse and Hemingway of Alexander & Baldwin. Most of 
these men have long since passed on. Oh, yes, I must not overlook 
Richard Cooke, president of C. Brewer & Company. All of these 
men were honorable men of great ability and it was always a 
pleasure to work with them. 

Stein: That may be a good place to stop. 

Phleger: Yes. There's no written history of all this, not even in the 
Hawaiian Islands. 

[end tape 1, side 2] 



100 



Public Utilities Cases 

[Interview 5: October 11, 1977] 
[begin tape 1, side 1] 

Phleger: When I was admitted to the bar the practice of the law was 

largely confined to real property, corporations, litigation, 

probate and matters of that kind, but shortly thereafter there 
began a continuous expansion of the field of law into fields 
like labor law, public utility regulation, SEC [Securities and 
Exchange Commission], banking, income tax and so forth. I think 
the first public utility law in California was enacted in 1912. 

When I was at Harvard, I was fortunate to take a course on 
public utility regulation taught by an able and popular professor, 
Bruce Wyman. I enjoyed the course and I enjoyed him. Unfortunately, 
during the course of the year, the perennial controversy between 
the public and the New Haven Railroad over rates and service 
heated up and, as they do in New England, town meetings were held 
throughout New England to discuss the issues. 

The professor appeared at many of these to participate in 
the discussions and would defend the New Haven Railroad. One 
weekend he literally disappeared from the campus because it had 
been learned that he was receiving a retainer from the New Haven 
Railroad and had failed to disclose this fact at the town meetings. 
He was simply 'dismissed. 

There were no charges and no hearings, although he must 
have had tenure. This was in great contrast to the formalities 
now required to separate a tenured professor. The dean of the law 
school and the president of Harvard simply decided that Wyman 's 
conduct was such as to require his dismissal, and that was all. 

As a result, the class was taken over by Roscoe Pound, who 
later became dean of the law school and was a stimulating and able 
professor. What I learned in this course on public utility 
regulation was very valuable to me when I started practice, for 
it was a new field and few lawyers had any training or experience 
in it. 

One of the first clients that I did work for was the 
California-Oregon Power Company, which had rate and other public 
regulatory problems and I also did work for the Key System Transit 
Company, which ran the street railroads on the East Bay and the 
transbay ferry service. 

I also was asked by C.O.G. Miller, who was the president of 
the Pacific Lighting Corporation, to do some work for the Los 
Angeles Gas and Electric Company in Los Angeles. This was a 



101 



Phleger: subsidiary of the Pacific Lighting Company, and it's an interesting 
fact that half the electric service in Los Angeles and all of 
the gas service there was owned and operated by a subsidiary of 
a San Francisco corporation, the Pacific Lighting Corporation. 
Looking back, I'm sure I received this retainer as a result of a 
suggestion of Mr. Garrett McEnerney, a leading lawyer of San 
Francisco and a longtime regent of the university. He was always 
very kind to me and to him I owe a number of my engagements. 

1 went to Los Angeles and over the next several years spent 
considerable time there working on cases for the Los Angeles Gas 
and Electric Company, which operated gas and electric service in 
the city of Los Angeles, and then for Southern California Gas 
Company, which was also a subsidiary of Pacific Lighting Company. 

Probably as a result of my experience in the field of 
public utility regulation, I was retained in 1930 as attorney for 
all the railroads in the United States in an important case. 

As a Depression measure, at the instance of President Roosevelt, 
the Congress had enacted a law known as the Hoch-Smith Resolution, 
which directed the Interstate Commerce Commission to make the 
lowest possible rates on agricultural shipments as an aid to 
agriculture. One of the first acts of the Interstate Commerce 
Commission under this law was to lower the rates on the shipment 
of deciduous fruits from California to the east, the reduction 
amounting to about thirty million dollars a year. 

Stein: What are deciduous fruits? Are those fruits from deciduous trees? 

Phleger: Yes, they were peaches, plums, grapes, prunes, and practically 
all other fruits except citrus, like oranges and lemons. We 
estimated that more than fifty thousand refrigerated cars a year 
moved under these rates. 

The Association of American Railroads, headquartered in 
Chicago, retained me to attack the validity of this rate. All 
of the railroads of the United States participated in some way 
in this traffic which moved from California east over various 
routes and numerous railroads. So my clients included practically 
all the railroads in the United States, starting with the Ann 
Arbor railroad, whose name led the list of plaintiffs. As a 
result the case became known as the Ann Arbor case. 

We filed suit in the federal court in San Francisco. The 
law required that suits attacking the constitutionality of a 
federal statute be decided by a three-judge court. The first 
hearing was in San Francisco before a three-judge court, consisting 
of two circuit judges and one district judge, Judge [A.F.] St. Sure. 



102 



Phleger: In a relatively short time the court made its decision upholding 
the rate reduction. The opinion written by Judge St. Sure opened 
with the statement, "We have given careful consideration to the 
record before the I.C.C." and found the evidence fully supported 
the judgment of the Interstate Commerce Commission. 

When I went to the clerk's office to prepare the appeal to 
the Supreme Court, I examined the record which had been sent out 
by the Interstate Commerce Commission and found that the red tape 
which bound it had not been broken. So I concluded that the 
statement by the court, that it had given careful consideration 
to the record, was not supported by the facts. 

I made an affidavit to this effect, determined to reveal this 
to the Supreme Court in the course of my argument if any question 
arose as to the sufficiency or insufficiency of the evidence, but 
the question never arose. In due course, the matter came on for 
argument in the Supreme Court. [William Howard] Taft was Chief 
Justice. The government was represented by Charles Evans Hughes, 
Jr., who was then Solicitor General but who shortly thereafter 
resigned when his father had been appointed Chief Justice of the 
United States. 

In any event, after oral argument, the court, in an unanimous 
opinion written by Mr. Justice Vandervanter held the $30 million 
per year rate reduction invalid and restored the preexisting rate. 
The decision is reported in Ann Arbor v. United States 281 U.S. 
658 (1930). 

Stein: You mentioned that Judge St. Sure was one of the three original 
federal judges who heard the case and I have always thought of 
him as a man of great reputation. I wonder how he could have let 
something like that happen, not reading the record. 

Phleger: Maybe I shouldn't have recalled the event but it is a fact. Judge 
St. Sure didn't have to say that he had carefully examined the 
record but I had challenged the sufficiency of the evidence and 
the only way he could hold it adequate was to say that he examined 
the evidence and that it supported the judgment. But that's one 
of the things that happened in the practice of the law. Judge 
St. Sure was an able, honest judge, but what I have recited is a 
fact. 



Stein: 



In many administrative proceedings the ultimate officer who 

acts often relies on the recommendations of subordinate officers 

and does not read a voluminous record. But the requirements in 
judicial proceedings are different. 

Yes, I'm still confused about this matter because I would have 
thought at least that Judge St. Sure's clerk would have read the 
record and written a brief of some kind. 



103 



Phleger: Of course. The court below had before it the opinion of the 

I.C.C. which recited its view of the evidence. So I assume the 
judges felt that they knew what the evidence was, but that's 
very different than examining the record as they said they had. 

I then spent many weeks in Los Angeles engaged in litigation 
for the Los Angeles Gas and Electric Company and for the Southern 
California Gas Company. One of these cases, which attacked a 
rate reduction, led to a landmark decision in public utility 
regulation: Los Angeles Gas and Electric v. Railroad Commission 
of California. This went up to the United States Supreme Court 
and is reported in 89 U.S. 287 (1933). The opinion was by Chief 
Justice Hughes with a vigorous dissent by Mr. Justice [Pierce] 
Butler. That case is frequently cited even today. 

Stein: What were the important holdings in that case? 

Phleger: We had attacked the decision as being a violation of the Fourteenth 
Amendment because it deprived the utility of its property without 
due process of law because the rates were conf iscatory . Chief 
Justice Hughes took the position that while the record before the 
Railroad Commission might not support the judgment of the 
commission, this was not sufficient in and of itself to make the 
rate invalid, because the rate might be valid because of other 
conditions despite the erroneous reasoning of the commission. 

At about this time, I made an address before the American Bar 
Association in its meeting in Grand Rapids, Michigan on August 28, 
1933 entitled "Quo Vadis" in which I made some predictions 
regarding the future course of public utility rate regulation. 
I pointed out that it was bound to become more and more politically 
motivated and that regulatory bodies would face increasing political 
pressure to keep the rates down. My title "Quo Vadis" or "Where 
do we go from here?" was answered by my prediction that in the 
future, public utilities would face increasing problems because of 
political pressures on regulatory bodies. 

Stein: What do you think of your predictions now? 

Phleger: I think they have been proved correct and the utilities have 
suffered from inadequate rates particularly since we have had 
inflation. The rates are inadequate because they don't afford 
a sufficient return, because they are not fixed on the actual 
value of the utility property but on its original cost. Also 
the depreciation reserves of the utilities are fixed on original 
cost, and with inflation will only amount to the original cost of 
the plant when it is worn out when in fact it will cost two or 
three times as much to replace that plant as it did to build it 
originally. The utilities are actually consuming their plant in 



104 



Phleger: the service of the public without adequate compensation because 
the rates do not provide adequate depreciation accruals. 

About this time or a little later, in 1935, Congress enacted 
the Public Utility Holding Company Act. One of its provisions 
was that any local utility more than ten percent of whose stock 
was owned by a public utility holding company as defined in the 
Act was a subsidiary of that company and subject to the Public 
Utility Holding Company Act and hence federal regulation by the 
S.E.C. It further provided that such a local company could be 
declared not a subsidiary if on application to the Securities 
and Exchange Commission the commission found that it was not 
subject to the control of the holding company. 

Pacific Gas and Electric Company (PG&E) had been careful to 
confine its operations solely within the state of California but 
some 17.7 percent of its stock had been acquired by the North 
American Company, a public utility holding company headquartered 
in New York, and presumptively PG&E was its subsidiary. PG&E 
filed an application with the commission to obtain an order that 
it was not a subsidiary of North American because it was not in 
fact controlled by that company and hence was not subject to the 
Public Utility Holding Company Act. 

James Black, a member of our 1912 class at Berkeley, was 
then president of PG&E and asked me to represent that company in 
a proceeding before the S.E.C. to secure an order holding that 
PG&E was not a subsidiary of North American on the ground that 
its stock holding of 17.7 percent while in excess of ten percent, 
which created a presumption of control, did not in fact result in 
actual control. 

Stein: How could he show that? 

Phleger: By evidence. I presented the case on the basis that the Pacific 
Gas & Electric Company was and always had been a local company 
run by Californians and no New York company could come to California 
and control its affairs simply because it held 17 percent of its 
stock, that PG&E stock was widely dispersed in California, that 
Californians were proud of their ownership of PG&E and they would 
not tolerate the control of PG&E by a New York company which only 
held 17.7 percent of its stock, and that in fact it was not 
subject to the control of North American. 

In the proceeding before the trial examiner for the S.E.C., 
I secured a decision holding in our favor, that there was not 
actual control. When the case came before the full Securities and 
Exchange Commission, the commission reversed its examiner and held 
that there was control. We, therefore, filed a suit in the federal 



105 



Phleger: court to review that holding. There then followed a decision by 
the Ninth Circuit by an evenly divided court upholding the 
decision of the commission, the law being that as the moving 
party we had to show that that decision was erroneous so an 
evenly divided court automatically upheld the decision of the 
commission. 

We then went to the Supreme Court of the United States, 
where, after argument, one of the justices disqualified himself, 
leaving eight justices and that court divided evenly four to 
four, thus upholding the S.E.C. decision by an evenly divided 
court. 

The Washington Post, then owned by Eugene Meyer, a friend 
and a graduate of the University of California, published an 
editorial to the effect that there had not been a review of the 
S.E.C. decision, as required by law, because none of the reviewing 
courts had actually reached a decision but had been evenly divided. 
However, the law was to the contrary, and so decision of the S.E.C. 
was upheld. 

From the beginning of the case in 1935 until its ending in 1945 
covered a period of over nine years. We had obtained a stay when 
we started the proceeding, and as North American during the 
pendency of the case had gradually sold its stock so that at the 
time of the Supreme Court decision it actually held less than ten 
percent, the PG&E never came under the jurisdiction of the Holding 
Company Act, although it had lost the case. 

Stein: That case was decided in 1945? 

Phleger: 1945. I engaged in many other public utility matters, including 
the challenge of a rule by the Railroad Commission that public 
utilities' bonds must be sold at public bidding. This was in 
1945. We were successful for a time, but the commission ultimately 
held that utilities must sell their bonds at public bidding unless 
the commission otherwise ordered. 

During this period, we were attorneys for the Key System 
Transit Company, which itself and through subsidiaries operated 
all the street railroads in the East Bay and the transbay service 
of the Key System. This system had been built up under the 
promotion and management of F.M. Smith, popularly known as "Borax" 
Smith, who owned the 20 Mule Team borax mine and was a wealthy 
and public spirited man. After the initial construction of the 
transbay Key System, and its consolidation with the local railroads 
of the East Bay, the entire operation got into financial difficulties. 



106 



Phleger: In 1929 it was reorganized under a plan under which the 
Railway Equipment and Realty Company, a nonpublic utility, 
became the owner of all the real estate and equipment and the 
stock of the operating companies. 

I handled or supervised these reorganization matters and the 
many rate proceedings over the years. At first the street rail 
road fare was five cents and the transbay fare was ten cents. 
Over the years these rates were raised substantially, but were 
never adequate. 

In 1926, the transbay bridge was projected and building 
commenced. I was asked to be attorney for the San Francisco- 
Oakland Bay Bridge Agency but had to decline because I represented 
the Key System, which was negotiating to secure the right to run 
its trains across the bridge. The bridge was completed in 
January of 1939 and the Key System commenced operating its trains 
over the lower level of the bridge, and its ferry operations 
ceased. 

The railroad service over the bridge ceased in 1958 and was 
supplanted by a bus operation. In 1960 all of the operations, 
both the streetcar and transbay operations, were sold to the 
Alameda-Contra Costa Transit District, which is a public 
corporation, and my connection ceased. 

Stein: Was this continuing financial difficulty what led them to sell-- 

Phleger: No. As a matter of fact, after the reorganization of 1929, under 
the presidency of Alfred J. Lundberg, the operations were 
successful financially. However, it was not a highly profitable 
operation because automobiles were coming into ever greater use 
and the higher rates could not keep up with the increased costs 
and the loss of traffic. 

Stein: Is that why they first switched to buses? 

Phleger: They first switched to buses because it was a cheaper and more 
flexible operation. But I think hardly a local bus or street 
railroad system in the United States made any real money after 
1920. Now they're almost all publicly owned. I think at present 
the fares only provide a decreasing portion of the cost of 
operation. The rest is public subvention. 



107 



Banking Cases and Contacts 

Phleger: I think I might say a few words about my practice in connection 

with banking. When I went to work for Morrison, Dunne & Brobeck, 
it was attorney for the Mercantile Trust Company and its 
companion institution, the Mercantile National Bank, all of 
whose stock was owned by the stockholders of Mercantile National 
Bank. Early in my practice I was directed to go every banking 
day, late in the afternoon, to the bank at 464 California Street 
and handle on the ground whatever minor legal matters had arisen 
during the day. This practice continued for many years. Mr. 
Brobeck was a director of the bank during this time. 

In 1920, the Mercantile Trust Company and the Mercantile 
National Bank merged with the Savings Union Bank and Trust Company 
into one bank known thereafter as the Mercantile Trust Company, 
with John D. McKee, former president of the Mercantile Banks as 
chairman of the board and John Drum as president. I handled this 
merger and consolidation and thereafter for many years handled all 
the mergers and consolidations and acquisitions of the bank. 

In 1926, the Mercantile Trust Company and the American 
National Bank merged under the name American Trust Company with 
headquarters in San Francisco and with Mr. McKee as chairman and 
Mr. Drum as president. The American National originally had its 
headquarters in Oakland, but expanded into San Francisco. Its 
president and chief owner Mr. [Philip E.] Bowles was a regent of 
the University and gave the first dormitory, Bowles Hall. 

In 1926, Mr. Brobeck died and I was elected a director of 
the bank in his place and remained a director for 33 years, 
retiring in 1970. 

We think that banking today is rather complicated, but it 
has nothing on banking as practiced in the late '20s and '30s. 
In 1928, the American Trust Company stockholders formed a 
holding company, the American Company, and thereafter it [the 
American Trust Company] was a wholly owned subsidiary of 
American Company which proceeded to form numerous subsidiaries, 
including a bank in New York known as Pacific Coast Trust Company. 

It might be interesting to tell how the Pacific Coast Trust 
Company got its charter. Mr. Drum asked me to go to New York and 
get a charter for the Pacific Coast Trust Company. I went there, 
looked the situation over, and decided that I should employ local 
counsel. I was fortunate enough to select Judge Morgan J. O'Brien, 
who had retired from the bench and was in private practice, and 
a leading figure at the New York bar. He was an elderly gentleman 
and was most courteous. 



108 



Stein: Had you known him before? 



Phleger: 



Stein: 



Phleger: 



I had never known him before. When I went to his office to see 
him, he was the soul of courtesy. He must have been in his 
seventies and I was then, I think, thirty-eight. After discussing 
the matter he said that he thought we would have no difficulty 
getting a charter to operate a bank in New York. I asked him how 
soon we could expect a charter and he said, "Oh, I think in sixty 
days. You come back here in sixty days and we will have the 
charter, I think." 

In sixty days I returned and went into Judge O'Brien's office. 
He received me very courteously and when I asked him whether he 
had the charter, he said, "Oh, I forgot about that. Just a minute. 
He called his secretary and said, "Get me Governor [Al] Smith in 
Albany." In a few minutes the telephone rang and Judge O'Brien 
said, "Are you there, Al?" to which Al evidently replied "Yes." 
Judge O'Brien said, "Al, where is that charter for the Pacific 
Coast Trust Company that you promised me?" Evidently the governor 
told him that he had overlooked it, too, but that it would be 
there shortly and true enough we got the charter the next day. 

When we received the charter the next day (I had gone to 
Judge O'Brien's office to check on it), he invited me to lunch 
at the Links Club, which was then and still is one of the premier 
clubs in New York. This was during Prohibition. He said, "It is 
not far. Let us walk up Fifth Avenue." We proceeded up Fifth 
Avenue a few blocks to 62nd Street, where the club is, walked into 
the beautiful clubhouse and into the bar. It was shortly before 
twelve. 

Standing at the bar was a short, stocky man with muttonchop 
whiskers and a cutaway coat wearing a black flat derby who greeted 
Judge O'Brien like a long lost brother. Judge O'Brien then 
introduced me to the gentleman, who turned out to be the president 
of the First National Bank of New York, George Baker, probably the 
most famous banker, next to J.P. Morgan, of his time. Mr. Baker 
proceeded to invite us to have a drink, so Judge O'Brien, Mr. 
Baker, and I had a drink together and then went up to lunch. I 
often think of this whole operation as an illustration of the 
fact that the things that make the wheels go round are not always 
written in the law books. 



Just one more question about the judge: 
to Judge O'Brien? 



how had you been referred 



I hadn't been referred to Judge O'Brien. I was always interested 
in who were the great lawyers and who could do things and I had 
heard of Judge O'Brien all my life, although I had never met him 
before. I simply went in cold and asked him if he'd act for us 
which he did with great courtesy and effectiveness. 



109 



Phleger: I must say that elderly men like Judge O'Brien and George 

Baker always treated younger men with great courtesy and kindness. 
I never met an older man in the law or in banking who was not 
courteous and friendly and helpful to younger men. Indeed, I 
never found any tendency to hold younger people back because 
they were young. The older men were always helpful and enthusiastic 
about helping along a younger man, especially a younger lawyer. 

Stein: Just as a brief aside, do you think that that has continued to 
be the case? 

Phleger: I don't know because I'm not young anymore. [Laughter] But as 
far as I'm concerned, it's been the case. Nobody ever came into 
my office looking for a job that I didn't see personally and 
talk with. 

The American Trust Company was very active during the '20s 
under the presidency of John Drum. Branch banking was unknown 
in California until A. P. Giannini, president of the then Bank of 
Italy, started establishing branches. He proceeded with great 
skill and energy to build up a branch banking system. Drum 
followed suit. 

[end tape 1, side 1; begin tape 1, side 2] 

Phleger: In the 1920s I represented American Trust in a large number of 
transactions in which it acquired local banks or established 
branches, and like the Bank of Italy, built up an extensive 
branch banking system. 

1929 was the year of the great stock market crash, and the 
beginning of the Great Depression, which gravely affected the 
entire American banking system. During the preceding period of 
speculation, Eastern bank holding companies started acquiring 
California banks. A group of American Trust stockholders decided 
it would be a good idea to exchange their stock in American 
Company, the holding company, for stock of Goldman Sachs Trading 
Company, a prominent New York holding company. 

Drum didn't lead the stockholders to make the exchange. He 
had exchanged his stock and learning of this, other stockholders, 
thinking it a good idea, arranged to similarly exchange their 
stock so that almost all the stock of American Company was 
exchanged for stock of Goldman Sachs. 

As the Depression continued, it became clear that Goldman 
Sachs was not the bonanza that the stockholders had hoped. A 
total of 173 stockholders' suits were brought against American 
Company and its directors to rescind the exchange and for $50 
million in damages. Being a director of American Company, I was 



110 



Phleger: one of the defendants. This litigation continued for a number of 
years. The defendants were represented by Garrett McEnerney 
and by my partner, Maurice Harrison. 

After a trial, in which I was one of the witnesses, the 
lower court decided in favor of the defendants and on appeal the 
Supreme Court of California affirmed. Within a year or so, 
during which the bank was operated by nominees of Goldman Sachs, 
including Parker Toms, a very able man, the former stockholders 
of American Trust bought back their stock from Goldman Sachs 
and re-established local ownership and control. 

Fred Elsey, a well-known San Franciscan and president of the 
Kern County Land Company was installed as president. He continued 
as president of American Trust for a number of years and was 
succeeded by James K. Lochead, a graduate of Berkeley who built 
it into one of the largest banks on the Pacific Coast. 

Stein: If I may interrupt for a moment, what was your concern about the 
Goldman Sachs Company? 

Phleger: I didn't have any concern about it but the fact was that the 
exchange was not a desirable one, and stock in Goldman Sachs, 
which was one of the boom companies in those days, simply wasn't 
as good an investment as stock in American Trust. 

In 1960 negotiations were concluded for the merger of Wells 
Fargo Bank into American Trust under the name Wells Fargo Bank- 
American Trust Company. Together with the attorney for Wells 
Fargo, I went to Washington and we succeeded in convincing the 
attorney general that the government should no-t oppose the merger 
upon the ground that it would violate the Sherman Antitrust Act. 

Stein: What sort of arguments did you make for that? 

Phleger: Our chief argument was that Wells Fargo was a wholesale bank, 
whereas American Trust was a retail bank. Wells Fargo was a 
commercial bank with a main office with only one branch, and made 
few real estate loans. In contrast, American Trust, with many 
branches, was largely a savings bank and made real estate loans. 
I think we convinced the attorney general that the banks were 
complementary and not competitive so that their merger would not 
reduce competition. 

In 1962 the name Wells Fargo Bank-American Trust Company 
was changed to Wells Fargo Bank. Later, Wells Fargo Bank was 
merged into and became a subsidiary of Wells Fargo Company, a 
one -bank holding company. 



Ill 



Stein: That was 1969, wasn't it? 

Phleger: It was 1969. That's right. Wells Fargo and Company is now a 

one-bank holding company with a number of subsidiaries including 
an Edge Act foreign bank and a number of other subsidiary 
corporations. 

I had a number of other contacts with banking. In 1929 I 
was asked to address the Trust Section of the American Bankers 
Association, which held its national convention that year in 
San Francisco. My talk was entitled "Protecting the Trustee." 
I think those who heard the talk expected to hear a lawyer tell 
how a bank acting as trustee could be protected from liability 
by some magic language in a trust agreement. This was of interest 
to bankers because numerous suits had been filed against banks 
because of alleged negligence in their trust departments, which 
had been often operated as feeders for the banking operations and 
staffed with poorly paid executives. When I advanced the argument 
that the way to protect the trustee was to increase the pay of 
all the trust officers and hire more qualified personnel, my 
remarks were greeted with a roar of approval. 

Mr. A. P. Giannini, who founded the Bank of Italy and built 
it up into what is now the Bank of America, the largest bank in 
the world, was a most attractive, able, energetic man and I got 
to know him well. He asked me to do a number of things for the 
Bank. of America. In 1923 he employed me to handle a merger of 

United Bank & Trust Company into the French Bank, which then 
became part of the Bank of America. Some years later, when his 
son, Mario Giannini was president, I was asked to work with the 
executive committee of the bank on an employee stock purchase 
and profit sharing arrangement. This was one of the earliest 
arrangements of this kind. After some months, the bank adopted 
a plan which we had prepared, which I think is still in effect 
with, of course, many modifications. 

Stein: Whose idea was that? 

Phleger: That idea was A. P. Giannini 's and was supported by Mario Giannini, 
who was an able banker also. I think today the profit sharing 
trust is a large holder of stock of the Bank of America. 

Stein: Before we leave banking, I did have one question based on something 
in your book, The Earlier Years. You mentioned a case, Blum v. 
Fleishhacker that was an important case in governing bank loans 
and I wondered if anything more needed to be said about that? 



112 



Phleger: Well, it's an interesting case. Blum v. Fleishhacker was a suit 
by a stockholder of the Anglo-London Paris Bank against Herbert 
Fleishhacker, its president, alleging that Fleishhacker had made 
an improper loan of bank funds to an individual to the detriment 
of the bank. The case was tried in the U.S. District Court, Mr. 
John Frances Neylan, representing the defendant, and judgment was 
in favor of the plaintiff. 

I was then approached by Mr. Mortimer Fleishhacker, the 
brother of Herbert, and asked to undertake an appeal, which I did. 
I argued the case before the Ninth Circuit Court of Appeal — three 
judges, two deciding in favor of the plaintiff and one in my 
favor. This meant that we had lost the case. I am convinced 
that Mr. Fleishhacker did not do anything improper and that the 
loan had been authorized by the executive committee of the bank, 
but in those days, as we find in Mr. [Burt] Lance's instance, 
banking was not conducted in as formal a manner as it is now. 
Mr. Fleishhacker 's brother, Mortimer, was for many years a regent 
of the University of California. Herbert Fleishhacker was an 
active and able banker and there was nothing in this case in my 
opinion which reflected upon his integrity. 



Union Oil Company 



Stein: You were starting to talk about the Union Oil Company. 

Fhleger: When I did work for Los Angeles Gas and Electric Company and 
Southern California Gas Company in Los Angeles in the '20s, I 
became acquainted with officials of Union Oil. The president of 
Southern California Gas Company, Alexander Macbeth, was a 
director of Union and through him and others I met Mr. William 
Lyman Stewart, Jr., Reese Taylor, who had shortly before that 
become president of Union Oil, Cyrus Rubel and others. In 1938 
I became a director of Union and continued as a director for 
twenty-five years. 

Some years before I became connected with Union Oil, I was 
retained by the Dominguez Oil Fields Company which owned the 
Dominguez Oil Fields near Los Angeles. It was a New York company 
and a friend of mine, who was a partner in White & Case, had 
recommended that it consult me regarding differences which they 
were having with Union Oil, which was the operator of the field. 
After working on the matter for some time, we were able to work 
out a satisfactory settlement which increased the remuneration of 
the Dominguez Oil Company. This was the source of joking later when 



113 



Phleger: Mr. Gregg, who was general counsel of Union Oil when I started 
doing its legal work, said that he had found in the files a 
"threatening letter" written by me in behalf of Dominguez. 

Anyhow, after I became a director of Union Oil I was employed 
frequently by it and I and our firm over many years have handled 
a great deal of its legal work, litigation particularly. Our 
relations with the company have always been of the best, particularly 
with its general counsels. 

Stein: One case that sounded like it was significant in relation to 
Union Oil was U. S. v. American Petroleum Institute. 

Phleger: That was a case known as the Mother Hubbard case because it was 

so all inclusive. It was an antitrust suit brought by the United 
States against all of the oil companies including Union Oil. It 
was so inclusive that it was referred to as the Mother Hubbard 
case because Mother Hubbard, as you recall, hid all of the children 
under her skirt. 

At the time there was another smaller antitrust case brought 
by the government against oil companies doing business in 
California, including Union Oil. We took the position that the 
California case could not proceed because the subject matter of 
it was already covered in the Mother Hubbard case. We took the 
matter up to the United States Supreme Court and as a result, the 
government dismissed its Mother Hubbard suit and proceeded with 
the California suit, which continued for a number of years and was 
finally settled by a consent decree satisfactory to the oil 
companies. 



Representing the William Randolph Hearst Family 



Phleger: I'm going to mention another matter of litigation, perhaps somewhat 
broader, which involved the William Randolph Hearst family. Of 
course, as a student at the University I was familiar with the 
benefactions of the Hearst family including the Hearst Mining 
Building, the Hearst Greek Theater, the Hearst Women's Gymnasium, 
and the Hearst plan for the University. My first closer contact 
came in 1913 when my friend Newton Drury was asked to come to 
Wyntoon, the Hearst summer place in Siskiyou County, and tutor 
George Hearst. Drury spent the summer tutoring Hearst and told me 
when he returned of the magnificence and beauty of Wyntoon. He 
told me recently that he had been asked to tutor the following 
year but had to refuse because in the meantime he had become 
secretary to President Wheeler. 



114 



Phleger: The next contact I had was in 1920. Mrs. Phleger's aunt, 
Mrs. Edward L. Eyre, who was an Atherton, was a half owner of 
the Milpitas Ranch at Jolon in Monterey County on which the 
San Antonio Mission is located. Milpitas Ranch was a cattle 
ranch of twenty or thirty thousand acres. Hearst had just 
commenced assembling what was later to be his great ranch and 
castle at San Simeon. 

Stein: The castle? 

Phleger: Yes, San Simeon. He was just in the process of assembling San 
Simeon. He had bought a good part of the coast land from the 
Newhalls and he wished to extend his ownership eastward so he 
bought the adjoining Milpitas Ranch in the 1920s. I handled the 
sale for the owners, in the course of which I got to know Garret 
McEnerney because he was Hearst's attorney and represented him in 
this transaction. He was a pleasant, fine person to work with. 
He is another example of an older man who was most courteous and 
helpful to younger men. 

Recently I saw the original plans of Stanford University and 
learned from the descriptive material that the idea of the 
colonnade arches of the Quad at Stanford came from the San Antonio 
Mission on the Milpitas Ranch. Another interesting fact is that 
after Hearst had gotten into financial difficulties in the '30s, 
the most important aid he had in solving his financial problems 
was selling the Milpitas Ranch and other surrounding acreage to 
the United States for several million dollars to form Fort Hunter 
Liggett, which has an area of some 50,000 acres made up largely 
out of land which Hearst sold to the government. 

In the '30s, at the suggestion of a friend, Mrs. Hearst, who 
was then living in New York and separated from her husband, who 
had moved to California, consulted me with respect to what her 
rights might be under the California community property law. This 
commenced a relationship which continued until after the death of 
Mr. Hearst, in which I represented Mrs. Hearst and her financial 
and other problems in connection with Mr. Hearst and the settlement 
of his estate. 

I might add that Mrs. Hearst was a fine woman; witty, 
intelligent, attractive, and an interesting and worthwhile person. 
She never succumbed to all the problems arising out of her long 
separation from Mr. Hearst. 

Mr. Hearst died in 1951 at the age of eighty-eight. I 
represented Mrs. Hearst in the settlement of his estate, which 
after some months and some litigation resulted in a settlement 
which was quite satisfactory to Mrs. Hearst. Mr. Hearst's funeral 



115 



Phleger: was arranged by Mrs. Hearst and took place in San Francisco, 
with funeral services at Grace Cathedral. I was one of the 
honorary pall bearers. I think that there were some fifty in 
all, made up of prominent people from all over the world, 
particularly in the newspaper and magazine field. He was buried 
in Cypress Lawn Cemetery in the mausoleum where his father and 
mother are buried. 

Under Mr. Hearst's will, which disposed of something around 
sixty million dollars, after the bequests to the family and also 
the settlement with Mrs. Hearst, about forty million dollars was 
left to the Hearst Foundation, a charitable foundation which has 
made many gifts to worthy causes in California and elsewhere. 

San Simeon was owned by the Hearst Corporation at Mr. Hearst's 
death. I don't know how much money had been spent on it, but 
probably forty or fifty million dollars would be a fair estimate. 
Mr. Hearst had expressed his desire that the University of 
California should have it. When the matter was taken up with the 
regents, they declined to accept it because it was a very expensive 
property to maintain and the University had no particular use for 
it. 

In 1957 the Hearst Corporation offered to give San Simeon 
to the state of California. [Goodwin] Knight was then governor 
and he expressed a desire to accept it. However this was very 
much of a political problem because many thought that it would be 
a white elephant for the state and would give the Hearst Corporation 
large tax deductions. 

At this time (this was in 1957) Newton Drury, my friend, was 
Director of State Parks and Beaches. He told me of the offered 
gift of San Simeon and the governor and the Department of Parks 
and Beaches had asked him to make a survey and recommendation as 
to whether or not the state should accept the gift. He invited 
Mrs. Phleger and myself to join Mrs. Drury and himself on a trip 
to San Simeon to look the situation over and arrive at a conclusion 
so that he could make a recommendation. 

As a result, the Phlegers and the Drurys went down to San 
Simeon and had a most enjoyable and interesting visit. We 
wandered through the castle and the cottages and asked questions 
and tried to figure out whether or not the acquisition would be 
advantageous to the state. Most everyone has been there now so 
they know what a magnificent property it is, the main floor with 
its great dining hall and refectory table and the flags and so 
forth. We went upstairs through every nook and cranny and were 
particularly interested in Mr. Hearst's office where he had 
telephones, telegraphs, every method of communication, files and 
newspapers, and where over long periods he directed the operations 
of all his newspapers and magazines. 



116 



Phleger: We also went into the cottages which, while they're called 
cottages, are actually magnificent buildings. In one we saw a 
beautiful walnut bed that had been Cardinal Richelieu's. The 
caretaker told us he had taken a group of nuns through that 
cottage shortly before that, and to their surprise one of the 
nuns had jumped onto the bed. When chided and asked why she had 
done this, she said that she had wanted to be able to say that 
she had been in Cardinal Richelieu's bed. [Laughter] 

Anyhow, Newton Drury arrived at certain conclusions: one, 
that the contents of the castle and cottages were so valuable and 
rare and fragile that it would not be feasible to admit the 
public generally, but visitors should only be admitted under the 
supervision of guards. He concluded that the public should not 
be permitted beyond the main floor because the contents of the 
floors above were so valuable, things like Greek vases, some of 
which I later saw in the Metropolitan Museum in New York. There 
were rare objects everywhere. 

We found that access to the castle was over a one-way road-- 
one way up and one way down- -so Drury concluded that it would be 
impossible to let private automobiles go up to the castle. This 
meant that there would have to be a parking place at the bottom 
and the visitors would have to be taken up in buses. In an 
endeavor to figure out the economics of the situation, he concluded, 
not being an expert in the field, but not afraid to make estimates, 
that it would not be possible at the outset to charge an entrance 
fee of more than $2, that it would not be possible on account of 
weather conditions to admit the public over a period greater than 
from April through October, and that one might expect not to exceed 
100,000 visitors in the first year, which would work out at $2 a 
head to $200,000 income. He then estimated that it would be 
possible to operate the castle on the basis of a budget of $200,000 
a year to start and that visitors and revenues might be expected 
to grow and keep pace with expenses over the years. In substance 
this is the recommendation which Mr. Drury finally made to the 
Department of Parks and Recreation: that he thought it would be 
a good gift for the state to accept on the premise that there would 
be 100,000 visitors the first year at $2 a head. 

Leo Carillo, the motion picture actor, was on the Board of 
Parks and Recreation, and the only criticism he had of Mr. Drury's 
report was that his estimate of visitors was too low. In fact, 
there were 400,000 visitors within the first three years and 
today the castle is open twelve months of the year and the 
admission has been raised to $3. The castle is self-sustaining 
and a popular tourist attraction. But it was quite a decision for 
Newton Drury to make in those days and it was on the basis of his 
examination and report that the governor and the Parks and 
Recreation Board predicated their judgment that the state should 
accept the gift. 



117 



Stein: We have an interview with Mr. Drury at the oral history office 
and he talks about this very problem. He mentions that one of 
the difficulties in making the decision was a certain attitude 
of hostility on the part of the public toward the Hearsts. There 
was a feeling that he had been one of the robber barons and that 
here was all this wealth accumulated by oppression. Mr. Drury 
had to balance that against the fact that here was a structure 
that today could never be duplicated, that was representative of 
an era, and that contained objects of art that were so valuable 
that they shouldn't be withheld, and on that basis they decided 
to go ahead. 

Phleger: Yes, his judgment was sound and right. I think the resentment 

was not only based on the idea that Hearst was a yellow journalist 
and so on and so forth, but that acceptance of the castle by the 
state would provide millions in charitable tax deductions for the 
Hearst Corporation. Anyhow, Drury 's judgment was tops and if he 
hadn't made that decision, the Hearst castle wouldn't now belong 
to the state of California. 



John Francis Neylan 



Phleger: I'm going to proceed to a companion matter which is John Francis 

Neylan. John Francis Neylan was a most attractive, able and 
resourceful lawyer. When I first met him I guess it might have 
been before 1920, when he was chairman Of the State Board of 
Control in Sacramento and Hiram Johnson was governor. Neylan was 
very close to the governor. He had married a Sacramento girl, 
Gertrude Wiseman, who had been a pupil of my mother and was a 
great admirer of her, and through that connection I got to know 
Neylan well. 

The matter on which I appeared before him in Sacramento was 
for the Oceanic Steamship Company and had to do with the 
California taxes that were being levied on that company, which 
was engaged in foreign trade, and which we thought were too high. 

In any event, Neylan moved to San Francisco in 1926 where he 
became active as an attorney and also became Mr. Hearst's 
attorney. 

[end tape 1, side 2; begin tape 2, side 1] 
Stein: You were saying that Neylan was the attorney for Mr. Hearst. 



118 



Phleger: He was the attorney for Mr. Hearst and the Hearst interests 

including the San Francisco Examiner and the connection between 
them became very close. Neylan entered into the business affairs 
of Hearst and for a number of years was an important influence in 
Hearst's operations. For some reason, I don't know what, he 
ceased to be Mr. Hearst's attorney some time in the early '40s. 

I next had contacts with Neylan in connection with a much 
publicized case.Grinbaum v. American Trust Company in the 1930s. 
Neylan became the attorney for Mrs. Grinbaum, who had been declared 
incompetent, and American Trust had been appointed her guardian. 
Neylan took the position that Mrs. Grinbaum was not incompetent 
and that the guardianship was invalid because she had not received 
notice of the proceeding. He brought suit against American Trust 
to set aside the guardianship. 

I was one of the attorneys representing American Trust. The 
litigation was attended with much publicity. Ultimately Neylan 
was successful and Mrs. Grinbaun's guardian was discharged. That 
case added greatly to Neylan 1 s reputation as a lawyer. 

About that time, he was appointed a regent of the University 
and was active in University affairs during his entire service, 
which included the controversy over the loyalty oath, in which 
he played an important part. 

As a commentary on academic freedom, I recall Neylan 
complained frequently that American historians didn't give enough 
credit to the founding fathers and other American historical 
figures, but rather concentrated on destroying the aura and myths 
associated with them. He would say that historians seemed more 
interested in Washington's wooden teeth than in his military 
achievements. He thought this should be corrected, particularly 
in the universities where little American history was taught and 
that little usually uncomplimentary to our heroes. 

So being an activist, he conceived the idea of endowing a 
professorship of American history at Harvard, where the holder 
of the chair would expound American history as it should be taught. 
He put up considerable money himself and I'm sure got an even 
large contribution from Mr. McEnerney, who felt as he did, and so 
this chair in American history was established at Harvard. 

When the first appointment was made, Neylan found that the 
professor appointed to the chair was of the wooden teeth variety 
[ laughter], to Neylan's chagrin and disappointment. From this I 
learned that giving money to a university didn't necessarily give 
you any in on what would happen and that you couldn't expect it 
to embrace the donors' views on history or anything else. That 
has stood me in good stead over the years. 



119 



Phleger: In 1932 Neylan was an important factor in the nomination of 
Roosevelt. In the primary campaign, Hearst conceived of the idea 
of having the California Democratic delegation pledged to [John 
Nance] Garner and with the assistance of Neylan he accomplished 
this. When the nominating convention met it became clear that 
a favorable vote by the California delegation was the key to 
Roosevelt's nomination. Under the urging of Hearst and Neylan, 
the California Garner delegation voted for Roosevelt, and 
Roosevelt was nominated. I'm sure this history is all in the 
Neylan papers in The Bancroft Library. 

I was very fond of Mr. Neylan and of Mrs. Neylan, and in 
his later years I became his attorney and was attorney for his 
estate. During the administration of the estate, the problem 
arose as to what to do with Mr. Neylan 's voluminous papers. I 

urged Mrs. Neylan to give these papers to The Bancroft Library, 
which she did. 

Stein: Did she have any other ideas, or objections, to that? 

Phleger: No, she didn't, but they were voluminous and contained much 

confidential material, and were difficult to handle. The Bancroft 
Library was helpful; it sent representatives to Neylan 's home and 
arranged these voluminous papers, some of which, of course, had 
no real value. He had kept almost everything, including all of the 
papers having to do with the University including the loyalty 
oath controversy, so they are a valuable collection. Also included 
are papers covering his relations with Hearst and his service with 
Hiram Johnson. 



Trustee, Mills College 



Phleger: I think my connection with Mills College might be of some interest. 
I was a trustee of Mills from 1927 to 1939, a period of twelve 
years. When I was appointed I was thirty-seven [chuckles] and I 
owe my appointment, I am sure, to the fact that I knew a number 
of then-active trustees of Mills, including Milton Esberg, Albert 
Bender, Farnham Griffiths and particularly Persis Coleman, whom 
I knew through the Children's Hospital, having become chairman 
of its board of trustees, a position I held for some twenty-five 
years. 

The president of Mills was Aurelia Henry Reinhardt, a 
graduate of the University of California who held a Ph.D. degree 
from Yale. I had known Mrs. Reinhardt for a number of years. 



120 



Phleger: When I was a student at Berkeley, living in a fraternity 
house on Dana and Durant, the Reinhardt family lived down the 
block. Dr. Reinhardt was then the University physician. The 
Reinhardt family consisted of Dr. and Mrs. Reinhardt and their 
young children. 

Dr. Reinhardt, as University physician, also held the chair 
of professor of hygiene and each year gave a course for freshman 
men in the big auditorium in California Hall. Once a week all 
of the freshman men would crowd into Number One, California Hall 
and Dr. Reinhardt would expound on matters of hygiene, 
particularly the horrors of venereal disease. He was indeed 
eloquent, and I have seen with my own eyes freshman students 
faint and collapse at his description of the terrors of syphilis. 
They weren't teaching about contraceptives and all that in those 
days; they were just telling you what a terrible thing it was 
to catch a venereal disease. [Laughter] 

He was a wonderful person. He was the first to run that 
student infirmary and made a great success of it. The students 
were all for it and they never had any medical problem that Dr. 
Reinhardt wasn't prepared to handle. 

Unfortunately, he died at an early age and Mrs. Reinhardt, 
I guess, to provide support for her young family, entered teaching 
and had become president of Mills by the time I became a trustee. 
One of the sons, Frederick Reinhardt, Jr., entered the Foreign 
Service. He served as political adviser to our representative at 
NATO and was successively ambassador to Egypt and Italy. 
Unfortunately, he died at an early age. He was honored by the 
University by being named Alumnus of the Year in 1968. 

Anyhow, I became a trustee at Mills which, at that time, 
admitted only women. It had a fine curriculum, student body 
and faculty. But it had plenty of financial problems. When I 
went on the board, we were soon caught up in the Depression and 
if you want to know how difficult it was for a woman's college 
in the Depression, you should look over the history of Mills. 
It had a small endowment, but its chief source of revenue was 
tuition paid by its students. 

From the beginning, I was a member of the finance committee, 
the chairman of which was Frank Wentworth, who was also the 
treasurer of the college. Frank Wentworth had been a successful 
businessman and had sold out his business and retired at a 
comparatively early age. He then undertook to handle the 
finances of Mills, which he did with great skill and ability. 
If it wasn't for him, I don't know how Mills would have survived 
the Depression. 



121 



Phleger: Anyhow, Wentworth, Griffiths, and I were on the finance 
committee. We may have been on some other committees, but we 
devoted many, many hours to the finances of Mills. Dr. Reinhardt 
was a great president but she didn't think much of money and she 
didn't want money to stand in the way of the pursuit of excellence 
by Mills, with the result that the poor finance committee had a 
rough time of it. 

Stein: Were you ever able to instill in her any sounder financial-- 

Phleger: I won't say she was reckless, but she thought money was to do 

things with and her chief objective was to maintain and improve 
Mills. She would act and we'd have to go out and find the money. 
I won't say that she was reckless. She thought money was to be 
used, not hoarded. 

Anyhow, as a result, I think, of its low financial situation, 
I was asked to be the commencement speaker at the Mills commencement 
in 1934, and on June 11 delivered the commencement address, which 
is titled "1912 Looks at 1934" and is, I must say, a great address 
[chuckle] which I'm sure had a lot to do with financial affairs 
and other problems with which we had been dealing. They were good 
enough to bestow on me the honorary Doctor of Law degree, which I 
gratefully received and have possessed with pride. 

Farnham Griffiths always said that I was selected as the 
commencement speaker because the college was so busted that it 
couldn't afford an honorarium, so they turned to me. Anyhow, I 
made the speech and I've always maintained a lively interest in 
Mills, and have endeavored to give it whatever support I could. 

That isn't the only college address I have made. Charles 
Kendrick, an outstanding citizen of San Francisco who was an 
important factor in the building of the War Memorial and a wealthy 
and generous public benefactor, was a leading trustee of the 
University of San Francisco. One day, in the '60s, he stopped 
me on Sutter Street and after telling me he had given the funds 
(something over one million dollars) to build a law school 
building at the University, asked me to make the dedication 
address. 

I told him I would be honored to do so. So, in due course, 
I gave the dedication address on September 29, 1962, when the 
building was completed. One reason I remark on it is that when 
I reread my address not long ago, I decided I would be utterly 
incapable of making as good a one today. 



122 



Phleger: The dedication coincided with the 50th anniversary of the 
University and Mr. Kendrick published all the proceedings at 
the anniversary, including my address and I'll give you a copy 
for the archives.* 



Recollections of Earl Warren 



Phleger: You have expressed an interest in my recollections of Earl 
Warren and we might turn to that now. 

Stein: Okay, and then we can start next time with Stanford. 

Phleger: Earl Warren was a member of my class and I knew him. He was not 
prominent as a student and didn't engage in many activities. He 
did all the normal things and he knew everyone and was quite 
popular, but he never held any student office and as far as I 
recall as a student was not a member of any of the "so called" 
University honor societies. In later years, he was made an 
honorary member of a number of them. 

Stein: Yes, I think he was not a member of-- 

Phleger: As a student he wasn't a member of the Golden Bear, Winged Helmet, 
Skull and Keys or any of those, but I think in later years he 
was made an honorary member of Skull and Keys and also of Golden 
Bear. He simply--! think Newton Drury used the term—was a late 
bloomer. 

I have one vivid recollection of him as a student. In those 
days it was illegal to sell liquor within a mile of the University. 
So the nearest saloon was Gus Brause's saloon on Telegraph Avenue, 
opposite Idora Park. It was the custom of a few of the students, 
when time permitted, to get on the Telegraph Avenue streetcar and, 
for a nickel fare, go down to Gus Brause's, where you could get 
a fine large beer for a nickel. 

One afternoon I went down there and was drinking a beer when 
I was joined by Earl, and the two of us stood at the bar, with 
Gus Brause and another bartender behind it, fanning the breeze. 
Suddenly, in walked a man with a large book. I remember it was 
1910 and the man was a census taker. He walked up to the bar and 
asked the bartender what his name was, which the man gave, and his 



*In the Herman Phleger papers in The Bancroft Library. 



123 



Phleger: address and other vital statistics and then the census taker 

asked what his occupation was. The bartender said, "Clerk." The 
census taker said, "You're not a clerk; you're a bartender," to 
which the bartender replied, "Oh, don't put me down as a bartender. 
My wife won't like it and it will go down in the records that I 
was a bartender." 

The census taker appeared adamant when up spoke Earl and 
said, "Now, look here. This man ^s_ a clerk and if he doesn't 
want to be put down as a bartender, don't you dare put him down 
as a bartender." As a result, the census taker yielded and put 
the man down as a clerk. 

Years later I said that that was the first great humanitarian 
decision Earl made, when he got the census taker to put the 
bartender down as a clerk. 

Anyhow, I followed Earl's career through his various public 
positions—district attorney, governor and Chief Justice. I 
remember after the World War II started, sitting with him and 
three or four others at a table in the Bohemian Club. 

It was at the time that General [John L.] DeWitt had ordered 
the deportation of all the Japanese from the Pacific Coast. When 
the subject arose and we told Earl that we didn't think it was a 
good decision to move them, Earl strongly supported the order upon 
the ground that we were in a war, and when the federal government 
ordered anything, everyone should comply. So the Japanese were 
all moved, and in later years Earl Warren participated in the 
decision of the Supreme Court which held that the order to move 
the Japanese was invalid and they were entitled to damages. I 
thought it was very forthright of him to admit in later years that 
it was a mistake, to move the Japanese, a move that he had approved 
at the time. 

Stein: In this comment that he made to you when you asked him about 

General DeWitt 's order, do I take it that he was saying that he 
didn't entirely agree with it? 

Phleger: No, he didn't say that at all. He said, "We're in war and we 

can't be second-guessing everybody. It's our job to follow orders 
and if the army wants something done, why, I'm going to cooperate." 

We didn't discuss the merits of moving these people out, some of 
whom were citizens. He took a narrow view of it and may very 
well have been right, because if there had been any resistance to 
moving the Japanese at that time, it might have created a great 
furor. No, he just took the position that "that's the orders 
and I'm going to cooperate." But in later years he never was 
reluctant to admit that he thought it was too bad that it had to 
be done. 



124 



Stein: I know that one of the things his office was active in doing — 

the attorney general's office—was gathering evidence, that was 
presented at the Tolan Commission hearings in early February 
[1942], tending to show that Japanese farms had been intentionally 
located near areas of strategic importance. Law enforcement 
leaders feared that the farmers might commit sabotage. 

Phleger: Yes, I don't think there was any real evidence of that. The 
reason I say that is that the Hawaiian Islands were full of 
Japanese and they were not interned during the war and there 
wasn't a single act of sabotage by the Japanese against the 
American military—not one. 

Anyhow, it's like all other Monday morning quarterbacking. 
His decision, I think is quite understandable. He believed that 
we were at war, that the army was running the show on security, 
and that we ought to comply with every request it made. 

Another item of some interest: Earl Warren was not well- 
known outside of California, even when he was governor. Eugene 
Meyer was then the owner of the Washington Post and a good friend 
of mine. His wife, Agnes Meyer, was an able woman, interested in 
public affairs, particularly in women in government. During the 
war, she became interested in showing what women were doing and 
traveled around the country interviewing people and making speeches. 

One day in 1943 I got a wire from Mr. Meyer asking me if I 
could arrange for Mrs. Meyer to interview Governor Warren, who 
was then at Sacramento. I replied, "Certainly." So I proceeded 
to call the governor on the telephone. Well, you may know how 
some secretaries are. I couldn't reach him. So, finally, on 
March 11, 1943, I wrote him a letter to Sacramento saying [reading 
from letter]: "Dear Earl, As it does not seem possible to reach 
you on the telephone (I have been attempting without success since 
Monday) I am writing instead. What I wanted to talk about is this. 
On Monday, Eugene Meyer, owner and publisher of the Washington 
Post, telephoned me from Washington to ask if I could arrange an 
interview with you for his wife who is to be in San Francisco for 
a few days next week when she is to talk before the Commonwealth 
Club." 

To make a long story short, I got an immediate reply from 
Earl and arranged the interview. Mrs. Meyer went to Sacramento 
and wrote a full-page article which appeared in the Washington 
Post on Sunday, April 4, 1943. I have a copy of it here and that 

is the first nationwide personal publicity that Earl Warren 
received. 



125 



Phleger: It's written with great skill and understanding. It was 

Mrs. Meyer's idea that the article should be about Earl Warren, 
the person, should show what kind of a person he was, about his 
family and his general outlook and philosophy; not on any 
political question but on a general level. 

Following that, and particularly when he became Chief 
Justice and moved to Washington, Earl became a close friend of 

the Meyer family. He spent several summers yachting with Mrs. 
Meyer, and her friends. I met him a number of times at social 
affairs at the Meyers' when I was in Washington. He delivered 
the eulogy at the memorial ceremony for Eugene Meyer when he died. 
The interview I have described is the first contact that Earl 
Warren had with the Meyer family. [Hands interviewer the article 
and correspondence.]* 

Stein: Can we also include those letters in your papers in The Bancroft 
Library? 

Fhleger: Yes. Here's a telegram from Mrs. Meyer. That connection with 
the Washington Post and Mr. and Mrs. Meyer was a valuable one 
for Earl. 

Stein: I can see that because this would give him excellent national 
exposure and, of course, there's this famous picture of his 
family. 

/ 

Phleger: Yes, I think that's the first time it appeared. It may have been 
taken on that occasion. Oh, there's one last thing about Earl 
Warren which I think is characteristic. This was when I was in 
Washington as legal adviser, about "55. 

I got a telephone call and the voice on the phone said, 
"This is Earl." I said, "Earl Warren?" He said, "Yes, yes." 
"How are you?" "Fine." 

He said, "The Bears are going to play football against 
Pittsburgh University next Saturday." (This would, say, be a 
Monday.) He said, "I'd like to see the game and I'd like you to 
go with me." 

I said, "Oh, my, Pittsburgh is a hard place to get to and I 
don't think I can make it. We're very busy." But he said, "So 
am I, but I'll take you. I'll call for you in my car at 7:00 a.m. 



*The article and accompanying correspondence are in the Herman 
Phleger papers in The Bancroft Library. 



126 



Phleger: I've looked up the schedules. There's a plane that leaves for 
Pittsburgh at 8:00 a.m. We can have breakfast on the plane and 
we get to Pittsburgh about 9:00 or 9:15 a.m." He continued, 
"I've got the day all laid out. The chancellor of the university 
is going to meet us. He's going to show us around the Golden 
Triangle. We're going to be guests of honor at a university 
luncheon in the gymnasium and then we're going with the chancellor 
to the football game and sit on the fifty yard line. I've looked 
it up and we can get a 9:00 p.m. plane back that night and be at 
Washington at 10:00 p.m. and I'll deliver you to your home." 

"Well," I said, "that sounds fine. I'll do it." 

So according to plan, he did just that. He picked me up, we 
flew to Pittsburgh, were met by the chancellor, went down and saw 
the big buildings, went through the president's office in the 
U.S. Steel Building, had lunch at the university, went out to the 
football stadium and sat with the chancellor. Between halves, 
they celebrated the twenty-fifth anniversary of some great football 
victory and had the returning members of the twenty-five-year 
football team there. They invited Earl to come out on the field, 
so he went out with the football players amid great applause, all 
of which he hugely enjoyed. 

He came back and said, 'Veil, our plane doesn't leave until 
9:00 p.m. They've given me a room out at the Schenley Hotel. 
Let's go out there." So we went out to the Schenley Hotel and 
when we got to his room he said, "How about a drink?" I said, 
"Fine, but where 's the drink?" He said, "I'll get one." So he 
called room service and asked them to send up a bottle of bourbon. 

Well, we had a couple of drinks and went down to dinner. A 
group of California alumni had come over from New York to see the 
game. I would say there were at least fifty of them, led by a 
famous California yell leader by the name of Red Drew. They 
were all at dinner and when they discovered Earl, there were no 
limits to the yelling, shouting, singing and cheering, all of 
which the Chief Justice greatly enjoyed. 

So we had dinner and after dinner we got our bags and went 
down to the plane and flew back to Washington and he delivered 
me on schedule. 

I never saw a person enjoy himself more than Earl did that 
day. He loved people. He shook hands with the porter at the 
plane. He spoke and shook hands with the women stewardesses. 
Everybody recognized him and he spoke to and was pleasant to 
everyone. He was really a man of the people. 



127 



Phleger: Now, two other incidents stand out. When he was governor 
and was running for a second term, someone gave a luncheon for 
him in a private room at the Pacific Union Club to discuss 
compaign funds and politics. I was invited to attend. Many of 
those present started telling Earl what he ought to do and what 
he hadn't done right and were otherwise critical. 

Finally, I remember him making this remark. He said, "Well, 
nobody seems to be for me except the people" [laughter], which 
was very true. Earl got little support from the wealthy and 
top business people. 

Stein: In fact, he ended up having quite a controversy, didn't he, 
with the American Bar Association? 

Phleger: He did not have a controversy with the ABA as such, but he 

resented the constant criticism of the Court by some ABA members 
and particularly criticism of certain of its decisions, some of 
which had been written by Warren. This culminated in Warren's 
resignation from the ABA following its ceremonial meeting with 
the British Bar in London in 1957. This is covered in detail in 
Warren's autobiography (The Memoirs of Earl Warren, Doubleday & 
Co. New York 1977, p. 319) at p. 320 et seq. 

Stein: I don't remember but I thought that they were critical on some 
level of some of his decisions. 



Phleger: There was always a substantial part of the Bar that did not agree 
with some of Warren's decisions — like "one man, one vote" and the 
Miranda decision. 

A committee was formed here two or three years ago to raise 
funds to establish the Earl Warren chair of government in the law 
school at Berkeley. I was pleased to be appointed to the committee 
and to join in raising the necessary funds. I think a substantial 
amount has been raised but I don't think the chair has yet been 
filled. 

About two years ago, I was in Washington at a reception. I 
had an opportunity to chat with the present Chief Justice, Warren 
Burger, whom I knew quite well when he was an assistant attorney 
general and I was the legal advisor of the State Department. 

When I told the Chief Justice of the plan to establish a 
Warren chair of government at Berkeley, he said, "I think that 
is wonderful. I am a great admirer of Earl Warren and served 
with him on the Court. He was a fine lawyer and a fine judge, 
and he was particularly skilled in government. He had great 
experience and feeling for government, and I'm glad you are 



128 



Phleger: establishing a chair of government in his name. There aren't 
many of them, and Earl is the outstanding example of a person 
who really understood government." 

Now, we'll release you for the day. 

Stein: You've done royally. Next time we'll start with Stanford and 
go on to Germany. 

[end tape 2, side 1] 



Yosemite Park & Curry Company 

[Interview 6: October 19, 1977] 
[begin tape 1, side 1] 



Phleger: Yosemite Park is, of course, a great national treasure and I 
suppose we've all been there. I went up there when I was in 
college. Berkeley people have had much to do with Yosemite. 
Both Joseph LeConte, Sr. and Jr., wrote about it and also took 
parties up there. 

On my first visit I stayed at Camp Curry, which was a summer 
camp run by Mr. David A. Curry, who had come out from Indiana to 
California when Stanford was founded and who had relatives on 
the Stanford faculty. 

Curry operated his camp near Half Dome for many years. He 
originated the firefall and other features which delighted the 
tourists. He ran a fine camp, with the guests housed in tents 
and with a big tent dining room. 

He always was able to operate at a profit. Some people 
didn't think Camp Curry was up to the standards required for housing 
in Yosemite Valley, and in the early '20s, a group of Los Angeles 
and San Francisco capitalists formed a company called the 
Yosemite Park Company to provide housing facilities in the Valley. 
Included in the group from Los Angeles was Harry Chandler, and 
from San Francisco, A. B.C. Dohrmann, Alfred Esberg and others. 

They proceeded to make a concession contract with the 
Department of the Interior and built a hotel near the foot of 
Yosemite Falls called Yosemite Lodge. After several years the 
company got into financial difficulties and finally a merger was 
arranged between the Curry Company and the Yosemite Park Company, 
combining their assets, liabilities and their facilities in the 
Valley under the name Yosemite Park and Curry Company. 



129 



Phleger: Shortly after this time, I came onto the scene. One of the 
principal sources of revenue of the concessionaires in Yosemite 
was the operation of a bus system. You could reach Yosemite 
Valley in those days by the Yosemite Valley Railroad which ran 
up the Merced River from Merced, which was the most direct route, 
or by other routes like the Big Oak Flat, over which buses 
operated. Gradually, the buses were brought into one ownership 
and were operated by Yosemite Park and Curry at a considerable 
profit, which was helpful in maintaining its operations in the 
Valley. 

There was no highway from Merced to the Valley. Over this 
direct route there was only one carrier, the Yosemite Valley 
Railroad. Finally, the State of California, in the '20s, 
completed the construction of a direct all-year road from Merced 
into the Park. This permitted automobiles to go directly from 
Merced into the Valley and made the Yosemite Valley Railroad no 
longer of economic value. 

When this occurred, I was employed by Yosemite Park and Curry 
Company to represent it in a contest before the California Railroad 
Commission as to who should receive the permit to operate a bus 
route between Merced and Yosemite Valley. 

Stein: How did you come to represent the Yosemite Park and Curry Company? 

Phleger: They came to me because I think they believed I had some 

qualifications to represent them in this proceeding as I had 
handled several cases before the Railroad Commission. 

The operating head of the company at that time was Dr. Donald 
B. Tresidder, a Stanford graduate (1919; M.D., 1927). He had 
married Mary Curry, the daughter of Mr. Curry who had founded the 
Curry Camp. On the death of Mr. Curry, the Curry family succeeded 
to his stock and were the largest stockholders in Yosemite Park 
and Curry Company and gradually Dr. Tresidder had assumed its 
management. 

During the course of the contest before the Railroad Commission 
over the bus permit, I became well acquainted with Dr. Tresidder, 
who was a man of great ability as well as personal charm. 
Fortunately, we were able to secure a permit for the company to 
operate buses from Merced directly to Yosemite Valley. The company 
established operations over this route and this bus operation 
spread through the Valley and expanded to include routes through 
the Valley and to Lake Tahoe. These bus operations became one of 
the principal sources of revenue of the company. 



130 



Phleger: Most people do not realize that a concession in a national 
park has definite limitations. You cannot operate a concession 
in a park without a contract between the concessionaire and 
the Department of the Interior, represented by the National Park 
Service. As the lands in the park belong to the United States, 
any improvement, such as a hotel, immediately becomes the 
property of the U.S. and the concessionaire's rights thereafter 
are only those granted him by concession contract, which is for 
a limited term. 

This contract provides for close supervision of the con 
cessionaire's operations by the government and all prices and 
charges by the concessionaire are subject to government approval. 
Numerous concessionaires have found to their chagrin that the 
lure of operating in a national park has led them to enter into 
contracts which, because of government control, made it almost 
impossible for them to make a profit. The government not only 
regulates the charges to be made, but has the power to require the 
concessionaire to make improvements, such as hotels and camps, 
sometimes very costly and not very remunerative. 

Some of the purchasers of stock of the Yosemite Park con 
cession, after the Tresidder and Curry management had terminated, 
never read the contract before they made their investment, and 
have found to their chagrin that it is very difficult to make 
much of a profit under it. The stock of the present concessionaire 
is owned by Music Corporation of America, which I think has been 
surprised and disappointed to find its planned methods of 
operation are impossible because of the restrictions in the 
concession contract. 

However that may be, Mrs. Tresidder and Dr. Tresidder, who 
had had long connections with the Valley, were ideally suited to 
operate the park concession. They loved the Valley. They knew 
the oldtime inhabitants. They were intelligent in their handling 
of park visitors and were able to make a reasonable and modest 
profit through the operation of Yosemite Park and Curry Company 
over a term of many years. 

After my work in connection with the bus permit, I was 
called in in connection with a demand by the park service that 
the concessionaire construct a large first-class hotel which 
would cost several hundred thousand dollars. After long 
negotiations, the Ahwahnee Hotel was conceived and built by 
the Company. It is, I think, one of the finest resort hotel in 
the world and the fact that it exists today and is in such 
beautiful condition is a tribute to its intelligent planning and 
construction. Its fiftieth anniversary was celebrated a few 
months ago. 



131 



Fhleger: The hotel was designed by a Los Angeles architect, Gilbert 

Stanley Underwood. The builder was a contractor from San Francisco, 
James L. McLoughlin. As anyone who has been there will see, the 
building is constructed of steel and concrete with huge blocks 
of native stone in the walls and other sections of the hotel. 

I drew the contract covering the construction of the hotel. 
As the work progressed many disputes arose between the architect, 
the contractor and Yosemite Park and Curry Company. When the 
building was completed it was a great artistic success, but there 
were several hundred thousand dollars of over-runs claimed by the 
contractor against the owner. These were finally negotiated 
down to a reasonable amount. 

The decorations of the hotel are outstanding, the motif being 
the Indian designs of the California Indians, particularly the 
Yosemite Indians. The interior decorator was a famous graduate 
of Berkeley, Phyllis Ackerman, who did the interior design, 
particularly the frescoes and the wall and ceiling decorations. 
She was the wife of Dr. Arthur Dpham Pope, the famous Berkeley 
professor who went on to be the art advisor of the Shah of Iran. 
Phyllis Ackerman never took her husband's name. She died only 
recently. 

During World War II the hotel was taken over by the government 
as a naval hospital and at the end of the war left it in great 
disrepair. My partner, Maurice Harrison, handled the litigation 
with the federal government over the restoration of the hotel. 

The hotel's present decorations, while not the original ones, 
have been largely restored in the same style and design as 
originally planned by Phyllis Ackerman. 



Stanford University 



Associations with Dr. Donald B. Tresidder 



Phleger: Dr. Tresidder became a trustee of Stanford University in 1939, 

president of its board of trustees in 1942, and was installed as 
president of Stanford on September 1, 1943. I saw a great deal 
of him and we had many common projects. Commencing in the early 
'30s I went camping with him over a period of probably ten years 
in the High Sierras. We would take pack animals from Yosemite 
and go up to the High Sierras, usually around Lake Merced, and 
spend two weeks hiking and fishing. This is the only place in 



132 



Phleger: world where golden trout is found and we had much fun catching 
them. They're one of the few creatures that live up to their 
reputations. They look really golden when you take them out of 
the water. I took my son with me a number of times and we 
often had a couple of Dr. Tresidder's friends along, usually 
Dr. Rea Ashley and Dr. Pettit. 

Mr. and Mrs. Tresidder were enthusiastic alunmi of Stanford 
and made many gifts to it. The Tresidder Memorial Student Union 
was built with money left to the university by Mrs. Tresidder, 
who succeeded to most of the Curry stock. 

After Dr. Tresidder's death, I made a gift in 1950 of an oil 
portrait of him, to be hung in Tresidder Union. This was painted 
by Arthur Cahill, a well-known artist of San Francisco, and is 
a posthumous portrait. Mrs. Tresidder provided clothing and 
pictures and other items and I think the resulting portrait is a 
good one. 

In about December of 1970, after the student riots and other 
difficulties on the Stanford campus, I was advised by an assistant 
to the president that some vandal had disfigured Dr. Tresidder's 
portrait, but that it could be repaired. The portrait was 
repaired but the university authorities did not think it wise to rehang 
it where it had been before and it was put in some safe place. 
I don't know whether it's ever been put back in the Tresidder 
Memorial Union. Maybe conditions have changed so that it's safe 
now to do so. 

The Tresidders had no children. They left all of their 
property- -with the exception of a life trust in favor of Dr. 
Tresidder's sister, who's still living — to Stanford University. 



Service on the Board of Trustees 



Phleger: I believe Dr. Tresidder was responsible for the suggestion that 
I become a trustee of Stanford. Under the founding grant, as it 
existed at that time, the president of the university could not 
be a member of its board of trustees, so when Dr. Tresidder was 
elected president in 1943, he had to resign as trustee. In 1944, 
I was invited to be a trustee to fill the vacancy created by 
Dr. Tresidder's resignation. 

The terms of Stanford trustees in those days was ten years. 
I was named a trustee in 1944, and was re-elected in '54. When 
my term expired in 1964, I was not eligible for further re-election 



133 



Phleger: and was elected a trustee emeritus. There are only four trustee 
etnerituses and I think no more are to be elected. A trustee 
emeritus is entitled to participate in the work of the board of 
trustees and serve on committees but he cannot vote as a trustee 
in trustee meetings. 

When I became a trustee emeritus there was much work to be 
done and I was urged to continue work on the committees, which I 
did for a few years but I retired from this work after a few 
years. I still read with interest the reports and other material 
which I get from the university. 

I accepted the invitation to become a trustee of Stanford 
because I believed it was doing a great work and it was the type 
of public service in which I felt I might make some contribution. 
I was also interested in its form of government. Stanford, under 
the founding grant, has a board of trustees in whom all the 
property, assets, and direction of the university are vested. It 
is a self -perpetuating body. Stanford is still, as it was then, 
one of the few institutions of higher education which is 
completely controlled by its board of trustees. 

When I was elected to the board there were fifteen trustees, 
among them Judge M.C. Sloss; C.O.G. Miller, a graduate of Berkeley; 
Herbert Hoover, a trustee since 1912; and Charles R. Blyth. There 
was one woman, Mrs. Roger Goodan of Los Angeles, the daughter of 
Harry Chandler. As a coincidence, my daughter Polly, who went to 
Stanford, is married to Mr. Goodan 's son. 

Stein: So you have a very intertwined relationship with Stanford. 

Phleger: Also on the board were George Ditz of Stockton, Ira Lillick, 

Paul Edwards, and George Morell. The fifteen trustees were active 
in the administration of their trust and met frequently at their 
office in San Francisco where they spent long hours on university- 
affairs. 

I was a member of the finance committee during all of my 
term as trustee. I was also a member of the investment committee, 
of the building and grounds committee, and of the land development 
committee, after it was formed in the '50s. 

There had always been a close bond between Stanford and 
Berkeley and a number of Berkeley graduates have served as 
Stanford trustees, including Joseph D. Grant, one of the founding 
trustees, C.O.G. Miller, James B. Black, Stephen Bechtel, and 
now Peter Haas. 



134 



Phleger: When Dr. Tresidder assumed the presidency, Farnham Griffiths 

and I gave him a dinner at the Pacific Union Club. Farnham 
Griffiths was a good friend of Dr. Tresidder and shortly after 
Dr. Tresidder was inaugurated, Farnham sent to him, with a copy 
to me, a handwritten letter which Benjamin I. Wheeler, then 
president at Berkeley, had written to Ray Lyman Wilbur on his 
inauguration as president of Stanford. I have never seen the 
letter except the copy that I have and I don't know whether it is 
in the University of California records. It is so characteristic 
of President Wheeler that I'm going to read it into this record 
for fear that it might be lost: 



The President's House 
October 25, 1915 



My dear Dr. Wilbur, 



I take this first opportunity on my return this 
morning from New York to give you my whole-hearted welcome 
to all the immunities and blessings of our peculiar calling 
and particularly to wish you all prosperity and joy in 
your new place as President of the Leland Stanford Jr. 
University. There is no post of opportunity finer than this 
in all our land. Stanford is free to be what it will be-- 
and has the strength—strength of equipment and of traditions 
and of loyalty and of outlook. I cannot help thinking of 
this field which opens before you and your years of youth 
until it might easily become envy, but I know there are 
struggles and worries ahead, and the last man to gild the 
frontispiece of a presidential career is one who has been a 
president himself. It is hard work and full of tangles. 
The saddest thing about it is the giving up of one's teaching 
and study in the special field chosen for a life-work. Sooner 
or later it will come, much as one may struggle against it. 
All the pains and worries I have suffered in the presidency 
are, all put together, not comparable with the regrets I have 
felt at giving up or practically giving up what had been my 
life plan and for which I had toiled through long apprentice 
ship for ten years. Of course, your profession cannot and 
will not be so easily filched from, but you will have your 
regrets. Still there is abundant consolation. You will find 
it with men, above all with students. My best wishes for you 
and your work. Every good thing which comes to you and to 
Stanford will be a gain and a help to the University of 
California—and we do all of us with all our hearts wish you 
that abundance may come to you both. 

Ever faithfully yours, 
Benj . Ide Wheeler 



135 



Phleger: I have never seen that letter reproduced and as it was 

handwritten it may well be that there is no copy in the University 
files. I think it's a remarkable letter and is very characteristic 
of Wheeler. 

Stein: Would you consider donating that to the Bancroft? 

Phleger: This is only a copy. 

Stein: Well, a copy is better than nothing. 

Phleger: Yes, it is. I think so, because it will be preserved. 

Stein: What are those other papers? Should we include those also? 

Phleger: This is only a letter of transmittal, which you may have, from 
Farnham Griffiths to me-- 

Stein: That might explain how you got the copy of it. 

Phleger: It really doesn't. He was secretary of the president. What is 
the date of Wheeler's letter, 1915? 

Stein: October 25, 1915. 

Phleger: Farnham Griffiths may still have been secretary of the president 
at that time. 

At the beginning of my service on the board there were only 
fifteen trustees. In 1954 the board was increased to twenty-three 
(three were alumni) and in 1970 to twenty-five to thirty-five, 
as determined by the board. I notice now in the minutes of the 
trustees meetings there are sometimes as many as seventy-five 
persons present at a meeting of the board. There are representatives 
of the administration, of the faculty, of the students, of 
protestors, and many others. When we used to meet we had fifteen 
or less and the president of the university and a few others. 

Of course, the university has grown greatly. In 1891, the 
year it opened, there were 559 students and last year, 1977, 
there were over 11,000—6,500 undergraduates and 5,000 graduates 
of whom 7,700 were men and 3,200 women. Under the founding grant, 
women were limited to 500 but after the university had grown to 
a student body of several thousand the founding grant was amended 
to permit women to the number of 1,500. Now there is no limit on 
the number of women. [ interruption in tape] 

It's also interesting to look back at the finances of the 
university. When it was founded Stanford had the largest endowment 
of any American university, twenty million dollars. In 1891 there 



136 



Phleger: was no tuition charge and indeed there was no tuition at Stanford 
until about 1915. When the university opened, the circular 
informed the entering student that his expenses need not exceed 
$200 a year. At the present time, the tuition is $4,695 for a 
three term year. This does not include board or lodging. 

During all the time I was on the board I was a member of 
the buildings and grounds committee, which for many years had 
Mrs. Allen Charles, a graduate of Stanford, as its chairman. 
Early in my service we adopted a rule that no building should be 
built on the Stanford campus which did not have a red tile roof 
and which was not buff in color. With minor exceptions, that 
has been followed ever since and Stanford is probably the only 
university in the United States with a harmonious and common 
architectural design. This is particularly noticeable when you 
fly over the university and observe it from an airplane. 

This idea of a uniform design was urged vigorously by Mr. 
Hoover, who has probably made more contributions to Stanford's 
progress than any other graduate. He was the moving force in 
establishing the Hoover Institution, the Food Research Institute 
and the Graduate Business School. 

This is a characteristic letter of Mr. Hoover written when 
I was on the buildings and grounds committee. It was written to 
Lloyd Dinkelspiel, then chairman of the board of trustees: 

Mark Hopkins 
San Francisco 
August 30, 1957 

My dear Lloyd, 

I am writing this letter for the record with no 
expectation of any action but just to clear myself from 
the avalanche of oprobrium which will be showered down 
from all Stanford people during the next hundred years. 

During the past year I frequently protested at the 
change in the architectural motif of the university as to 
the designs of the medical school and the post office. 
While I do not admire these architectural designs in them 
selves, the far more important thing is their sorry departure 
from the Romanesque. Stanford is one of the only two or 
three American universities having a distinctive and con 
sistent architecture. Its architectural motif is singularly 
appropriate for California as it memorialized the spirit of 
learning and religious faith which the Spanish fathers 
brought to this state. It was also the choice and an 



137 



Phleger: essential part of the inheritance given the university by 
Senator and Mrs. Stanford. Money is not the controlling 
factor in such matters as this. Universities cannot 
finance themselves in a day. It was not beyond possi 
bilities in their new buildings, to go as far as possible 
within the architectural spirit of the institution and to 
put up wall board buildings for the immediate future needs 
of space. In a decade somebody would have wished to finish 
the job properly. 

However, as I said at the beginning I only want a 
record that I did not approve of this grave departure 
from the spiritual and historical background. There are 
others among the trustees who have agreed with me. 

Yours faithfully, 
Herbert Hoover 



I was one of the trustees who agreed with him. 

Stein: That's very interesting because I've been down to the Stanford 
campus many times and admired the consistency of the buildings. 

Phleger: I pressed the need for a harmonious landscape design for the 

university and suggested the appointment of Tommy Church as 

university landscape architect. He was so appointed and during 

his tenure no building was sited after that date—except with his 
approval. 

I recall that when we were about to site one new building, 
the alumni were anxious it be sited so as not to interfere with 
an aged and beautiful oak tree which they had loved as students. 
This would require its location at a less desirable and more 
expensive site. 

Tommy Church decided the problem by this advice, "You should 
never site a permanent building only to preserve a tree or other 
living object. All trees die in time and it is remarkable how 
rapidly a new tree, properly taken care of, can replace an old 
one." 



138 



Disposition of the Stanford Farm 



Phleger: Senator and Mrs. Stanford left the Palo Alto farm, comprising 
almost 9,000 acres, to the university. The founding grant 
prohibits the trustees from selling or disposing of this land. 

[end tape 1, side 1; begin tape 1, side 2] 

Phleger: In the late '40s when Stanford was expanding rapidly and needed 
considerable sums of money, attention was directed to the Palo 
Alto farm as a source of funds. Not only was it producing no 
revenue, but those areas which were not used for university 
activities were taxed by the county of Santa Clara and the taxes 
were rapidly increasing. A committee on land development was 
appointed to produce a plan for the development of the Stanford 
lands and I served on this committee from its inception as long 
as I was a trustee. 

After considerable study and professional advice, the lands 
were divided into various categories. After delineating the 
lands required for academic purposes, the remaining lands were 
segregated for other uses; one area was set aside for a shopping 
center, another area for offices and residential purposes, 
another as an industrial park, and so on. The question arose as 
to the best arrangement to make with prospective tenants, since 
under the founding grant it was not possible to sell the land and, 
I might add, if it had been, the Palo Alto farm would have been 
disposed of long ago. 

As it was, this 9,000 acres was a valuable asset and the 
trustees' duty was to make as much out of it for the university 
as they could. Thereupon, after discussions with Colbert Coldwell, 
a San Francisco realtor, a man of great experience in real estate 
matters, it was suggested that Stanford could sell ninety-nine year 
prepaid leases to prospective tenants and thus obtain the maximum 
amount of money that was possible without selling the land. Mr. 
Coldwell advised the trustees that as a ninety-nine year prepaid 
lease of a parcel could be sold for a sum equal to its present 
fee value, Stanford would not only get the immediate money needed 
for university development but through the reinvestment of some 
of the funds at compound interest would also end up at the end of 
ninety-nine years with a sum comparable to the fee value of the 
property. 

The committee on land development approved this program and 
proceeded to make ninety-nine year leases in the industrial park 
and in some other areas. I objected, pointing out the dangers of 
inflation. I urged long-term leases with periodical adjustments 
of rent to match any increase in the value of the leased property. 



139 



Phleger : 



Stein: 
Phleger: 



Stein: 



Phleger: 



I also felt we could get practically as much for a fifty-year 
lease in gross as you could for a ninety-nine year lease. Thus 
started an argument between myself and the other members of the 
committee which continued for ten years. 

During the first ten years, the university leased at least 
280 acres on ninety-nine year leases. Finally after years of 
argument, I was able to secure agreement on the appointment of a 
special committee to review the matter. This committee reported 
that it believed that the ninety-nine year lease was too long and 
that the university should not make leases for more than fifty- 
one years. As a result, on January 1, 1960, a fifty-one year 
lease program was adopted, and no leases have been given for a 
longer period since then. 

It's easy to be a Monday morning quarterback, but the fact 

is that it was not wise to have made ninety-nine year leases. 
The property could have been leased under fifty-year leases or 
leases with periodical rent adjustments. But at that time, the 
need for funds was great and the increase in population and the 
inflation that has taken place were not anticipated. 

With respect to the shopping center area, the committee 
followed a different program. Many of the buildings in the 
shopping center were built by the university and all of these 
leases either tie the rental to the gross receipts of the 
tenant, or contain a provision for adjusting the rental to 
changing values at stated periods. The result is the rentals and 
returns in the shopping center have increased greatly and now 
amount to a large sum per annum, as the center has increased in 
popularity and the area has grown in population. 



It's the Stanford Shopping Center we're talking about, 
quite lovely. 



It's 



It is indeed and they're doing a lot of improvements down there 
right now. The fifty-one year lease limit did not stop the 
leasing at all and the university has continued to lease areas 
in the industrial park under fifty paid up leases. 

So these fifty-one year leases apply primarily to the industrial 
park and not to the shopping center. 

That's right. No ninety-nine year leases were ever made in the 
shopping center. 



140 



Selecting Dr. Tresidder's Successor 

Phleger: Another interesting matter that I participated in was the selection 
of a president to succeed Dr. Tresidder, who died suddenly in 
New York on January 28, 1948. Palmer Fuller, Jr., president of 
the board of trustees, at once appointed a committee of trustees 
to recommend a new president. This committee consisted of Ira 
Lillick, chairman, Lloyd Dinkelspiel, George Ditz, Paul Edwards, 
ex-President Hoover, Dr. Seeley Mudd, and myself. 

We organized immediately and set up a program to govern 
our operations. We first decided we wanted if possible a 
president under fifty years of age, who was a scholar with 
administrative experience, and an alumnus of Stanford. However, 
we barred no one and during the period of our operation, which 
was eight months when we finally brought in a recommendation, we 
examined 117 prospects in all. No woman was among those suggested 
or nominated. We had the benefit of the advice of a committee 
of the faculty, chaired by Professor Edgar E. Robinson and a 
committee of the alumni, chaired by Frank Walker. However, the 
board of trustees determined that it was going to select the 
president and while the committee welcomed advice from other 
sources it was its responsibility to recommend the new president. 

The lists were open to anyone; 117 in all were nominated, 
starting with Dean Acheson and including Senator J. William 
Fulbright, Earl Warren, Dean Rusk, and many others. We made a 
careful investigation and appraisal of everyone suggested. Each 
member of the committee had a large, looseleaf notebook in which 
each nominee's name was entered on a separate sheet. Following 
the individual's name all of the material and information bearing 
on his qualifications or lack of them was inserted. Also included 
was information about the nominee's wife and family. 

Some of the information we developed was very interesting. 
For instance, a committee member would report that a close friend 
of one of the nominees had sent in a report that "'Blank 1 is on 
the liberal side but not an extreme liberal. A while ago he was 
for Stassen. In his own faculty he is said to be considered a 
liberal by the conservatives and a conservative by the radicals," 
or, "I have always considered 'Blank' as somewhat on the liberal 

side of his thinking, but not sufficiently so as to give him the 
label of a deliberate left-winger. One of his good friends told 
me that he thought his views were a composite of his own and his 
wife's, she, as you may know being of French birth and for some 
reason that is not clear to me, quite pronouncedly anti-English." 

And with reference to a medical doctor: "As you know, 
physicians are prima donnas and as a rule are difficult to handle 
individually or as a group. In fact, I think that any man who 



141 



Phleger: can handle a group of doctors can handle any other kind of group 
unless they be artists or opera singers." 

Or: "He is a Republican, and although a citizen of Texas 
he freely admits his political affiliations." 

Of another: "I know him personally and he is outstanding. 
He would fit Stanford like an old shoe with a new sole." 

One enthusiastic advocate wrote: "Jordan, Branner, 
Wilbur, and Tresidder were big men physically. Superior size 
among men is an asset. Everywhere among primitive people, 
little men are scorned by the womenfolk." I could go on at 
greater length. 

My particular contribution to the search was to suggest 
Dr. Sterling. My friend, Reese Taylor, president of Union Oil, 
was a trustee of Cal Tech. One time when I was in Los Angeles 
and discussing the search for a president for Stanford, he said, 
"I know a man I think would be an ideal president. His name is 
Wallace Sterling. He was a history professor at Cal Tech with a 
fine record and has recently been made librarian of Huntington 
Library. I think he will fill the bill perfectly." 

I then arranged to meet Dr. Sterling and to do this I 
enlisted the assistance of Dr. Seeley Mudd of Los Angeles, who 
was a member of our committee and also a trustee of Cal Tech, 
and who told me he knew Sterling and thought he was a fine man. 
Later, and I quote, President Sterling said, "My first meeting 
with Herman Phleger was at lunch in the California Club in 
Los Angeles in the early autumn of 1948. Our host was the late 
Dr. Seeley Mudd. I did not then know that both these men were 
Stanford trustees. Dr. Mudd, knowing that I had more than a 
passing interest in international affairs, had invited me to 
meet Mr. Phleger and hear something of his experiences at the 
Nuremberg Trials. At least, that was the pretext. In retrospect, 
I perceive that the purpose was otherwise because at that time 
the presidency of Stanford University was vacant. Thus began 
my association with Mr. Phleger, an association that has become 
for me a respected friendship of high value." 

The committee proceeded with its deliberations. 
Stein: What is that you were just reading out of? 

Phleger: That's a statement Dr. Sterling made when the Phleger visiting 
professorship in the school of law at Stanford was announced. 

Stein: Is that something we can also have? 



142 



Phleger: I don't think so. That's why I read it. 

As we winnowed down the names we were considering, it 
became evident that Dr. Sterling was well qualified for the 
position of president of Stanford. Not only was he a graduate 
of Stanford, having come to Stanford from Canada for his 
graduate work, but his wife was also an ex-student of Stanford 
who had come there with him and had taken graduate work. 

To make a long story short, Dr. Sterling was the choice 
of the committee after eight months of search and was elected 
president of the university by the board of trustee and took 
office on July 1, 1949. He retired as president on September 
1, 1969, after almost twenty years. During his administration 
Stanford made giant strides toward becoming the great institution 
which it now is. He was a fine executive. He was a scholar. 
He had the respect of the faculty, the students, and he also had 
the ability to interest other people in Stanford. During his 
administration large sums were attracted to the support and 
development of the university. 

At the time of his retirement, I was asked to speak at a 
dinner given by the board of trustees of Stanford and the Stanford 
Associates in honor of President and Mrs. Sterling at the Fairmont 
Hotel on April 18, 1968. I'll give you a copy of the remarks I 
made at that time.* 



Associations with Herbert Hoover 



Phleger: I think it might be appropriate here to mention something more 

of Herbert Hoover who was a member of the first class at Stanford. 
He was elected trustee in 1912. He was responsible for the 
Hoover War Memorial, now the Hoover Institution, for the business 
school, and for the food institute which was established with 
funds left over from the Belgian relief. I got to know him well 
during my service with him on the board of trustees, and in later 
years whenever I went to New York I would breakfast with him at 
his apartment in the Waldorf Astoria. 

I also got to know his son, Herbert Hoover, Jr. He was a 
brilliant electrical engineer and was a pioneer in the development 
of underground mineral exploration through sound and electrical 
devices. 



*In the Herman Phleger papers, The Bancroft Library. 



143 



Phleger: When I was in Washington as legal advisor in 1954, President 
Eisenhower suggested to me on one occasion that he would be pleased 
if Herbert Hoover was invited to perform some government service. 
I mentioned this to Secretary of State John Foster Dulles, who 
knew of Hoover's experience in the oil industry and was seeking 
someone to take charge of the negotiations with Iran for the 
restoration of the oil properties in Iran that had been seized 
by Dr. Mohammed Mossadegh. Mossadegh had driven the Shah from 
Iran and was then Prime Minister. The oil properties had been 
nationalized and no compensation was offered to British Petroleum 
Co. , their former owner. 

While there is now much criticism of the CIA [Central 

Intelligence Agency] , the fact is that the Shah of Iran would 
probably still be a refugee in Rome and the Iranian oil properties 
in the hands of Mossadegh if it had not been for the CIA. 

In any event, when Mossadegh was overthrown, the Shah 
returned to Iran and the disposition of the seized oil properties 
became an urgent international problem. Secretary Dulles invited 
Mr. Herbert Hoover, Jr. to handle the negotiations for the return 
of the seized oil properties as a special representative of the 
United States. This he did with great skill with the result that 
the properties were leased by Iran to a consortium of American, 
British and other oil companies, on terms which permitted acceptable 
compensation to be paid to the former owners. 

Following his success in this service, Hoover was made 
Undersecretary of State and was Acting Secretary when Mr. Dulles 
was taken suddenly ill and had to be hospitalized in 1956. 

Mr. Hoover was very deaf and being an electrical engineer, 
he employed delicate listening devices. He would go into a 
meeting of eight or ten and place his listening device in the 
center of the table and renew the batteries frequently. 

Some years later after both of us had left Washington, I 
learned through Harvey Firestone that Hoover's hearing had been 
restored. The next time I saw Hoover, I asked him if he could 
now hear. He replied that he had been deaf since he was seventeen 
years of age but his hearing had now been restored by a simple 
operation. Then he laughed and said, "You know, it wasn't all to 
the good. I never knew until my hearing was restored that my 
wife Peggy snored." [Laughter] 

Stein: You had one other relationship with Mr. Hoover that you mention 
in your book, The Earlier Years. Is there anything we need to 
expand upon on that? 



144 



Phleger: Yes, I'm glad you mentioned that. At the request of the Hoover 
Institution, I wrote a memorandum about that incident which has 
been deposited in the Hoover Institution and a copy in the Hoover 
Presidential Library at West Branch, Iowa. 

The incident is this: One day in 1934 our telephone 
operator announced that President Hoover was in the office and 
would like to see me. I went out and found President Hoover 
there. This was shortly after he retired as president. 

He came into my office and showed me a copy of the November 
1934 issue of the American Mercury entitled "Shady Business in 
the Red Cross." The article purported to be an account of the 
activities of the American Red Cross which it characterized as a 
"first class war machine which is chiefly interested in preparing 
for the next war and only incidentally in relief work." In the 
course of impugning the motives of many of those prominent in 
the Red Cross, the author [Lawrence] Spivack told of the efforts 
to alleviate the 1920-1921 famine in Russia. These were conducted 
by the American Relief Administration under the chairmanship of 
Herbert Hoover. 

Spivack charged that Mr. Hoover had used the Relief Administra 
tion resources for the purpose of forcing Lenin to reinstate the 
concessions in Russia of the Russo-Asiatic Company "in which Mr. 
Hoover had enormous interests and stood to make great profits." 
Spivack charged that on October 25, 1922, exactly two days after 
these efforts failed, Mr. Hoover stopped all aid "although five 
million shadows of human beings were still walking around slowly 
dying of starvation." 

The facts were that Mr. Hoover had no interest whatsoever 
in the Russo-Asiatic Company and that the Russian relief efforts 
of the American Relief Administration under Mr. Hoover's direction 
were a great success continuing for more than a year after October 
25, 1922 and earning the thanks of the Soviet People's Commisars 
and of Maxim Gorky. 

I advised with Mr. Hoover regarding the remedies that might 
be available to him. The article was clearly libelous per se 
and a libel suit would have resulted in a judgment for Mr. Hoover. 
However, he felt that it involved the Red Cross even more than 
himself and suggested that before we did anything we should 
communicate with the Red Cross. As I was soon thereafter to be 
in Washington, Mr. Hoover arranged for me to meet John Barton 
Payne, who was then president of the American Red Cross, and so 
next time I went to Washington I conferred with Mr. Payne and 
with his associates. 



145 



Phleger: After considering the matter at some length, it was decided 
that a libel suit would not be the most effective way in which 
to dispose of this matter but that if a full account of the work 
of the relief administration in Russia were written and the 
actual facts including an account of the libel were circulated 
to the thirty-odd-thousand of the American chapters of the Red 
Cross, this would be a far more effective way in combating the 
libel. 

This was arranged and a statement was sent out. I think a 
letter which Mr. Hoover sent to me at the end of this incident 
is very characteristic and I'll read it: "November 19, 1934." 
(This is written to an officer of the Red Cross in Washington.) : 

My Dear Mr. Fieser, 

Many thanks for your letter. I think the Mercury 
article did some damage. It was used by some of the 
press in the West. I notice it "because I was peevish 
for not getting back some large mines in Russia which I 
had formerly owned, that I cut off the Russian relief 
and starved five million people. This is indeed worse 
than anything the Red Cross did. 

Inasmuch as I did not have a dime's interest in any 
mines and I did not try to get back the concessions and 
the Russian Relief continued a year after the dates and 
events mentioned, I do not feel entirely guilty. 

However, it adds to the number of people who are convinced 
of my general and universal wickedness. 

With kinds regards I am yours faithfully, 

Herbert Hoover. 



Stein: 



That and the original letters, as I say, are in the Hoover 
Institution and copies in the West Branch Presidential Library 
of Mr. Hoover. 

Would it be a good idea to deposit a copy of that also in the 
Bancroft? 



Phleger: That would be fine. Mr. Hoover gave me some interesting accounts 
of his activities and the activities of the Russian Relief. The 
American public seems totally unaware of the millions we spent 
in Russian relief. 



146 



Phleger: In Mr. Hoover's careful way, he kept records. By the way, 
I sent a full account of this to Lewis L. Strauss, who was a 
lifelong friend of Mr. Hoover and who wrote an autobiography 
which includes a great deal about Mr. Hoover. [Men and Decisions 
by Lewis L. Strauss, Doubleday and Co., New York , 1962] Here 
is my correspondence with Strauss [hands interviewer the letter]. 
This was given me by Mr. Hoover in connection with this case 
[hands interviewer H.H. Fisher, The Famine in Soviet Russia, 

1919-1923 (New York, 1927)].* It shows how many lives were saved 
in Russia by Mr. Hoover and the efforts of the Red Cross. 



Stanford Medical School 



Phleger: There are two other matters of significance in connection with 
Stanford that I participated in. I was a member of the 
committee of trustees which recommended moving the Stanford 
Medical School from San Francisco to the campus. This took 
place in 1958, the new school at Stanford opening in 1959. 

The Stanford Medical School had accepted the transfer to it 
of Cooper Medical School and Lane Hospital, on Webster and 
Sacramento Street in San Francisco, in 1911, and had continued 
operations there for many years. Its faculty was made up 
largely of San Francisco practitioners, and a considerable 
number of its graduates were practicing in San Francisco and 
using the hospital for their patients. 

When the proposal to move the school to the campus of Palo 
Alto was made, many of the faculty and medical graduates in 
San Francisco opposed the move. Among the grounds for opposition 
was the argument that the school should continue in San Francisco 
because of the clinical material available there and because the 
school was well established and had a fine reputation. 

The board spent many hours discussing the matter and 
receiving recommendations from faculty members and others 
interested in the school. Dr. Sterling was in favor of the move, 
the main argument being that medical education had changed and 
the facilities of a university and its disciplines were so 
important to a medical education and the academic atmosphere of 
a college was so beneficial, that it would be desirable to move 
the school to the Stanford campus. 



*Both the correspondence and the Fisher book are on deposit in 
the Herman Phleger papers in The Bancroft Library. 



147 



Phleger: Finally the decision was made to move the school to the 
Stanford campus and after a campaign to raise the money to 
build the new medical school, the school was moved to Stanford. 
The buildings which the school occupied in San Francisco were 
transferred without cost to a group which has continued to 
operate the hospital facilities in San Francisco under the name 
of Presbyterian Hospital. 

[end tape 1, side 2; begin tape 2, side 1] 



The Stanford Linear Accelerator and other Federal Grants 



Phleger: I also participated in the discussions leading up to the building 
of the linear accelerator at Stanford on which the federal 
government spent $115 million and which extends for over a mile 
through Stanford lands. Before the government would finally 
commit itself to build the linear accelerator, they required a 
favorable report on the project by an independent expert appointed 
by the federal government. For this purpose they selected 
William M. Brobeck, who was then associated with the University 
at Berkeley and had been co-director of the Lawrence Laboratory. 

Stein: Is he any relation to-- 

Phleger: Well, that's a point I think is interesting. William M. Brobeck 
is the son of my partner long since deceased, William I. Brobeck. 
He was an only son and his father hoped that he would follow him 
in the profession of the law. However, Bill Brobeck wanted to 
be an engineer. He went to Stanford and then on to MIT [Massachu 
setts Institute of Technology] for a masters degree. 

About that time, his father passed away, leaving Bill a 
substantial estate. Bill came to Berkeley, met two young 
graduates of Princeton, and they decided to improve the steam 
engine and, indeed, built one so light and efficient that they 
used it to fly a plane, I guess the only instance of a steam- 
powered plane. However, it was obviously not a success. 

Dr. Orlando Lawrence told me that one day a man by the name 
of Brobeck called on him at the Radiation Laboratory at Berkeley 
and said he would like a job, that he was an engineer and could 
help them in their experimental work. Lawrence said they needed 
an engineer to design and erect some of their experimental 
apparatus and thought that Brobeck could do the job. He asked 
Brobeck what he wanted as salary and Brobeck said he didn't care 
whether he got any salary or not. 



148 



Phleger: Well, to make a long story short, Brobeck was hired and 
became a member of the radiation laboratory team. He was the 
inventor and builder of the Bevatron and later became one of 
the three co-directors of the Lawrence Radiation Laboratory: 
Dr. [Edwin] McMillan, Dr. Cooksey, and Brobeck. 

Some years later I talked with Dr. Luis Alvarez, who, as 
you know, is a Nobel Prize winner and for years was associated 
with Dr. Lawrence and the radiation laboratory. He thought 
highly of Brobeck, and felt that Brobeck had not received 
adequate academic recognition for his contributions in this 
field. Dr. Alvarez took the matter up at the University, with 
the result that a few years later Brobeck was awarded the 
honorary degree of doctor of science by the University of 
California. 

He afterwards left the work at California and now lives at 
Orinda where he has perfected numerous inventions, including 
the counter computer that is now used in McDonald's Restaurants. 

An item of interest about universities is their increasing 

dependence on federal funds. When I first became a trustee at 
Stanford it did little government research. Most research was 
done by the individual professors on their own. After World 
War II, the university started doing research work under contracts 
with the federal government. This has now grown until last year 
the total amount of research work performed by the university 
and faculty for the government amounted to about $90 million. 

Under the contracts, the university is paid a sum representing 
"overhead" representing the contribution by the university of 
plant, and indirect assistance and so forth which the university 
contributes to the research operation. By agreement this is now 
fixed at 20 percent so that the financial support the university 
gets out of the government research work at Stanford amounts to 
around $17 or $18 million a year. I imagine this is typical of 
all the universities which do research work for the government 
and if these amounts were to be lost to the universities it would 
be a serious blow to their operations. 

I think that about exhausts you and me on the subject of 
Stanford. I'll be glad to go on if you want to about Germany. 



149 



III ASSOCIATE DIRECTOR, LEGAL DIVISION, U.S. MILITARY 
GOVERNMENT OF GERMANY 



Appointment, Arrival in Berlin, and Settling In 



Stein: Yes, I think we should get started on Germany. 

Phleger: All right. The organization meeting for the United Nations was 
held in San Francisco in the spring of 1945. Many eminent 
government representatives from all over the world came here and 
agreed upon the United Nations charter. Among them was John 
Foster Dulles and Assistant Secretary of War John J. McCloy, 
whom I had met before. McCloy was a prominent New York lawyer 
who had gone to Washington at the beginning of World War II with 
Mr. [Henry] Stimson, secretary of war, and as assistant secretary, 
had directed a large part of the operations of the war department 
during the war. He was then planning the military government of 
occupied territories. 

McCloy was an enthusiastic tennis player and we played 
tennis together on several occasions at Burlingame. After his 
return to Washington after the close of the United Nations 
conference and the German surrender, I received telegrams and 
letters from him asking me if I would go to Germany for a time to 
participate in the military government there. After considerable 
thought, I decided it would be possible for me to go there for 
a. limited period, say six months or so. On telling McCloy I 
would go if the term was so limited, we agreed that I should 
forthwith go to Germany. 

Stein: If I might interrupt for a moment, why had he particularly 

chosen you? Had there been something in your experience that 
suggested that you would be particularly qualified? 

Phleger: Well, I don't know. He knew me and he knew what the requirements 
were. I understand comprehensive plans had been made for the 
military government of Germany after the surrender, largely through 



150 



Phleger: the training of men already in the military service. But I think 
Washington finally concluded that it would be a good idea to 
include some civilians in the higher eschelons of military 
government rather than leave it entirely to people in the armed 
services, and so they selected a group of civilians to go in. The 
group that I was to go in with consisted of the solicitor general 
of the United States, Charles Fahy, who resigned his position as 
solicitor general and was to be the director of the legal affairs 
of the military government; Judge [J. Warren] Madden, then a 
judge of the United States Court of Claims; and myself; Fahy to 
be the director and Madden and myself to be associate directors. 

So I went on to Washington and saw Mr. McCloy and met with 
Judge Fahy and Judge Madden and made arrangements to fly to 
Germany. I flew from Washington for Europe on July 10. The plane 
made an overnight stop in Nova Scotia and there by coincidence we 
saw General [Dwight D.] Eisenhower, who was proceeding in the 
opposite direction for a meeting in Washington. From Nova Scotia 
we flew to Santa Maria in the Azores and then on to Paris. 

While Paris had a few bullet marks it had not been badly 
hurt in the war. As I learned later, it had been used by the 
Germans as a rest and recreation center and had been spared most 
of the horrors of war. I read the book published some time ago 
called Is Paris Burning?,* which tells of the German plans to 
destroy Paris, which fortunately were not carried out. 

We got to Frankfurt, Germany the following afternoon and 
were housed at Hbchst, an industrial town on the outskirts. The 
headquarters of the American Army were in the I.G. Farben complex 
in Frankfurt. That great chemical company's headquarters became 
the headquarters for General Eisenhower and the American forces in 
Germany. 

I met General Lucius Clay in Hochst and was told that the 
U.S. military government in Germany was to be carried out in 
accordance with a directive adopted by the Joint Chiefs of Staff 
called "JCS 1067," which I learned later represented largely the 
views of Secretary of the Treasury Morganthau. The basic idea 
of JCS 1067 was to eliminate all Nazis from positions of authority 
or influence and gradually to reduce Germany to a status where it 
could not make war in the future. 



*Larry Collins, Is Paris Burning? (New York, 1965) 



151 



Phleger: I had dinner at Bad Hamburg (near Frankfurt) where most of 
the generals, including General Eisenhower, lived, but we were 
billeted in Hochst, where we worked on getting our organization 
together. We all wore military uniforms without insignia and 
had paramilitary rank, which admitted us to the amenities of 
military life, including the messes and other facilities. 

On August 7 we flew from Frankfurt to Templehof , an airfield 
in the center of Berlin, and went out to the American headquarters 
located some distance from the center of the city in the former 
headquarters of the German Luftwaafe. I was put up in Harnach 
House, which was the faculty club of the Kaiser Wilhelm Institute, 
where many of the great German scientists had lived when at the 
Institute. I was shown some of the experimental devices which 
they had and learned later they had come close to perfecting the 
atomic bomb. 

With some others, I toured Berlin. It was a scene of 
devastation. It was so badly destroyed that it was inconceivable 
to me that the city could ever be rebuilt. Indeed, there was 
serious consideration of abandoning Berlin. But when it was 
found that the underground wires, conduits, sewers, subways, and 
other such facilities were largely uninjured, it was realized that 
it would be wiser to rebuild Berlin on its present site. 

We had been in Berlin for only two or three days when the 
American Reparations Commission came through from Moscow. It was 
headed by [Edwin] Pauley, a long time Regent of the University, 
and on it were President Robert Sproul and [N.] Loyall McLaren. 
I invited them to dinner at Harnach House and we had an interesting 
discussion. Bob Sproul described the commission's activities in 
Moscow. When it arrived there it was put up in what Sproul 
described as "the equal of a second class hotel in Merced." They 
were then expected to meet with their Russian counterparts, but 
although they endeavored to do so for a period of two weeks they 
never actually met them, so they were now on their way back to 
the United States. 

I may say that we never got anything out of Germany by way 
of reparations but that wasn't true of the Russians. The Russians 
came into Berlin, yanked out all of the telephones, all the toilets, 
everything they could lay their hands on. One day I remember 
going by a printing shop and seeing a linotype being lowered to 
the street from the second floor to be carted away. The Russians 
actually swept the platter clean of everything that was movable. 

Shortly after we arrived, we got settled in our offices, 
which were good but uncomfortable because there was no heat and 
Berlin gets very damp and cold in the fall and winter. In fact, 



152 



Phleger: I was able to survive only with the help of long woolen under 
clothes, and an electric light globe which I installed under my 
coat. 

The legal division was a large organization; I would say 
about fifty attorneys in all. Most of them, except the top, 
were military people. Outside of myself and Judges Madden and 
Fahy we had Brigadier General Betts, who was regular army, of 
the Judge Advocate General Corps, and a group of lieutenant 
commanders, lieutenant colonels and so forth. 

The administration of the legal branch was divided into 
groups. One was called the judicial branch which had charge of 
the judicial functions in Germany. Others were the justice 
ministry branch; the legal advice branch, which was charged with 
giving legal advice to all of the military; and the prisons 
branch, presided over by James V. Bennett, head of the United 
States prison system. 

I remember going to inspect a German prison with him. We 
found the prison to be entirely constructed of stone, including 
the cells. Each cell was about five by ten with the sole furniture 
a cot and a bucket. I have often thought since then that anyone 
who served time in a German prison probably never committed a 
crime again. Prison conditions in Germany contrasted greatly 
with those in American prisons, with our TVs, radios, libraries 
and so forth. 

Stein: Do you want to stop now? I think maybe that's the place to stop. 
Phleger: I think so. 

Stein: Next time I think we can start with your visit to Hitler's bunker 
and Nurenberg. 

Phleger: That's right. 

[ end tape 2, side 1] 



153 



Organization of the Military Government of Germany 

[Interview 7: October 25, 1977] 
[begin tape 1, side 1] 



Phleger: I think we finished Stanford last time. 

Stein: That's right, and we had gotten a start on Germany. 

Phleger: When we went to Germany, we found that we were at the top 
of the hierarchy that had to do with the legal affairs of 
military government; below us was a number of brigadier generals, 
colonels and other officers who had been training for the work 
for a long time. I think we got by that situation satisfactorily 
because Judge Fahy and other civilians were men of considerable 
tact and judgment so the military people joined in cheerfully in 
an organization in which civilians were the tops. 

Stein: Were you sharing this civilian government of Germany with the 
other three powers? 

Phleger: The set-up for military government in Germany was this: The basis 
was that the sovereign state of Germany had been conquered and 
the conquerer was entitled under international law to govern the 
conquered state. Inasmuch as there were four principal nations in 
the war "on the winning side, it was decided that the government of 
Germany after the surrender should be conducted by what was known 
as the Control Council of Germany, formed by the top military 
officials of each of the four participating governments. As a 
result, the top government in Germany, the Control Council, was 
composed of General [Bernard] Montgomery for the British, General 
[Grigori] Zhukov for the Russians, General [Pierre] Koenig for 
the French, and General [Dwight D.] Eisenhower for the United 
States. 

The whole of Germany was then divided geographically into 
four zones, one to be governed by each of the participating powers. 
The eastern section was the Russian, which, by reason of pre- 
agreement of the Allies, surrounded the city of Berlin. The south 
and west areas, which included Frankfurt and Munich, were the 
United States zone. Another area lying to the west was the French 
zone. It went along the Rhine. The northern area including 
Bremen and Hamburg was the British zone. 

In each of these zones the government was in charge of the 
commanding general of the ally to whom the zone was assigned. 
So our job was to set up the government in the American zone and 
to work with the American commanding general on matters affecting 
the whole of Germany so that the American views and proposals 



154 



Phleger: could be presented to the Control Council which governed all of 
Germany. So if Eisenhower planned something that involved the 
legal end, he would consult the Legal Division, and we would 
prepare the material to be presented by General Eisenhower to 
the Control Council. 

The Control Council would then refer legal matters to a 
quadripartite body of the legal representatives of the four 
zones. We would meet with the Russians, French, and British and 
go over these proposals seeking agreement, and following agreement 
would refer them back to the Control Council where they would 
be enacted into law. 

With respect to the American zone, all of the matters that 
affected that zone particularly were enacted into law by an 
order of the American commanding general, and he would refer to 
us and we would prepare for him all of the measures which were 
considered necessary for the proper government of the zone. 

It is interesting to see how a statute for Germany would be 
enacted. All that was necessary was to draft the law, get the 
Control Council to agree to it, whereupon it became the law of 
Germany. In the U.S. zone if a law was desired, all that was 
necessary was to prepare a draft of it and have the commanding 
general of the American zone afix his signature and it was 
published as a law. 

General Eisenhower was the United States representative on 
the Control Council and was the military governor of the American 
zone. His deputy was General Lucius Clay. Actually all of this 
work that I refer to, while done in General Eisenhower's name, 
was the work of General Clay. 

The American headquarters, originally for a short period in 
Frankfurt, were moved in July to Berlin and were located at the 
Luftwaffe headquarters in the American zone in Berlin. I might 
add that while Berlin was geographically in the Russian zone it 
in turn was divided into four sectors, the American, Russian, 
British and French, each having an area of the city under its 
control which it administered just like it was part of the general 
zone assigned that country. 

The general orders under which the American occupation forces 
operated was a directive from the Joint Chiefs of Staff called 
JCS 1067, which I think was largely the work of Secretary of the 
Treasury [Henry] Morgenthau, who took a great interest in the 
postwar German state and whose philosophy was that Germany should 
be reduced to an agricultural economy. A great many of those in 
military government didn't agree with this and, of course, it 
never happened. 



155 



Phleger: But the JCS had as its principal motive or program the 

destruction of the Nazi party, the termination of the general 
staff system in the German army, the breaking up of the 
concentrations of economic and financial power, and the instal 
lation or adoption by the German people of democratic methods of 
government, it being thought that if those were accomplished that 
Germany after the war, when it assumed its position as a self- 
governing state, would be a democratic state. There would be 
no remnants of Hitler or Hitler's Nazi party, and it would be 
incapable of waging aggressive war. 

Physically we all lived near and around the American 
headquarters in Berlin. We were assigned houses some of which 
had all their windows or their roofs blown off, but gradually 
we made ourselves comfortable. We had servants. We had adequate 
food although nothing very grand. We had little heat and as 
Berlin is located quite far north in Europe and as winter commences 
in October we got uncomfortably cold during the latter part of my 
stay there. 

Stein: You were telling me some of the ways that you tried to keep warm 
and I think we ought to get some of that on tape. 

Phleger: The way we kept warm was we got as much coal as we could, which 
was very little. But there was no heat in our headquarters. We 
were all issued woolen army long underwear which was a godsend, 
and I might say, parenthetically, when they're talking about 
insulating all the houses in America at great cost in order to 
save fuel, they simply ought to issue long woolen underclothes to 
the population of the United States and they'd save untold amounts 
of energy. 

Anyhow, we were equipped with woolen underwear but in my 
office the thing that saved me was an electric light globe which 
I put in a tin can and held in my lap when I was sitting in my 
office. It saved my life. When we got into our homes we had a 
little heat but the Germans have wonderful fluffy down comforters, 
usually about a foot thick, and if you get a good down comforter 
it will keep you warm when you're in bed. That saved our lives. 



S ome Observations on Germany After the War 



Phleger: I might make some observations here about the German population. 
Hitler encouraged the birth of children on the theory that the 
more young people in the population, the stronger Germany would be. 
As almost all the able-bodied German population went off to war, 



156 



Phleger: he employed various ways to promote an increase in the birth 

rate which in many cases didn't involve marriage. His program 
worked . 

When we were in Berlin there were literally thousands of 
children, all the way from six months to ten years of age or 
maybe a little older. Those children were taken care of in the 
best possible way. The older people might go without food or 
clothing but the children were well taken care of. At the end 
of the war there were something like seven million war casualties, 
mostly in the army. Those that weren't killed outright were 
wounded. At the same time, those who were too old for active 
service in the army, the older people, were growing older so 
when the war was over, there was a big gap in the population. 
There were literally thousands of children and women and very few 
young men. In fact, in Berlin the census showed that there were 
one hundred and seventy women to every one hundred men. The men 
of middle age were gone. The old people were still all there. 

The net result is that as of today I'm sure Germany has the 
youngest population of any nation in the world. The old people 
are all dead. Those who were young children in 1945 are now in 
their thirties and forties, right at the peak of their ability 
and energy, [telephone interruption] I think the resurgence of 
Germany is due in considerable part to the fact that it doesn't 
have any old age social security problem because there are few 
old people and the middle element in the population is relatively 
young. 

With respect to Berlin itself, it was a scene of utter 
devastation and this was true of Frankfurt, Munich and Hamburg 
and the other big cities--so devastated that I thought they 
never could be restored. Of course, the principal work assigned 
to the people was going out and taking brick by brick, cleaning 
and piling them to be used in the reconstruction of Berlin. Day 
after day the women and children and everybody available would be 
out cleaning up the rubble. 

The city was literally covered with graves. Wherever a 
person died (this includes soldiers and civilians) he was buried 
where he fell, so that all through Berlin, along the streets in 
the area between the sidewalk and the street, there were dozens 
and dozens of graves with little crosses, sometimes with names 
and sometimes without. The city was simply covered with graves. 

Certain sections of the subway were filled with water and 
dead bodies and the stench was terrible. The roads were filled 
with returning soldiers and with displaced people. They would 
wander on foot, some of them without shoes, with rags for footwear, 



157 



Phleger: all over Germany trying to reach home. Their numbers ran into 
the millions. It was heart rending to see these groups. Of 
course a large number of these wanderers were from conquered 
countries. They had been brought in by the Germans and put in 
the factories to do the work. They included Poles, Czechs, 
Hungarians and many others. 

At our mess in Harnach House, the faculty club of the Kaiser 
Wilhelm Institute, the waiters were Poles. Of course we couldn't 
speak Polish and they couldn't speak English, so the menus were 
little slips of paper with the menu on one side in English and on 
the other side in Polish. Here's a menu for Monday, the sixth 
of August, 1945.* 

Stein: You had just gotten there, more or less. 

Phleger: Yes. [reading] Cold sliced beef—this is lunch—deviled eggs, 
potato salad, fruit salad and aspic, bread and butter, peanut 
butter, devils food cake, ice tea or coffee. Opposite each of 
these items was the Polish translation, and you ordered by 
pointing to the desired item. Then for further communication, 
there were the words: "servings: none, little; second helping: 
second helpings will be served upon request when possible." 

Stein: Then you could point to the similar phrase in Polish. 

Phleger: That's right. A great deal of the help were, as I say, Polish 
or Czech or some other nationality. 

We lived in a nice modern German house at 14 Vogelgesang 
Strasse which had been pretty well blown to pieces. Walking to 
our office at headquarters we would pass German children going 
to and from school. I would take candy from our canteen and give 
it to the children, who gladly received it, but after that went 
on for a few weeks the children refused to take any more and told 
me that their parents had sternly ordered them not to accept 
anything from the American troops. 

Stein: Why was that? 

Phleger: I suppose they felt they were fraternizing with us and as we were 
older many parents don't want their children taking candy from 
strangers. 



*In the Herman Phleger papers, The Bancroft Library, 
duplicated on page 158a. 



It is 



158 



Phleger: But the devastation in Berlin was so great that I didn't 
see how it could ever recover. I think it was in late August 
that Harvey Gibson, president of the Manufacturers Trust Company 
of New York and a friend of mine, came to Berlin and looked me 
up. He was the chairman of what was known as the Standstill 
Committee, a group of foreign creditors of Germany, mostly 
American banks, who had joined together to protect and eventually 
collect their claims against Germany. 

I went around Berlin with Gibson and he reached the 
conclusion, with which I agreed, that it seemed impossible for 
the Germans to ever pay off their debts. The fact is, however, 
that the Germans long ago did rehabilitate their economy and 
have paid their foreign debt in full. When I was in Washington 
in the Eisenhower administration I participated in preparing a 
treaty under which Germany agreed to and did in fact pay off all 
its foreign held bonds. The treaty provided that no German 
bonds, seized by the Russians at the time of the surrender, would 
be considered valid for payment if presented, but all other 
foreign held bonds would be paid. This treaty was executed and 
over the years Germany paid every cent of its foreign bonded 
debt. 



Draft ing the Laws for the New Germany 



Phleger: The Russians in the legal group that we dealt with were mostly 

labor union officials, none of whom spoke English. They usually 
wore civilian clothes and bedecked with medals. 

Stein: Did they have law training? Were they lawyers? 

Phleger: They really were not lawyers. They were mostly labor union people. 
There were some who had some legal training but they were not what 
one would consider trained lawyers. 

The British had a fine delegation led by a brigadier who is 
now Lord [William] Wilberforce, one of the law lords in England, 
who serves on the section of the House of Lords that passes on 
appeals both in England and from the commonwealth countries. 

The leader of the French delegation was a member of its 
Court of Cassation, Dr. Lenoir. The head of our delegation was 
former Solicitor General Charles Fahy, who, after his service in 
Germany, was appointed to the Court of Appeals for the District 
of Columbia and has had a distinguished judicial career. 



158a 



MONDAY, 6 AUGUST 
1945 



LUNCH 
CBIiD 



POHIESZIALEK, 6 SIERPNIA 

>• 1945 



.•.. •;/ 



Hioso wolovre na zimno 
Salatka z jajek 
Salatka kartof lana 
Qwoce w zelatynie 



Cold Sliced Beef 

Deviled Eggs . 

Potftoe Salad >• , , 

Fruit Salad: in -Aspic 

Br£ad-Butter-Peanufbutter"J , Chleb, Kaslo, Maslo orzech. 

Devil Pood Cake . ^ " Ciastka 

loe Tea or Coffee . • n ~,. ^ Herbata z lodu lub kawa 



SERVINGS t •;,.;-" 

NONE 

LITTLE 

SECOND HELPING J 



FOTR£17 



HIE 
V,-';-v.." TRCSZKE 

• ,, : r : " DRUGI SLZ '• -\- 
Se»6nd Helpings will be. .Served. - Drugi raz pod.,oy jak 
upon request when possible nan bedzie 



159 



Phleger: 



Stein: 
Phleger: 



Stein: 
Phleger : 



My particular field was the breaking up of the German 
combines and trusts. Hitler had a very effective method of 
securing control over the banks and big corporations of Germany. 
The Germans had a system of bearer stock certificates for 
corporations. The certificates were not registered as our 
stock certificates are in a particular name but were bearer 
certificates much like our bearer bonds so that it was impossible 
to find out from the corporate books who were the stockholders. 
These bearer certificates were largely under the control of the 
banks and when Hitler secured control of the banks he secured 
at the same time control over the corporations and he certainly 
exercised it. 

I worked on what was called the dispersion of German economic 
power and drafted laws designed to break up the combines and the 
combinations of corporations. I drafted a law very much modeled 
on our Sherman Act which made it a crime for corporations to 
combine to restrict production, allot territory, or fix prices 
and this was in due course enacted by the signature of the general 
of our zone. 

What else did you consult in drawing that law? 

Well, the usual process was to make a first draft and then pass 
it around to your associates for suggestions and hopefully their 
agreement. You'd accept suggestions and perhaps make changes 
and if you could get the approval of General Clay that ended it 
as far as your zone was concerned. 

If the law was to have Germany-wide application you did the 
same thing but then as a representative of the U.S. military 
governor on the Control Council you would take the matter up with 
the Russians and the French and the British. If they agreed, 
then the Control Council would enact the law. The British were 
always reluctant to be active in breaking up these combines because 
I think philosophically they didn't believe Germany posed any 
threat and they were willing to let well enough alone. However, 
these laws were enacted and enforced. 

You mentioned earlier, before we turned the tape on, about some 
resistance on the part of the British to-- 



That was what I was talking about. Later, when I tell you about 
my visit to Spain I'll tell you about what happened there. That' 
what I was referring to. 



160 



Conditions in Berlin After the War 

Phleger: I might also mention that conditions in Berlin were very unstable 
even though it was occupied by the military. There were no 
street lights at night. If you went out on the street you took 
a flashlight and groped your way. 

The Russians never had it so good. Many of them would 
become quite obstreperous and there were instances of Americans 
and other troops having to shoot Russians to protect themselves 
when they were being assaulted. 

The German currency, of course, was worthless. The military 
government established a currency, an occupation mark, the plates 
for which were prepared by the United States. Unfortunately, the 
United States loaned these plates to the Russians under strict 
agreements as to how many marks should be printed but there were 
millions and millions of marks printed by the Russians in excess 
of their agreement which found their way into general circulation 
because they were just like the marks that the American military 
government printed. 

The Russians were direct actionists when it came to reparations. 
As I think I mentioned before, they came in and pulled out all the 
toilets, telephones and everything that was movable and took it 
straight back to Russia. 

They were also anxious to get anything made in the West which 
was in short supply in Russia, which covered most items. The 
greatest prize they sought was wrist watches, particularly Mickey 
Mouse watches which then were a favorite with American troops. 
The place where there was a great deal of trading was in the 
Russian zone at Alexander Platz. There you could see a Russian 
major general with a suitcase literally full of paper marks using 
handfuls to buy a Mickey Mouse watch from an American private, 
to be taken home to Russia. 

We picture a Russian as a Slav from Moscow, when in fact 
Russia is a conglomeration of many peoples. Many of the Russian 
occupation troops in Berlin had an Asiatic caste of countenance 
and came from remote parts of Russia and evidently had never been 
in a large city before. There was also a large number of Russian 
women soldiers. In fact, the traffic control in the Russian zone 
of Berlin was conducted entirely by women soldiers. 

Our occupation troops in Berlin were from the 82nd Airborne 
Division, a crack division of parachute troops. They wore a fine 
uniform and were immaculately dressed with white balloon silk 
neck pieces and high jump boots with white lacings. They were an 



161 



Phleger: elite group. Their commanding general was Major General [James] 
Gavin, the youngest American major general. I think he became 
major general of the 82nd when he was still in his thirties. 
After the war, he had a distinguished career and became the 
head of Arthur D. Little & Company, the well-known research and 
engineering company in Boston. 

Stein: If I can interrupt for a moment: you are talking about these 

soldiers. I wondered if there was much problem with looting or 
with hostilities from the local population. 

Phleger: The local German population was so war weary that there was no 
problem at all with them. There was a considerable amount of 
fighting among the lower echelon of the occupation troops. The 
Russian soldiers, that is the lower echelon, were so delighted 
with the freedom that Berlin gave them, that they were often 
intoxicated and when intoxicated they were very obstreperous. 
As I say, there were instances of a considerable number being 
killed. Indeed, early in our time in Berlin all through the 
night you could hear bursts of machine gun and rifle fire. 
Usually people were protecting themselves against roving bands, 
usually of soldiers. I don't think the Germans participated at 
all in any disorderly acts. There were so many dead and there 
were so few men around and they are a law-abiding group anyhow. 
There was no trouble that I ever heard of with the Germans. 

Stein: Were any of the American or British or French soldiers known to 
create disturbances and loot? 

Phleger: I never heard of any. I think that the discipline in the troops 
generally was good and I don't think that the Russians did 
anything more than an occupying army from a devastated country 
would do under the same circumstances. 

I might say that the Russian soldiers as individuals were 
pleasant and attractive, by and large. The lower echelons 
delighted to sing and play musical instruments. There was hardly 
any group of Russian soldiers that you'd see that didn't have a 
guitar or an accordian and they were pleasant to be with. Here 
is a picture of our headquarters, the old German Luftwaffe. [Hands 
interviewer the photo.*] 

Stein: That's quite handsome. 

Phleger: Oh, it is. It was a fine building. 



*In the Herman Phleger papers, The Bancroft Library. 



162 



Phleger: One interesting occasion was the reception which General 
Zhukov gave on November 7. This is the invitation which I 
received to a reception he gave on November 7 at Cecelienhof, 
which was the kaiser's mother's castle at Potsdam.* I was 
fortunate to be invited. I would say that altogether there 
were probably two hundred people there. 

Stein: Did you yourself read Russian? 

Phleger: No, no. There was a translation of that, [looking through papers] 
Is that it? 

Stein: Oh, yes. Here's a translation from the staff secretary. 

Phleger: You see that was in November. It was getting dark early, so the 
reception was from four to six. I went out with General Gavin 
in his car. I must say that it was one of the most elegant 
parties I ever attended. The castle was a beautiful building, 
entirely unharmed by the war. There were several large rooms in 
which there were long tables simply groaning with food. There 
were a number of smaller rooms in which the generals gathered, 
including the principal guests of honor, who were General 
Eisenhower, General Koening, and General Montgomery. I think 
they had a smaller reception in one room, although they did come 
in to the main rooms and we talked and shook hands with them. I 
never saw so many generals and marshals in my life. I think all 
of the Russian generals and marshals who were in Berlin at that 
time were there and they proved to be friendly, jovial people. It 
was difficult to talk with them, but they all knew how to drink 
and they were most hospitable. 

There were huge carafes of what was known as the marshal's 
vodka on the tables. The marshal's vodka was a sixty proof 
liquor, not as strong as gin or whiskey, and the Russians would . 
take small glasses of it and toss it off like water. But they 
always accompanied their drinking with caviar, salmon, fish and 
other rich foods so that every drink of vodka was preceded, 
accompanied or followed by a layer of food. 

The whole affair was attractive and jolly. We ended up 
singing quartets with the Russian marshals and generals. I never 
saw a more friendly or hospitable spirit by a group of men than 
was displayed at Zhukov 's party. Indeed, the idea at that time 
was expressed by General Clay when I first saw him. 



*See next page. Original is in the Herman Phleger papers. 



162a 




u rpynnu Cosemcxux OKKymmuoHHux BOUCK 
CoeemcKou Boennou AdMUHucmpau,uu B 

MAPUIAJI COBETCKOFO COK)3A T. K. M<yKOB 
luteem tecmb npuviacumb 







HA TOP>KECTBEHHbIH DPHEM I1O CJiyMAK) 28-ft 

BEJIHKOH OKTHBPbCKOft COUHA^HCTHHECKOH PEBO^K)UHH, 

BblTb 7 HOHBPH C. P. B 1630-1830 H. 
B UEUHJlHEH-XO<t>, HOTCAAAV 



162b 

Headquarters 

OFFICE OF KILITARY GOVERNMENT FOR GERMANY (U.S.) 
Office of the Staff Secretary 
APO 742 



MEMORANDUM TO: Mr. G. Phleger ^ 



SUBJECT: Soviet Reception, 7 November 1945. 




6 November 1945 



1. Tho translation of tho invitation in Russian v/hich 
you should have received tho norning of 6 November 1945 is as 
follows ; 

"The Group Supremo Commander, Soviet Occupation 
Forces, and Supreme Commander . of Soviet Military Administration 
in Germany, Marshal of tho Soviot Union G, K. Zhukov, has the 
honor of inviting to a glorious reception 

for the celebration of the 28th Anniversary of the groat October 
Socialist Revolution which will tako place on the 7th of Novcriber, 
this year, at 1630-1830 hours, at Ccoilionhof, Potsdam," 

2* You trill note that the Reception is at Potodan. 
Potsdam may be reached by going out tho Potsdancr Chausscc by 
the Russian tank toward Wann Sco» Tho route will be specially 
narked for the occasion and the invitation card will serve as 
a pass along the route, 





WALTER L. McKEE: 
Lt Colonel, GSC, 
Staff Secretary, 



163 



Phleger: He said, "One of your missions is to get along with the Russians. 
The future of the world is going to be determined by the 
Americans and the Russians and it's one of your primary jobs 
to get along with the Russians. Fraternize with them whenever 
you can." 

For a few weeks in Berlin we got along very well with the 
Russians but when orders from Moscow began to come in, they 
became less and less cooperative and forthcoming and more and 
more competitive and doctrinaire. At that time in Berlin there 
was a race by the Russians to secure the services of the German 
scientists, such as graduates of the Kaiser Wilhelm Institute and 
others who had gone far toward learning the secret of the atom, 
and well-trained and highly skilled engineers, designers and 
chemists. 

[end tape 1, side 1; begin tape 1, side 2] 

Phleger: German scientists who were free to go anywhere came to the United 
States in large numbers. This was the result of persuasion or 
invitation by the Americans. 

On the other side, the Russians went out and kidnapped numbers 
of German scientists and took them off to Russia whether they 
willed or not. I think a great deal of the Russian advance in 
scientific matters was due to the work of these German scientists 
who were whisked off from Berlin and taken to Russia. 



The Frankfurt Conference, August 28-30, 1945 



Phleger: In August a conference was held in Frankfurt of all of the 

principal officials in the U.S. military government and in the 
American armed forces. This was on August 28-30 and an elaborate 
program was prepared designed to explain the American plan for 
the occupation and what was being done and planned to be done to 
carry out JCS 1067. 

I was asked to participate and drafted a talk entitled "The 
Dispersion of German Economic Power." We flew to Frankfurt where 
the three-day conference was held. The meeting place was in the 
assembly hall of the I.G. Farben complex, then the headquarters of 
the American Army occupation forces. I have the program here.* 
[Hands program to interviewer.] 



*In the Herman Phleger papers, The Bancroft Library. 



164 



Phleger: The introduction was by General Eisenhower, followed by 

General Clay. Then Ambassador Murphy spoke, followed by various 
officers. Charles Fahy, who was the director of the Legal 
Division, spoke and on the second afternoon I delivered my 
paper, in which I told what we planned to do, and what we were 
doing and optimistically said what we planned would be carried 
into effect. 

There were at least one hundred and thirty generals in the 
audience, everybody from Eisenhower down. Among them was General 
George Patton, attired in his usual outfit of a battle jacket, 
riding trousers, knee-high laced leather boots, and a pair of 
bone handled revolvers at his belt. Before I went to Germany I 
had talked with Stewart 'Melveny of Los Angeles, a graduate of 
Berkeley, and he asked that if I ran into General Patton, to give 
him his regards. He said that Patton had been born and raised in 
Pasadena and before he went to West Point they had gone to the 
same school. I went up to Patton and introduced myself and 
delivered Stewart 'Melveny 's message and Patton was most 
enthusiastic. He asked all about 'Melveny and about Pasadena 
and wanted all the latest news from California. 

Now occurred what I think is a historic event. JCS 1067 
provided that no Nazi could hold any position that gave him 
power or supervision over others. As about 80 percent of the 
population were Nazis it was an impossible goal. Practically all 
the lawyers and doctors and professional people were Nazis and 
to throw them out of office or to prevent them from practicing 
their profession was a pretty rigorous way of getting rid of the 
Nazis. 

After all of these talks had been delivered about how we 
were breaking up the combines and throwing the Nazis out of their 
positions, General Patton rose and went to the platform in all 
his regalia and said in substance (and some of it I'll quote and 
I hope you'll pardon the expressions I use because they are the 
direct quotes), "I think that JCS 1067 is a complete mistake. All 
of the people who could accomplish anything in Germany belong to 
the Nazi party. How are you going to run this country or 
rehabilitate it if you take all of the people who have any ability 
or skills and make common laborers out of them? Who are you going 
to have running the country? Who's going to do all of these 
things? I think it's absurd." 

Then he went on (quote), "1 know the Nazis are s.o.b.'s, but 
if we follow this program we're going to find ourselves up shit 
creek without any oars." 



165 



Phleger: And he sat down amidst tremendous silence. Shortly after 
that, news of his remarks was circulated in the United States 
and within a matter of days, Patton was relieved of his command 
of the Third Army. He was detached and sent to some post where 
he really had nothing to do. 

I happened to be down in Frankfurt early in December when 
Patton went on a hunting expedition. I guess he spent most of 
his time hunting. As he came out of a field, his car was run 
into by a truck and he was badly injured and died a few days 
later. So the end of Patton's career was in effect demotion for 
his remarks at that conference and he died within a few months 
after I had heard him. 

Stein: What was the reaction among you and your colleagues to that 
remark at the time? 

Phleger: The reactions were amazement that any general would openly differ 
with the government's 'program but I must say my own reaction, 
and that of those who weren't dyed-in-the-wool believers in that 
program, was that he was 100 percent right. You just simply 
couldn't run Germany without the help of former Nazis and as a 
matter of fact, the program was later ameliorated and as time 
went on we would declare that individual Nazis had been 
rehabilitated and restore them to their former positions or 
professions. They were "reformed" as it were. But the initial 
program, which was to throw them out lock, stock and barrel, was 
simply impossible. 

I never have read or heard in public an account of this 
incident involving Patton. There were newspaper comments to the 
effect that Patton didn't believe in this program and wasn't 
carrying it out, but his remarks, as I have detailed them, were 
certainly dramatic because they were made in the presence of his 
superior officers whose duty it was to carry out this program. 



Sports and Spectaculars 



Phleger: We had various inter-Army activities. We saw considerable of the 
British. They had an officers' club and we would visit back and 
forth. I played tennis at an old German club called the Blau 
Weiss with the British. They were pleasant, attractive people. 
The Allied Occupation troops had an athletic meet in the Olympic 
Stadium. In my diary* I think there are some draft drawings of 
the Stadium. It seated about 100,000. You could see from every 



*See Mr. Phleger 's diary of his German experience, the Herman 
Phleger papers, The Bancroft Library. 



166 



Phleger: seat. The playing field was separated from the stands by a 

moat which permitted athletes to pass from one side of the field 
to the other without interfering with the view of the spectators 
and also prevented spectators from jumping out onto the playing 
field, a practice frequently followed in the United States. This 
is the stadium in which the 1936 Olympic Games were held, when 
Jessie Owens won four gold medals. 

A track meet between athletes from the four occupying powers 
was held in the stadium. On the morning of the meet, a Russian 

messenger approached a sentry outside the American headquarters 
and handed him a note which said that the Russians were sorry but 
they would not participate. We learned later that they decided 
not to participate because they didn't know in advance who was 
going to win and it would be a blow to their prestige if the 
Russian athletes didn't make a good showing. 

Another spectacular event in the stadium was given by 
General Montgomery of the British army. The program, held late 
in the afternoon, was a parade and musical performance by the 
Scottish bagpipers of the Army of the Rhine. There were more 
than two hundred bagpipers and drummers participating and they 
marched with great precision. They played the wedding march and 
the march past, the slow march and other favorite tunes. It 
was beautifully done and very impressive. When all the pipers 
and drummers were blowing and beating at the same time, you could 
understand why in India and Africa the Scotch bagpipers would 
strike terror into the hearts of the British foe. There's no 
martial music that compares with the bagpipe played by experts. 
Here there were well over two hundred participants. It was a 
glorious affair. 



The Problem of Vesting German External Assets; An Inspection Tour 



Phleger: In October I was asked to go to Spain. I had been one of the 

drafters of a law which had been adopted by the Control Council, 
called the "Vesting of German External Assets." The object of 
this law was to vest in the Control Council in Germany—that is, 
in Germany itself governed by the Control Council — the title to 
all German property located outside Germany. The Germans had 
factories and businesses in many countries including Spain and 
General Clay wanted to know whether this law was being observed 
in Spain. 

I was, of course, delighted to go. After a day in Paris I 
flew on a DC-4 with bucket seats to Madrid and put up at the Ritz 
Hotel, which was then and I think still is the finest hotel in the 



167 



Phleger: world. My office in Madrid was in the former German embassy 
which had been a center for German espionage. 

I conferred with representatives of the British, who were 
there in numbers, and found they were not in favor of vesting 
German assets outside of Germany in the military government of 
Germany even though a law so providing had been enacted. I 
didn't find much enthusiasm among the Spanish or other national 
representatives for it either, and when I got back to Berlin I 
reported that I did not think the military government in Germany 
was going to end up owning Bayer Aspirin and the other German 
businesses which had been long established in Spain. 

Madrid was then experiencing a drought which reminds me of 
California at the present time. In the Ritz the water was turned 
off at 10:00 in the morning, so each morning I would fill the 
bathtub so I would have water for the rest of the day. There 
was no lack of Spanish wine so we got along very well indeed. 

On the way back I had another day in Paris. Paris was not 
(I think I mentioned before) seriously damaged during the German 
occupation. There were some shell holes but the buildings 
generally were in good shape. Again I stayed at the Hotel Crillon 
on the Champs Elysee. 

I don't know whether I mentioned this before, but at the 
front of the second floor was the room in which, following World 
War I, the Big Four had met. There was a bronze plaque on the 
door which recited that in this room Woodrow Wilson, [George] 
Clemenceau, Lloyd George and the Italian representative, whose 
name I can't recall at the moment, formulated the plan for the 
League of Nations. 

Stein: You mentioned, in relation to the vesting of German external 

assets in Spain, that the British had not been very happy about 
that. 

Phleger: They didn't think it was a good idea and they may be right. 
Stein: Why didn't they think it was a good idea? 

Phleger: Well, these enterprises in Spain were being run successfully by 
the Germans or their successors, and it wouldn't be practical 
for the military government of Germany to run these businesses. 
I don't believe the British thought it was wise to deprive the 
Germans of all their wealth, for after all, if Germany was going 
to survive, it had to have something to work with. 

In any event, the British were nice about it, but they were 
not very cooperative. 



168 



The Nurenberg Trials 



Phleger: I think I'll talk about the Nurenberg Trials. 

By the way, shortly after we established our headquarters 
in Berlin, we were visited by President [Harry] Truman, after 
he left the Potsdam Conference. He came to our headquarters and 
participated in an interesting program one afternoon. I have 
here the souvenir program: "Flag Raising Ceremonies, Berlin, 
Germany, Friday, July 20, 1945; United States Group Control 
Council for Germany." 

The address by President Truman, which was quite short, is 
printed in the program which I'll hand you.* The presidential 
party included not only the President but also Secretary of War 
[Henry] Stimson; General Eisenhower, the Military Governor; 
General Clay, the Deputy Military Governor; the Commander General 
of the 12th Army Group, General Omar Bradley; the Commanding 
General of the 3rd Army, General Patton (this was before the 
incident in Frankfurt) ; and the Commanding General in the Berlin 
district, Major General Floyd L. Parks. 

As time went on, plans were made for the Nurenberg Trials. 
Mr. Justice Jackson had been appointed United States prosecutor. 
There was some criticism of this on the ground that no justice 
of the Supreme Court should engage in any other activity. But 
while this view persists, it is honored in its breach; Justice 
Owen Roberts was designated by the president to report on the 
Japanese attack on Pearl Harbor, and later Chief Justice Warren 
presided over the Commission of Inquiry into the assassination of 
President [John F.] Kennedy. 

Justice Jackson, who was an experienced trial lawyer, 
represented the United States at the Nurenberg Trial with the 
greatest skill and dedication and is entitled to much of the 
credit for its success. 

The tribunal itself consisted of representatives of the four 
occupying powers. The presiding judge was a Britisher, Lord 
Justice Geoffrey Lawrence. The American judge was former 
Attorney -General Francis Biddle and his deputy was Circuit Judge 
James Parker. All the judges were lawyers or judges, except the 
USSR judge who was a general. 



*In the Herman Phleger papers, The Bancroft Library. 



169 



Phleger: The mechanics of the trial were largely in the hands of 
the American representatives because the trial was held in 
Nurenberg, which was in the American sector, and all the 
security and other arrangements were made by the Americans. I 
got to know the British representatives at the trial, Sir Hartley 
Shawcross, who was then the Attorney-General, and Sir David 
Maxwell-Fyfe, who did most of the trial work and who was then 
Solicitor General. Years later I was guest of the New Zealand 
government with Sir David Maxwell-Fyfe, who was then Lord Kilmuir, 
Lord Chancellor of Great Britain. We were the principal speakers 
at a legal conference in Wellington. 

As a first step, representatives of the four governments 
met in London and an indictment was drawn up which was served on 
the defendants. The first session of the court was held in 
Berlin at which the indictment was read. The trial was then 
adjourned to Nurenberg, where it commenced, I think, in October 
of 1945 and continued until October of 1946, when the judgment 
was handed down. 

Our Legal Directorate had no direct participation in the 
trial itself, but we had various duties to perform, one of which 
was to assist in the selection of counsel for the German defendants, 
Mr. Fahy spent considerable time at this and I think it worked out 
well so that in the trial the German defendants were represented 
by outstanding members of the German bar. The lists of possible 
lawyers were circulated among the defendants and after they had 
expressed their preferences or named others, we made arrangements 
to enlist the services of these lawyers. Almost all agreed to 
serve. They were compensated in a reasonable manner, but I'm sure 
the chief inducement to participate in the trial was the assurance 
that they would be fed and housed properly. A K-ration at that 
time was worth far more than money. 

I might remark that on my way through Paris I enjoyed some 
excellent French food and wine and found that a single American 
cigarette was more acceptable as a tip than any amount of French 
francs. The demand of the French and Germans for American 
cigarettes would get you almost anything. 

[ end tape 1, side 2] 



170 



[Interview 8: November 8, 1977] 
[begin tape 1, side 1] 

Phleger: I went down to Nurenberg in December of 1945 and spent two days 
there listening to the trials and talking with various people 
involved. Mr. Justice Jackson was counsel for the United States 
and had a large staff, I think as many as two hundred and fifty 
people. The British and French were represented by top people, 
the British by [Sir Hartley] Shawcross, who was attorney general, 
and Sir David Maxwell-Fyfe, who was solicitor general and later 
became Lord Chancellor. 

We were put up at a bombed-out hotel, the front of which 
had been blown off. There was no heat but fortunately we had 
German comforters which were a foot thick and kept us warm. The 
courtroom was in the courthouse of Hesse, which was in good 
condition, and had not been altered except to enlarge the box 
for the defendants and to install a balcony for the press. 

The trial was held daily and the evidence consisted not only 
of oral testimony but of motion pictures and documents. The 
German military made ten or twelve copies of everything. This 
provided plenty of documentary evidence of what the Nazis had 
planned and done. In due course, I received a printed verbatim 
transcript of the trial, in English, consisting of twenty-seven 
volumes which I gave to Stanford Law School library. 

After my visit in Nurenberg I came back to Berlin and in 
accordance with my previous arrangement returned to the United 
States just before Christmas in 1945. I went down to Washington 
where I talked with my friend Eugene Meyer, the owner of the 
Washington Post, and other friends including Walter Lippmann. 
They urged me to write an account of the Nurenberg Trial explaining 
its legal basis. The trial was still in progress and there was 
little understanding in America about it. There was considerable 
opposition to or criticism of the trial by those who argued that 
the defendants should be summarily executed instead of being tried 
in a court proceeding. 

Lippmann and Meyer introduced me to Mr. Edward Weeks, the 
editor of the Atlantic Monthly, and at his invitation on my return 
to San Francisco I wrote an account of my experience there together 
with a justification of the trial, both legal and political. This 
was published in the April 1946 issue of the Atlantic Monthly. 
In the same issue, there appeared an article by Judge Charles 
Wyzanski, Jr., taking the opposite view and characterizing the 
trial as a dangerous precedent. 



171 



Phleger: These discussions of the trial, both my own and Wyzanski's, 
received wide circulation. Sometime later, Judge Wyzanski 
reversed his opinion regarding the trial and wrote an article 
in the Atlantic Monthly in which he said that on further 
reflection he had concluded that the trial was justifiable and 
a contribution to the rule of law. 

My article, "Nurenberg: A Fair Trial," as it appeared in 
the Atlantic Monthly, was reprinted some years later in a book 
entitled An Age of Controversy by Gordon Wright and Arthur Mejia, 
published by Dodd , Mead & Co. in 1963. Some weeks ago, I was at 
Stanford and Professor Wright introduced himself, remarking that 
he was still receiving royalties from this book which was used 
extensively in college courses at Stanford and in other universities. 

Among the critics of the Nurenberg Trial was Senator Robert 
Taft, whose criticisms were widely circulated. At the invitation 
of the editor of the Washington Post. I wrote a letter replying to 
Senator Taft's criticism. It was published in the Washington Post. 
and I have a copy of it here. [Hands clipping to the interviewer]* 

When I had returned to Washington from Germany, Mr. Meyer of 
the Post arranged a meeting with President Truman in January of 
"46 at which we discussed the Nurenberg Trial and particularly the 
military government in Germany. The President asked me to write 
him my views about military government in Germany and the desir 
ability of replacing it with a civilian government. I accordingly 
wrote the President outlining my views. This is a copy of my 
letter and of the president's response. [Hands correspondence to 
interviewer] ** 

Stein: Will it be clear from your article about Senator Taft what his 
objections were? 

Phleger: The news articles and clippings and my letter, which I have given 

you, state Taft's objections. Taft spoke extensively in criticising 
the trial. 

I made a number of talks in Washington and met with lawyers 
and judges in New York to discuss the trial. Among others that I 
met were Judges Learned Hand, A.J. Swan, and Thomas Thatcher and 



*The articles and clippings relating to the Nurenberg Trials are 
on deposit in the Herman Phleger papers in The Bancroft Library. 

**Correspondence is on deposit in the Herman Phleger papers, 
The Bancroft Library. 



172 



Phleger: leading lawyers including John W. Davis, Charles C. Burlingham, 
Roscoe Hupper, F.C. Coudert, William Jackson, Charles Evans 
Hughes, Jr., and Lloyd Stryker. I also had a number of meetings 
with newspaper publishers including Roy Howard of Scripps -Howard , 
Robinson of the Herald Tribune, and Richard Berlin of the Hearst 
papers. 

On my way home I met with lawyers in Chicago including 
Silas Strong and John Black and when 1 returned to San Francisco 
I made a number of talks about the trials, including talks to 
the San Francisco Bar Association, the Commonwealth Club, the 
State Bar and other forums. 

Stein: What would be the nature of your remarks? 

Phleger: The trial was still in progress; it was not concluded until about 
October 1, 1946. There was great interest in the trial, how the 
defendants appeared and particularly with the legal and political 
justification of the trial being held at all and the manner in 
which it was being conducted, so that the information which I had, 
which included an actual sight of the trial, was of great public 
interest. Germany at that time was in a state of confusion and 
the reports about the trial in the American papers, while extensive, 
were not as illuminating as would be an account by one who had been 
present at one of its sessions. So I was asked to make a number 
of talks. I'll give you copies of what I said on occasion, and 
you can sift them over.* 

When I was in Nurenberg I visited the places there which had 
been used by Hitler in his program to nazify Germany. Nurenberg 
was the traditional home of the Nazi party. He had constructed 
on its outskirts an enormous coliseum seating 400,000 people, with 
an exterior of marble, much larger than the Roman Coliseum. It 
was almost completed when Nurenberg was captured by the allies. 
Also, his rallies of Hitler youth and other Nazi organizations 
were held there in a great sports arena. I visited both of those 
places and found they had not been damaged during the war. 



*In deposit in the Herman Phleger papers, The Bancroft Library. 



173 



A Visit to Hitler's Bunker 



Phleger: Now I'm going to switch over to my visit to the Hitler bunker 
in Berlin. Shortly after I arrived in Berlin in July, 1945, 
I learned about the possibility of visiting the Reichschancellery 
and also Hitler's bunker from Pierre Huss who was a well-known 
correspondent of the Hearst papers and who had visited those 
places. 

Allan Dulles, who had been in Switzerland during a good 
part of the war representing the OSS [Office of Strategic 
Services] , had come to Berlin and he and I arranged to visit the 
Reichschancellery and the bunker, which were in the Russian zone. 
We went there on August 12, 1945. The Reichschancellery had 
been pretty well shot up but its contents had not been removed. 

When we arrived at the Reichschancellery we went into a 
courtyard and saw there an ordinary one-horse hay wagon and were 
told that almost every company in the Soviet army had a one-horse 
dray which accompanied it on its marches, providing conveyance 
for soldiers who were too ill to walk and to carry the knapsacks 
and guns of those who had been wounded. Also in the courtyard 
was a burned out Russian taok. 

We went up to Hitler's office in the Reichschancellery and 
found there writing paper and other items which had been left by 
Hitler and in an adjoining room an immense store of iron crosses 
and the certificates which were signed by Hitler when the medals 
were handed out to the recipients. I have a sample of Hitler's 
letter paper which I took from his desk and also a certificate 
certifying to the appointment of a Nazi representative issued 
at his command. 

I also have here a certificate signed by Hitler awarding a 
medal. 

Stein: This is his signature? 

Phleger: Yes. 

Stein: It's funny looking. 

Phleger: That's his signature. Here is another. I also found there the 

formal sheepskin certificate issued when an iron cross was awarded, 
This also was signed by Hitler.* 



*The Nazi memorabilia is on deposit in the Herman Phleger papers 
in The Bancroft Library. 



174 



Stein: This looks like it's been water-damaged. Is that the case? 

Phleger: Yes, that was its condition when I found it. After we had gone 
through the Reich schancellery we went down to Hitler's bunker, 
which was perhaps fifty yards from the Reichschancellery. It 
consisted of an underground structure entered by a concrete 
stairway. It was built entirely of concrete and in it Hitler, 
during the latter weeks of the war, not only lived but had his 
office and command post. We descended into the bunker by 
concrete steps. 

The bunker itself had concrete walls two or three feet 
thick so that it was impervious to bombs or other exposives from 
the air. It had an air conditioning system so that the air below 
was acceptable and also I suppose to keep out noxious fumes. As 
we went down through the entrance stairway we came on to a guard 
room where evidently a number of soldiers were stationed to 
protect Hitler. We then passed a telephone room, a telephone 
central. Showing how hurriedly the place had been abandoned, 
some of the telephone lines were still plugged in. 

From there we passed through a map room and then into 
Hitler's office. The place was, of course, dark. There was 
no light and we had to find our way with flashlights. Also on 
the floor there was some water and some evidence of fire. 
Hitler's office appeared to be just as it was when Hitler was last 
there. His desk had his telephone on it and I removed the telephone 
bell and put it in my pocket. On the floor, where it had been wet, 
was this certificate bearing Hitler's signature awarding a medal. 

Adjoining the office was Hitler's bedroom and beyond was Eva 
Braun's bedroom. Eva Braun was evidently greatly interested in 
ancient arms because there were dozens of photographs of ancient 
arms in her room. I picked up three of them which I have here. . 
In an alcove--or rather in a connecting hallway—between Hitler's 
room and his office there was a settee, about five feet long. We 
had been told by Huss that this was the settee on which Hitler 
had shot Eva Braun and then committed suicide, and we saw on the 
couch or settee blood stains which were evidently from the wounds. 

When we left the bunker we found near the entrance a shallow 
depression with two or three empty gasoline cans which showed 
evidence of a fire. We were told that was where Hitler's and Eva 
Braun's bodies had been cremated. 



175 



Germany Revisited; 1965 



Phleger: When Mrs. Phleger and I visited Germany in 1965, roughly twenty 
years after the surrender, we went to Nurenberg, and we found 
that it had been completely rebuilt. Evidently the Germans had 
plans of the old city and they rebuilt it so meticulously that 
it looked just as ancient as it had before it was destroyed in 
the war. We were accompanied by friends, Mr. and Mrs. Stanley 
Kennedy of Honolulu. 

I arranged with a licensed guide, a woman, to be driven 
around as I wanted to show my friends the places I had seen 
when there during the Nurenberg Trials. I first asked the guide 
to take us to the coliseum and then to the athletic field where 
the youth rallies had been held. She expressed entire ignorance 
that such structures had ever existed and I soon learned that the 
guides in Germany are not expected to show anything reminiscent 
of Hitler. The Germans evidently want everyone to forget he 
ever existed. I knew where these structures were and so I asked 
the guide to have our automobile take us to where the coliseum 
and sport field had been located. I found that the coliseum had 
been entirely destroyed, rather taken stone from stone, because 
the marble was valuable, and the site was absolutely level. 

When we went to the athletic field we discovered that all 
the swastikas that had been there had been removed and the field 
had been converted into an auto racing park or arena. 

I then asked the guide to take us to the site of the 
Nurenberg Trials. She responded that she didn't know where they 
were held and didn't think that the courtroom or building still 
existed. As I knew where it was located I had the driver drive 
about four miles from the center of Nurenberg to the courthouse 
of the Province of Hesse. It was exactly as it had been at the 
time of the trials. 

When we entered the building I accosted a German attorney 
and asked him if he could show me the courtroom in which the 
Nurenberg Trials had been held. He expressed entire ignorance 
of where the trials had been held and said that there was no 
such courtroom. I then asked to see the chief justice of Hesse, 
whose office was on the fourth or top floor. We went up there 
and I introduced myself. I found that the justice spoke English 
and was a well-informed, attractive and friendly person. When 
he learned that I had been present at the Nurenberg Trials, he 
immediately said that he would be glad to show us the courtroom 
and indeed the jail yard where the defendants who had been 
convicted were executed. 



176 



Phleger: The courtroom was on the fourth floor where his offices 
were. We walked over to the courtroom and I found that the 
courtroom was exactly as it was during the Nurenberg Trials 
except that the balcony which had been installed for the press 
was gone and the dock for the defendants was somewhat smaller. 
The justice showed us pictures of the trial and of the defendants 
in the dock, of the attorneys and of the judges and we had an 
interesting discussion about the trial itself. 

Afterwards he took us to the jail yard where the gallows 
had been constructed and the defendants who had been condemned 
to death had been executed. Later on that trip we also went to 
Bertersgarten near Munich where Hitler 'sEagle Nestwas. The 
people there expressed entire ignorance of where Hitler's lair 
had been. There were not even any postcards showing it. After 
some inquiry I learned from the lady that operated the curio 
store there that none of the shops in the vicinity were expected 
to carry any mementos of Hitler. His leagles nest , to which 
entrance was by elevator; was not open to the public. 

Stein: Is it still standing? 

Phleger: I don't know because we couldn't get into it and I have never met 
anyone else who had been in it since the war. 

We then went to Berlin as guests of the American minister 
there and visited the Russian zone where the Reichschancellery 
and Hitler's bunker had been. The Berlin Wall was, of course, in 
place and we got an experienced driver and the proper permits and 
went through Checkpoint Charlie into East Berlin, which has now 
been built up by the East Germans into an imposing city. When we 
asked to be shown the Reichschancellery we were told that it no 
longer existed and on going to its location we found that there 
was no sign of the building, only a vacant lot. 

We were taken to a Soviet memorial park dedicated to the 
soldiers who had been killed in the assault on Berlin. In the 
park was a large and beautiful war memorial, built of carnelian 
marble. I was told this marble, reddish or carnelian in color, 
had been removed from the Reichschancellery before it was 
destroyed and I recalled having seen it there. We attempted to 
locate Hitler's bunker and found that it no longer existed. The 
site was marked by a small mound of debris remaining after the 
bunker had been demolished. 

From our experience on that visit and at other times when 
we were in Germany, we concluded that the Germans were anxious 
to destroy any evidence that Hitler had ever existed. We never 
saw a swastika in Germany. There were no references to the 



177 



Phleger: prison camps or to the atrocities or any other reference to 

Hitler. I understand that recently there has been some interest 
in Germany in a motion picture about Hitler but from what we saw, 
the Germans are anxious to destroy any physical record in 
Germany that Hitler or the Nazi party ever existed. 

This, it seems to me, is powerful proof of the importance 
and necessity of the Nurenberg Trials, because I feel that if the 
trials were not held as they were and the evidence elicited in 
such detail in a court where there was cross examination and the 
other protections which are given defendants, all authentic 
record of Hitler and the abominable things he did would be pretty 
well destroyed. 

Now I think that's all I'm going to say about the Nurenberg 
Trials. Here's correspondence from Assistant Secretary McCloy, 
who was in charge of military government, and I'll give you other 
documents in connection with the record of military government.* 
Some of these may be of value as a matter of historic record. 

Stein: Yes, they are because I don't think very much of this is extant. 
This is very useful. One of the things I was wondering about 
was that last time it sounded to me like what you were saying 
was that some of the objections that Wyzanski and others had 
raised to the Nurenberg Trials have subsequently seemed to be 
more reasonable. Now I may have misconstrued what you were saying, 

Phleger: Yes, you have. Wyzanski himself, who was a critic, subsequently 
reversed himself and wrote an article which appeared in the 
Atlantic Monthly (I haven't a copy of it here) in which he 
reversed his position and said the trial was justified. I think 
that as the years have passed the view that the trial should not 
have been held, and that it was unjustified on legal grounds, 
is not held by many. I think that it's generally accepted that 
the proceedings were legal and justified by the rule of law. 
Indeed, two years ago when Judge Wyzanski was at Stanford as the 
Herman Phleger Visiting Professor of Law, he delivered a lecture 
in the course of which he recalled his article in the Atlantic 
Monthly, criticising the Nurenberg trial and stated that he had 
subsequently decided that he was in error and had written an 
article to that effect. 

Stein: I know that one of the criticisms that was raised at the trials 
was the fact of Russia's sitting as a member of the prosecution 
when it could be said that Russia herself was guilty of some of 
the same aggression that Germany was. 



*The documents are on deposit in the Herman Phleger papers in 
The Bancroft Library. 






178 



Phleger: That was a criticism but the trial couldn't have been held 

without the participation of the Russians. The judgment was 
unanimous and the fact that the Russians participated meant 
that they could not later criticize the trial. 

Stein: Do you think that the Nurenberg Trial is a model that can be 
used in the future? 

Phleger: I think in similar situations—of course, it is a model. It 
was followed in the Japanese war criminals trial. In fact, 
while I was in Germany a request came from Washington to 
General Clay that I be released in order to participate in the 
Japanese trial, but General Clay did not want to release me and 
I didn't want to go, so I never went to Japan. But it was the 
pattern for the Japanese trials. If unfortunately we ever have 
a war of the same kind we had in 1945, I imagine that if a trial 
were to be held it would be patterned on it. 

I saw Mr. Justice Jackson frequently in later years and 
we became good friends. In discussions with him he would remark 
that the trial and the actions of Hitler and his associates 
showed the danger of one-man political rule, that if there was 
one lesson to be learned from Hitler and the Nurenberg Trials 
it was the danger of concentrating absolute power in one man or 
in a small group. I think that is a valid observation and shows 
the wisdom of our founding fathers in providing a government of 
checks and balances. 

But I fear that we are following somewhat the same path 
because today we do have an imperial presidency. The power of 
the president is so much greater than the Constitution ever 
contemplated that sometimes I worry about what may take place 
in the future. 

The concentration has come about through a combination of 
circumstances. The first is the increasing concentration of 
authority in the federal government which was never expected to 
have the authority that it now has. The second is that the 
office of the president has come to have functions and powers 
which the framers of the Constitution never contemplated that 
the president should have. The presidency, the office of the 
president, has such a control over the mediums of communication, 
press, T.V. and radio, by which he can reach every person in 
the United States on a few hours notice, and the power and 
influence of the office has become so great that it raises a 
serious question as to whether or not something should be done 
to control it. 



179 



Stein: I hope we'll get to that question in more detail when we talk 

about your years with the State Department because I think that 
whole question of the Bricker Amendment raises some of those 
same issues. It was interesting to me also that you used the 
phrase "imperial presidency" because that's the title of a book 
by Arthur Schlesinger. 

Phleger: Yes, it is. I listened on T.V. on Sunday to an interview with 
[Walter] Mondale, the vice president, in which he described 
what a difficult office the presidency was, overwhelmed by a 
myriad of important decisions almost beyond the capability of 
any one person. Well, the president was never supposed to 
be confronted with many of those decisions or to have the power 
to make them. I think Mondale 's right: the presidential office 
is now beyond the capacity of any one man, but that's the result 
of the reaching out for power by the federal government and by 
the occupants of the presidential office. 



Further Recollections of the Associate Legal Directorship 



Stein: I think I'll save until later the questions I have about that. 
One other thing about Nurenberg was that you mentioned in our 
preliminary session that you were responsible for drafting one 
of the laws under which the lesser Nazis were prosecuted. 

Phleger: Yes. As I pointed out, Germany as a whole was governed by the 
Control Council made up of the four powers. Each power had 
jurisdiction over a section of Germany in which that power 
had supreme authority subject only to the Control Council. The 
law I refer to is the law promulgated in the American zone under 
which a large number of defendants were prosecuted and the trials 
became known as the minor Nurenberg trials. One of them was 
the subject of the motion picture "Judgment at Nurenberg." 

[end tape 1, side 1; begin tape 1, side 2] 

Stein: You were just saying about drawing the law under which the minor 
Nurenberg trial was held. What was the essence of that law? 

Phleger: It's exactly the same as the main—or rather it's modeled on 
the main Nurenberg Trial but the law applied only in the 
American zone. 

Stein: In your diary you talk about the cartel bill that you drew. 
I wonder if there's any need to make any more comment about 
that? 



180 



Phleger : 



Stein: 



Phleger: 



Stein: 



Phleger: 



Stein: 



Phleger: 



I don't think so. The control of German industry and economy 
prior to World War II was concentrated in large corporations 
and the large corporations in turn formed cartels and trusts, 
so that there was a pyramided structure of industry and banking 
in Germany, which made it rather easy for Hitler and the Nazi 
party to take over their control. By taking over a few of the 
larger combines and cartels Hitler had complete control of 
German industry. So, since one of the objects of military 
government was to destroy German capacity to make war, this 
required the breaking up of the concentrations of power in the 
German industries through cartels and other mechanisms. That 
task was supposed to be accomplished in the American zone by 
laws designed to break up these concentrations. I imagine 
these combinations once broken up had a tendency to come back 
together again, but I have no exact knowledge of that. But 
they certainly were broken up during the military government. 

I have a couple of other questions about matters that were unclear 
to me in the diary. You talk about directive 1063-- 



It's 1067 isn't it? 
think it's 1067. 



That may be a typographical error but I 



You say on the entry for Tuesday, September 11 [reads from 
Phleger "s diary on German experience], "I completed a draft of 
a war criminal law along the line of directive 1063, which is 
certainly plenty tough." 

1067, I think. I think you'll find that in the original and in 
these other papers. In fact, you'll find a copy of 1067 in the 
papers which I gave you. 

I don't know if this is the same directive but on Saturday, 
August 25, your entry refers to a Colonel Marcus--[ reading from 
diary] "Colonel Marcus to lunch at my request. Explained horrors 
of concentration camps and showed pictures he had taken himself. 
I have been pressing for some days that something be done to 
carry out directive on subject. M does not seem impressed but 
Fahy does." 

That refers to the fact that a great many of the German prisoners 
of war who had been captured by other countries were being sent 
into France for labor purposes, and I considered that a violation 
of the Geneva Conventions which prohibit the use of military 
prisoners for forced labor by a country other than their captor. 
The French were anxious to get the German prisoners, no matter 
where they had been captured, sent to France to do work of 
rehabilitation there. 



181 



Phleger: Your remark about the colonel brings up another interesting 

item. One of the people that I met in Germany was Colonel Marcus, 
known to us as "Mickey Marcus." He was high in the military 
government in Berlin and popular with us all. After I returned 
to San Francisco in "46 (I think this must have been in '47), 
Colonel Marcus called on me and I had his card indicating that 
he was practicing law in New York. 

Later I discovered that Colonel Mickey Marcus was in command 
of Israel's military operations when Israel was established. I 
have later learned that one of the important monuments in Israel 
is to Mickey Marcus, who was killed near the end of the Israeli 
revolution. He was a graduate of West Point and had been in the 
United States Army for many years. 

Stein: Israel got quite a bit of military training there. 

Phleger: They got a top, top general. Their top general was right out of 
West Point and World War II. 

Stein: According to your diary entry for Monday, September 24, you 

were in Berlin and you "spent all day conferring with General 
E.G. Betts and Colonel Fairman, re: war crimes. Betts admitted 
he had only sixteen defendants ready for trial, there had only 
been five executions and fourteen convicted. He stated that no 
atrocity cases had been tried and that although our army had 
overrun three atrocity camps and captured the guards running up 
to hundreds, these had now been lost in the general mass of 
prisoners and he didn't know where they were. It certainly was 
a mess. 

"It was evident in afternoon that Betts and the judge 
advocate general did not want to try German versus German cases, 
(Jewish persecutions) and at the moment he was endeavoring to 
turn this over to Jackson's international tribunal." I wondered' 
what this issue was about. 

Phleger: General Betts was regular army and the judge advocate general's 
department and the army as such was reluctant to try cases of 
that character. They preferred to turn them over to civilians, 
and in fact they were turned over to the civilian courts—not 
civilian courts, but military courts run by people from civilian 
life. 

By the way, Colonel Fairman was a well-known professor of 
international law who taught at Stanford for a number of years 
and is well known in that field. 



182 



Stein: . Just one last question here. On Sunday, October 7, in Berlin, 

you had evidently had breakfast with Jackson, [reads] "Jackson 
very complimentary at breakfast. Said I, Alderman, and Seymour 
made best arguments before the Supreme Court." I wondered what 
he was referring to. 

Phleger: [Laughter] He was referring to the fact that I had made a 

number of arguments before the United States Supreme Court, and 
he thought I made a good argument. So I wrote in the diary that 
that's what he had said. The other two people were well known. 
Sidney Alderman was with Jackson at Nurenberg, and Seymour is 
Whitney North Seymour, a New York lawyer who later was president 
of the American Bar Association. 

Stein: I see. He's talking about the U.S. Supreme Court. In another 
entry you talk about Jackson expressing to you his own personal 
opinion of some of the cases that you had argued, such as the 
Hawaii sugar plantations case. 

Phleger: Right. 



183 



IV LEGAL ADVISER, U.S. DEPARTMENT OF STATE, 1953-1957 



An Interlude of Practicing Law 



Stein: If there's nothing more on Germany, let's move ahead. 

Phleger: All right. The next subject that we might take up is the State 
Department. Between 1946 and 1952 when I was appointed legal 
adviser by President Eisenhower, I was busy practicing law. I 
had a number of important cases. I also was a director of a 
number of corporations, like the American Trust Company, Union 
Oil, Matson Navigation, Fibreboard Products, Newhall Land and 
Farming Company. I was executor of the Di Giorgio estate. I was 
a trustee at Stanford and I was chairman of the Board of Trustees 
of Children's Hospital.. That, with my general practice, kept 
me plenty busy. I was at one time or another a director of 
twenty-five corporations. But I made it a rule that I would not 
serve as a director of a corporation unless I or my firm was 
attorney for the corporation. I considered that the only reason 
I would be justified in serving as a director was because it 
would put me in a better position to advise the corporation and 
its directors about their legal duties and responsibilities. 

Stein: I'd like to insert a question or two here about your law firm 
during that period. One of the things that we didn't discuss 
was how the firm survived the Great Depression. 

Phleger: The firm not only survived the Great Depression, but we prospered, 
because we had a number of important litigated cases during that 
period. Our partners probably had more real income during the 
Depression than at other times. Income taxes were low and the 
cost of living was declining so we did very well. 

Now, that was not true of some other firms. They used to 
joke about some of the big New York firms which were hard hit 
because most of the investment banking work like security issues, 
mergers and new incorporations, had disappeared. It was said of 



184 



Phleger: 



Stein: 



Phleger ; 



Stein: 



Phleger: 



Stein: 

Phleger: 

Stein: 

Phleger: 



some of these firms that an associate would decline an offer of 
partnership because as an associate with a salary he would make 
more money than he would as a partner. [Laughter] But we had 
no problems like that. 

I know that there were lots of situations where young men just 
coming out of law school took jobs that paid them no income at 
all just to get a foothold in a law firm. 

That is correct. The lawyers suffered in the Depression just 
like everyone else. But we were fortunate because we had a 
number of important cases and other work that kept us busy. 



What about World War II? 
manpower? 



Was the firm hit by the drain of 



It was during World War II. A number of lawyers were, of course, 
in the service. Several of our present partners served in World 
War II. We took in some older men at that time as associates. 
We had no real difficulty. 

Did these older men then stay on after the war? 
Yes, they did. 

What arrangements did you make with the partners who went into 
the service? Did they continue to draw a share of the profits? 

/ 

We made different arrangements to suit individual needs. In 
some cases their participation in the earnings continued during 
their military service. 



An Invitation to Join the Eisenhower Administration 



Stein: 



Phleger: 



I interrupted you. 
Department. 



We were about to start with the State 



I was just saying that I was kept busy practicing law and related 
activities between the end of World War II and 1952. During the 
United Nations Conference in San Francisco, I met John Foster 
Dulles, who was one of the U.S. delegates to the United Nations 
Conference. I also met Mrs. Dulles and got fairly well acquainted 
with them. Because of the war and gasoline rationing, we had an 
apartment in San Francisco at the Brocklebank and Mr. Dulles asked 
me if I would loan him the use of the apartment on occasion as he 
would like to have some private conferences with other delegates 
in connection with the drafting and consideration of the U.N. 
Charter, which I did. 



185 



Phleger: Following that I saw Foster Dulles from time to time, but 
had no intimate connections with him and I don't think we had 
any legal activities together. While I've always been an 
active voting Republican, I never have been active in its party 
work. So when I received a telegram in December of 1952, 
following the election of President Eisenhower, from Senator 
Knowland saying that John Foster Dulles wished to meet me and 
discuss a position in the Eisenhower administration, I was 
surprised. I had no previous notice. 

Mr. Dulles then asked if I were coming to New York, he would 
appreciate talking with me, and as my business brought me there, 
on December 20 I had a meeting with him in his home at 72 East 
91st Street. We had breakfast together and talked for two or 
three hours about world and American affairs. At that meeting 
Dulles told me that he was anxious that I take the position of 
legal adviser of the Department of State and that President 
Eisenhower had approved. 

I talked with him at some length about the duties of the 
office and what would be expected of me. I told him that under 
no circumstances would I take the position unless I would have 
direct access to him at all times and was not part of an 
organizational structure that would bring me under the supervision 
or direction of anyone else. He assured me that this would be 
the situation. 

I then returned home and after receiving Mrs. Phleger 's 
approval advised Mr. Dulles that I would accept the position 
under the conditions I have mentioned. I must say that he 
respected them in every way during the time that I served. I 
was always able to see him at any time I wished and I saw him 
frequently, often two or three times a day. I could always 
telephone to him and, as I say, there was nobody between us when 
it came to matters of business in the department. 

I have here the letters that cover that, including his 
invitation to breakfast.* These are all original letters and I 
am only turning them over to you on my theory that they will be 
properly preserved and made available. 

Stein: Of course. They are very carefully catalogued and maintained in 
The Bancroft Library. 



*See the Herman Phleger papers, The Bancroft Library, 



186 



Phleger: Here I have newspaper articles and Newsweek and other publications 
commenting on my appointment. 

In January of 1953 (the inauguration, I think, took place 
about the 20th of January) , the persons who had been chosen to 
be part of the incoming administration met for about a week at 
the Hotel Commodore in New York City, where President Eisenhower, 
Secretary Dulles and other prospective cabinet officers had 
offices. We discussed the coming administration and made plans 
for its orginination and operation. 

I learned later that after the election in November, 
President-elect Eisenhower, Secretary Dulles, Attorney General 
[Herbert] Brownell and a number of other members of the new 
administration including George Humphrey went to Korea on the 
cruiser Helena and en route discussed various appointments. At 
that time Mr. Dulles brought up my name as being one that he 
wanted to have serve as legal adviser. I think Brownell had 
some discussion about it with him because when I got to Washington 
and talked with my friends, Mr. Justice Jackson and Mr. Justice 
Felix Frankfurter, they told me they had hoped that I would be 
appointed solicitor general but when they had taken this up with 
Attorney General Brownell, Brownell told them that on the trip 
to Korea they had parcelled out the various appointments and 
I had been assigned to Secretary Dulles. I am inclined to think 
that that took place because I heard from Justice Frankfurter 
several times that he had strongly urged my appointment as 
solicitor general. 

Stein: You mentioned that in the December meeting with Dulles that you 
discussed his philosophy of world politics and related subjects 
and I wondered if you could summarize what Dulles 's philosophy 
was and how yours agreed with or differed from that. 

Phleger: I'm sure that his philosophy and my own agreed. I found 

Secretary Dulles to be a very able man: a hard worker, a clear 
thinker, a no-nonsense man. He was accused of being brusque in 
his manner. But his brusqueness was due to the fact that he was 
often thinking about something else when he was being accosted 
on some trivial matter. I've seen him answer the phone in a 
very brusque way, which I'm sure offended the man on the other 
end, but it was unintentional and probably was because he was 
discussing a matter of importance with someone else. 

He had a broad knowledge of theoretical Communism and of 
the structure of the Soviet Union and of its objectives, and he 
believed our country should pursue a policy of containment 
which would require the cooperation of other free nations in 
resisting the spread of Communism. That has since been abandoned 
by the Democratic administrations and indeed by some of the 
Republican administrations. 



187 



Phleger: I remember particularly during the Suez Crisis, one of our 
basic principles was that no Soviet participation whatever would 
be tolerated in its solution. The Soviet Union was not in the 
Middle East and the American policy was to keep it out. Recently, 
as you will note, it has been practically invited in and made 
co-chairmen of a prospective Geneva conference. But at that 
time, and during the whole Eisenhower administration, the Soviet 
Union was not considered a desirable or reliable co-operator. 

I have noted with interest how the intellectuals have 
denegrated President Eisenhower's administration and particularly 
General Eisenhower. I think they are wrong. General Eisenhower 
was a man of great ability, integrity and goodwill. His relation 
ship with Foster Dulles was largely, I think, a result of Foster 
Dulles "s conception of the office of the secretary as being an 
arm of the president. Their relationship was close. 

I think Dulles was in communication with the president every 
day. When he was away, out of the country, he wrote a daily 
account which was telegraphed to the president so the president 
was constantly informed of the secretary's activities and his 
plans. The value of this close cooperation was demonstrated when 
during the height of the Suez Crisis, Dulles was stricken with 
illness and was completely out of the picture for at least three 
or four weeks, during which period the president ran the foreign 
affairs of the country with great skill and understanding. 

The president had a great quality which I think came from 
his military experience. He had the power of decision. He 
didn't worry about this or that possibility and solve a problem 
by postponing the decision. After he'd informed himself on a 
matter, he made a decision. They weren't just put off until 
tomorrow or some other time. He was a man of decision. 

When you consider that during the eight years of his 
administration our country was never involved in any armed 
conflict and not a single American lost his life in any military 
operation, and when you consider that several years during his 
administration our budget was balanced by Secretary of the 
Treasury George Humphrey, and there was no inflation, you can 
realize what an outstanding administration it was. 

Yet I read from time to time when they're rating the 
presidents, poor Eisenhower is put way down toward the bottom. 



188 



Inauguration and Confirmation 



Phleger: I'd like to talk now about the Eisenhower administration. I 
have a picture here of the inauguration.* [Hands interviewer 
Life magazine photographs] I was fortunate enough to be one 
of the early appointees and so was invited to the inauguration 
and if your eyes are good [chuckles] you can see me; I'll have 
to point out where I am. 

Stein: In other words, you made the cover of Life Magazine. 

Phleger: I certainly did. There I am in the third row standing near General 
Bedell Smith, who was chief of staff under Eisenhower and later 
undersecretary of state. 

Mrs. Phleger and I went to the inaugural ball with Eugene 
Meyer, owner of the Washington Post. We stayed with him and had 
a glorious time. 

Stein: I have talked to a number of people who were also at that same 
inauguration and one of the things that they all seem to agree 
on was how cold it was. 

Phleger: It was very cold indeed. 

Stein: I wondered, talking about your appointment, if you had any trouble 
with the Senate confirmation. 

Phleger: I have here the Congressional Record covering my confirmation. 
No, the Senate Foreign Relations Committee was very kind to me 
and I must say during my entire service in Washington I never 
had any trouble with the Senate Foreign Relations Committee, 
some of whose members I got to know well. 



Protocol 



Phleger: After I was confirmed and sworn in, my rank in the hierarchy of 

the State Department was that of an assistant secretary. As they 
are ranked in the order of their confirmation and as I was the 
third assistant secretary confirmed, I had a fairly high ranking 
in the Department. 



*Life magazine. 2/2/53. 
The Bancroft Library. 



On deposit in the Herman Phleger papers, 



189 



Phleger: The question of protocol in Washington is an important one. 
We had as chief of protocol a handsome veteran member of the 
Foreign Service, six feet tall, by the name of John Simmons, 
who wore pin-striped trousers and a cut-away with ease and grace. 
It was said of him that he would have reseated the Lord's Last 
Supper. Protocol is an important and delicate matter in 
Washington, as you can well imagine, for government ceremonies, 
diplomatic dinners and most other social affairs are conducted 
in accordance with strict protocol. 

An ambassador, when he is on his post, has the same position 
that the president of the United States would have if he were in 
that country, but when he is back in the United States for 
consultation he is at the bottom of the totem pole. When 
Ambassador Winthrop Aldrich, our ambassador to the Court of St. 
James, would come home for consultation, he would be embarrassed 
by being seated "below the salt." 

I can't refrain from telling one protocol story I've 
never seen in print, but I think it is of some interest. At the 
time of the Bermuda Conference in 1957 (April, I think), I came 
back on a plane with President Eisenhower, Secretary Dulles and 
Senator Walter George, who had been chairman of the Foreign 
Relations Committee. After lunch, we were discussing various 
matters, including protocol. The Secretary told about his 
difficulties over protocol, whereupon President Eisenhower spoke 
up and said, "Oh, I had some experience with that. When I was 
Commander -in -Chief of NATO at the time of George VI 's death, I 
was invited to London to participate in the funeral ceremonies. 
Winston Churchill was then Prime Minister and a good friend of 
mine and he got in touch with me and said, 'Let's go to the 
funeral together,' which I thought was a fine idea. 

"The principal event at a funeral of a member of the Royal . 
Family in Great Britain is the funeral procession, in which the 
male members of the Royal Family and visiting royalty and dignitaries 
follow the casket on foot. Prime Minister Churchill said, 'Now, 
General, let's not get into the procession because it is arranged 
strictly according to protocol. Immediately following the casket 
will be the Lord Chancellor of Great Britain, who ranks in 
protocol next to the Sovereign. Then follow the members of the 
Royal Family, which varies in number. Then come the cabinet. My 
number in the procession as Prime Minister will be twenty-one, 
immediately following the Royal Family. I don't want to be 
marching in the twenty-first position and you'd be still farther 
down the line. 

"'The best place to be is in St. George's Chapel at Windsor 
Castle. That's where the final burial ceremony will be held and 
where all the principal mourners will be present. Of course, if 



190 



Phleger: I go in as part of the funeral procession with you, we'll be 
seated way back somewhere in the back rows. I have a friend 
who is in charge of the chapel and I have arranged that there 
will be two chairs for us up near the front, not in the pews, 
and we will steal in and sit on those chairs for the services. ' 

"We went out to St. George's Chapel and the procession 
moved in with great pomp and circumstance. Winston and I went 
in through a side door of the Chapel and there were two small 
chairs right up in front near the Archbishop. Winston and I 
went in and sat down there." 

I thought this story was interesting as showing how the 
British handled protocol and how Winston Churchill didn't want 
to be twenty-first in the procession. 

Anyhow, there's a lot of social goings-on in Washington, 
but they're an important part of the diplomatic interchange. 
The secretary never went to cocktail parties, nor did I, as 
a matter of fact. The dinners are usually at 8:00, most of them 
white tie or black tie. The secretary would appear promptly at 
8:00, as did all of the guests at a dinner of any importance. 
Cocktails were served but you'd have to drink fast to get more 
than one. Usually, one was served and you might get a second 
if you drank the first one fast. You went into dinner at 8:30. 

The dinner was seated according to protocol. The dinner 
would last from 8:30 to 9:30 or maybe a quarter to ten, at which 
time you would leave the dining room and the men would go into 
a smoking room where liqueurs and cigars would be served and the 
women would gather in another room. Many times important exchanges 
on diplomatic matters took place in the gentlemen's smoking room. 
You can draw an ambassador or official to one side and talk 
briefly with him without all the newspapers remarking that 
Ambassador Blank had called on the secretary at the State Department 
privately. Many matters of importance were discussed at these 
after-dinner meetings. 

After about half an hour, which would bring you to maybe 
a quarter past ten, or maybe a little later, you would join the 
ladies and meet your friends and engage in general conversation. 

[end tape 1, side 2; begin tape 2, side 1] 

At about 11:00 it would be time to go home. Protocol requires 
that the top-ranking guest must leave first and the popularity 
of individual ambassadors and other public officials was often 
based on their habit of leaving at an early hour. But generally 
at 11:00 or shortly before, the ranking guest would leave and 
then it was permissible for the other guests to leave and they 



191 



Phleger: usually left quite promptly. So, from 8:00 to 11:00, you had 
a good dinner and an opportunity to discuss diplomatic and 
political affairs and be on your way home. 



Secretary Dulles, the Undersecretaries, and the Foreign Service 



Phleger: The secretary would always be in his office in the morning at 

8:00, if not before. He was anxious to receive suggestions and 
comments and advice from the other officers of the department. 
Every night, top-secret cables and other information regarding 
military and political affairs would come in from all parts of 
the globe. These would be decoded during the night and the 
senior officials, say some ten in the department, would receive 
every morning on their desks when he came into their offices, a 
three or four-page condensation of the news that had come in 
overnight in the cables. 

Every morning, the secretary held a meeting at 9:30 in his 
office with his principal assistants, usually about eight in 
number. We would sit around a table with the secretary and he 
would go around the table, asking each one in turn if he wanted 
to bring up any matter for discussion. After the secretary had 
gone around the table, he would bring up any particular matter 
that he wanted to discuss. 

Numerous newspaper men would write about how impossible it 
was to get an idea into Secretary Dulles 's head or how arbitrary 
he was, but the fact was to the contrary. To use his own 
expression, he was anxious to pick the brains of everyone he had 
around him. He was always open to suggestions and not at all 
backward about accepting them. 

The group, during the time that I was there, was an intelligent, 

able .group. The first undersecretary was General Bedell Smith, 
who was Eisenhower's chief of staff during the war. The top 
political officer was Robert Murphy, and there were assistant 
secretaries such as Loy Henderson, who was an expert on Middle 
East affairs; Livingston Merchant, who was later ambassador to 
Canada and an expert on European affairs; Douglas MacArthur, who 
was a nephew of General MacArthur, and counselor of the department, 
and a number of others. 

Newspaper people would write that the secretary didn't like 
the Foreign Service and that he appointed a great many people 
from civil life to ambassadorships and other high positions. 
This is not accurate. Secretary Dulles did more to build up the 
Foreign Service than almost any secretary before or since. 



192 



Phleger; 



Stein: 
Phleger: 



Stein: 
Phleger 



The Foreign Service is composed of a large and varied group 
of people. Some are very able. Some are not so able. The 
solution is to appoint the able members of the Foreign Service to 
the important positions and that is what Dulles did. He was 
successful in selecting top-notch people for top-notch positions 
and he gave them wide scope and authority in the positions they 
held. 

I found the Foreign Service was made up of intelligent and 
able people; a patriotic and dedicated group. During my time I 
made many friends with them, friendships which have continued 
until the present. 

By the way, I have an interesting article here of a meeting 
that the secretary held.* 

This is by Robert Bowie who I believe was on the staff. 

Bob Bowie has just retired as head of the Kennedy Center for 
International Affairs at Harvard University. I first met Bowie 
in Germany, where he was a lieutenant colonel in the army. 
Following that, he went back to Harvard where he was a professor 
in the law school. Then under the Eisenhower administration, he 
came down to the State Department and became Assistant Secretary 
of State for policy planning, which was a sort of a think tank. 
As a coincidence, I went to a lunch in San Francisco a few weeks 
ago given for the new director of the CIA, Admiral [Stansfield] 
Turner. I had heard a rumor that Bowie was joining him in the 
CIA. When I saw Admiral Turner I told him that I had heard this 
and he said, "He certainly is. He's number two in the CIA." 

An interesting thing in that connection: a grandson of 
Roger Lapham, mayor of San Francisco, is general counsel of the 
CIA. 



That's very interesting. 

I think the CIA has been terribly abused and misunderstood, 
political reasons they've been kicked around. In certain 
situations they have performed remarkable services for our 
country and are a dedicated group. 



For 



*Robert R. Bowie, "Analysis of Our Policy Machine," New York 
Times Magazine. 3/9/58, pp. 16ff. On deposit in the Herman 
Phleger papers in The Bancroft Library. 



193 



Stein: I was just looking at this picture on the front page of this 
article by Mr. Bowie and I gather that you were out of camera 
range or am I just not recognizing you? That must have been 
one of the morning meetings? 

Phleger: This is one of the morning meetings. No, I think I'm at the end 
of the table. I see Douglas Dillon, Loy Henderson. This is 
Christian Herter, who had been governor of Massachusetts and 
later became secretary of state. I see William Rountree. No, 
I think that this is me at the end. Anyhow, I missed very few 
of the meetings. 

Stein: I notice in my reading, in preparing for these sessions, that 
Arthur Krock of the New York Times was enormously impressed 
with you. 

Phleger: He was a good friend. I saw a great deal of him and he was 

complimentary in some of his writings. I don't know if you read 
any of his books, but he always went out of his way to be 
complimentary. In connection with obtaining Senate consent to 
ratification of the Antarctica Treaty he was extremely helpful. 
After the Antarctica Treaty had been negotiated and signed, there 
was considerable opposition in the Senate to its ratification. 
Senator Herter asked me to come to Washington and help in getting 
it through the Senate, and in that connection Arthur Krock was of 
great assistance. 

Stein: That's interesting. I'll have to look at what he's written on 
that. Also, there's a fairly recent book on Dulles by Townsend 
Hoopes.* 

Phleger: Townsend Hoopes communicated with me and read my oral history 
in the Dulles Library at Princeton. Biographers like Townsend 
Hoopes are so intent on having an interesting and readable book 
that they tend to overemphasize the unusual qualities of their 
subject . 

Stein: He characterized you as "perhaps Dulles 's closest and most valued 
colleague. "** 

Phleger: [Laughter] Well, what he says is very complimentary. Hoopes 
did a big research job on his book and it's crammed with all 
sorts of information. I don't think that he would be described 
as an enthusiastic admirer of Foster Dulles but I think he 
attempts to give an honest, correct account. 



*Townsend Hoopes, The Devil and John Foster Dulles (Boston, 1973) 
**Hoopes, p. 147. 






194 



Stein: Yes, the name of the book, The Devil and John Foster Dulles, 
would indicate that he didn't have the greatest sympathy for 
the secretary but I was impressed with the degree of his 
research in the book. 

Phleger: I think that his title is due in part to the fact that Foster 
Dulles was a very religious man. He was a Presbyterian and a 
churchgoer. He ranked high in the Presbyterian Church and was 
an officer of the World Council of Churches. The church people 
always felt free and were welcome to come in and talk with him 
on various matters in which they were interested, and I think 
that the secretary was so upright and honest in all of his 
attitudes and dealings that Hoopes probably thought that the 
good Lord was a participant in all of his deliberations and 
actions. 

Stein: Hoopes goes on to say of you and Dulles, "both men were tough, 
pragmatic operators, quick to absorb a briefing and ready for 
adversary proceedings on short notice and because Dulles fully 
trusted him, Phleger exerted an influence on matters well beyond 
the scope of his official position."* 

Phleger: Well, that's complimentary and has a germ of truth in it . I was 
close to the secretary and I worked with him on many important 
matters. He was a man of great capacity mentally and had great 
courage. He didn't shrink from or avoid problems because they 

were difficult. He was prepared to battle for his position, 
although he did it in a gentlemanly way. He was a fine diplomat 
and highly respected. 

His theory, which has been departed from and is departed 
from in the Panama Canal, was, as he said, "A nation should not 
strive for popularity. It should strive for respect. If you 
establish with other nations a position where they think you are 
honest and decent and courageous, they'll respect you and you 
can accomplish great things. If you pursue a course where many 
of your actions are predicated upon the desire to be popular and 
liked by other nations, you won't accomplish much worth while." 
I think that's quite true. 

Stein: It's a theory as good in international relations as it is in 
family relations. 

Phleger: Of course it is, and in fact all relations. First thing you've 
got to do is to get a reputation for being honest, decent and 
responsible. You can go on from there and build on that and 



*Hoopes, p. 147 



195 



Phleger: accomplish all sorts of things. If you start in by shaking 
hands and being a "hail fellow well met" and give in easy on 
the theory that you're going to be popular that way, you may 
get public acclaim, but you won't accomplish much in the 
international field. 



The Confirmation of Chip Bohlen as Ambassador to Russia 



Phleger: Now, I'd like to refer to some matters I had something to do 
with during my service in the State Department. The first is 
the appointment of Chip Bohlen as ambassador to Russia. It's 
been extensively written that Secretary Dulles opposed the 
appointment of Bohlen. I recently read a book by Marquis 
Childs, who's a good friend of mine, in which he categorically 
states that Dulles opposed the appointment of Bohlen. When I 
told Childs that it was not true to my own knowledge, Childs 
said, "Why, Bohlen told me that." I said, "Well, I have no doubt 
that Chip may have told you that, and thought that, but I doubt 
that Chip knows everything about his appointment," and I proceeded 
to tell what I knew about the appointment. 

There was strong opposition to Bohlen 's appointment by the 
Republican right wing. He was a Democrat. He had been with 
Roosevelt at Yalta and with Truman at Potsdam and he was 
generally considered to be opposed to the Republican position 
on foreign affairs. 

One night I was called out of a dinner by the secretary, 
who asked me to come over to his house. I went over and he said 
that the president, with his approval, was considering the 
appointment of Bohlen as ambassador to Russia. He asked me if I 
thought the Senate would confirm the appointment, the Senate at 
that time having a majority of Republicans in it. 

I told him that I was the last person in the world who 
should be asked my political advice because I didn't know anything 
about politics but I thought that the president and the secretary 
of state ought not to be dissuaded from appointing a man they 
thought was best qualified for a position because they thought 
there was political opposition. The appointment was made. 

I won't say all hell broke loose, but there was immediately 
a great outcry, particularly among the Republicans on the Foreign 
Relations Committee of the Senate, which was then chaired by 
Senator Wylie. Senator Styles Bridges and others demanded to see 
Bohlen 's personnel report, on the charge that it would show that 
he was a poor security risk. Personnel reports should be inviolate. 



196 



Phleger: They are not open to investigation, because they contain all 

sorts of unevaluated and conflicting information. And it would 
be impossible to obtain information for a personnel file if the 
supplier thought his confidential information would be revealed 
later, and so the secretary took the position that the file 
wasn't open. 

Supporting the opposition made by Senator Bridges was 
Senator Patrick McCarran from Nevada, who was chairman of the 
Judiciary Committee. After a great deal of argument, it was 
agreed that if the Senate Foreign Relations Committee would 
appoint two representatives, Secretary Dulles would permit them 
to examine Bohlen's personnel file. So Senator Taft and Senator 
Sparkman were appointed to inspect the file. They came to the 
State Department at an appointed time in the morning and the 
Secretary asked me to come up. I had known Taft and after Dulles 
had introduced me to Sparkman, he said, "Now, I'll leave you here 
with the Senators. I'll go somewhere else and you can look at 
the file." 

So I was left with the two Senators. They read the file 
and it was full of all sorts of stuff, including some tape 
recordings. I remember getting down on the floor with the 
Senators so we could listen to the tape recordings in which they 
were greatly interested and we went all through the materials in 
the files. When noon came we sent out for sandwiches and some 
milk and continued the examination. At 4:00, Taft said, 'Veil, 
I've been over it. I don't think there's anything in this file 
that reflects on Bohlen's security." Sparkman said, "I agree." 

I will say there was some material in the file that reflected 
on some relatives of Bohlen but there was nothing that reflected 
on him—so the Senators reported to the Senate and in due course 
Bohlen was confirmed. But there isn't any basis in fact for the 
well circulated assertion that Dulles opposed Bohlen. 

Senator Taft died of cancer a few months after our meeting. 
His careful examination of the Bohlen file when he was so ill 
testifies to his high devotion to truth, duty and public service. 



The Status of Forces Treaty 



Phleger: I was next asked to shepherd the Status of Forces Treaty through 
Senate consent to ratification. The United States under the 
North Atlantic Treaty had stationed large numbers of troops in 



197 



Phleger: Europe and the question arose as to who should have criminal 

and civil jurisdiction over those forces. Never before in the 
history of the United States had its troops been stationed in a 
foreign country in time of peace.* 

I recall going to the Pentagon and meeting with the Joint 
Chiefs of Staff. As I went through the anteroom I saw at least 
fifty uniform hats of generals and admirals so when I met with 
the Joint Chiefs, I was surrounded by top brass. The Joint 
Chiefs, after some discussion, announced that they would support 
the treaty. There had been some question—military people didn't 
like the idea that any foreign nation would have jurisdiction 
over their military personnel. So I proceeded with the hearings 
and the other mechanism of getting the consent of the Senate to 
ratification. 

In fact, the treaty was opposed underground by the military. 
Military people have a way of officially approving a program and 
then informally opposing it. So we had quite a battle before the 
Senate Committees in which Attorney General Brownell and Solicitor 
General Lee Rankin were most helpful and finally the Status of 
Forces Treaty was approved by the Senate and went into effect. 



Senator Joseph McCarthy and the State Department 



Phleger: Also, shortly after Eisenhower took office, Joseph McCarthy 

became very active in his crusade. McCarthy asserted that at 
least eighty people in the State Department were security risks. 
He charged that the State Department was a sink of iniquity 
and lambasted it unmercifully. 

One of the first McCarthyisms that got great prominence was- 
his charge that the State Department was doing nothing to prevent 
Greek ships from transporting large quantities of materials and 
munitions to Communist countries, particularly China and North 
Korea. McCarthy asserted that he had personally taken up the 
matter with the Greek shipowners and had induced them to terminate 
this activity. 



*The treaty made certain provisions for trial by the NATO nation 
in which the crime occurred. 



198 



Phleger: Finally, he arranged a meeting with the secretary of state 
and the secretary asked me to participate. So at 10:00 on the 
appointed day I met with the secretary and he and I, representing 
the State Department, met with Senator McCarthy and his counsel 
who, of all persons, was Robert Kennedy, who later became Attorney 
General of the United States and who was unfortunately assassinated 
Kennedy worked up the material which was the basis of the McCarthy 
attack on the State Department involving the Greek shipowners. 

Stein: Robert Kennedy? 

Phleger: Yes. 1 That trail has been carefully wiped out over the years. 
Few people realize that Kennedy ever had anything to do with 
McCarthy, but he was one of the chief assistants of McCarthy at 
the beginning of the Eisenhower administration. Anyhow, during 
the course of the discussion the secretary showed great diplomacy. 
Instead of antagonizing McCarthy, he thanked him for helping the 
State Department by supplying information about the Greek ship 
owners. Of course, he continued, the State Department was the 
sole agent of the government in handling foreign affairs as 
Senator McCarthy must know, and it would handle the matter from 
here on. 

During a break in the conversation, the secretary drew me 
to one side and he said, "Now, you go out and prepare a press 
release about this meeting, because if we don't, when Senator 
McCarthy leaves, he'll be surrounded by reporters and he will 
give out the most damaging statements he can think of." So I 
went out and prepared a press release and after we finished 
discussions, I produced it. It was an honest report in which 
the secretary thanked McCarthy for all this information and said 
that the State Department would handle the matter from here on, 
and McCarthy's agreement that only the State Department could 
or should handle such matters. With a few minor changes McCarthy 
agreed to it, so that when the meeting broke up we simply handed 
out a press release and McCarthy had no opportunity to further 
publicize his charges as he might otherwise have done and the 
matter of McCarthy and the Greek shipowners was heard of no more. 

I think the State Department, under the secretary, handled 
McCarthy with great intelligence. Dulles assigned an under 
secretary of state, Donald Lourie, who was later president of 
the Quaker Oats Company and a man of great ability, to handle 
McCarthy's attacks on the department. Lourie appointed a protege 
of Senator Bridges by the name of Scott McLeod as one of his 
assistants and the two of them maintained a friendly relationship 
with McCarthy and I don't think he ever thereafter attacked the 
State Department. He proceeded, however, to make vicious attacks 



199 



Phleger: on the Department of the Army, particularly on the secretary 
of the army and it was those attacks that finally led to the 
Senate resolution of censure. 

Stein: Yes, there's quite a famous documentary of the Army -McCarthy 
hearings . 



The Bricker Amendment 



Phleger: Yes. The next important matter I had was the Bricker Amendment 
to the Constitution. When we were in New York before the 
inauguration, President Eisenhower had an office there, as did 
Secretary Dulles. I was with Secretary Dulles when he received 
a telephone call from President Eisenhower asking him to come 
down to his office as he wanted to talk with him about the 
Bricker Amendment. 

The secretary asked me to go with him and we found the 
president was talking with Senator Bricker on the phone. 
Senator Bricker was telling the president that he had just 
introduced a senate joint resolution, or was going to introduce 
Senate Joint Resolution 1, which was an amendment to the 
Constitution of the United States regarding the treaty-making 
power, and that he already had sixty-two Senators acting as 
co-sponsors of the amendment. This was enough to insure its 
adoption.* The president held his hand over the phone and said 
that Bricker had told him that he had enough Senators to pass 
his measure, but would like to say that the president also 
favored it. 

The president turned to Secretary Dulles and said, "Should 
I agree that this is a good resolution?" The secretary turned 
to me and said, "Do you think that the president should endorse 
this resolution?" I said, "I certainly don't think so. I'm sure 
the president hasn't read it. I haven't read it. You haven't 
read it. We don't know what it's all about and for the president 
to endorse a constitutional amendment under those circumstances 
would be a great mistake. I think the president should tell 
Bricker that after the inauguration, when we get down to Washington, 
he'll look over the amendment and if it merits his support, he'll 
be glad to endorse it." 



*The amendment would have limited the domestic effect of treaties 
and limited the president's power to make executive agreements 
without Congressional approval. 



200 



Phleger: So when we did get down to Washington, I looked into it and 
the secretary did, and we discovered that it would greatly 
diminish the president's authority in the making of treaties 
and executive agreements. One of the things Bricker was after 
was what were known as executive agreements, presidential 
agreements, which the president, as commander in chief and head 
of the nation and in charge of the conduct of foreign affairs, 
was constantly making. 

I won't go through all of the fight that ensued, but it was 
a real battle. The chief sponsors were the American Bar 
Association and the American Legion and other national groups, 
and we started in with very little support for our opposition. 
The secretary got the president to appoint me as chairman of 
a committee of the administration to work in opposition to the 
Bricker Amendment. I formed a committee of a representative of 
every cabinet department and we proceeded to work up an opposition 
to the enactment of the resolution. We enlisted the aid of a 
number of prominent lawyers, particularly in New York. We had 
John W. Davis and a number of other able, outstanding lawyers 
and we gradually educated the public to a knowledge of the issues 
involved and secured an increasing public support for our 
opposition. 

The matter went on over a considerable period with amendments 
and substitutes and other maneuvers and when finally the George 
substitute for the Bricker Amendment came before the Senate for 
action, it was defeated by one vote. The chief supporters of the 
Bricker Amendment were Republicans, including Senator Knowland of 
California, the Republican leader in the Senate. Senator Bricker, 
of course, was a prominent Republican and the conservative 
Republican Senators raised so much criticism about my activities 
that Sherman Adams, the president's assistant, at one time 
suggested that I should be removed from the scene. [Chuckles] 

However, we persevered and I think it's generally agreed that 
it would have been a great mistake to have enacted the Bricker 
Amendment and amended the Constitution as it proposed. 

In the course of the controversy, I accumulated an extensive 
library of documents and papers which I gave to Princeton University 
in November 1971 as part of the Dulles Library, where the thirteen- 
volume collection is now housed under the name, "The Herman Phleger 
Collection of Materials Relating to the Bricker Amendment and the 
Treaty-Making Powers of the United States." Did I give you the 
little memorandum that accompanied those papers? 



201 



Stein: Yes, you did.* I have a few questions about the Bricker 
Amendment that perhaps we could start with next time. 

[end tape 2, side 1] 



Executive Privilege and the Imperial Presidency 

[Interview 9: November 15, 1977] 
[begin tape 1, side 1] 



Stein: I had a couple of questions left over from last time that I 
thought we could start with. First of all, I came across a 
clipping in the New York Times in which Senator Bricker was 
quoted as criticizing your legal competence in the question of 
the NATO Status of Forces Treaty.** I wondered if you remember 
that incident? 

Phleger: He was very critical at all times. As a matter of fact, he tried 
to get me fired. There were many Republicans who were rockbound 
Republicans, and in connection with the Bricker Amendment, Bricker 
complained of my activities to Sherman Adams, who was the assistant 
to the president. Some of the Republican Senators who voted 
against the Bricker Amendment --like Senator [Homer] Ferguson of 
Michigan and a couple of other Republican Senators, were defeated 
for re-election because they opposed the Bricker Amendment. It 
was a big party issue. 

Stein: You mentioned in your Princeton oral history that you actually 
had more help from the Democrats than you did from some of the 
Republicans. 

Phleger: That is true. 

Stein: I had some other questions about this whole notion of executive 
privilege and the relation of the president and Congress. We 
touched on this a little bit last time, but even during President 
Truman's term of office there had been some controversy over a 
president's right to withhold documents from Congress. Specifically, 
Truman wanted to withhold certain security files of government 
employees from Congress and then -Congressman Richard Nixon objected 
vociferously to this. I believe that we talked last time, in 
reference to the hearings on Chip Bohlen, that that dispute had 
again arisen about the president's right to withhold security files. 



* In the Herman Phleger papers, 
**New York Times, 5/8/53. 



The Bancroft Library. 






202 



Phleger: The question of presidential privilege with respect to his 
documents and other papers has been a running fight between 
Congress and the executive ever since the country was founded, 
going back to George Washington's time. It never has been 
resolved by judicial decision and probably never will be 
because there's a shadow area that's very difficult of definition. 
But it's generally accepted that the personal papers of the 
president are immune from examination by the Congress or anyone 
else. It would be impossible to conduct the government if the 
conversations and personal communications of the president with 
his advisers, for instance, were not confidential and immune 
from search and publication. No one would be willing to give 
his advice to the president if it were to be revealed at a later 
date. 

Two or three times during the Eisenhower administration I 
was called upon to give my views on the confidentiality of 
various papers and I usually solved it by advising that the 
papers should be given to the president and he should put them 
in the safe in the White House. 

I think, for instance, that the communications between 
[John F.] Kennedy and [Nikita] Krushchev over the Bay of Pigs and 
the Cuban missile crisis are locked up in the White House safe 
today. They never have been fully revealed. There are all sorts 
of papers and documents that it certainly is not in the public 
interest to reveal and if it were a practice to make all the 
papers available for public scrutiny you couldn't conduct a 
government. 

Stein: How would that apply to something like the Nixon tapes? 

Phleger: I think that if the Nixon tapes had been held in his possession 
and never given out piecemeal or otherwise, it would have been 
almost impossible to get them. I think Nixon himself was 
responsible for destroying the confidentiality of the tapes. 
Now, I don't think if the president murdered somebody in the 
White House presidential confidentiality could be used to cover 
that. He couldn't take the revolver and put it in his safe and 
say that's presidential papers. I think it has to be clear that 
the thing that is being held confidential is a matter of business 
of the government. I don't think the love letters of a president 
with some nongovernmental person would be subject to presidential 
privilege. 

Stein: I believe — and correct me if I'm wrong — that in the Eisenhower 
administration this idea of executive privilege was extended to 
cover not only the president but also his cabinet officers and 
executive departments. 



203 



Phleger: I think there's a considerable area in government which should 
be immune from examination. As I say, personnel files which 
consist of confidential reports on officials or prospective 
officeholders are personnel matters and certainly should be 
confidential. How would you expect someone to speak frankly 
about a person who was being considered for office if he thought 
that later on what he said would be revealed to the public or 
to the person about whom the observation was made. 

Now, this file that I give you here goes into all of those 
questions.* This has to do with the Yalta papers and the matter 
of confidentiality. The complaint there was that they should 
not have been given out. This is full of material and precedent 
on the question of how secret and top secret and confidential 
papers are finally given out or not given out to the public. 

You'll notice in that file there, they say, "You better put 
these in Phleger 's safe." 

Stein: This is briefing papers? 

Phleger: Yes, those are the original briefing papers for the secretary 

of state when he was being examined by a Congressional committee 
for having released the Yalta papers. 

Stein: So this would give us insight, in other words, into Dulles's 
feelings on these matters. 

Phleger: Yes. I would say that's a valuable document to anyone who is 
studying the functioning of government or of the presidential 
office. 

Stein: I know you mentioned last week the notion of imperial presidency 
and that's something that Arthur Schlesinger has written about. 
In light of, as you mentioned last week, the growing power of 
the president, I wondered if this executive privilege might 
have dangers inherent in it. 

Phleger: I think, as I told you, that the power of the president has 

increased, not only because any person in office likes to have 
as much power as he can get, but it's increased due to the fact 
that so many more powers have been given to the federal government 



*See notebook containing the Briefing Papers used by the State 
Department in connection with Congressional hearings regarding 
the publication of the "Yalta Papers" by the New York Times on 
March 17, 1955. On deposit in the Herman Phleger papers, The 
Bancroft Library. 






204 



Fhleger: vis a vis the states, because of the ever broadening interpreta 
tion of the commerce clause. The president has been given ever 
increasing authority over the allocation of the ever increasing 
federal funds and budget. The presidential office has become 
far more powerful than the founding fathers ever imagined it 
would. 

Stein: Do you think, given the current situation now, that there 
needs to be some sort of curb on executive privilege? 

Phleger: I don't think that there can be any effective Congressional curb, 
for many presidential powers flow from the Constitution. The 
Constitution distributes power in various branches of the federal 
government: we have a government of checks and balances. There 
are certain grey areas that never can be defined exactly and for 
the government to properly function, there has to be goodwill and 
respect on the part of the executive, of Congress, and of the 
judiciary for the powers and privileges of each of the other 
branches of government, and cooperation between them all. 

I think that during the Eisenhower administration, partly as 
a result of the education due to the fight over the Bricker 
Amendment, the president and the secretary of the state were 
very circumspect about, the use of presidential power. They 
realized that the Bricker proposal had been caused in part by a 
failure to confine the exercise of the presidential power within 
limits that Congress would recognize as proper. Due to the World 
War, the president was called upon to exercise in his capacity 
as commander in chief many powers and make many agreements with 
foreign countries regarding military operations and the furnishing 
of troops, munitions and supplies. Those were proper exercises 
of presidential power in wartime but wouldn't be tolerated in 
peace time. 

Stein: But it's my understanding from Schlesinger 's book that Eisenhower 
did use the concept of executive privilege more than previous 
presidents had. 

Phleger: I would doubt that. I would say that it was nothing to compare 
with the powers exercised by Roosevelt during the war or indeed 
by Truman. Eisenhower was a conservative man and I don't know 
any instance of his using or abusing his presidential power. In 
fact, after the Bricker Amendment the state department promulgated 
a regulation, initiated and approved by the secretary, which 
limited and placed safeguards around the use and negotiation of 
treaties and executive agreements. 

Stein: What was the nature of that order? 



205 



Phleger: It's mentioned in the oral history at Princeton. I haven't the 
number of it now, but an ambassador couldn't go off and start 
negotiating a treaty. A definite procedure had to be followed 
in the state department before anyone was authorized to negotiate 
an international agreement, even on a minor matter. 

I think I've finished a general description of the way 
the secretary and the state department operated when I was there. 
Here's some general material which I think you may like to go 
through later which may have some interest.* [Hands interviewer 
a folder of papers] 



International Conferences 



Tenth Inter-American Conference at Caracas, Venezuela 



Phleger: The first international conference I attended as a member of the 
United States delegation was the Tenth Inter-American Conference 
at Caracas, Venezuela, in March of 1954. That was a conference 
of the members of the Organization of American States following 
a precedent of earlier conferences. The secretary of state was 
there; also, Senator Theodore F. Green, and representatives of the 
various departments. I have here and will give you a report of 
the Tenth Inter-American Conference which recites the proceedings 
of that Conference** including the actions taken and the names of 
those who participated. 

The important matter that was taken up there, and which in 
the light of history was of importance, was the adoption of a 
resolution drafted by Secretary Dulles by which the Organization 
of American States, in effect, adopted the Monroe Doctrine as 
applied to the introduction of international Communism into the 
Western Hemisphere. As you know, the Monroe Doctrine was a 
unilateral declaration by the United States which received common 
acceptance because nations believed it would be enforced. 



*0n deposit in the Herman Phleger papers, The Bancroft Library. 

**See "Tenth Inter -American Conference, Caracas, Venezuela, 
March 1-28, 1954: Report of the Delegation of the United 
States of America with Related Documents" on deposit in the 
Herman Phleger papers, The Bancroft Library. 






206 



Phleger: With the increasing power of the Communist countries, 

particularly the Soviet Union and the Comintern, the secretary 
conceived the idea that there should be some specific agreement 

between the nations of the Western Hemisphere that the intrusion 
of international Communism into the Western Hemisphere would be 
considered a breach of the Monroe Doctrine and would be a threat 
to the peace and security of the countries of the Western 
Hemisphere. 

He accordingly introduced such a resolution and after 
considerable debate it was adopted. It in terms provided that 
any intrusion of international Communism into the Western 
Hemisphere would be considered a threat to the peace and security 
of the nations of the hemisphere and they would confer and agree 
on common action to repel it. That was adopted by the affirmative 
vote of all of the American states with the exception of Mexico 
and Argentina, which abstained, and Guatemala, which voted no, 
Guatemala at that time was actually being governed by Communists 
and some time later, as you remember, the Communist regime was 
overthrown probably with the help of the CIA, and a non -Communist 
regime was established. The history of those events has never 
been adequately published. 

The resolution should have been used in connection with the 
extension of international Communism into Cuba. While it was 
used initially by the Organization of American States to condemn 
Communism in Cuba, President Kennedy never really used that 
resolution as it should have been used. I think perhaps that 
was a mistake, looking back, because if we had gotten all of the 
American states to firmly oppose the intrusion of Communism in 
Cuba, [Fidel] Castro might not have established it there. 

Of course, when Castro first rose to power he denied that 
he was a Communist and the New York Times and its correspondent, 
[Herbert] Matthews, wrote reams to the effect that Castro was 
merely an agrarian reformer and was not a Communist. I remember 
Castro coming to the United States during that period and being 
invited to speak at Harvard at a time when the public did not 
consider him to be a Communist. 



The Indochina Conference, 1954 



Phleger: The next conference I attended as a representative of the United 
States was the Indochina and Korean Conference in Geneva in June 
and July of 1954. That conference was presided over by the 
representatives of the Soviet Union and of Great Britain. 



207 



Phleger: Molotov, the foreign minister of the Soviet Union, and Eden, 
then foreign minister of the United Kingdom, presided at 
alternate sessions. 

I have here a record which gives the delegations and other 
particulars.* One of the delegations was that of Communist 
China which was headed by Chou En-Lai, whom I met and found to 
be a highly educated, able man. He never spoke English, although 
I'm sure he could have, but for prestige purposes, spoke Chinese 
and all of his remarks were translated. 

During the conference, Dien Bien Phu was under seige by 
the Vietnamese aided by the Soviet Union and China. As a result 
of the political pressure this created in France, there was a 
change of government and [Georges] Bidault ceased to be prime 
minister and was succeeded by [Pierre] Mendes-France. I remember 
flying to Paris with the secretary shortly after Mendes-France 
was installed in office and having an evening meeting, a very 
small meeting, five or six, with the secretary and Mendes-France 
at Matignon, the residence of the foreign minister of France. 

Mendes-France when he came to power announced that if the 
Indochina War was not over by the 25th of July, he would soon 
see that it was. He came to Geneva and as a result of his 
activities, there was a cease fire and an agreement between the 
belligerents, which included a provision that in due course 
there would be elections in Vietnam for the purpose of reunifying 
Vietnam. Those elections never took place because I think 
neither side was sure it would win and the Communists don't 
believe in free elections. 

The secretary was criticized for having attended the opening 
of that conference and leaving at the end of a week and not 
returning, although the conference continued for a considerable 
period. He is criticized as having boycotted the conference. 
There's no foundation for that because when the conference was 
originally organized he only planned to stay one week and brought 
with him the undersecretary of state, General Bedell Smith, who 
took up when the secretary left and continued during the balance 
of the conference . 

Stein: That question was raised in your Princeton oral history, that 
Dulles had been severely criticized for that. 



*The Department of State, "The Korean Problem at the Geneva 
Conference," April 26-June 15, 1954. On deposit in the Herman 
Phleger papers, The Bancroft Library. 



208 



Phleger: He was indeed and there was no justification for it, like a great 
deal of other criticism of the secretary. 

Stein: Before we leave the Indochina Conference I have a couple of 
questions. One of the issues in Indochina related to the 
notion of massive retaliation as a way of containing Communism, 
so that one of the alternative ways of coping with the Indochina 
situation would have been an attack on China. 

Phleger: I couldn't say that massive retaliation was considered in 
connection with Vietnam. It was discussed frequently in 
connection with the Soviet Union. But your comment reminds me 
that when the French were beseiged in Dien Bien Phu there was 
a proposal which gained considerable momentum for the United 
States to intervene and relieve Dien Bien Phu and the French 
beseiged there. That reached to high places in the government 
and considerable pressure was brought upon the president and the 
secretary. It was argued that an air strike from United States 
vessels in the Far East could relieve Dien Bien Phu. 

I didn't think at the time that this proposal had political 
or military justification and I know the president was opposed 
to any American troops ever being used on the mainland of China. 
I think there's considerable historical material about the 
proposal for American intervention when the French were still 
there, but I know that neither the president nor the secretary 
approved the idea. The secretary was opposed to colonialism 
in areas like Indochina, a colony of France. He opposed any 
use of American forces to maintain colonialism. 



The Manila Conference, 1954: the Creation of SEATO 



Stein: But in terms of keeping Communism out of the area, would a 
military attack on China ever have been considered? 

Phleger: I think—well, I'm going to go on to some further things here 
that have to do with the Indochina War and in that connection 
I'll tell you how I think the Indochina War got under way. 
Certainly there was no idea during the Eisenhower administration 
of ever getting into a war down there. Of course, the threat 
of the spread of international Communism down through Indochina 
and Thailand and the Southeast Asian countries was in everybody's 
mind at the time of the Indochina Conference. 

But the president, on the advice of Secretary Dulles, had 
a different solution for it and that was the formation of the 
Southeast Asia Treaty Organization. He arranged for a conference 



209 



Phleger: in Manila in September of 1954 for the purpose of forming an 
organization of the concerned nations to cooperate to keep 
Communism out of Southeast Asia. 

Shortly after the close of the Indochina Conference, the 
secretary asked me to work with Douglas MacArthur and others 
on the drafting of a proposed Southeast Asia treaty. I worked 
on that and in due course and after Great Britain and the other 
prospective parties to the treaty had agreed to the conference, 
I flew to Manila with a group to prepare for the actual 
conference, taking with me a draft of the treaty which in 
substance was later adopted. 

The nations that were concerned and which attended the 
Manila meeting were France and Great Britain, which had interests, 
of course, in that area; Australia and New Zealand, Thailand, the 
United States and the Philippines. At the last moment, a 
representative of Pakistan, Zarfulla Khan, appeared and said 
Pakistan desired to join in the treaty and entered the conference. 

While the preparatory groups in Manila were working on the 
draft treaty, several of the participants proposed the use of 
the same language as was used in the North Atlantic Treaty, 
which provides that "an attack on one shall be deemed an attack 
upon all." 

Because of the secretary's recognition that only Congress 
can make war, we inserted in the draft a provision that in the 
case of armed Communist aggression, the parties would meet to 
determine upon common action and would, in accordance with their 
respective constitutional processes, agree on their common 
defense. This language recognizes the fact that for the United 
States, only Congress has power to declare war. 

In later treaties in which I participated in drafting, we 
always inserted a provision that action by the United States 
would be taken in accordance with its constitutional processes. 
That was an inheritance from our experience with the Bricker 
Amendment . 

Anyhow, after the working parties had agreed on the test, the 
official delegations arrived. The United States delegation was 
headed by the secretary of state and included MacArthur and myself, 
and two United States senators, Senator H. Alexander Smith of 
New Jersey and Senator Mike Mansfield of Montana. At all later 
international conferences (or at least all in which I participated) 
the secretary followed the practice of including two senators in 
the delegation so the Senate through its representatives had a 
participation and knowledge of the proceedings of the conference 



210 



Phleger: and of the negotiations leading up to the treaty or other agreement 
that might result. This practice was of great value when the 
treaties came up for later consent to ratification by the Senate. 

The eventual treaty, which came to be called the SEATO Treaty, 
was signed with great ceremony at the Malacanang Palace in 
Manila, which was the president's residence. I met there at 
that time President Ramon Magsaysay, a handsome man who had proved 
to be a fine president for the Philippines. Unfortunately, he 
was killed not long after the conference in an airplane accident. 
This was a great loss not only to the Philippines but to the 
world. 

As I say, the treaty was signed with great ceremony and, of 
course, it should have been the pattern to be followed in connection 
with the later Vietnam War. But it wasn't. Britain and France 
did not consider the civil war in Vietnam to be covered by the 
treaty. Pakistan wasn't interested. Australia made a minimal 
token contribution. New Zealand did nothing. The Philippines 
did not think the war a threat to them, although they were only 
500 miles away. Thailand was more interested in making money out 
of the war than participating in it. 

Some years later, at a men's dinner in Washington at which 
Senators Stennis and Symington of the Senate armed services 
committee were present, I remarked that the failure of the SEATO 
Treaty members to participate in the Vietnam War demonstrated 
their belief that that war was no threat to their security, and 
suggested that it was no threat to U.S. security either. They 
were much interested, and asked me to write a memo to the 
committee expressing these views. I declined because I did not 
think it would have any effect. 

Pakistan joined the conference because it thought that if 
Pakistan could become a party to a treaty with the United States 
providing joint defense against invasion, its future was secure. 
However, the United States was only interested in stopping the 
spread of Communism, so we inserted a provision to that effect. 

I don't think this limitation was in the original draft, 
although that was the intent and Lord Richard G. Casey who was 
the representative of Australia, was disappointed when we 
introduced the limitations because he would have liked a general 
agreement defending Australia. Of course, Australia already had 
the ANZUS Treaty with us but I think he figured that he'd pick 
up a few other countries that would aid Australia in the event 
of any attack. But the design of the treaty was to stop the 
spread of Communism and in the treaty there's a provision that 
the only attack that is to constitute a common threat to the 
security of the treaty members is an attack by Communists. 



211 



Phleger: We were careful not to include in the treaty either North 
or South Vietnam or Laos or Cambodia. They were areas to be 
protected by the other signatories but they were not parties 
to the treaty. 

Stein: Why was that? 

Phleger: Because we didn't want to get involved in their internecine or 
civil wars. What was being protected against was the spread of 
international Communism from China and the Soviet Union. 



A Treaty with the Republic of China 



Phleger: When the treaty was signed and the conference was breaking up, 
the secretary and his party proceeded from Manila to Taiwan, 
capital of the Republic of China. I flew with the secretary to 
Taiwan where we were entertained for a day by Chiang Kai-shek, 
who had us to lunch at his villa in the mountains near Taipei. 
He had his cabinet there and I found that almost all had been 
educated at Oxford, Cambridge, or Harvard University. They were 
highly educated, cultivated gentlemen. It was there I met George 
Yeh, who was at that time the foreign minister. 

From Taipei we flew on to Japan and then home. Shortly 
after that, in December, at the request of Secretary Dulles, I 
worked with George Yeh in drafting a treaty between the 
Republic of China and the United States, a mutual defense treaty. 
When we finished it I remember going into the secretary's office 
when the secretary and George Yeh were about to sign and as the 
ceremony was proceeding George Yeh said to the secretary, "Now, 
this is all in English and it's the custom, as you well know, 
that a treaty of this kind is signed in duplicate originals, one 
in the language of each of the parties. I would like to have a 
Chinese duplicate original here to be signed." 

Secretary Dulles said, 'Veil, the Chinese language is very 
imprecise and doesn't have terms applicable to modern warfare. 
I didn't think it was necessary to have a Chinese version." 

George Yeh spoke up and said, "Mr. Secretary, the Chinese 
language has more words dealing with war than the English 
language has. There are hundreds of words dealing with war and 
warlike matters and I think we can have a Chinese draft here 
that will clearly express what is contained in this English draft." 



212 



Phleger: So it was that there was a Chinese duplicate original which 
was executed with the same formalities as the English original. 
That treaty also contains the provision that each party will 
proceed in accordance with its constitutional processes to act 
for the common defense. 

Stein: If I might interrupt just for a moment, were the Quemoy and 
Matsu islands covered by that treaty with Chiang Kai-shek? 

Phleger: The Quemoy and Matsu attacks came later, but Quemoy and Matsu 
were not included in the areas of Taiwan that were covered by 
the treaty. 

I have here a number of official documents of the Manila 
Conference and also newspaper articles and pictures dealing with 
it.* [Hands documents and files to interviewer] 



The Geneva Summit Conference, 1955 



Phleger: The next important international conference I attended, as one 

of the U.S. representatives, was the summit conference in Geneva 
in July of 1955. In 1948 Mrs. Phleger and I went to Europe and 
one of the places we visited was Austria and Vienna. Vienna was 
then under occupation. We were much interested to observe the 
Soviet troops in Vienna as we were there during the time that it 
was the Soviet Union's turn to police Vienna. We would go out 
each day and watch the Soviet troops change guard. They were very 
visible and ruled with an iron hand. 

The Soviet Union was adamant about not signing a peace treaty 
with Austria until one was signed with Germany but as a result 
of various circumstances it did agree, in the first months of 
1955, to the execution of an Austrian treaty and a treaty of 
peace was signed in Vienna on May 16. At that time representatives 
met there to sign the treaty and to receive the plaudits of the 
multitude. Of course, the Viennese went wild with joy. 

Molotov and Eden, as well as Secretary Dulles, went to Vienna 
for the signing ceremonies and there discussions were held 
regarding the desirability of having a summit conference later 
in that year. It was thought that a meeting of the heads of 
government would be helpful in planning the security of Europe and 



*On deposit in the Herman Phleger papers in The Bancroft Library. 



213 



Phleger: solving the German question. As a result, it was agreed that 
a summit conference of representatives of four nations — the 
Soviet Union, the United Kingdom, France and the United States- 
would be held in Geneva in July. 

Careful planning was thought necessary and so when a 
conference was held in San Francisco in June to commemorate the 
tenth anniversary of the signing of the United Nations Treaty, 
the foreign ministers of the four nations as well as representa 
tives of many other nations, met in San Francisco. Molotov of 
the Soviet Union took a house down the Peninsula, [Harold] 
Macmillan, who was then the foreign minister of the United 
Kingdom, put up in the Mark Hopkins [Hotel] , and there was a 
great deal of entertaining, and also some serious sessions in 
planning for the summit meeting. 

It was decided that no attempt would be made to make 
definitive agreements at the summit, but it was thought 
desirable at that meeting to chart out the general course for a 
settlement of the European security problem, the reunification 
of Germany, and the interchange of commerce and peoples between 
the East and West leaving the details to be worked out at a later 
meeting of foreign ministers. So the summit conference was agreed 
upon to meet in Geneva from July 18th to the 23rd in 1955. 

[end tape 1, side 1; begin tape 1, side 2] 
Stein: You were saying that the principal topics at Geneva-- 

Phleger: --were European security, the reunification of Germany, East- 
West communications, and armaments. The conference was a 
colossal affair. I think there were some twelve hundred newspaper 
correspondents there. 

Stein: That was from all around the world? 

Phleger: Oh, yes, from all over the world. There were great preparations 
made. The meetings were held in the Security Chamber in the 
League of Nations Building. Here is a photograph of the first 
meeting [pointing to a large framed photo on the wall], and I 
have another copy that I'll give you. 

Stein: It looks like there were quite a number of people just in the 
delegation, to say nothing of the press. 

Phleger: The press was excluded from the meetings, which were held over a 
five-day period. Usually in the morning the foreign ministers 
would meet and in the afternoon the heads of state would meet 
with the foreign ministers and the other delegates. 



214 



Phleger: At the opening session, the press and photographers were 
admitted and these pictures which you see [one of which I'll 
give you] were taken during the opening ten minutes of the 
conference. After that, the public and the press were excluded 
and the proceedings were conducted in complete secrecy. Of 
course, there's always in such cases a certain amount of leaks. 

We met around a four-sided table, a delegation on each side. 
There were five representatives of each of the four participating 
nations. The Soviet delegation was headed by Bulganin, who was 
then the prime minister, and his fellow delegates were Molotov, 
Gromyko, Krushchev, and Field-Marshal Zhukov. It's a commentary 
on the discipline of the Soviet Union that during that entire 
conference Krushchev never opened his mouth. The only person who 
spoke for the Soviet delegation was Bulganin, and within about 
a year he was out running a power plant somewhere near Siberia 
and Krushchev was the head of state. There must be iron discipline 
in the Soviet hierarchy. I don't think anybody's ever heard of 
Bulganin since then, but as I say, Krushchev sat there during 
that entire conference and never opened his mouth. 

Marshal Zhukov was a member of the Soviet delegation and we 
had great hopes, because he was a friend of General Eisenhower 
and the two had commanded the Soviet forces and the American 
forces, that there would be some communication between them that 
would be helpful. But the fact is that Zhukov had absolutely no 
authority to do anything and he certainly lived up to his lack 
of authority because we never got anything out of him that would 
be helpful. 

The various delegations had rented villas and gave dinners 
and receptions. I went to the Soviet affair and we were loaded 
down with food and caviar and vodka. I have attended a number 
of Soviet social functions. Besides Marshal Zhukov 's reception 
at Potsdam, I had attended one during the Indochina Conference, 
one during the summit conference, and two or three during the 
foreign ministers' conferences at Geneva. 

The Russians always brought their household help from 
Russia. The waitresses were always women. The meals were 
indescribably heavy. You would start with fine caviar and 
quantities of vodka which was in ample supply. Soviet vodka, 
the fine vodka, is only sixty proof, not as strong as ordinary 
hard liquor, and it is usually tossed off at one gulp out of 
a rather small glass. They accompany the vodka with large 
quantities of caviar and fish and other heavy foods that have 
oil in them. 



215 



Phleger: I will say this for the Soviets: if you don't want to 

drink and tell them that you don't want to drink, they do not 
press you. But if you start drinking with them, why, they are 
inexhaustible in proposing that you have another one. But it 
was interesting to note on that and other occasions, if you 
say you don't want vodka they don't press you to drink any. 

I won't detail all the things we did at the conference 
but it is amazing in retrospect to realize we got an agreement 
from the Russians to reunify Germany by free elections, a 
proposal which had initially been made by Eden. I participated 
in the writing of the final communique and it contains a 
categorical statement that the conference approves the 
reunification of Germany by free elections. 

When we met at the Foreign Ministers' Conference in November, 
which was supposed to carry out that provision, the Russians 
immediately repudiated it and never would take the slightest step 
toward implementing it. I do not know why they ever made the 
agreement in the first place, but they did. 

I have been interested in following the matter of the 
reunification of Germany. It seemed to be an accepted fact 
shortly after the war, but as time has gone on the division 
into East and West Germany has become more and more definite. 
Today, with the Berlin Wall when you go from West to East Berlin, 
through Checkpoint Charlie, the formalities are onerous and 
exacting. I believe if there wasn't a Berlin Wall, and a 
comparable barrier elsewhere, most of the East Germans would go 
over into West Germany. 

I also believe that while France and Great Britain also 
agreed to the reunification of Germany by free elections at 
the Summit Conference they were never very enthusiastic about 
it because they were fearful of the building up again of a 
great military power in the center of Europe. While supposedly 
they have been in favor of reunifying Germany I don't think they 
have ever pressed very hard toward that objective. The Soviet 
Union's policy favoring the division of Germany has become 
harder and harder so it's difficult to anticipate now that there 
will be a reunification of Germany within the forseeable future. 

I have here a book which I will give you which I think is 
valuable.* [Hands interviewer the book] It consists of the 
record of the summit conference and of the later foreign ministers' 



*Department of State, The Summit Conference, Foreign Ministers ' 
Conference, 1955, Geneva, on deposit in the Herman Phleger papers, 
The Bancroft Library. 



216 



Phleger: conference which was held in Geneva in November 1955. In it 
is a small volume entitled, "Recollections of the Summit 
Conference," written by Livingston Merchant, who was a member 
of the U.S. Summit delegation and a foreign service officer 
of distinction, later ambassador to Canada. This has never 
been published and is a fascinating record of the preparations 
by the United States delegation for the conference and of the 
proceedings at the conference. I think it has real historic 
value. Because of the information it gives regarding the 
preparations for the conference and of the proceedings at the 
conference, I don't think it's necessary for me to spend any 
more time on it. 

Stein: I noticed that Arthur Krock in the New York Times was especially 
complimentary of you and your role in that summit conference. 
I think this is probably the first time he had written about 
you and he said (this is the Times of July 29, 1955), "The 
president's choice of Phleger as one of the four representatives 
of the United States at the final and plenary meeting brought 
from the background into public view one of the really strong 
men of the Eisenhower Administration. He has wielded great 
influence in the State Department and at the White House in 
consultations on problems of foreign policy."* 

Phleger: Well, Arthur Krock was one of the great newspapermen of his time 
so I am complimented by his remarks. He was always accurate 
and I don't mean about his appraisals there, but he was careful 
about his facts. I think what he's referring to there, and 
it's dealt with in greater length in this book that I'm turning 
over to you, is that at the final meeting of the heads of 
government, there was no one present for the United States 
except the president, the secretary of state, [Livington] Merchant, 
and myself. The representatives of the other nations were all 
similarly stripped down. At that meeting we wrote the final 
communique and I participated in its preparation. I think that 
is what Krock is referring to. 

As I say, we wrote into that communique the agreement on 
the reunification of Germany by free elections and the Soviet 
Union's representatives must have been mesmerized or something 
or they never would have agreed to it. But this account by 
Merchant is a most interesting document because it shows the 
care and hard work that goes into the preparation for a 
conference as well as what goes on during the conference and 
in the final communique. There's also an account of that final 
meeting and of the communique so I won't attempt to deal with 
it otherwise. 



*See next page. 



216a 



Excerpt from Arthur Krock's column, New York Times. July 29, 1955. 



of Phieger 

The President's, filoice of PhJeger 
as one of the four' nftpresenUUves of 
the United State* |fjt the final and 

i plenary meeting brought from the 
background into public view one of 
the really strong men of the Eisen 
hower Administration. He has 
wielded great influence in the State 
Department and at the White Houfe 
in consultation* on problems of for 
eign policy. In other respects Be 
has played a much larger part th 
is implicit In the fiinctions of Lej 
Adviser. But none of this was 
the public domain until last Sat; 
day at Geneva. 

! Officials on the highest Govel 
ment level, leaders of th« Aroeric in 
bar and Callfornians in general v U 
not. however, be surprised by t 5 
evidence that Phleger ha* attain 
a position of great power in Wai 
Ington and enjoys the full trust if 
the President. He has long be n 
acknowledged as among the first, j.t 
not the first, in the legal profession 
oa the Pacific Coast. He is in the 
top tier of practitioners before the 
Supreme Court And persons quali 
fied to speak with authority on such 
matters attest that Phlegtr i* deeply 
versed in constitutional end inter 
national law. 

Added to these talents and achieve 
ments are certain special gifts of 
nature: good looks, good health, an 
agreeable personality, a senM of 
humor that reaches inward as well : 
a* outward and a sure instinct 
which tells him when a matter 
should be- approached lightly anil 
when it should noC He knows bow 
safely to lire in and traverse ri&ky 
territory, auch. as the Washington 
politic a Jungle, and he has done 
both v/tthout telng much observed. 
No* the President has put Phleytr 
(a the epoUlglTt where, though it 
was Inevitable, he vastly prefers 
not to be. 



217 



Phleger: The Summit Conference contemplated that its conclusions 
would be implemented and carried out through a meeting of 
foreign ministers to be held in Geneva in November, and 
accordingly the foreign ministers met in Geneva, October 29 
to November 16, 1955. The participants were Molotov of the 
Soviet Union; Secretary Dulles; Christian Pineau, the Foreign 
Minister of France; and Harold Macmillan, Secretary of State 
for Foreign Affairs of the United Kingdom. 

I will digress for a moment to tell about the opening 
of the Vienna Opera which took place during the conference. We 
were invited (and I'll give you some pictures and clippings later) 
by Llewellyn Thompson, the United States ambassador to Austria, 
to come to Vienna for the opening of the Vienna Opera, which had 
been closed all during the war. The opera building itself had 
been badly damaged and they worked hard repairing the building 
and preparing for the reopening which was scheduled for some time 
in November or December. 

Mrs. Phleger and I were invited to fly to Vienna with the 
Secretary and Mrs. Dulles. At Ambassador Thompson's we met 
Winthrop Aldrich, our ambassador in London, and Mrs. Aldrich and 
Clare Boothe Luce, who had come up from Rome where she was an 
American ambassador. 

We had a wonderful time. We had the best seats at the first 
opening performance of the Vienna Opera, which had been closed 
since 1939. The opera was Fidelio , and there was a glittering 
audience. People from all over the world were there, resplendent 
with decorations. 

The opera began, I believe, around 7:00 and when it was 
over we were taken to the Symphony Hall where the first debutante 
ball since the beginning of the war was being held. It was a 
most attractive and beautiful affair. I will give you some 
pictures later. 

At the ball I saw the real Viennese Waltz. I had thought 
that when you waltzed the Viennese Waltz you pirouetted around 
the floor and covered as much distance as possible. Not at all. 
In the Viennese Waltz, you stand almost in one spot and twirl 
alternately in opposite directions with your partner as fast as 
possible, and the girls' skirts swing out in a wide circle. It 
was a great, glittering ball. The families had dug up their 
jewels out of the backyards where they had been buried during the 
war and were dressed in their finest clothes. It was a gala 
affair, a wonderful party. 



218 



A Visit to Tito's Yugoslavia 



Phleger: We spent a day and a night in Vienna and then we flew down to 

Brioni, Yugoslavia where we were the guests of Marshal Tito and 
his wife, Madame Broz. You may have read recently, speculation 
to the effect that Madame Broz is trying to take over control. 
I can't imagine that to be true, although Tito is now quite old. 

We flew down in the Air Force plane to Split, which is 
the naval base in Yugoslavia, and from there we were taken on 
a modern motor torpedo boat to the island of Brioni on which 
Tito had his country place. We were met at the dock by Tito 
and Madame Broz with several open victorias with matched horses 
and were driven in the greatest style to Tito's home. On the 
way we passed a number of cages of tigers and other animals. Tito 
is a great fancier of wild animals and had a regular menagerie 
around his house. 

We had lunch at Tito's house with the Yugoslav cabinet. 
Madame Broz was a charming, attractive woman, much younger than 
you would think for one who had fought in the guerillas. There's 
Madame Broz. [Shows picture]* 

Stein: Oh, yes. That's quite a striking head of hair she has. 

Phleger: Yes, she's a very attractive, nice person. We got along 

famously with the cabinet, of which half was made up of members 
of the old, wealthy families who had gone Communist and about 
half of peasants who had come up off the soil. But they were a 
cordial and hospitable group. I've attended a number of formal 
parties at various places but nothing was more elegant than our 
lunch in this Communist country. The servants all wore a livery 
with white stockings and white gloves and the lunch was most 
sumptuous. We had a fine time, such a good time that they asked 
us to stay for dinner. So we stayed for dinner, and after 
dinner flew back to Geneva. 

The secretary and Marshal Tito had a number of conversations 
and I think got along very well, as did all the members of the 
party. Madame Broz spoke English and Tito also understood 
English. Tito did use an interpreter during his talks with the 
secretary, but most of our conversation was in English. I think 
almost all important foreign officials, including those of the 
Soviet Union, speak English but don't use it except in informal 
social conversations, using instead an interpreter for accuracy 
and prestige reasons. 



*This photo is on deposit in the Herman Phleger papers, 
Bancroft Library. 

*See photo of dinner, next page. 



The 




Dinner for Secretary Dulles and party given by Marshall Tito at Brioni, 
Yugoslavia, November 6, 1955. On far side of table: Herman Phleger, 
second from left; Douglas MacArthur II, fourth from left; Secretary 
Dulles, sixth from left; Madame Broz, Tito's wife, next to Dulles. 
Marshall Tito sits opposite Madame Broz, with Mrs. Dulles on his right. 




The first Suez Conference, August 16-24, 1956, held at Lancaster House, 
London. British Prime Minister Anthony Eden is speaking. Secretary 
Dulles, with Herman Phleger on his right, sits at the near end of the 
table on the left. 



219 



Stein: What was the nature of Dulles' and Tito's conversations? 

Phleger: Dulles had been invited by Tito and thought it was an 

opportunity to get to know Tito and to discuss current inter 
national affairs with him. I think their discussions resulted 
in a good understanding of the views of Yugoslavia and the 
United States on foreign affairs and created a spirit of 
cooperation between them. As I say, I was impressed with the 
character of Tito's cabinet, all of whom seemed well educated 
with about half from the old families. They were most hospitable 
and we had an interesting time. Of course, that's twenty years 
ago now and they're all considerably older. Madame Broz was a 
very attractive person and couldn't have been more cordial or 
hospitable. 

Stein: I noticed in that photograph that she's quite an elegant lady. 

Phleger: Oh, she is and I must say that there were no thread -bare clothes 
worn there. It was a good demonstration of the attraction that 
good jewels and good clothes have for everyone, including 
Communists . 

Well, I'm handing you this volume which includes the Summit 
and Foreign Ministers' Conference with Livingston Merchant's 
account that has never been published. 

Stein: Yes, that's very valuable. 



The Suez Crisis and Conferences, 1956 



Phleger: After the Foreign Minister's Conference in Geneva in November, 
1955, came the Suez Crisis in 1956. I had taken part in some of 
the Aswan Dam negotiations in 1955. This was a plan to build a 
dam at Aswan on the Nile to form a huge lake which would impound 
the winter floods to be used during the summer to bring under 
cultivation an additional million acres of land and to generate 
electricity. It had been under discussion for a number of years. 

The United States was asked to participate in the project 
as was the British government, and a plan was developed for its 
construction and financing. The financing was to be a cooperative 
effort between Egypt, the United States, Great Britain, and the 
International Bank. The United States was to furnish the larger 
amount of foreign money required. Great Britain was also to 
furnish a substantial amount. The International Bank was to supply 
a substantial amount and Egypt was to supply the labor and the 
other requirements that could be supplied locally, and was also 
to provide foreign exchange through the sale of its cotton. 



220 



Phleger: In 1956, as these plans were discussed and formulated 
there were objections in the United States Congress because 
the project would greatly increase the supply of competitive 
cotton on the world market, but these were not controlling. 
I recall the finance minister of Egypt calling on the 
secretary after the secretary had learned that Egypt had made 
large purchases of arms from Czechoslovakia and Russia and had 
committed its cotton crop for years to come to the payment for 
these arms, and as a result, Egypt would not be able to fulfill 
its part of the bargain. The secretary told the Egyptian 
representative that the United States, because Egypt was not 
prepared to do what it agreed to do, would not go forward. 
There's been a lot of dispute about whether the British were in 
on this or not, but they were informed in advance of our 
unwillingness to go forward. 

A few days later, Egypt seized the Suez Canal, declared it 
to be the property of Egypt, and took over its control and 
management and commenced to collect the tolls for passage. 

At the time of the seizure, which I think was July 26, 1956, 
the secretary was in Peru for the inauguration of the new 
president. I was out here at the Bohemian Grove and received 
an urgent cable from the secretary to meet him as soon as I could 
in Washington, so I flew there. In the meantime, the secretary 
had sent undersecretary of state, Robert Murphy, to London to 
confer with the British who, of course, were outraged by the 
seizure of the Canal, as were also the French. 

Eden was then prime minister of the United Kingdom, having 
succeeded Churchill. As a result of the meetings in London by 
Murphy and the British, it was decided to call a meeting in 
London of the principal nations interested in the Suez Canal. I 
worked with the secretary on a list of those to be invited. I 
think we finally ended up with twenty-one invitees selected, I 
thought, on a logical basis devised by the secretary. Egypt, of 
course, was invited, as were all the signatories to the 
Constantinople Convention of 1888, which guaranteed the security 
of the canal and included Russia and France and a number of others. 

The secretary also thought that the owners of the ships 
which transited the canal more frequently than any others — used 
the canal more — should be invited and, as a result, Norway and 
Sweden were invited and, I think, also Denmark. He then decided 
that the nations whose cargo transited the canal and who were 
more dependent on the canal than anyone else should be invited 
and so India, Australia, and New Zealand were invited. As a 
result the first London conference was composed of those nations 
which had a primary interest in the canal either as owners or 
as users whose cargo or ships passed through it. 



221 



Phleger: I went with the secretary to the conference in London. It 

was held, as I remember, in Lancaster House. [Shows photograph]* 
You can see Anthony Eden addressing the opening conference. 

Stein: Oh, yes. It's a much more crowded table than the summit 
conference. 

Phleger: Yes, there were twenty-one nations there, [telephone interruption] 

That was the first conference. [Gamal Abdul] Nasser of 
Egypt, of course, had been invited to attend the meeting but he 
refused. The meeting adjourned with the appointment of a 
committee to go to Cairo and induce Nasser to turn over the 
operation of the canal to representatives of the users. 

The committee was headed by [Sir Robert] Menzies, prime 
minister of Australia. The secretary asked me to go to represent 
the United States, but I declined, as I did not know anything 
about the Middle East. I suggested that Loy Henderson, who had 
been ambassador to various Middle East countries and was an able 
diplomat, go as U.S. representative and he did. 

Stein: In discussing that point in the Princeton oral history, you 

mentioned that one of the reasons that you didn't want to go was 
that you considered it unwise to have a legal adviser act on a 
political matter. 

Phleger: I think that's right. I don't think we're competent to-- 

Stein: How was this any more political than the summit conference and 
any of the others that you had participated in? 

Phleger: Well, in the summit and other conferences I was one of a 

delegation, and in the committee to discuss the matter with Nasser, 
I would be the sole U.S. representative. 

In any event, the committee went to see Nasser and came 
back with his refusal to agree with the proposed plan. I must 
remark on an interesting event. I remember in London at the 
time of the conference meeting with the president of the Suez 
Canal Company. He told me that the pilots for the Suez Canal 
were French; that piloting was a highly technical and difficult 
task and took ten years of training, and he could close down the 
canal at any time by calling out the French pilots. 

I told him that while I hadn't been through the canal, I knew 
something about maritime matters; that the canal was just a ditch 
and I would think that any competent ship captain could take a 
ship through, which is a fact. I went through the canal early 



*See photo on photo page following page 218. 



222 



Phleger: this year and it's just a great big open ditch. The pilots on 
the Danube and the Rhine, certainly, who handled the currents 
there, would be qualified. 

Well, later he did call out the pilots and it didn't stop 
the canal for one minute. 

Stein: Didn't Egyptian officials take over? 

Phleger: Yes they did. Any ship captain could take his ship through. 

Anyhow, following that, the secretary proposed a Suez Canal Users 
Association, SCUA as it got to be known. The idea was that the 
users of the canal should meet and formulate a cooperative plan 
for the operation of the canal. The group of seventeen user 
nations met in a second Suez conference in London but its proposals 
were not acceptable to Egypt. I won't go through the ramifications 
of that development, for it's detailed in my oral history at the 
Dulles Library. 

Following that, the British and the French decided that 
something had to be done to restore the canal to international 
operation, even if this involved the use of military force, but 
first the matter should be brought before the United Nations, as 
a result of which some principles were agreed upon with the 
representatives of Egypt which if followed up probably would have 
resulted in sort of an international regime for the canal. But 
that was never followed up for a reason which I'll now mention 
and which was unknown to us at the time and which has never been 
fully revealed to the public, certainly not to the people of the 
United States. I hand you some photographs taken at the meetings 
in the Security Council of the U.N.* 

After the second Suez meeting in London, and after the 
French and British decided that something had to be done, and 
after the U.N. proceeding was over, a representative of France 
went to England and met with Prime Minister Eden on October 14. 
He outlined a plan which had been the subject of discussions 
with Israel for military operations by the Israelis, the French 
and the British to take possession of the canal. Under this 
plan the Israelis, who had been increasingly harassed by roving 
bands of Egyptians and Palestinians, would invade the Sinai 
Peninsula of Egypt and advance toward the canal where, of course, 
they would be met by the Egyptian army. This would bring the 
Suez Canal within the zone of military operations. 

[end tape 1, side 2; begin tape 2, side 1] 



*The photographs are on deposit in the Herman Phleger papers, 
The Bancroft Library. 



223 



Stein: You were saying that this would force Israel-- 

Phleger: This would allow Great Britain and France as parties to the 

Constantinople Convention, and as such obligated to protect the 
canal, to intervene militarily with their forces. The whole 
story is told in some detail in this book which I'll give you 
and which has had little circulation. It is entitled No End 
of a Lesson, by Anthony Nutting,* who was a senior official in 
the British Foreign Office, and who as a result of this plot 
resigned and later wrote this book giving the facts. 

As he explains, the French representative came over and met 
with Eden at Checkers on October 15 and there disclosed the plan 
for military operations. The plan, which had been agreed to by 
the French and Israelis, appealed to Eden, with the result that 
Eden, two days later, on October 16, went to Paris and met with 
Guy Mollet, prime minister of France. He then returned to 
London. On October 18 in Paris there was a meeting between David 
Ben Gurion, prime minister of Israel, Selwyn Lloyd, the foreign 
minister of the United Kingdom, and Mollet. At this meeting it 
was agreed that France and Britain would issue an ultimatum to 
Israel and Egypt demanding the withdrawal of Egyptian and Israeli 
troops from the canal area, and on their failure to withdraw, 
would intervene between the Israel and Egyptian armies and take 
over the canal physically in order to protect it from the military 
operations of the Israelis and Egyptians. 

On October 25 the British cabinet approved this plan. On 
October 29 Israel invaded the Suez and on October 30 the British 
and French issued the ultimatum to the Egyptians and Israelis to 
withdraw. Egypt immediately closed the canal by sinking ships 
and placing other obstructions preventing the further passage of 
ships. On October 31 the British made an air drop on the canal 
area. Egypt brought the matter immediately to the attention of 
the U.N. and on November 1, I remember late at night, there was 
a meeting of the Assembly, the whole Assembly, at which Dulles 
presented a resolution calling for a cease fire and a withdrawal 
of the troops. 

The following day I remember flying with him to Washington 
and learning, the following morning, that the secretary had been 
taken to the hospital, so that during the peak of the Suez Crisis, 
the secretary of state was in the hospital and the department was 
represented by Undersecretary of State Hoover, who insisted on my 



*(New York, 1967). On deposit in the Herman Phleger papers, 
The Bancroft Library. 



224 



Phleger: participating with him in everything involving the Suez Crisis. 
I spent a considerable amount of time at the White House with 
the president working with him on the withdrawal of military 
forces and the arrangements of the cease fire. 

Stein: You may be getting to this, but I wondered what the president's 
and Dulles 's and your reaction was to what would appear to be 
a conspiracy. 

Phleger: I will explain that in a minute. On November 6 there was a 
cease fire. The foreign minister of Canada, Mike [Lester] 
Pearson, proposed a peace-keeping force from the U.N. and the 
necessary resolutions were passed. Finally the troops were 
withdrawn and the work of clearing the canal commenced. 

Now, during all that period—and for a considerable period 
thereaf ter--there was absolutely no knowledge on the part of the 
United States of the conspiracy between the French, the British, 
and the Israelis. That conspiracy was conducted in absolute 
secrecy so far as the U.S. was concerned. There was no information 
whatever given to the United States. I suppose during recent 
diplomatic history there's been no greater deception practiced on 
the United States than that secret conspiracy on the part of the 
British and French. 

The only circumstances that we knew of that might have caused 
us to believe that there was something of the kind afoot was an 
intelligence report that there were French Mystere planes in 
Israel and the CIA told us there had been a great increase in the 
communications, the radio traffic, between Israel and Paris. But 
aside from that, there was no information or indication that these 
military operations by the French and British had been planned 
with the Israelis. When those facts became known to the president 
and state department, while there was indignation on the part of 
those who had the information, neither the president nor the 
secretary of state, nor any official American ever publicly 
upbraided the French or British for this action. 

Eden, shortly after this, resigned as prime minister of 
the United Kingdom and while it was stated to be for reasons of 
health, and I have no doubt he was ill, I feel sure he resigned 
because of his participation in and the planning of the French- 
Israeli-British military operation. I don't suppose ever before 
in the relations of Great Britain and the United States that 
there's been an action of this character where our close ally 
planned and embarked on military action and concealed it from 
the United States. Following the Suez crisis there has been a 
succession of books and articles written by authors who seem to 
be in entire ignorance of the conspiracy. The French, British 



225 



Phleger: and Israelis, in their planning, no doubt thought that the U.S. 
would be drawn into the military operation, which in their view 
would protect them from possible intervention by the Soviet 
Union. I must say the president and the secretary were wise in 
never committing us to any military operation in the area. 

During the intervening years I never have seen any public 
statement by President Eisenhower or by Secretary Dulles or 
anyone in their behalf criticizing the French and the British 
and the Israelis for this conspiracy and they have taken the 
abuse that has been showered on them by the Israelis, French 
and British in silence. Ignorance of the conspiracy is probably 
one reason why at least some of the general public is critical 
of the fact that we did not intervene militarily in the Suez crisis. 

This action was no doubt planned by the French, British 
and Israelis to coincide with the American presidential elections, 
which were taking place in November. They probably thought that 
we would be so engrossed in the election that we would not do 
anything that would interfere with their plans. The Soviet 
Union also took advantage of the Suez crisis to put down the 
Hungarian uprising so they all coincided --the election, the 
Hungarian uprising and the Suez Canal crisis--all were at approxi 
mately the same time. 

I might mention as an aside, at this time when the Soviet 
troops entered, Budapest: Cardinal Mindzenski took refuge in the 
American Embassy and the Soviets and their Hungarian Communist 
partners demanded that he come out and surrender. I was 
consulted as to whether or not international law permitted us to 
keep Mindzenski as a refugee in the American Embassy. I found 
that under international law diplomatic refuge under circumstances 
such as this exists only so long as there is a riot or some other 
civil disturbance that prevents the local government from 
functioning, and after Mindzenski had stayed in the embassy for 
three or four days and the demand was made by the Hungarian 
Communist authorities that he come out and stand trial for alleged 
crimes, that under international law the U.S. should surrender him. 

The secretary, after he consulted with the president, decided 
that we should give refuge to the cardinal as long as he wanted 
to stay and we so advised the Communists, and Mindzenski stayed in 
our embassy for many years. He came out only about two years ago 
and made a trip to the United States. I was invited to meet him 
at the Hungarian Benedictine Monastery School at Woodside. It's 
a boys' school run by the Benedictine priests who fled from 
Hungary at the time of the revolution. I was invited to meet 
with him and we recalled his taking refuge in the American Embassy. 



226 



Stein: In relation to all those crises coming together, did the 
United States at that time, did Dulles make any outspoken 
objection or move against the Soviet Union? 

Phleger: Yes, he spoke out immediately against the Soviet invasion of 
Hungary and moved in the U.N. to condemn its actions. The 
Soviet Union was frying its own fish in Hungary, but they sent 
belligerent messages to President Eisenhower protesting against 
the military operations around Suez and threatening to send 
Soviet volunteers to Egypt to aid the Egyptians in their military 
operations. Eisenhower replied with a blunt message in which 
he said that under no circumstances would the U.S. stand by and 
permit any Soviet intervention in the Suez area. 

Stein: Is there any analogy that can be drawn between the British and 
the French invading the Suez and the Soviet Union invading 
Hungary, and did the United States react the same in both 
instances? 

Phleger: There was some talk about, "Well, you're so active in the Suez 
matter, why don't you do something to protect the Hungarians," 
but the fact is that it was utterly beyond the power of the 
United States and beyond its interests to attempt to do anything 
militarily in Hungary. Geographically it was so far away — it's 
right on the borders of the Soviet Union—that it would have 
been impossible as well as inadvisable to attempt a military 
intervention. , 

However, the United States did initiate action in the 
United Nations protesting the invasion by the Soviet Union and 
did everything within its power short of military operations 
to assist the Hungarians. The United States organized and 
operated an extensive rescue operation to transport Hungarians 
from Hungary and resettle them in other countries, including 
the U.S. The Benedictine monks who established their monastery 
and boys' school at Woodside, California, were some of the 
refugees assisted by the United States. 

As I say, the story of the French-Israeli-British conspiracy 
as detailed in the book I have mentioned is generally not known 
to the public of the United States, and the restraint that the 
president and Secretary Dulles showed when they did discover this 
is remarkable. I have concluded that the reason they did not 
reveal the facts was their desire to protect the British and 
French, particularly the British, from what would have been a 
very critical and unfavorable reaction of public opinion against 
them in the United States. 

Eden left London on November 21 and resigned on January 9, 
1957, I'm sure as a result of this conspiracy which seems to 
have been so ill-advised and destined to failure. At that time 



227 



Phleger: the Labor Party in Britain was opposed to any military inter 
vention, and so was Canada, and as a military operation it was 
poorly executed. It took weeks to organize the invasion when, 
if it had been done in a matter of hours, the situation might 
have been quite different. 

Anyhow, it is still a conversation piece. If you read 
Eden's books, he says nothing about this conspiracy and his 
report in his autobiography of the Suez Crisis is so self- 
serving that it isn't a good historical record. 

The closing of the canal and the military operations shut 
off the oil supply of most of Europe; not only the supply from 
the Persian Gulf, which came through the canal, but also the 
supply from Iraq, which shut down the oil pipelines, so Britain 
and France and a good part of Europe had to depend on oil from 
other sources. The United States, through the good offices of 
the president and George Humphrey, secretary of the treasury, 
extended large credits to Great Britain so oil could be supplied 
from Venezuela and other sources. 

During this time I spent a great deal of time in the White 
House and I have here two items which I think are of interest. 
One is the draft of a message from President Eisenhower to 
Anthony Eden urging him to comply with the program that had been 
set up at the U.N. , particularly the peace-keeping force. Eden 
had telephoned to the president, expressing the hope that the 
president would invite him to come to Washington to discuss the 
matter. The administration thought that was not a good idea, 
although the president seemed to be inclined to agree to it. This 
second message drafted by me was then sent telling Eden not to 
come to Washington. This is the original draft of the message 
written at the White House on Tuesday, November 6, and sent at 
2 P.M. of that day to Prime Minister Anthony Eden of the United 
Kingdom.* 

The writing is mine and the inserts are in the handwriting 
of President Eisenhower. They are quite characteristic of him; 
you can see how he deftly toned down what might otherwise have 
been a rather abrupt message. You can see that the president by 
a few alterations and additions made the message, I'm sure, 
acceptable to Eden. 

I attended numerous cabinet meetings in the place of 
Secretary Dulles when he was away or ill. I think I was asked 
rather than others in the state department who outranked me 



*Reproduced on pages 228a and 228b. Original is in the Herman 
Phleger papers, The Bancroft Library. 



228 



Phleger: because they were Foreign Service officers and non-partisan. 

The cabinet is a political organization and the Foreign Service 
is not, so I frequently was invited to attend in Secretary 
Dulles' place when he was absent. 

During the Suez Crisis, he was, of course, in the hospital 
and I attended the cabinet meetings in his absence. I have here 
a draft of my notes of my report to a cabinet meeting during 
the Suez Crisis.* [Hands document to interviewer] 

The end of the crisis as far as I was concerned was a 
meeting I participated in at Secretary Dulles' home shortly 
after he got out of the hospital—because he was in the hospital 
during the height of the crisis- -with Golda Meier, then the prime 
minister of Israel, and Abba Eban, who was the Israeli foreign 
minister. It was on a Sunday and there was no one else present. 
The secretary had reached the conclusion that the Israelis should 
be permitted to retain the port of Elath at the head of the Gulf 
of Aqaba, which is entered through the Straits of Tiran. I worked 
out a legal theory, supporting the view that the waters of the 
Gulf of Aqaba were international high seas. During our conference 
(that is the conference with Golda Meier and Abba Eban) we worked 
out the implementation of that disposition of the matter. 

As an interesting commentary on the result of the building 
of Aswan Dam and the Suez Crisis, I sailed through the Suez 
Canal in March of this year and afterwards landed at Alexandria 
and drove up the Suez delta to Cairo. The dam at Aswan has been 
completed, the lake is full of water, the power plant is in 
operation, all conforming to the original plan, and one million 
acres of additional lands are now under irrigation by the waters 
impounded by the Aswan Dam. I learned that the standard of living 
in Egypt is lower now than it was before the Aswan Dam was built 
because in the meantime the population of Egypt has increased by 
six million who more than consume all of the additional food 
raised through the building of the Aswan Dam. 

This condition is typical of many major efforts to raise 
the standard of living in underdeveloped countries by increasing 
food production by public works, where the increasing population 
consumes the additional food produced by the public works. 

I doubt the success of our contributing funds to help 
countries raise their standard of living without some commitment 
by the recipient country to reasonably control population growth. 



*"Notes for oral report to Cabinet, Friday, November 16, 1956." 
On deposit in the Herman Phleger papers, The Bancroft Library. 



228a 




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228b 



.c) 9 




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229 



The Formulation of the Eisenhower Doctrine 



Phleger : 



Stein: 
Phleger : 



Following the Suez Crisis, the president (I'm sure at the 
initiative of Secretary Dulles) proposed a resolution by Congress 
authorizing the president to use armed forces to protect the 
security and territorial integrity of Middle East countries 
against Communist aggression. That came to be known as the 
Eisenhower Doctrine. I have here his initial speech on it and 
some comments.* 

The substance of the resolution was that if the integrity 
of any of the Middle Eastern countries was threatened by 
Communism, the United States was prepared to intervene with force. 
A couple of years later—well, even shorter than that—in 1957 
the United States landed Marines in Lebanon to protect it from 
Communist invasion from Syria. The intervention was successful 
and Lebanon was free from Communist inspired strife until a few 
years ago when a civil war erupted. 

This Eisenhower Doctrine was modeled on an earlier resolution 
passed by Congress in connection with the security of the Republic 
of China. It is known as the Far East Resolution. That authorized 
the president to use the armed forces of the United States to 
protect the security and integrity of Formosa and the Pescadores 
of the Republic of China. The purpose of these resolutions — the 
Mid-East Eisenhower Doctrine and the Far East Resolution—was to 
furnish what the secretary considered constitutional authority to 
use armed forces without a formal declaration of war by Congress. 
These resolutions are in effect conditional declarations of war, 
permitting the president, in the event the necessity arises, to 
use armed forces when otherwise it would require a declaration of 
war by Congress. These legislative and constitutional actions 
were in part an outgrowth of the experience of the administration 
with the proposed Bricker Amendment. During the entire Eisenhower 
administration, there was a careful observance of the function 
and rights of Congress vis a vis the president. 



This might be a good place to stop. 



Yes, I think so. 
[end tape 2, side 1] 



*"President Eisenhower's Proposals on the Middle East. Debates in 
the Eighty-Fifth Congress of the United States of America, 1957. 
Compiled under the direction of Herman Phleger," on deposit in the 
Herman Phleger papers, The Bancroft Library. 



230 



The Near East Resolution and the Eisenhower Doctrine 

[Interview 10: November 23, 1977] 
[begin tape 1, side 1] 

Phleger: Secretary Dulles believed in anticipating problems and attempted 
to provide in advance the means to avoid or solve them. He was 
convinced that many of our difficulties arose from the failure 
of foreign governments to realize in advance what the U.S. 
reaction would be in various situations. This was the reason 
for his proposing a series of security and other agreements with 
foreign countries, designed in part to let the world know what 
the U.S. response would be in certain situations. 

The secretary also realized as the result of the Bricker 
Amendment fight, that the president's power in the security field, 
and particularly to use U.S. troops abroad, would have to be 
clearly justified under the Constitution if it was to receive 
congressional and popular support. 

These considerations led the secretary to propose that 
Congress enact what I would call a conditional declaration of 
war which would authorize the president of the United States 
without further congressional authorization to use the United 
States Armed Forces to repeal aggression in the Mid-East if it 
was part of a Communist movement to take over the Near East. 
It's interesting to note that during the Suez Crisis and after, 
one of the basic policies of the United States was to prevent 
the introduction of Soviet influence into the Near East. The 
present administration is now apparently adopting a different 
policy by agreeing that the Soviet Union shall be one of the 
co-chairman of the proposed Geneva conference on the Near East. 

The Communists had become active in Syria in 1957 and to 
prevent the takeover of Lebanon and other goverments in the 
Middle East, the president asked Congress for authority to use 
the armed forces of the United States if he considered it in the 
interest of the security of the United States to do so. 

I worked with him and others in the drafting of what became 
known as the Near East Resolution or the Eisenhower Doctrine. 
[Mr. Phleger hands the interviewer a bound volume.*] This volume 



*"President Eisenhower's Proposal on the Middle East, Debates in 
the Eighty-Fifth Congress of the United States of America, 1957. 
Compiled under the direction of Herman Phleger (Eisenhower Doctrine) ," 
on deposit in the Herman Phleger papers, The Bancroft Library. 



231 



Phleger: is a compilation I prepared which includes the history of that 
project including the resolutions which were introduced in 
Congress and the debates in Congress and the final resolutions 
that were enacted. In July, 1957, Communist activity in Syria 
expanded into an invasion of Lebanon and U.S. troops, together 
with British troops, landed there and were responsible for 
quieting the situation so that the Syrians withdrew and Lebanon 
was able to continue its national existence. 

Stein: I believe that in those debates about the doctrine, the argument 

was raised that Eisenhower might have had authority to make such 

a move under his power as commander -in -chief of the armed forces, 
without such a declaration. 

Phleger: Eisenhower and the secretary of state were of the opinion that 
the chief executive should be careful not to impinge upon the 
authority of Congress. This was a conclusion they reached as a 
result of their experience with the Bricker Amendment and the 
protests against executive agreements and acts of the commander- 
in-chief during and following World War II. They did not attempt 
important moves in the foreign field without first insuring the 
support of Congress and they felt that the use of American troops 
abroad, except in the direst extremity, should be authorized by 
Congress. So they also asked Congress to adopt the resolution 
regarding the Far East, which was also a conditional declaration 
of war--that's what permitted Taiwan to continue to exist 
independent of Communist China—and they followed that up with 
the Eisenhower Doctrine in the Mid-East and it did have the effect, 
because of the landings in Lebanon, in protecting the integrity 
of those countries from Communist aggression. 

It's of interest to note that President Johnson attempted to 
use that same principle in connection with the Vietnam War, when 
he secured a congressional resolution following what was alleged 
to be a Communist attack on an American destroyer, granting him 
authority to use armed forces to repel any further attacks by 
Communist forces on American positions or ships which would 
adversely affect the security of the United States. That, I think, 
indicates that President Johnson felt there was not a very solid 
legal base for our military activities in Indochina. 

Along the same line, there had been criticism of Truman's 
use of U.S. military forces in Korea without a congressional 
declaration of war. However Truman's action did have a subtantial 
legal foundation. The Security Council of the United Nations, 
of which the U.S. was a member, had adopted a resolution calling 
upon its members to supply forces to repel the aggression of 
North Korea so our military action in South Korea was under the 
aegis of the United Nations. The U.S. forces there were joined by 



232 



Phleger: armed forces of other members of the United Nations. Under the 
United Nations charter, the member nations were obligated to 
comply with such a resolution of the Security Council. 

Stein: When Nixon sent troops into Cambodia in the spring of 1970 I 
think he did it under the argument that he was acting as 
commander-in-chief to protect American troops. 

Phleger: Yes, he did. I think there is very shaky legal authorization 
for the whole Vietnam War. 

Stein: You say the use of U.S. troops in Lebanon was done under the 
Eisenhower Doctrine? 

Phleger: Yes, and this action was successful in accomplishing its 
objective. Of course, the British landed with us. 



The Bermuda Conference, 1957 



Phleger: The next item I might mention is the Bermuda Conference in 

March of 1957. Following the resignation of Anthony Eden as 
prime minister of Great Britain, Harold Macmillan, who had been 
foreign secretary, became prime minister. He suggested to 
President Eisenhower the desirability of a conference between 
the United Kingdom and the United States to discuss mutual 
problems. Such a meeting was held in March of 1957 and was 
known as the Bermuda Conference. President Eisenhower, Secretary 
Dulles, Senator Walter George, United Kingdom ambassador [John 
H.] Whitney, and a number of others including myself were present 
as representatives of the United States. The prime minister was 
accompanied by Selwyn Lloyd, the foreign secretary and a number 
of other British representatives. 

There were two or three days of conferences at which a 
number of matters of mutual interest were discussed, particularly 
the situation in the Near East regarding oil and the countries 
in the Persian Gulf that produced it. I have here the pass that 
I had, together with a list of the delegations and a program of 
the meetings that were held.* [Mr. Phleger hands documents to 
interviewer. ] 



*The documents are on deposit in the Herman Phleger papers in 
The Bancroft Library. 



233 



Phleger: One matter of discussion had to do with the importance of 
the Arab nations' deposits in London banks. I recall Prime 
Minister Macmillan saying that as of that date the deposits of 
the Arab nations in the London banks amounted to more than five 
hundred million pounds. In recent years the withdrawal of 
those deposits contributed to the financial and economic 
difficulties of the United Kingdom. 

Because the president had a cold, he went down to Bermuda 
on a cruiser accompanied by an escort of destroyers, instead of 
flying with the other delegates. After he arrived, a reception 
was given at which I met a young naval officer who was captain 
of one of the destroyers in the naval escort. He was interested 
when I told him that I had been on a destroyer in World War I, 
the Beale No. 40. All the destroyers are numbered in sequence. 
He told me that the number of his destroyer was number 788, which 
showed how our destroyer forces had been built up since World 
War I. 



Resignation from the State Department 



Phleger: Before going to Bermuda, I had told Secretary Dulles that I 
thought I had been in Washington long enough, having served 
through President Eisenhower s first administration and was now 
starting on my fifth year and it was time to go home; that I 
hadn't caught Potomac fever, and I had other things I should be 
working on. In Bermuda I dined with the president and Secretary 
Dulles, who brought up the matter of my resignation. The 
president and the secretary urged me to remain, but I told them 
that I had made up my mind and they were gracious about accepting 
my decision. So, in due course, I wrote a letter of resignation 
to the president, after first submitting it to the secretary of 
state, and the president responded with a letter accepting the 
resignation effective, I think, as of April 1, 1957. [Handing 
documents to interviewer] 

I have here a copy of my letter to the president and a copy 
of his reply. I have also some press releases including a copy 
of an editorial in the Washington Post entitled, "Mr. Phleger 
Steps Out," which is a kind and generous review of some of the 
things I did when I was in Washington. There were other editorials 
and comments, copies of some of which I have here to give you. 



234 



Phleger: I also have a number of letters that were sent to me by friends, 
most of them in government, in connection with my resignation 
and departure from Washington.* 

One of the pleasantest events attending my retirement was 
a dinner given in my honor by Attorney General Brownell and 
Lee Rankin, the solicitor general, at the F Street Club at 
which they had a number of my friends, including Chief Justice 
[Earl] Warren; Judge Warren Burger, who is now the chief justice; 
Senator Thurston Morton; the president's secretary, Bernard 
Shanley; Arthur Krock; my friend and classmate Victor E. Cooley, 
who was then in Washington as director of Civil Defense; Sam 
Waugh, president of the Import Export Bank; John Hollister, who 
was chairman of the Hoover Commission on Governmental Reorganiza 
tion; I.W. Carpenter, who was an assistant secretary of state; 
Ambassador Winthrop Aldrich; assistant secretary for the Far East, 
Walter Robertson; and Admiral [Arthur W.] Radford. 

The attorney general had provided white butcher aprons, 
which we wore to dinner [chuckles] and they all insisted on 
autographing the apron which I wore. It was my proud possession 
until years later, when our maid, thinking that the apron was 
dirty, washed it and washed off all of these priceless autographs. 

Anyhow, here are these letters, including a letter from John 
McCloy and others, and particularly a letter from then-Judge of 
the Circuit Court of Appeals Burger, who is now chief justice, 
which has some interesting comments in it. 

Following the resignation, Mrs. Phleger and I motored west 
across the continent by the southern route. No one should miss 
the opportunity to travel across the United States by automobile 
because it's a great country and you don't see much of it when 
you fly across by airplane. 

In connection with my retirement I received a number of gifts 
from my associates in the Office of the Legal Advisor. They gave 
me a five-volume edition, that had just been published, of the 
London Times Atlas of the World, a beautiful publication which 
contains material which I thought was top secret regarding the 
Soviet Union. Its maps of the Soviet Union have the location of 
all its airfields, which I had considered top secret information 
when I was in the State Department. 



Correspondence and clippings regarding Mr. Phleger's resignation 
•re on deposit in the Herman Phleger papers, The Bancroft Library. 



235 



Phleger: Charles Bevin, who was the assistant legal advisor in 

charge of treaties, gave me a duplicate original of the North 
Atlantic Treaty which I have here and will give you. Evidently, 
when treaties are signed duplicates originals are given to each 
signatory party and a number of extra originals are also executed 
which are retained in the Office of Legal Advisor. In any 
event, I have here this one given me by the head of the treaty 
division containing the original signatures. In fact, it is a 
duplicate original of the North Atlantic Treaty.* [Hands inter 
viewer the treaty] 

It is interesting because it shows the process by which a 
treaty becomes effective. Most people don't realize that the 
ratification of a treaty is not by the Senate but by the 
president. The Senate action is its consent to ratification by 
the president and the ratification by the president is the final 
act which he takes by virtue of the authority given him in the 
Constitution. 

I also have here a couple of additional documents which 
were given to me by Mr. Bevin having to do with the action in 
connection with an amendment to a treaty** [hands documents to 
interviewer] . They show the procedure by which a treaty or an 
international agreement becomes law. 

Stein: It's quite fascinating. It's a very valuable document. 

Phleger: I'll also give you an additional file in connection with the 

Nurenberg trials and my article in the Atlantic Monthly*** [hands 
file to interviewer] . It contains the telegrams and other 
communications that had to do with the invitation to write this 
article. The request originated with Walter Lippman, the 
columnist, and Justice Frankfurter. Attached to it is the 
correspondence between Judge Wyzanski, who wrote the article 
challenging the validity of my justification of the Nurenberg 
trials and Justice Jackson, in which he advises Justice Jackson 
that after mature thought he had changed his mind. I have here 
Justice Jackson's letter to me on the subject. 



*The copy of the treaty is on deposit in the Herman Phleger 
papers in The Bancroft Library. 

**0n deposit in the Herman Phleger papers, The Bancroft Library. 
***0n deposit in the Herman Phleger papers, The Bancroft Library, 



236 



Fhleger: This file is interesting because it shows the change of 
position by some who had opposed the Nurenberg trial, showing 
their conclusion, after mature thought, that it was justified. 
Here also is the correspondence that had to do with my letter 
in the Washington Post replying to Senator Taft's criticism 
of the Nurenberg trials. Most of them are originals. 

Stein: Yes, very valuable documentation. 

Phleger: After we returned to San Francisco I went back to my office and 
took up where I had left off in the practice of the law and 
have continued ever since. 



State Department Attitudes Toward the French 



Stein: I have one or two leftover questions about the State Department. 
We were discussing the Suez Crisis last week, and in your 
Princeton interview about the Suez you mentioned that Eisenhower 
was a great admirer of the British. 

Phleger: I remember on several occasions, during that crisis, hearing 

the president state how much he admired the British people and 
particularly the British soldier. I recall him saying on one 
occasion, "When we got into a battle I was always glad to have 
the British supporting my flanks." He, of course, liked the 
French also but there was never the close, friendly relations 
with the French as we had with the British. Fortunately, during 
the Suez Crisis neither the president nor the secretary had any 
suspicion or knowledge of the conspiracy between the Israelis, 
the French, and the British regarding their military expedition 
to take over the Suez Canal. Knowledge of that did not come out 
until later. 

Stein: I think you mentioned last time that the decision had been made 
not to make a fuss about it. 

Phleger: That is right. Neither the president nor the secretary, and indeed 
no one in the administration, ever openly criticized the French, 
British or Israelis for their conspiracy and the fact they had 
carried it on, leaving the United States in total ignorance. 

Stein: I thought that there were a number of other instances where France 
had not really endeared itself to the United States. One was a 
scheme that DeGaulle came up with called the "Tri-Directorate" 
or "Global Tri-Directorate, which was his attempt to bring 
together France, Britain and the United States in sort of a policy 
commission that would settle allied disputes before any one of the 
three acted unilaterally. Both Britain and the United States 
rejected the idea. 



237 



Phleger: After the conclusion of World War II, the French made great 
efforts to re-establish their position as one of the world's 
great powers. The fact that France had been occupied by the 
Germans during the war and—at least part of the French—had 
collaborated with the Germans, caused a great loss of French 
prestige and they were anxious to re-establish themselves as 
a major political and military factor, on the world scene. 

The British and the United States, against opposition by 
the Soviet Union, insisted that France be one of the occupying 
powers of Germany and a French zone was established. I think 
Great Britain and the United States were anxious to re-establish 
the prestige and position of the French. 

As you recall, two or three years ago the French forced 
the United States and the NATO allies out of their military 
bases in France. They have done various other things, including 
DeGaulle's trip to Canada and his "Vive Quebec" speech, as well 
as the recent visit of the premier of Quebec to France and his 
decoration and his warm reception, all in support of Quebec's 
desire to be politically separate from Canada,* that have not 
endeared them to Canada, Britain or the U.S. 

Stein: I think that I remember in 1956, or thereabouts, the French 

Senate rejected membership in the EDC (European Defense Community) , 
which I think aroused Dulles' anger. 

Phleger: The original allied plan for the protection of Europe from 

Russia was based on organizing what was known as the European 
Defense Community. I remember meeting in Paris with the 
secretary and Mendes-France when he became prime minister of 
France. Mendes-France told us that he was opposed to EDC, 
although he felt that there were enough votes in the French 
parliament to join EDC. However, after EDC was defeated by the 
French refusal to join it, largely as a result of Mendes-France' s 
opposition, the North Atlantic Treaty and the re-establishment 
of Germany as an independent country and as a member of the NATO 
in effect established a military organization that was comparable 
to EDC. EDC, however, had a number of economic and commercial 
elements that are not contained in the North Atlantic Treaty. 
But the objective of EDC, after its defeat, was largely 
accomplished through the organization of the North Atlantic 
Treaty Organization. 



*The issue of political secession of Quebec from Canada was a 
volatile one in the early 1970s. France on several occasions 
appeared to be fanning the flames by bestowing legitimacy on 
the secessionists. 



238 



Stein: I wondered if this affected Dulles' attitude toward France at 
all. 

Phleger: I don't think so. The secretary was a graduate of the 

Sorbonne, spoke French fluently, and was always an admirer of 
the French and had cordial relations with them, particularly 
with people like [Jean] Monnet and other leading figures in 
France. I don't think the secretary had any real animosity 
toward any nation. He was very aware of the Communist threat 
of the Soviet Union and of international Communism, but with 
respect to other countries he, as far as I remember, had no 
antagonisms or dislikes. 



Sputnik and the Legal Ramifications of Orbiting Objects 

Stein: Let's get back to where we were, your return to your law firm. 

Phleger: I got back to practicing law. Shortly after I got back, in 
October of 1957, the Soviet Union launched Sputnik, which 
created a worldwide sensation. I remember standing out on the 
road at Woodside with Mrs. Phleger watching Sputnik streak 
across the sky. The Soviet Union got a great deal of prestige 
out of the fact that that was the first orbiting body launched 
by man. It recalled to me the interesting fact that the United 
States could have launched a Sputnik before the Soviet Union. 

When I was still legal advisor I was surprised one day by 
a request from the undersecretary for my opinion as to whether 
there was any legal objection to the United States orbiting an 
object in space. I was surprised that anyone thought that we 
were able to do that. 

I then did a little research, finding in the course of it 
that the State Department had a well equipped library and also 
a department that dealt with science and other such matters. 
I had thought at the time that the only way an object could be 
made to move in air or space was by being propelled by an 

emission that came out of the rear end and pushed it ahead. On 
my examination of the scientific facts I soon found that these 
orbiting objects must operate where there is no atmosphere and 
that the force that makes an object fly in space or in the 
absence of an atmosphere is the pressure of the propellent 
against the front end of the object and not what comes out the 
rear end. 



239 



Phleger: I then considered the question of whether or not, if we 

launched an orbiting vehicle, it would violate any international 
law. When I found that the object when it finished its course 
would fall and be consumed by the friction of the atmosphere, 
I concluded that there was no legal objection to our putting 
anything in orbit that would be destroyed before its return 
to earth, because while the law says that ownership extends to 
the skies above and to the center of the earth below that 
doesn't apply when you get into space, high enough over the 
earth where there is no atmosphere. 

I found that our own program was well advanced because we 
had planned as part of our participation in the geophysical 
year of 1957 to put an object in orbit and we did indeed put 
our Explorer I in orbit early in 1958. The object that we put 
into orbit was about the size of a basketball, but it contained 
all of the scientific instruments that would permit us to get 
just as much scientific information as the Sputnik got, which was 
somewhat larger. 

The United States from the inception of its work in space 
always, I think, tried to have the objects as small as were 
capable of securing the data desired and our orbiting objects 
were much smaller than those of the Soviet Union, which had a 
considerable effect later when we got into the realm of military 
missiles. 



240 



V CONTINUING CONTRIBUTIONS TO FOREIGN AFFAIRS, 1957-1975 



Representative to the Permanent Court of Arbitration of 
the Hague Conventions 



Phleger: Shortly after I retired from the State Department the president 
appointed me as a representative of the United States on the 
Permanent Court of Arbitration under the Hague Conventions. The 
Hague Conventions were the first general international effort 
toward a mechanism for the peaceful settlement of international 
disputes. I won't go into the history of the conventions, but 
it was under them that the Peace Palace at the Hague was built 
and continues to be maintained. The operating element under the 
Hague Treaties is an organization known as the Permanent Court 
of Arbitration under which each of the signatories to the Hague 
Peace Treaties appoints four representatives to the Permanent 
Court of Arbitration to which international disputes are to be 
submitted for mediation or arbitration or other peaceful 
disposition. 

The group consists of four representatives of each of the 
signatory nations. It has the management and title to the Peace 
Palace. Unfortunately, not many matters have been referred to 
the Permanent Court of Arbitration for settlement. I served 
two terms of six years each as a representative of the United 
States, from 1957 to 1963 and from 1969 to 1975, having been 
appointed first by President Eisenhower and later by President 
Nixon, and during that entire period no international dispute 
was submitted to the court. 

The court does have an important function under the charter 
of the United Nations because its members are empowered to 
nominate the candidates for judges on the International Court 
of Justice, which is the judicial arm of the United Nations and 
which sits in the Peace Palace. There are fifteen judges on the 
court. They serve six-year terms and are elected by the United 
Nations Assembly and Security Council from those nominated by the 



241 



Phleger: national representatives on the Permanant Court of Arbitration. During 
my service as one of the United States representatives we nominated 
candidates for every vacancy on the court, but as by common consent the 
United States is accorded one of the places on the International Court 
of Justice, our nominations of two U.S. citizens were followed by their 
election. 

During my first term, the term of Judge [Green Haywood] 
Hackworth of the United States who had, before he became a judge 
of the International Court of Justice, served as legal advisor 
of the State Department, expired. As he was then in his 
eighties, or close to eighty, it was thought that he was too 
old to be re-elected for another six -year term. Therefore, the 
nomination of his successor was an important duty that our 
United States group had. 

At that time, the U.S. representatives were myself, Judge 
David Peck, a former judge of the New York State Court of 
Appeal; Harold Armstrong Smith, a leading Chicago lawyer; and 
Bethuel Webster, a prominent New York lawyer. Under the 
provisions in the U.N. charter, the national groups are directed 
to make their nominations for the ICJ after consulting 
authorities on international law, universities and law schools, 
and other parties interested in international law. 

We followed that process, writing most of the prominent 
law schools in the United States, consulting associations of 
lawyers, and even consulting the Supreme Court of the United 

States. When we met in New York to make our selection, we were 
of the unanimous view that Phillip Jessup was the best qualified 
United States citizen to sit on the court. Jessup was a 
distinguished international lawyer, had been secretary to Elihu 
Root, had been on the faculty of Columbia University, and had 
been an assistant secretary of state. He was credited with 
having negotiated with the Soviet Union the lifting of the 
Soviet blockade of Berlin. However, in the course of his 
career, he had been an active member of the Council on Pacific 
Relations, an active and vocal group in the United States that 
had been criticized as being soft on Communism. When our 
nomination was announced, there was much criticism in the press 
and otherwise. 

I'm going to give you this record* [handing documents to 
interviewer] of the correspondence I had regarding Jessup 's 
nomination and particularly the editorials, articles, and letters 



--Documents are on deposit in the Herman Phleger papers, The 
Bancroft Library. 



242 



Phleger: in a Richmond newspaper and my reply. Glancing over the file, 
I find that the critic for the Richmond paper was James 
Fitzpatrick, now a prominent columnist and commentator. This 
is of interest as showing the controversy at that time regarding 
the so-called Communist influence in the U.S. government. 

Six years later, I was a member of the panel which nominated 
another American to succeed Jessup on the termination of Jessup's 
term. We nominated Professor Hardy Dillard of the University of 
Virginia, who had been dean of its law school and an eminent 
scholar in the field of international law. My associates at that 
time were Professor Richard Baxter of Harvard Law School; Herbert 
Brownell, former attorney general; and John Stevenson, a prominent 
New York lawyer then legal advisor of the Department of State. 

[Handing documents to interviewer] I'm going to give you a 
number of the annual reports of the Permanent Court of Arbitration 
which give more information, and also correspondence with the law 
schools and others regarding the qualifications of proposed 
candidates; also some articles regarding the procedure and method 
of selecting nominees for the International Court of Justice. 

I have been before the International Court of Justice in 
the Hague on several occasions. I argued one case before the 
court in 1955. 

In 1954, a controversy arose in the United Nations over 
awards by the United Nations Administrative Tribunal to United 
Nations employees who had been discharged for subversive reasons. 
The United States objected to this award and asserted it was not 
binding on the United Nations. 

Other members of the United Nations, including its legal 
advisor, and Great Britain, and a number of other members, 
including the Netherlands, took the position that the award was 
binding on the United Nations. The United Nations referred the 
matter to the ICJ for its advisory opinion. The matter came on 
before the court and I appeared as representative of the United 
States. 

[Handing document to interviewer] I have here the record 
of the proceeding.* The proceedings before the court are most 
formal. The fifteen judges sit on their bench in the Peace Palace, 



*Effects of Awards of Compensation Made by the United Nations 
Administrative Tribunal. Record of the Proceedings before the 
International Court of Justice, 1954. On deposit in the Herman 
Phleger papers, The Bancroft Library. 



243 



Phleger: each wearing the regalia of the country from which he comes. 

The counsel wear the attire they do in their own countries. For 
instance, in this case the attorney general of Great Britain 
appeared in wig and black gown. I appeared in a cutaway, such 
as is worn in our Supreme Court. The representative of the 
Netherlands had a fancy hat and robe. 

The arguments are made either in English or French and are 
translated into the other language. The questions from the bench 
are formal and you are not expected to reply immediately as you 
are in the Supreme Court of the United States, but must write 
out your reply and submit it the following day. 

I think our case, which had four or five participants, 
lasted at least two days. In any event, the whole record is 
here including the decision of the court which was to uphold the 
judgment of the administrative court. 

Stein: So the United States then ultimately had to pay-- 

Phleger: Had to pay its share into the United Nations to cover those 
judgments . 

I also engaged in two or three other proceedings before the 
International Court of Justice when I was legal advisor. We 
filed at least three complaints against the Soviet Union arising 
out of planes shot down and one against the Hungarian government. 
[Hands documents to interviewer] I have here the document 
initiating the proceedings against the Soviet Union.* In each 
instance the defendant nation refused to submit to the jurisdiction 
of the court and as a result those actions were dismissed. 

Stein: That, it would seem to me, is a great weakness in the inter 
national court. 

Phleger: It is, and yet on the other hand I must confess it would be a 

great danger to agree in advance to submit to the jurisdiction 
of an international court. [Hands files to interviewer] 

Here are the annual reports and the correspondence having 
to do with the Jessup and other appointments.* 



*0n deposit in the Herman Phleger papers, The Bancroft Library. 



244 



U.S. Representative at the Thirteenth General Assembly of the 
United Nations 



Phleger: In 1958, I was appointed by the president as one of the United 

States representatives at the Thirteenth General Assembly of the 
United Nations, which was in session from September to December 
in New York City. Each member nation has a permanent represen 
tative at the United Nations and then for each annual session of 
the General Assembly additional representatives are appointed 
for service at that session. For the Thirteenth Assembly the 
U.S. representatives were the Secretary of State; Henry Cabot 
Lodge, who was the permanent representative; and James J. 
Wadsworth, who was the deputy permanent representative. The 
representatives for the 13th General Assembly were Henry Cabot 
Lodge, Senator [Michael] Mansfield, Senator [Bourke] Hickenlooper, 
myself and George MacGregor Harrison, who was, I think, the 
president of a railroad labor union. The alternate representatives 
were Wadsworth; Marion Anderson, the singer; Watson Wise of Texas; 
Mrs. Oswald Lord, who was prominent in United Nations affairs; 
and Irving Solomon. 

I have here a photograph of the swearing in of the United 

Nations representatives for the 13th General Assembly.* [Hands 
photo to interviewer] 

Stein: That's quite a distinguished group. 

Phleger: The Assembly convened in September and adjourned just before 
Christmas. The business of the Assembly is conducted through 
various committees, including the Sixth Committee, which is the 
legal committee and on which I served as well as being a general 
representative. 

The principal matter we dealt with on the Sixth Committee 
was the law of the sea. Earlier there had been a law of the 
sea conference at which there had been a treaty agreed upon 
dealing with the continental shelf and the regime of the high 
seas, but there had been no agreement as to the width of the 
territorial sea, so the question of convening a second conference 
was under consideration. 

The United States was in favor of convening a second 
conference but although there was strong opposition we were 
successful in having a second conference called. As you know, 



*In the Herman Phleger papers, The Bancroft Library. 
on photo page following page 264. 



Reproduced 



245 



Phleger: the question of the regime of the high seas is now a very active 
and controversial one, particularly with respect to the resources 
of the sea bed. There have been a number of conferences since 
but no agreements have been reached. 

At the sessions of the General Assembly, the entire member 
ship of the United Nations is represented. At the Thirteenth 
General Assembly, there were eighty-five member nations. There 
are now over a hundred and fifty. 

When the General Assembly is in session, it only takes a 

look around at the delegates to show that the white race is very 

much a minority, greatly outnumbered by the representatives of 
the black, yellow and brown races. 

The accompanying social affairs are numerous, elaborate, 
interesting and important. Almost everyday there's a reception 
or a cocktail party or a state dinner at which one meets interesting 
people. The U.S. Embassy—that is, the residence of our 
ambassador --was the top apartment in the Waldorf Astoria Towers, 
I think the forty-third floor, with a large reception room with 
a ceiling which must be twenty-five feet in height. The U.S. 
receptions were held there. 

I remember one which Ambassador Lodge gave in honor of the 
U.S. delegation. We found that the ambassador had a fine singing 
voice as did the deputy representative. And, of course, we had 
Marion Anderson. After dinner everybody sang, including Marion 
Anderson who sang, among other songs, a song entitled, "He's Got 
the Whole World in His Hands," one of the most moving performances 
I have ever heard. 

Among other receptions was one by Marion Anderson, who had 
an apartment out on Fifth Avenue filled with works of art 
dedicated to her. There must have been eight or nine sculptures 
of her head by famous world artists. 

I remember also when the King of Cambodia, with all his 
family, gave a reception at the Waldorf Astoria where his 
children danced their native dances. Another interesting 
reception was given by the Aga Kahn. 

I have here a number of photographs taken at the U.N., which 
I'll give you.* [Hands photos to interviewer] Here is the 
reception given by the Mayor of New York [Robert Wagner] 



*Photos are in the Herman Phleger papers, The Bancroft Library. 



246 



Phleger: with Charles MEL! IX of Lebanon, who was then president of the 

General Assembly. The president of the General Assembly is an 
important figure in world affairs, and the office is generally 
held by a representative of one of the smaller nations, thus 
giving an able man from a small country an opportunity to play 
an important role in world affairs. 

Here are some letters and newspaper articles that give 
some background to the activities of the U.K. and also the formal 
report to the president of the proceedings of the Thirteen 
General Assembly.* [Hands documents to interviewer] At that 
time, Dag Hammerskjold was secretary-general. He was a man of 
great ability. On one occasion, prior to the Thirteenth General 
Assembly, I spent a day with him briefing him in connection with 
a U.S. request that he help secure the release of U.S. prisoners 
in China. You perhaps will remember that a U.S. B-29 was downed 
in China and the Chinese captured its crew, claiming they were 
on a spying mission. 

Stein: Was that the Powers Incident? 

Phleger: No, no. This was simply a U.S. military plane that had not 

intended to fly into China, but had strayed off course. It was 
not on a spying expedition. I got together a documentary report, 
very extensive, which I felt proved that the plane had not been 
on a spying mission but had strayed off course, and was overtaken 
by weather conditions. I spent almost a whole day alone with 
Hammerskjold and went over all of this evidence, a lot of which 
was physical. I found him most intelligent and cooperative. 
Later he personally negotiated with the Chinese and secured the 
release of our men. 

Stein: That's an interesting insight into the success of the United 
Nations. 

Phleger: We would never have been able to get those men out, but 
Hammerskjold did. 



*Documents are on deposit in the Herman Phleger papers, The 
Bancroft Library. 



247 



Antarctica Conference. 1959 



The Conference 



Phleger: In 1959 I participated in the Antarctica Conference which 
drafted the Antarctica Treaty. I am going to give you the 
entire record of it because it is a good example of how a 
delegation operates in an international conference. 

Secretary of State Herter asked me if I would represent 
the United States at this conference, which was convened to 
draft a treaty for Antarctica. He said that as the meeting was 
to be held in Washington, it was anticipated that the U.S. 
representative, who would be me, would be elected chairman so 
I would be expected not only to represent the United States, 
but to preside over the conference. I would also be given the 
rank of ambassador by President Eisenhower. 

Antarctica is an important strategic area of the earth's 
surface. Unlike the Arctic, which is water covered with 
floating ice, Antarctica is land. There are mountains in 
Antarctica that rise to almost twenty thousand feet and the 
temperatures are extremely cold. Most of the weather in the 
southern hemisphere originates in Antarctica. Antarctica has 
been the scene of a number of the great explorations; the 
earlier ones go back to the early part of the nineteenth century. 

We found that there were, altogether, twelve nations that 
were primarily interested in Antarctica. Most of them had sent 
expeditions to Antarctica; the Belgians, the Norwegians--[ Roald] 
Amundsen had discovered the South Pole. The British had had the 
[Sir Ernest Henry] Shackleton and Scott Expeditions. The United 
States had had the [Richard] Byrd Expedition which reached the 
South Pole. Nations such as Argentina, Chile and the Union of 
South Africa and New Zealand and Australia fronted on the 
Antarctic. Japan, through its fishing interests, also had a 
primary interest. 

The national expeditions over the years had the objective 
of staking out territorial claims, but the weather, with 
temperatures down to eighty degrees below zero, and winds up to 
100 miles per hour and other physical conditions made it impossible 
to establish permanent settlements and occupy definite territory. 
No nation at the time of our conference had claimed to have had 
real possession. However, because of increased accessability by 
air, the recognition of its unique scientific opportunities and 
particularly its strategic location, there had been an increasing 



248 



Phleger: interest in Antarctica. The opportunities for scientific inquiry 
and discovery furnished by Antarctica are probably greater than 
any other area of the globe. 

During the International Geophysical Year of 1957, most of 
the nations that participated in the 1959 conference had sent 
expeditions to Antarctica. The largest of all was the Soviet 
Union Expedition. The United States was also there in force, 
acting through the navy. Most of the exploration was under 
military auspices because only the military had the organization, 
the discipline, and the transport required for operations in that 
cold and barren area. 

The U.S. interest was greatly increased by the realization 
that many of the countries of the southern hemisphere are within 
atomic missile range of Antarctica. With ballistic missiles with 
a range of 2500 miles and more, it would be possible for a nation 
to locate missile bases in Antarctica that would command the 
southern part of Africa, South America, Australia, and New 
Zealand. This gave great impetus and urgency to working out 
some international agreement that would prohibit the building up 
of military bases or the use of Antarctica for military purposes. 

Also, most of the weather of the southern hemisphere 
originates in Antarctica and the fallout of atomic explosions 
there would cover a good part of the southern hemisphere. 
Therefore the prohibition of atomic explosions was in the 
interest of all the countries in the southern hemisphere. 

The winds, storms and weather of the northern hemisphere 
do not penetrate into the southern hemisphere and vice versa, 
and if atomic explosions and fallout were confined to the 
northern hemisphere, the southern hemisphere would be immune. 

All of those factors contributed to the desirability of an • 
international treaty that would establish a regime for Antarctica 
prohibiting its use for military purposes, banning atomic 
explosions, and preventing controversy over its ownership. 
Claims were being advanced by various nations of ownership of 
large areas in Antarctica based on exploration, and other grounds. 

Fortunately, the area is not susceptible to permanent 
settlement and while it has great mineral resources, they are 
difficult to utilize commercially and there was general agreement 
by the interested nations that they should meet and agree on a 
regime that would protect all their interests. 

Fortunately many scientists had been in Antarctica and were 
interested in its scientific possibilities; they have a different 
attitude toward political matters than do politicians and diplomats, 



249 



Phleger: and so they were all in favor of working out some sort of regime 
that would preserve Antarctica for scientific inquiry and bar 
its use for military purposes. So at the invitation of the 
United States the nations that were to participate in the 
conference held preliminary discussions in Washington looking to 
the formulation of a treaty. 

It was valuable to have had these preliminary discussions, 
because when our conference convened we had a general idea of 
what nations would or would not agree to, and while there were 
big gaps in agreement and there were many disputes in the 
conference, the preliminary work was of great value. 

Our representative in the preliminary work was an able 
diplomat, Ambassador [Paul Clement] Daniels. He was appointed 
deputy U.S. representative at the conference and was very helpful 
in working out the final agreement. 

The conference was held in Washington. I have a number of 
photographs here which include most of the participants.* [Hands 
photos to interviewer] The Soviet representative was [Vasili V.] 
Kuznetsov, who has just become vice president of the Soviet Union. 
He's an able, intelligent person. He was, at that time, a deputy 
foreign minister. He had as deputy, Grigory Tunkin, the legal 
advisor of the Soviet foreign office. He was an important factor 
in the final formulation of the treaty and most helpful in arriving 
at a successful conclusion. He spoke French, German, English and 
Spanish and was invaluable in the work of drafting the treaty. 

Stein: I think you mentioned to me once that a good deal of the success 
of that conference was because you were able to carry on the 
sessions in secrecy. 

Phleger: That was extremely important. Woodrow Wilson used to advocate 

"open convenants openly arrived at." As far as my experience is' 
concerned, you could no more have negotiated a treaty like the 
Antarctica Treaty in open sessions that you could fly. 

[end tape 1, side 2; begin tape 2, side 1] 

Phleger: It's practically impossible to negotiate an international treaty 
in open sessions because the positions taken by the negotiating 
nations are reported in the press and when a nation takes a public 
position it is difficult for it to modify it or reverse it. 
Therefore, I believe that the possibility of achieving an inter 
national agreement is greatly increased if the negotiations are 



*In the Herman Phleger papers, The Bancroft Library, 
are reproduced following page 250. 



Two photos 



250 



Phleger: carried on in private. We reached a stage in the Antarctica 

Conference where there were so many differences and so much 
public comment and so many instructions coming back from the 
foreign offices to the negotiating parties that I suggested 
that we meet in executive session with nobody present except 
a single representative of each of the twelve participating 
nations. That was followed out, much to the annoyance of the 
press which got no leaked gossip and proceeded then to have a 
complete blackout about the conference. But it enabled us 
after two or three weeks in executive session to negotiate an 
agreement that met everyone's approval. When we announced that 
we had a treaty the newspapers were so taken by surprise that 
there was not as much publicity about it as its importance 
merited. 

Stein: Did any of the other eleven nations object or raise any arguments 
against its being executive session? 

Phleger: I remember the British representative saying that his father 
had been in the foreign office and that whenever a conference 
started to have closed sessions, they'd know that it was a 
failure. However that may be, in our case the procedure was 
a success and I don't think the conference would have reached 
agreement if we had continued to negotiate in public. 

On the day following the signing of the treaty, I appeared 
on the "Today" show on television, I have here the soundtrack of 
my interview with Martin Agronsky on the "Today" show, in which 
he questioned me about the treaty and the conference.* [Hands 
record to interviewer] 

This treaty has provided a basis or pattern for negotiations 
regarding outer space and the law of the sea and the seabed 
because this was the first treaty between nations dealing with 
areas that had not been reduced to ownership and in which they 
all had a common interest. 

I have here the working papers of the Conference, the 
instructions to the U.S. Delegation and other documents having 
to do with the conference. Here are photographs of the 
participants, and press releases. [Hands documents to interviewer]** 
I'm sure there are some of these that may be of interest because 
it is a complete record of an international conference. 



*The interview, on a long-playing record, is on deposit in the 
Herman Phleger papers, The Bancroft Library. 

** On deposit in the Herman Phleger papers, The Bancroft Library. 




Ambassador Herman Phleger addresses the Antarctica Conference, 1959. 




Sir Esler Dening, U.K., (right) congratulates Ambassador Phleger (left) 
at the conclusion of the Antarctica Conference, 1959. U.S. Secretary 
of State Christian Herter stands between them. 



251 



Stein: I think this is all very valuable because, as you say, it 
shows what happened to an idea, from its inception to its 
conclusion. 

Phleger: Among other things, there are the briefing papers which 

constituted my instructions, the limits to my discretion and 
the fall -back positions I could take. All these matters are 
worked out in detail before the conference starts. There is 
here a biographical sketch of every national representative 
so that I could know his background and what he's interested in 
and what he's done in other conferences. Here are the lists 
of the delegations. This will give you a complete record of 
the whole conference.* [Hands documents to interviewer] 

Stein: That is a very valuable collection. 

Phleger: Here is a handbook of the conference which shows you how to get 
to the conference room and where it is and what the translations 
are. We had simultaneous translations in all of the languages. 
I think the final treaty was in English, French, Russian and 
Spanish. The task of having a perfect duplication of the language 
and meaning in all those languages was a major endeavor performed 
by a committee on style. 

The committee on style adopted an interesting procedure. 
They would take the English language of a provision of the treaty 
and translate it into each of the other languages and then would 
have a different group retranslate it into English to see if it 
conformed with the original. 



Senate Ratification of the Antarctica Treaty 



Phleger: I will give you a copy of the proceedings before the Senate having 
to do with the Senate's consent to ratification of the treaty. 
As the debates will show, there was a great deal of opposition in 
the Senate to the ratification of the treaty. This opposition had 
its source in the military establishment. The treaty had a rigid 
prohibition against any military activity in Antarctica. This 
would prohibit the flight of airplanes over Antarctica for 
military purposes. The Air Force particularly and the Marine 



*This collection of documents related to the Antarctica Conference 
is on deposit in the Herman Phleger papers, The Bancroft Library. 



252 



Phleger: Corps felt that the United States had done a great deal of 
exploring in Antarctica and ought to preserve the right to 
fly over it and use it for military purposes. While the 
Joint Chiefs of Staff were in favor of the treaty, because 
they were part of the administration, many retired officers 
and other military people put up a real opposition to the 
treaty. 

Ordinarily it isn't the job of the person who negotiates 
a treaty to manage the Senate's consent to its ratification. 
That's a political matter. But after the Antarctica Treaty had 
been signed and before it had been ratified, Secretary of State 
Christian Herter asked me if I would come back to Washington 
and take charge of the work of securing Senate ratification. 
Evidently, no one in the administration wanted to undertake this 
task. I consented after I had ascertained that the official 
position of the Joint Chiefs of Staff was that they were in 
favor of the treaty. In fact, they had to because this was a 
project of the administration in power, and Eisenhower was still 
president. 

I went back and spent a considerable period working up the 
material that would be presented to the Senate to justify its 
consent to ratification. I soon found that there was opposition, 
as I say, by the military, centered in the Senate Armed Services 
Committee, the chairman of which was Senator Richard Russell of 
Georgia. He was probably the most powerful man in the Senate 
and when I talked to Senator [William] Fulbright, who was the 
chairman of the Foreign Relations Committee, he expressed the 
view that he didn't think it was possible to secure ratification 
of the treaty against the opposition of the Armed Services 
Committee and particularly of Senator Russell. 

However that may be, we proceeded to get up our presentation 
for the Foreign Relations Committee hearings. I have a letter 
in the record that I'll give you that expresses Fulbright 's view 
that it would be extremely difficult to get the treaty ratified. 
In any event, we prepared our presentation. 

We had valuable help from a geologist who had been a member 
of the Byrd Expedition and who knew a great deal about Antarctica, 
Lawrence Gould, who had been president of Carleton College in 
Minnesota and currently was professor of geology at the University 
of Arizona. He had been a member of the Byrd Expeditions to 
Antarctica and knew all about Antarctica and his testimony was 
vital. 

I remember my appearance before the Senate Foreign Relations 
Committee to testify in support of the treaty. I felt that I 
would be the first witness because I was representing the 



253 



Ehleger: administration which had made the treaty. But I ran into one 
of the manifestations of senatorial courtesy. When the 
committee met and the ratification hearings started, I rose to 
take the chair and found that I was not going to be the first 
witness but that Senator Clair Engle of California, an opponent 
of the treaty, would be the first witness, and the second witness 
by senatorial courtesy would be Senator Ernest Greening of 
Alaska, also an opponent. Engle and Greening, I think, were 
both members of the Armed Services Committee. Greening was the 
Senator from Alaska and the military in Alaska are the most 
powerful political element there. 

So the two Senators proceeded to take the treaty apart 
before we had even an opportunity to introduce the subject. 
After the two Senators had testified, I testified at length. 
A number of Senators on the committee were very helpful, 
particularly Senator Hubert Humphrey and Senator Fulbright and 
a number of others. 

I recall a question to me about the valuable minerals in 
Antarctica. I replied that I was not a geologist and was not 
qualified as an expert but while I knew there were a lot of 
minerals there, I didn't think that they were valuable because 
of the difficulty of mining and transportation. However, I said 
that we did have a witness, Professor Gould, who could speak 
to that subject. 

When Gould testified he was questioned about whether there 
were any minerals in Antarctica. His answer was, "Yes, there 
are fifty different minerals." The question then proceeded, 
"Isn't it wrong to give up all our claims on the fifty minerals 
when they might be extremely valuable?" To which Gould replied, 
"There are fifty minerals in Antarctica and I wouldn't give you 
five cents for the whole lot. They are buried under such depths 
of ice in such unfavorable locations that it would be totally 
uneconomical to attempt to exploit them." 

I remember also Senator Humphrey asking Gould about the 
weather conditions. He asked, "Isn't it a fact that during the 
summer months in Antarctica the weather gets so that it's quite 
livable?" To which Gould replied, "Senator, the warmest four 
months in Antarctica are comparable to the four coldest months 
in Minneapolis. The maximum temperature is about forty degrees 
below zero." 

Finally, after extensive debate, the treaty was ratified 
by not too great a margin. The opposition, led by Senator 
Russell, worked hard to defeat it and a number of Senators with 
whom the military forces had influence opposed it. 



254 



Phleger: Showing what happens to treaties, some years later, I would 
say about 1972 or 1973, I was in the Hawaiian Islands at New 
Year's and went to a reception at Claire Luce's. The guest of 
honor was William Buckley, who was on his way to Antarctica 
where he was to meet Senator [Barry] Goldwater. I asked Buckley 
if he had read the Antarctica Treaty. He hadn't even heard of 
it. I suggested to him that it might be a good idea to read it 
as it was short. When Buckley got back from Antarctica he wrote 
me and told me that he had read the Antarctica Treaty and what 
a great treaty he thought it was. 

I also saw in the newspapers some interviews with Senator 
Goldwater in which he also spoke effusively about what a great 
treaty the Antarctica Treaty was and of his visit in Antarctica. 
I looked up the record and found that Senator Goldwater had voted 
against the ratification of the treaty and now he was expressing 
great admiration of the initiative of the United States in making 
such a treaty. I wrote to my friend Arthur Krock of the New York 
T ime j . recounting this and he wrote an amusing letter back, the 
original of which I'll give you, in which he commented that this 
was par for the course with politicians. [Laughter] 

Stein: Did you ever discover why Goldwater had changed his mind? 

Phleger: No. Well, he didn't change his mind until he went down to 

Antarctica and saw how important the place was and what a great 
thing it was to have it free of Soviet Union missiles and atomic 
weapons and all the rest. He was much impressed with the regime 
that the treaty inaugurated, whereas, I guess, as a general in 
the Air Force Reserves he had been influenced by the military as 
a Senator to oppose the treaty. Anyhow, I have all of that 
c or r e spond enc e . * 

The treaty never would have been ratified, I think, except 
that we had some good friends in the communications field, as 
they call it now, particularly Arthur Krock, Roy Howard of the 
Scripps -Howard papers, Frank H. Bartholomew of U.P.I., Eugene 
Meyer of the Washington Post and a number of other newspaper men. 
During the time that the matter was before the Senate these 
newspapers, in editorials and otherwise, explained the importance 
of the treaty, its desirability, and created a public opinion 
which was helpful in getting the treaty ratified. 



*This correspondence is on deposit in the Herman Phleger papers, 
The Bancroft Library. 



255 



Stein: Were these newsmen that you had become friends with while you 
were legal advisor? 

Phleger: Well, I had known a number of them, like Eugene Meyer and Roy 

Howard and Arthur Krock, for many years. I got a number of them 
together up at the Bohemian Grove during an encampment before 
the session of the Senate at which the matter came up. I 
enlisted their support and help by explaining the treaty and its 
advantages. They were convinced of the importance of getting 
the treaty ratified and devoted much space in their papers to 
urging its ratification. 

Stein: That says a great deal also for the efficacy of informal 
contacts like that. 

Phleger: It certainly does. You can discuss matters at length and get 

sympathetic hearings in informal conversations that you couldn't 
get otherwise. I'm sure that if I hadn't known those men I 
wouldn't have been able to talk on such terms with them nor 
would they have been as enthusiastic. 

I remember also a close friend of mine, Chip Robert (L.W. 
Robert) of Atlanta, who had been treasurer of the Democratic 
National Committee for a number of years, and a prominent 
Democrat. He had been assistant secretary of the treasury and 
an intimate friend of Senator Russell. I wrote and telephoned 
him and asked him to get Senator Russell's support for the treaty. 
He assured me that that would be easy because Dick Russell was a 
great friend of his. A week later I had a telephone call and 
later a letter from him in which he said that he had gone to see 
his friend Senator Russell and there was no chance whatever of 
getting him to support the treaty [laughter]. 

Stein: At least you knew where you stood. 

Phleger: Yes, I did. 

[end of tape 2, side 1] 



Review of Herman Finer, Dulles Over Suez 

[Interview 11: November 29, 1977] 
[begin tape 1, side 1] 



Phleger: In 1964 Quadrangle Press published Dulles Over Suez, a book by 

Herman Finer. Finer was a professor of history at the University 
of Chicago. In the course of his research he interviewed a number 
of participants in the Suez Crisis, including me. Shortly after 



256 



Phleger: its publication, I was asked by the review editor of Time-Life 
to write a review of Finer 's book for publication in Life, 
which had shortly before established a book review section. 

[Hands file to interviewer] I have here my correspondence 
with the review editor of Life covering this matter.* Included 
in it is my draft of the proposed review as I submitted it and 
a copy of the article after it had been edited by Life. 
[Referring to galley proof] This is the way Life edits an 
article. 

My review was accepted for publication but because of the 
intervening publication in Life of articles about the Aswan Dam 
and about Krushchev, the editors of Life decided not to publish 
my review. I was paid for it, however, and as I was anxious not 
to lose the copyright on it, I asked for its return. The review 
editor returned my draft in a letter in which he said that I was 
free to use it again as it was their practice to pay for a review 
which had been accepted even if it was not published. The review 
is of interest because it points out that Finer 's book contained 
the first public revelation of the Israeli-French-British 
conspiracy. In fact, that was the only real contribution to 
history which that book made. Otherwise, it was a diatribe. 

Stein: Just for the record, what was your feeling about the book? 

Phleger: Oh, the book was a diatribe, an assault on Dulles and, as my 

review points out, it was full of inaccuracies. But the book, 
which had received some publicity, was so biased, inaccurate and 
extreme it never received any real acceptance. Allen Dulles and 
I, after discussing the question of some refutation, both agreed 
that it would be a mistake to publish any refutation because it 
would give publicity to Finer 's book, which was being ignored 
and had little circulation. 

Stein: I know that it was mentioned in your oral history with the 
Princeton Library. 

Phleger: That's right. Well, it's an interesting review, I think. 



*The review and related correspondence is on deposit in the 
Herman Phleger papers in The Bancroft Library. 



257 



Eleventh Dominion Legal Conference, 1960 

Phleger: In 1960 the American ambassador to New Zealand, Ambassador 
[Francis H.] Russell, wrote me that the New Zealand Law 
Association was planning its Eleventh Dominion Legal Conference 
and had decided to invite me to address the conference which 
was slated for April 16-19, 1960, in Wellington, New Zealand. 

I received the invitation in due course, which also 
informed me that the Lord Chancellor of Great Britain, Viscount 
Kilmuir, would also address the conference. 

We accepted the invitation and attended the conference. It 
was a three-day meeting attended by most of the bar of New 
Zealand, with a number of guests from Australia. The New Zealand 
government arranged a tour of New Zealand for Viscount and Lady 
Kilmuir and Mrs. Phleger and myself, and we spent several days 
touring that beautiful country, being royally entertained at 
every stop. Viscount Kilmuir 's wife, Lady Kilmuir, was Rex 
Harrison's sister and was a delightful companion. 

The New Zealand Law Journal published a record of the 
conference which includes all of the addresses, including Lord 
Kilmuir's and my own [hands volume to interviewer].* 

Also, here are some interesting clippings from New Zealand 
newspapers about the [Caryl] Chessman case [hands clippings to 
interviewer].** I don't know whether you recall the Chessman 
case, which involved the trial in California of Chessman, who 
was convicted of kidnap and rape and was sentenced to death. 
The case evoked world-wide publicity and I was surprised in New 
Zealand to find the extent of public interest there in the case. 
There were public meetings to protest the Chessman conviction. 
He was then on death row in San Quentin and his appeal was pending. 

I was interviewed two or three times by the press there 
about the case. As you will see from these interviews, I took 
the position that the interminable delays, which were one of 
the bases of the complaints that the New Zealanders were making, 
were caused by Chessman's maneuvers and that of his attorneys to 



*See New Zealand Law Journal. Eleventh Dominion Legal Conference, 
Wellington, 1960, on deposit in the Herman Phleger papers, The 
Bancroft Library. 

**Clippings re Caryl Chessman are on deposit in the Herman 
Phleger papers, The Bancroft Library. 



258 



Phleger: get more time to build up public opinion against carrying out 
the sentence of capital punishment. I took the position that 
Chessman was responsible for the delays and expressed the 
opinion that in due course the judgment of execution would be 
affirmed and carried out, as proved to be the case. But it 
shows how much international agitation there can be about a 
criminal case in the United States. 

One interesting experience was a lunch the New Zealand 
cabinet gave for Lord Kilmuir and myself. We had an early lunch 
so the cabinet could go later that afternoon to the rugby test 
matches at which the New Zealand All -Black team would be selected, 
The team was thereafter to tour the world representing New 
Zealand. Well, when they learned that I had played rugby at 
the University of California, they invited me to go with them. 
So we all went out and watched the test match, which was a fine 
demonstration of rugby football at its best. 

I remember seeing one player kick a goal by a drop kick 
from play from the middle of the field, which was fifty-five 
yards from the goal posts. It's the longest drop kick goal I 
have ever seen. Today, when we place-kick a field goal from 
fifty yards we think it's terrific, but this was a drop-kick 
goal from play of fifty-five yards. 

The competing players came from all walks of life; the 
program would have a short, terse description of each player, 
such as John Jones, farmer; William Smith, carpenter, and so 
forth. New Zealand has always had great rugby teams, and their 
players come from all walks of life. 

Stein: Was there anyone else at the conference that deserves mention? 

Phleger: The Chief Justice, the attorney general and other important 
officials and members of the bar of New Zealand spoke. In 
this book, the addresses are printed and there are photographs 
of the events [ indicating photographs] . 

Stein: Did the Lord Chancellor and these other people appear in their 
wigs and robes during the meeting? 

Phleger: Yes, yes, as is shown in the photographs. 



259 



Dedication of Kendrick Hall. University of San Francisco. 1962 

Phleger: On September 28, 1962, I delivered the address at the dedication 
of Kendrick Hall at the Law School of the University of San 
Francisco. One day early in 1962, I was walking up Sutter Street 
and Mr. [Charles] Kendrick stopped me and said that he had made 
a gift to the University of San Francisco to build a law school 
building and he would like to have me make the dedication address. 

So, on Saturday, September 28, 1962, I went out to the 
University of San Francisco and participated in the ceremonies, 
and made the dedication address marking the completion of 
Kendrick Hall, built at a cost of one and one-half million 
dollars. The proceedings and the address and the attendant 
ceremonies with photographs of the building were recorded in a 
brochure. [Hands pamphlet to interviewer]* The University of 
San Francisco Law School is a fine law school with many 
distinguished alumni, including at least half of the superior 
judges in San Francisco. 

Stein: That says a lot. 



European-American Assembly on Outer Space 



Phleger: In 1962 I was invited to participate in the European-American 
Assembly on Outer Space which was held in Brighton, England on 
May 13-16, 1962. In 1960 I had participated in a meeting of the 
American Assembly of Columbia University at Arden House where the 
subject discussed was "The Secretary of State." I think it was 
that fact together with my earlier participation in the 
Antarctica Conference that resulted in my invitation to the 
Brighton Conference. It was a meeting of German, French, British 
and American military officers, government representatives and 
scientists in a broad discussion of outer space and possible 
international agreements with respect to its use. It was a 
distinguished group and the proceedings were stimulating and 
productive . 

Stein: How many countries participated? 



*See "Program for the Dedication of Kendrick Hall on the Fiftieth 
Anniversary of the University of San Francisco, School of Law, 
1916-1962," 9/28/62, on deposit in the Herman Phleger papers, The 
Bancroft Library. 



260 



Fhleger: Prance, the United Kingdom, the United States, Germany, Italy, 
The Netherlands, Belgium, Canada, Sweden. Here is a list of 
the participants and they were a distinguished group.* The 
conference proceedings were published and formed part of the 
material that has since been used in international conferences 
dealing with the use of outer space. 

The conference showed much interest in the Antarctica 
Treaty which they considered furnished a precedent for similar 
agreements regarding outer space. 



Stein: 



What came out of this conference? 



Phleger: A report which was widely circulated and was utilized, I'm 

sure, in later international conferences considering the use 
of outer space. 



Clay Committee. 1962 



Phleger: Later in that year, in December 1962, I was appointed by 

President [John F.] Kennedy as a member of a committee which had 
the high-sounding title of Committee to Strengthen the Security 
of the Free World. I remember telling the president I thought 
that was a rather broad, all-inclusive title and later it was 
changed to Committee to Help to Strengthen the Security of the 
Free World. Actually, it became known as the Clay Committee, 
taking the name of its chairman, who was General Lucius Clay. 

The task of the committee was to formulate for the president 
a program for U.S. foreign aid for the following year. There 
were twelve members on the committee. 

Among them was George Meany, president of the AFL-CIO. I 
have been on two committees with Meany, the Clay Committee and 
later the Arms Control and Disarmament Advisory Committee, and 
had met Meany years before in World War II when he was secretary 
of the AFL and we were trying to settle the captive coal mines 
strike. Meany always operated on the same basis. He would 
appear at the first meeting of the committee when the photographs 
were taken and then he would never appear again until the final 
meeting, where more photographs were taken. All of the working 
papers and material that were distributed to members of the 



*0n deposit in the Herman Phleger papers, The Bancroft Library. 



261 



Phleger: committee would be delivered to one of Meany's assistants. The 
AFL-CIO has able scholars and experts on its staff and when the 
final report of the Clay Committee was made, it was unanimous 
except for a scholarly dissent by George Meany, which I'm sure 
he hadn't even read, and which no doubt was written by an expert 
on the AFL-CIO staff. 

In the course of the deliberations of the committee, which 
met for two or three-day sessions over a period of about four 
months, I went with General Clay to meet with Representative 
Gerald Ford (later President Ford), who had taken an interest 
over the years in foreign aid and was well informed on that 
subject. We had a pleasant talk with him. He was a great 
believer in foreign aid and was helpful to the committee. I 
won't go through the various ramifications of the committee 
work, but General Lucius Clay is a man of great ability and 
direct and forceful and the committee sessions were businesslike 
and productive. 

The way the committee operated was to call various officials, 
including the chairman of the Joint Chiefs of Staff, the principal 
military and foreign aid officers and question them as to their 
views and recommendations about the amounts of and character of 
foreign aid to various countries. Statistical and other material 
from the various agencies would be submitted and considered. 
After the committee had heard the testimony and considered the 
material on a particular country--and I'll use one illustration, 
let's say on Indonesia—General Clay would call in a secretary 
and then and there dictate a draft of the report we were going to 
make on Indonesia. Of course this draft was reviewed and revised 
at later meetings. 

When we were discussing Indonesia, its ruler was [Achmed] 
Sukarno, who was much interested in his women friends as well as 
in government. American oil companies, particularly Cal-Tex 
and Shell Oil, had important oil concessions in Indonesia, and 
there were threats of Sukarno taking them over. 

During our discussion on Indonesia, I suggested that we 
specify in our report that aid to Indonesia was subject to the 
provisions of the Hickenlooper Amendment. The Hickenlooper 
Amendment provided that if any nation expropriated American 
property without adequate and prompt compensation, it would lose 
U.S. government aid. At that time, Averell Harriman was 
assistant secretary of state for the Far East. When he heard of 
that proposal he called on the committee and gave it a stern 
rebuke for interfereing with the exercise of the foreign policy 
of the United States arguing that only the president and secretary 
of state had the power or qualifications to determine whether or 
not the Hickenlooper Amendment should be invoked. 



262 



Phleger: In any event, we stuck with our guns and put the Hickenlooper 
Amendment provisions in our final report and it was contained in 
the Foreign Aid Act. About a year later, Sukarno announced that 
he intended to seize the foreign oil concessions, and left on a 
vacation in Japan. The affected oil companies arranged a meeting 
with Sukarno in Japan. Averell Harriman attended that meeting 
following which it was announced that Sukarno had decided not to 
seize the American oil concessions. Some time later, an officer 
of an American Oil company, who attended the meeting, told me 
that Averell Harriman had been extremely effective at the meeting 
by pointing out that if Sukarno expropriated the U.S. oil con 
cessions, U.S. aid would terminate because under the Hickenlooper 
Amendment the president and secretary of state had no discretion 
in the matter and as a result Sukarno decided not to terminate the 
oil concessions. 

Stein: What other recommendations did that committee make? 

Phleger: They recommended the enactment of a Foreign Aid Bill of three 
or four billion dollars divided between military aid and non- 
military aid. 

Stein: In light of all the fuss that's being made these days about 
human rights and aid to countries that deny human rights, I 
wondered if that was an issue.* 

Phleger: I don't think the Foreign Aid Act contained any provision about 
any country losing its aid if it failed to observe human rights. 
But in any event, Congress, in considering the legislation and 
the amount of aid, gives consideration to the political situation 
in the country to which the aid was being granted, including its 
record on human rights. 



Arms Control and Disarmament Advisory Committee, 1962-1968 



Phleger: In 1962 President Kennedy appointed me a member of the Arms Control 
and Disarmament Advisory Committee on which I served until 1968. 
We met once a month for at least two days in Washington during 
that entire period and advised the president and the secretary of 



*A key element in the program of President Jimmy Carter, elected 
in 1976, was the denial or cutting of foreign aid to countries 
exhibiting severe limitations on human rights. 



263 



Phleger: state on arms control and disarmament matters. The committee 
was established by an act of Congress and its members were 
appointed by the president and confirmed by the Senate. 

I have here a list of the members [hands file to interviewer].* 
The chairman was John J. McCloy, who had been assistant secretary 
of war during World War II and president of the World Bank and a 
man of great ability and experience. On the committee were Roger 
Blough, chairman of the board of the United States Steel Corpora 
tion; the Reverend Edward A. Conway of Creighton University, who 
specialized on arms control; John Cowles, publisher of the 
Minnesota Star and Tribune; Dr. George B. Kistiakowsky, professor 
of chemistry at Harvard and science advisor to President 
Eisenhower; Dean McGee, chief executive of the Kerr-McGee Company; 
Ralph McGill, the editor of the Atlanta Constitution; George Meany, 
president of AFL-CIO; Dr. James Perkins, president of Cornell 
University; a Nobel laureate, Isidor I. Rabi, nuclear physicist 
of Columbia University; General Thomas D. White of the U.S. Air 
Force, retired, formerly Chief of Staff; and Dr. Herbert York, 
chancellor of the University of California at San Diego. 

The committee made annual reports to the president. Here 
is a photograph of the swearing-in ceremony [hands photo to 
interviewer].** That's President Kennedy and the group, including 
Isidor Rabi, who is the smallest. Over at one end there is 
Senator [Hubert] Humphrey, who sponsored the legislation that 
created the committee and Senator [William] Fulbright, chairman 
of the Foreign Relations Committee. It was an interesting and 
able group and over the years we discussed all sorts of matters 
with the chairman of the Joint Chiefs of Staff, Secretary of 
Defense [Robert] McNamara, and other military and government 
officials and scientists. 

The Vietnam War was going on at that time and we were 
constantly briefed on the military situation there. I must say • 
that our military advisors predicted that we would soon see the 
light at the end of the tunnel and the war would be brought to 
a successful conclusion. Few in government realized that the 
Vietnam War was a civil war and while the Communists were helping 
one of the sides, Communism was not the issue. The issue was the 
reunification of Vietnam and who would run the reunified country. 
That never seemed to penetrate their minds. 



*See file on General Advisory Committee of the Arms Control and 
Disarmament Agency, on deposit in the Herman Phleaer papers, The 
Bancroft Library. 

**Photo is on deposit in the Herman Phleger papers, The 
Bancroft Library. Reproduced on photo page following page 264. 



264 



Phleger: As a result of considerable thinking about the Vietnam 
situation, and having participated in the Vietnam Conference 
in 1955, and served on the Arms Control and Disarmament 
Advisory Committee for eight years, I have come to the 
conclusion that the motive force behind the American policy 
was the belief of the military and The Best and the Brightest* 
that Communist China would become a great military force and 
it was important for the United States to have a military 
presence in Southeast Asia with adequate bases to contain any 
possible threat to world peace from the Chinese Communists. It 
seems to me there's no other rational explanation for the 
millions of dollars that were poured in to establish permanent 
U.S. military bases in South Vietnam like Cam Ranh Bay, which 
represented an investment of millions of dollars. I believe 
our military intervention in Vietnam was planned as a step in 
the establishment of a permanent American military presence in 
Southeast Asia. 

Often our committee would have dinner with groups of 
senators and government officials. I remember one dinner in 
the State Department dining room at which Senator [ Stuart] 
Symington and Senator [John] Stennis were present. I was 
seated near them and we got into a discussion about the Vietnam 
War. This took place about the middle of the war and in reponse 
to their questions I told them that I did not think that the war 
in Vietnam had the significance that justified the American 
effort. I used as an example the fact that we had a Southeast 
Asia SEATO Treaty which, if war was a Communist threat to 
Southeast Asia, called upon the signatories to the treaty to 
join in a common resistance to the threat. The fact was that 
Great Britain and France, who were parties to the treaty, made 
no contribution whatsoever and the contributions of the other 
countries who were parties were so minimal as to be merely 
token. 

I said, "Here is the Philippines, a nation of thirty 
million people only a few hundred miles away from the fighting 
and they've made no real contribution at all. Australia made 
only a token contribution and I think there was practically 
no New Zealand contribution. The Thailand contribution was 
simply bases paid for by the United States. Pakistan, of course, 
made no contribution." 



*See The Best and the Brightest by David Halberstam (Random 
House, 1969) , an account of the advisors of Presidents Kennedy 
and Johnson. 




Swearing-in ceremony, U.S. delegation to the United Nations 13th General 
Assembly, September 12, 1958. From left to right: Watson W. Wise, Marion 
Anderson, Ambassador James J. Wadsworth, Senator Bourke B. Hickenlooper , 
Chief of Protocol Wiley Buchanan, Secretary of State John Foster Dulles, 
Herman Phleger, George M. Harrison, Mrs. Oswald B. Lord. 




Swearing-in ceremony, Arms Control and Disarmament Advisory Council, 
April 2, 1962. At far right of lineup is President John F. Kennedy. 
Hubert Humphrey is third from right; Herman Phleger, with striped tie 
is ninth from right. 



265 



Phleger: I said we only had to look back to World War II at the 
contributions that Australia and New Zealand made to realize 
what these countries were capable of if they thought their 
security was in danger. In World War II they sent divisions 
to the Near East and to the European fighting because they felt 
it was important to their own security. The fact that the 
countries in the area that should be most concerned at a 
Communist threat to take over Southeast Asia had not made any 
real contribution to the Vietnam conflict I thought was 
persuasive evidence that the great threat didn't exist and 
that we were simply witnessing a civil war. 

When I got back to San Francisco I got wires from both 
Stennis and Symington asking me if I would telegraph them the 
substance of what I had said to them because they wanted to use 
it in the Senate. Well, perhaps being a little timid I wrote 
to them that they had heard my story and if they thought enough 
of it they could make a statement themselves. What I had told 
them was a historic fact and I didn't think I should become 
involved personally, as I was on the Arms Control and Disarma 
ment Committee. There was never any facing up to the fact that 
we were participating in a civil war over the reunification of 
Vietnam and who was going to run it after it was reunified. 
While it was true that the Soviet Union and the Chinese helped 
North Vietnam, this was not a Communist move to take over 
Southeast Asia and I think subsequent events have proven that. 

/ 

Stein: So, in other words, you disagree with the military assessment 
that Communist China-- 

Phleger: I did at all times. 

[end tape 1, side 1; begin tape 1, side 2] 

Stein: About Vietnam, we were talking a couple of weeks ago about the 
whole issue of the power of the president as commander -in-chief 
in peace time and the relation between him and Congress, and I 
wonder what your assessment of that constitutional problem was 
in light of Vietnam, where there never was a declaration of war. 

Phleger: The fact is that Congress simply surrendered its prerogatives. 

I was asked by Senator John Sherman Cooper and one or two others 
as to what Congress might do to reassert its right to participate 
in these important decisions in foreign affairs. They were 
suggesting that there might be legislation. 

I replied that the Constitution gave the president certain 
powers in the field of foreign affairs, but it also gave Congress 
tremendous powers in the same field. For instance, Congress had 
the power of the purse and could assert its views, particularly 






266 



Phleger: when it came to military activities, by controlling appropriations. 
I also pointed out that the Senate had to confirm the president's 
appointments of ambassadors, and of military officers. The 
Senate had to consent to the ratification of treaties. Congress 
had the power of investigation. I suggested that if Congress 
simply exercised its powers, the president would soon realize 
that he would have to cooperate with Congress in these foreign 
operations, particularly those that involved military activity 
and the expenditure of funds. However, during that period 
there was such a political domination of the Congress by the 
president that the president wasn't challenged by the Congress. 
It was the public that was doing the challenging, not the Congress. 

I think that the Congress since that time has begun to 
reassert its authority. 

Stein: In other words, what you are saying is that by the time of the 
Vietnam War, that balance that you had when you were in the 
State Department as a result of the Bricker Amendment -- 

Phleger: That is correct. The threat of the Bricker Amendment influenced 

the conduct of foreign relations by the president for a considerable 
period, particularly domestically, the presidential power grew 
and grew, not only in the domestic field but in the foreign field 
because of the presidential power over members of Congress 
particularly through his control over the expenditure of federal 
funds and his domestic political power. 

The committee dealt with the question of the anti-ballistic 
missile. As a result of U.S. satellites transiting the USSR, 
the U.S. gained much information regarding the USSR atomic 
missile installations as well as its atomic program in general 
including its anti-ballistic missile installations. The 
information that can be obtained by satellite is remarkable. 
For instance, a satellite one hundred miles or more above the 
earth can read the auto license number on an auto on the earth's 
surface. As a result, the U.S. has pictures of all the atomic 
missile installations both in the USSR and China. 

When agreement regarding arms control and disarmament was 
under discussion there was a split in our advisory committee 
on the question of inspection and control. About half took the 
position that agreements with the Soviet Union weren't of any 
value unless we had a right and an opportunity by on-site 
inspection to determine whether or not it was complying with the 
agreements. It was argued that it didn't make sense to enter 
into an agreement with the USSR limiting the number of nuclear 
missiles or missile launchers if we were not able to verify by 
inspection whether or not it was complying with the agreement 
and that required on-site inspection. 



267 



Phleger: The USSR was adamant on the question. They would not permit 

on-site inspection because they argued it would actually be used 
by the U.S. for espionage purposes. 

The other half argued that information supplied by the 
satellites and the CIA would be adequate to provide enough 
evidence of non-compliance. I believed this view was not 
realistic because missiles and launchers can be concealed in 
hangars and in other ways so as to be undetected by a satellite. 
Further, they can be moved and now with MIRVs--independently 
targeted small missiles at the end of a large one—it is 
impossible from a satellite to determine how many MIRVs are on 
a larger missile. You can transport missile launchers by truck. 
You can camouflage them. So I believe it's a fallacy to think 
that we can determine whether or not the USSR is living up to 
its agreements unless we have the right of on-site inspection. 
But there is always a great urge to make agreements to reduce 
the risk of nuclear war and to get on with the job so we made 
a SALT agreement that has no provision for on-site inspections. 

In any event, at one stage, the U.S. discovered that the 
Soviet Union was building an anti-ballistic missile system 
designed to shoot down incoming missiles before they could 
reach their target. Through our satellites we found that radar 
screens, some as big as football fields, had been installed near 
Moscow to detect incoming missiles. 

As a result of a great deal of scientific inquiry, advice 
and discussion, the U.S. authorities became convinced that the 
anti-ballistic missile system was not a good system and money 
expended in building one for the U.S. would not be justified 
by the results that could be obtained. I remember saying, 
"Well, instead of making an agreement with the USSR that we 
won't build more than one, if the USSR didn't build more than 
one (because that was the agreement that was made), why don't 
we let the USSR continue to build anti-ballistic systems if 
they're not effective? Let them bankrupt themselves." 

Well, anyhow, after much publicity we made an agreement with 
the USSR on anti-ballistic missiles under which the U.S. was 
limited to one installation and the USSR was confined to one. 

Stein: But there was no provisions for on-site inspection? 

Phleger: No, the SALT agreement has no provision for on-site inspection. 
The anti-ballistic missile system is a complicated system with 
radar and radio and computers. During our discussions Roger 
Blough, then chairman of the U.S. Steel Corporation, remarked, 
"I didn't know that the government had the kind of scientific 



268 



Phleger: personnel in its establishment that could design or build an 

anti-ballistic system." To which the reply was made, "It really 
doesn't; when we want a system like the anti-ballistic system, 
we employ the American Telephone Company or Western Electric or 
General Electric or some other company to design it." At our 
next meeting they introduced a group of young men, most of them 
in their thirties or forties who were designing the American 
anti-ballistic system. I think they were all from Western 
Electric and American Telephone and Telegraph Company. 

The work of the Arms Control and Disarmament Committee is 
recorded in its annual reports of which I have one or two here 
[hands documents and photo to interviewer].* Here is another 
photograph of the committee showing the swearing-in of ex-Senator 
[Maurinej Neuberger to fill a vacancy on the committee. 

Stein: I thought you might want to comment here, since you have this 
experience, on the recent round of disarmament talks and the 
SALT** talks with the Soviet Union. 

Phleger: From what I know of the SALT agreements I doubt they are any 

advantage to the United States — in fact, a disadvantage — because 

we have agreed to limit what we can do to a point which places 
us in an inferior position to the Soviet Union. We really don't 
know what they're doing because we have no right of inspection 
and no way of determining whether they're living up to their 
agreements. I don't think we're justified in making agreements 
about disarmament with the Soviet Union unless we are in a 
position to verify whether it's living up to its agreements. I 
think any nation which is so fearful of an outsider coming in to 
see whether or not it is complying doesn't qualify as one to make 
an agreement with. 

Stein: Is the Antarctica Treaty the only time that the Soviet Union-- 

Phleger: It's the only treaty I know of that has a provision for inspection 
of Soviet property, bases, and ships and we've religiously made 
inspections every year. It's interesting, but scientists have 
a different attitude on these things than the military people 
do. The scientists are usually willing to share their scientific 
knowledge, whereas the military people are quite the contrary. 



*The documents and photos are on deposit in the Herman Phleger 
papers, The Bancroft Library. 

**Strategic Arms Limitation Treaty 



269 



Stein: If you were to engage in any speculation about the future of 

the state of affairs of the Soviet Union, in terms of disarma 
ment, what would it be? 

Phleger: [Chuckles] That's a large subject. Well, as I pointed out, 
when the USSR was building anti-ballistic missiles which we 
thought were not of any value, we should have let them spend 
themselves into bankruptcy. But it seems to me that the only 
way we're going to get on any permanent peaceful relationship 
with the USSR is to settle the controversial political subjects 
which divide the two nations. We're not going to settle them 
by war. We're going to settle them in some way by their 
accepting some of our positions and we accepting some of theirs. 
But the most important thing we can do at present is to promote 
the free flow of people and ideas and commerce between the two 
nations. 

I've been in Russia. There's a great ignorance in Russia 
about the United States and the rest of the world. I've been 
amazed in talking with Russians to learn how little they know 
about the rest of the world and I must say that's true about our 
knowledge of Russia. If we could get a free flow of ideas, 
newspapers and people between our countries, it would be a big 
help in our quest for peace. 

I think the increasing use of the English language throughout 
the world is an important step toward world peace as is radio 
and television and the press. 

In the United Nations I found that practically every nation, 
no matter what its language, spoke in English when it addressed 
the U.N. Assembly because it knew that what was said would be 
immediately reported in the American press and in Time and 
Newsweek, and other English language publications which are 
circulated all over the world. The major exceptions were the 
Soviet Union and France, whose representatives speak Russian and 
French for prestige reasons. 



270 



VI PUBLIC AFFAIRS, COMMUNITY, AND FAMILY 



American Bar Association Commission on Electoral College Reform 



Phleger: Here is the Report of the American Bar Association Commission 
on Electoral College Reform [hands volume to interviewer].* 

In 1966 I was appointed by the president of the American 
Bar Association on a committee which was engaged in considering 
the question of a reform of the electoral college, which history 
has shown has many defects. Because of the manner in which the 
members of the Electoral College are chosen and vote, we have 
had presidents elected by a minority of the people. This 
commission worked for approximately a year and a great deal of 
research was done in connection with its work. This report and 
the statistical material with it contains a historical record of 
every presidential election. 

The commission was made up of the following members: Robert 
G. Storey, of Texas, a former president of the American Bar 

Association, chairman; Henry Bellmon, governor of Oklahoma; Paul 
Freund, the eminent scholar and professor of constitutional law 
at Harvard Law School; E. Smythe Gambrell of Georgia, ex-president 
of the American Bar Association; Ed Gossett of Texas, also an 
ex-president; William T. Gossett, son-in-law of Chief Justice 
[Charles Evans] Hughes, also an ex-president; William J. Jamison, 
United States District Judge from Montana; Senator Kenneth 
Keating of New York; Governor Otto Kerner of Illinois; James G. 
Kirby of Illinois; James M. Nabrit of Washington; myself; C. 
Herman Pritchitt; Walter P. Reuther of the CIO from Michigan; 
and Whitney North Seymour, a prominent New York lawyer and 
ex-president of the American Bar Association. 



*The report is on deposit in the Herman Phleger papers, The 
Bancroft Library. 



271 



Phleger: We finally agreed on a report recommending a constitutional 
amendment providing for the election of the president by popular 
vote with a provision that if the leading candidate did not 
receive at least forty percent of the vote, there would be a 
run-off between the two highest candidates. There were some 
qualifications. I, for instance, proposed that the electoral 
college system should be continued, but the electors should be 
chosen by dividing the electoral college vote of a state between 
the candidates in the same proportion as its popular vote. That 
would preserve the system of giving each state two electoral votes 
for its two senators and also prevent the election being decided 
by one vote in the Hawaiian Islands cast after all the rest of 
the votes in New York and the Eastern states had been counted up. 

There were others who had that same view but we all did 
agree that the present electoral college system should be 
improved. There was much public interest in our report and 
electoral reform but Congress moves slowly in amending the 
Constitution. I noticed recently there has been a reagitation 
for electoral reform and I think it's only a matter of time 
until we have it. 

Certainly, if Governor Wallace had caused the election to 
go into the House of Representatives when he ran, it would have 
precipitated a constitutional amendment. 

Stein: I notice with a number of these committees that you served on 
that you were appointed by a Democratic president. 

Phleger: Oh, yes. I was appointed on the Clay Committee by President 

Kennedy and I was appointed on the Anns Control and Disarmament 
Committee both by President Kennedy and by President Johnson. 

Stein: These were then non-partisan committees. 
Phleger: That's right. 

You said you did not have my contribution to the Herbert 
Hoover oral history program giving my account of the libelous 
article in the magazine Mercury about Hoover's handling of 
Russian relief after World War I. I have it here and I'll turn 
it over to you [hands documents to interviewer] . It contains the 
material that is in both the Hoover Library at West Branch, Iowa, 
and in the Hoover Institution at Stanford. It includes the 
libelous article that appeared in the Mercury, my account of the 
disposition of the matter and also reproductions of my correspon 
dence with President Hoover.* 



*This material is on deposit in the Herman Phleger papers, The 
Bancroft Library. 



272 



Stein: That's very valuable. 

Phleger: I also have here a brochure that was given to me in 1972 when 
the Herman Phleger Visiting Professorship in the School of Law 
at Stanford was established. It's interesting because in it 
there's a statement by President Sterling about how he met me 
when Stanford was searching for a president. It was Sterling's 
first intimation that he was being considered for that presidency. 



Opportunities Rejected 



Phleger: I have been fortunate in the advice I have gotten from my friends. 
That goes back to 1930, when I was asked by John Lord O'Brien, 
who was the deputy attorney general of the United States, to 
represent the United States government in a suit that was then 
pending in the United States District Court for the district of 
Delaware, entitled the United States of America v. Radio 
Corporation of America, General Electric Company, American 
Telephone and Telegraph Company, and others. I have here the 
correspondence in which I was asked to undertake this work 
[hands documents to interviewer] .* At that time I was engaged 
in some litigation in Los Angeles for the Los Angeles Gas and 
Electric Company and also in the Hawaiian Islands in the Waialua 
agricultural case, but I was tempted to accept this invitation 
to represent the government in this important anti-trust suit. 

I went to my good friend Garrett McEnerny, who had befriended 
me on many occasions and asked his advice. He advised me not to 
undertake this representation. 

Stein: Why not? 

Phleger: He said, "If you go East and are successful in this litigation, 

you'll stay in the East and you'll never come back to California. 
I think that that's too much of a sacrifice to make. You'll 
be in demand back there and you will never come back." 

So, I declined the offer, as I should have because I had 
too many other things to do, but I've never regretted that I 
didn't accept that retainer. 



*These documents are on deposit in the Herman Phleger papers, 
The Bancroft Library. 



273 



Phleger: Then after World War II I was invited by Secretary [James] 
Forrestal, who was then secretary of the navy (this was on 
February 24, 1947), to be a representative of the United States 
at theU.N.on the committee that was then dealing with the 
subject of disarmament as it related to conventional weapons. 
I consulted my good friend, Eugene Meyer, and he advised me 
against taking it because he pointed out that I was then acting 
as attorney for the Bethlehem Steel Company in a case and for 
others engaged in the manufacture of munitions and that I would 
be subject to criticism, so I declined that, which I thought was 
also fortunate for me.* 

In 1947, I think, the International Bank was established 
and Eugene Meyer was made its first president and set up the 
organization. He asked me at that time to become general counsel 
for the bank. That would have entailed moving to Washington. 
When I found that all of the top officers of the International 
Bank had to become, in effect, international civil servants, and 
practically lose their nationality—while that had some advantages 
because it relieves you from paying United States income taxes 
on your salary, it made you sort of an international citizen--! 
didn't think that was anything I wanted to undertake. 

I was also asked to be general counsel for a large bank and 
also general counsel for a large oil company which would have 
entailed my retirement from general practice, but, as I say, I 
stuck to my last and I never have been sorry for it. I've been 
fortunate in having practiced in one place all my life, San 
Francisco, and I've only had two offices. I was in the Crocker 
Building from 1915 to 1941 and in 111 Sutter Street from 1941 to 
1977. This room I'm sitting in is only the third office I've 
ever had.** [Chuckles] 

Stein: That's really quite remarkable. You've really remained your own 
boss. 

Phleger: A great part of the satisfaction of being a lawyer is being 
your own boss. When you become a house counsel for a large 
organization, you lose your independence. When a lawyer becomes 
counsel to a single client he loses a great deal, of his value 
because he loses his independence. It's difficult to be an 
employee in an organization and be a good legal advisor. 



*See correspondence, Herman Phleger to James Forrestal, February 
24, 1947, in the Herman Phleger papers, The Bancroft Library. 

**In 1977 the firm moved its offices to the Spear Street Tower, 
One Market Plaza. 



274 



Phleger: Then I was in Washington during the debate on Roosevelt's 

Supreme court-packing bill. 

Stein: That must have been very exciting. 

Phleger: It was indeed and it would make you proud of the quality and 

character of the debate in the Senate. President Roosevelt used 
all the power of his office to force the bill through the 

Senate. But the opposition, which was lead by younger men, was 
outstanding in its dedication and ability. The Senator who 
stood out more than any other--and he died only a few years ago-- 
was John Burton Wheeler. With him leading the debate were 
Senator [Joseph] O'Mahoney, Senator [Millard] Tydings of 
Maryland, and Senator [Patrick] McCarran, of Nevada. 

Then I was present at the debates in the United Nations in 
1956 on the Suez Crisis when Abba Eban, Selwyn Lloyd, Prime 
Minister Pearson and others debated the issues. 



Clubs 



Phleger: San Francisco is famous for its clubs and I've been fortunate 
to belong to some of them. 

I joined the Pacific Union Club in 1919 and am one of its 
few fifty-year members. I was president of the club in 1952-1953. 

I've been a member of the Burlingame Club since 1927. 

I became a member of the Bohemian Club in 1932 and am now 
a member of its "Old Guard," made up of those who have been 
members for forty years, and who enjoys certain priorities for 
that reason. The club has a camp ground on the Russian River 
where its summer encampments are held, and where the members live 
in separate camps. 

I have been a member of Camp Mandalay at the Bohemian Grove 
for many years. Here is a copy of the history of Mandalay which 
I wrote and which I think is entertaining, even to somebody who 
doesn't belong to the club. [Hands book to interviewer]* 

Stein: It's a nice little insight. 



*History of Mandalay Camp by Herman Phleger, is on deposit in 
the Herman Phleger papers, The Bancroft Library. 



275 



Phleger: I have here a few photographs of the Grove taken during a 

summer encampment. Here is a photograph of Jim Black, who was 
a member of Mandalay, and here also is a photograph of John 
Francis Neylan who was also a member of Mandalay. Here's a 
picture taken recently-well, it's not so recently, 1971--of 
myself and Bill Buckley. 

Stein: Was he a guest there? 

Phleger: Yes, he was. Now, here are two pictures called camp pictures of 
the members of the camp and their guests, one taken in 1968 and 
one in 1971. Included are many who have connections with 
Berkeley,* for instance, Steve Bechtel and Steve Bechtel, Jr. 
and John McCone, also Jim Black, Edgar Kaiser, and Shermer 
Sibley, who was president of the PG&E and who lost his life 
recently while fishing. 

Stein: This is a lovely picture. Does your little book tell how the 
camp got its name? 

Phleger: Sure, it tells everything [chuckles]. It's the sort of book 
that I doubt your Bancroft Library has. 

Stein: Yes, this is very ephemeral material. 

Phleger: I belong to the California Club in Los Angeles and the Links 

Club in New York. Also the French Club in San Francisco, which 
is a delightful club: Cercle de 1 'Union. I don't speak French 
but I enjoy good French cooking and they have it. 

In Washington I belonged to the F Street Club, Metropolitan 
Club, the Chevy Chase Club and the Burning Tree Club, and enjoyed 
them all. 



Being in the Right Place at the Right Time 



Phleger: I have traveled considerably and as a result I've been in 

interesting places at interesting times. For instance, I was 
in Europe, as I pointed out, at the beginning of World War I. 
I was in Rome the day the crown prince of Austria-Hungary was 
assassinated. 



*These photos are in the Herman Phleger papers, The Bancroft 
Library. 



276 



Phleger: I was in Washington for some weeks in 1919 and 1920 and 
I heard the debates in the United States Senate when the 
Senate voted against the U.S. joining the League of Nations. 
The case I was working on didn't take all my time and I would 
sit in the Senate gallery and listen to the debates. I heard: 

Senator [William] Borah, Senator Hiram Johnson of California, 
Senator John Cabot Lodge, Senator [Gilbert] Hitchcock, and other 
great orators. Having listened to the whole debate, I thought 
the opponents of our joining the League of Nations had the 
better of the argument. 



Charitable Activities 



Phleger: Now, as the last topic on the agenda I'm going to tell you 
something about our family and Mrs. Fhleger. 

Stein: Before you get into that, I do want to ask you about the 

charitable foundations that you've been connected with. Is 
this a good time to put that in? 

Phleger: That's all right. I have participated in a number of 

charitable projects. As distinguished from the foundations, 
I was chairman of the Board of Trustees of Children's Hospital 
in San Francisco for about twenty-five years, I would say from 
1925 to 1950. I have been a trustee for at least forty years 
of the William G. Irwin Charity Foundation. 

Stein: What is that? 

Phleger: That's a foundation that was founded by Mrs. William G. Irwin, 
widow of William G. Irwin. Mr. Irwin came to San Francisco 
from the Hawaiian Islands, where he was a prominent banker and 
capitalist. He was one of the founders of the Mercantile Trust 
Company, a predecessor of Wells Fargo Bank. Mr. and Mrs. Irwin 's 
daughter was Mrs. Paul Fagan and she left most of her estate to 
the Irwin Foundation, which now totals around twenty million 
dollars. 

I've been a trustee of the William P. Roth charity foundation 
and of a number of other foundations. 

Stein: You have been on the Irwin Foundation board then for forty years? 

Phleger: About that. I recall a contribution of, I think it was, $25,000 
to The Bancroft Library for the publication of the papers of 
Hiram Johnson. The foundation has made many contributions to 



277 



Phleger: educational, medical schools and other charities in the Hawaiian 
Islands and in California. It also gave the initial funds for 
the Irwin Memorial Blood Bank. 

Stein: Is there any underlying theme or structure to the gifts? 

Phleger: No, the gifts must be for charitable purposes and are limited to 
California and the Hawaiian Islands. It has made substantial 
contributions to various hospitals, including the intensive care 
unit to Mills Hospital. It gave a chair in cardiology at 
Stanford. 



Mary Elena Macondray Phleger and Her Family 



Phleger: Now, to get to Mrs. Phleger. As I've told you, Mary Elena 

Macondray and I were married on April 2, 1921 in Menlo Park. 
She was the daughter of Atherton Macondray and-- 

[ end tape 1, side 2; begin tape 2, side 1] 

Phleger: --is a fourth generation descendent of two Calif ornians. One 
was Frederick W. Macondray, who was born in Massachusetts. He 
became a sea captain and came to California before the age of 
twenty-one and sailed up and down the coast collecting hides. 
He also spent six years in Macao, China, where his daughter Lucy 
was born, who later married James Otis, mayor of San 
Francisco. He came to San Francisco on January 1, 1848 and 
established the import and export firm of Macondray and Company, 
which continued for many years. 

Stein: What sort of things did they import and export? 

Phleger: Oh, everything, but mostly the trade was with the Orient. 
Macondray and Company had a branch in Manila, which still 
exists. I have here a brochure published recently by the 
Manila firm which has an account of Captain Macondray and his 
activities. [Hands brochure to interviewer.*] We have in our 
home at Woodside the original portrait of Captain Macondray, 
which is reproduced in that brochure. 



*The brochure, "The Macondray Story," is on deposit in the 
Herman Phleger papers, The Bancroft Library. 



278 



Phleger: Captain Macondray had a residence in San Mateo, in 1853, 
called "Brookside," with an extensive garden and conservatory. 
He was the founder of the California Agricultural Society and 
much interested in horticulture. His home in San Mateo was 
later sold to the Parrotts. 

Her other California ancestor was Faxon Dean Atherton, 
who was born in Dedham, Massachusetts in 1815. He settled in 
Valparaiso, Chile in 1833. He voyaged around the Pacific from 
1836 to 1839 and wrote a diary which has been published and 
The Bancroft Library undoubtedly has a copy of it. He married 
in Valparaiso a member of a prominent Chilean family, the Gofii 
family, so Mrs. Phleger is part Chilean. 

Atherton moved to California in 1860 and established a home 
at what is now the town of Atherton. Showing the heritage of 
the sea, Mrs. Phleger 's brother Atherton entered the Naval 
Academy and rose to the rank of admiral in the United States 
Navy. 

We have three children: Mrs. William Goodan of Pasadena 
(Mr. Goodan is a grandson of Harry Chandler of the Los Angeles 
Times) ; Anne Phleger, Mrs. Milo S. Gates; and Atherton Macondray 
Phleger, who is a lawyer and a member of our firm. 

Stein: Is Mrs. William Goodan 's first name Polly? 
Phleger: Yes, she's Polly. 

Stein: I remember in your German diary that there's an entry fairly 

early about a telegram that you received telling you that Polly's 
child had arrived. 

Phleger: That's right. Polly's eldest child is Roger Goodan. I think 
that wire came from Frazer Bailey of the Matson Navigation 
Company. 

Mrs. Phleger has been active in several charities. She 
was president of the Visiting Nurses Association of San Francisco, 
and was for years a director of the de Young Museum, a director 
and vice president of the Children's Hospital of San Francisco 
and engaged in other charitable activities. She is an 
enthusiastic member of the Garden Club of America. 

Stein: I have some questions about her family since they are such a 
prominent family. 

Phleger: Go right ahead. 

Stein: I know that the Atherton family for a long time maintained a 
home at Fair Oaks. 



279 



Phleger: That's where Atherton's home was. Fair Oaks is now Atherton. 
Stein: I wonder if your wife remembers much of the family traditions. 

Phleger: She does indeed. I always disliked eating innards. I can't 
stand them. But Mrs. Phleger tells me that when she was a 
child, the family would have Sunday dinner regularly with 
Mrs. Selby, the widow of Faxon Atherton Macondray. The Sunday 
dinner consisted of six or seven courses and Mrs. Selby always 
served brains and sweetbreads and liver and kidneys and all 
sorts of gourmet innards, and if Mrs. Phleger didn't eat every 
thing that was served she was told that she would never be 
invited again. So she got so that she enjoyed all of these 
strange innards which I never could. 

Stein: I gather that there was a fairly formal pattern of visiting. 

Phleger: Yes, there was, these are written up in two or three books by 

Gertrude Atherton, who married one of the Atherton sons (George) 
and has written much about California and the Atherton family. 

Stein: I looked over that book* and I wondered if that was an accurate 
portrayal. 

Phleger: I understand that it is. I don't think the Athertons liked her 
writing about the family and their friends but I think it's 
probably an accurate portrayal. 

Stein: Did they just object to having private family matters aired in 
public? 

Phleger: I understand so. 

Stein: There seem to be several family names that figure in various 
generations, the Selbys, for example. 

Phleger: There is. Atherton's name was Faxon Dean Atherton. Mrs. Phleger ': 
father's name was Faxon Atherton Macondray. There's another name 
that is constantly recurring: Mary Elena, and that's not only 
Mrs. Phleger 's name but it's the children's and grandchildren's 
and neighbors. The granddaughter of our Chinese cook is named 
Lisa Elena Lu. 

Stein: That has a certain musical ring to it. 



*Gertrude Atherton, Adventures of a Novelist (1932). 



280 



Phleger : 
Stein: 

Phleger : 



Stein: 
Phleger: 

Stein: 
Phleger: 

Stein: 
Phleger: 

Stein: 

Phleger: 

Stein: 

Phleger: 

Stein: 

Phleger: 



There are Mary Elenas all over the map. 

I gather that there are also some last names that keep 
reappearing, like Selby. 

Faxon Dean Atherton's daughter married Frederick W. Macondray, 
Jr., and when he died, she married Percy Selby. Their daughter 
was Mrs. Harry Hunt of Pebble Beach whose husband was for years 
president of the Cypress Point Club. One Atherton daughter, 
Florence, married Edward L. Eyre and a granddaughter (Elena 
Macondray) married Perry Eyre. The Perry Eyre's daughter is 
Mrs. Marshall Madison (Elena Eyre). 

Then there was a Faxon, Jr. , who married Jenny Selby? 

One son of Mrs. Percy Selby was Faxon Atherton Macondray, who 
was Mrs. Phleger 's father and a brother of Mrs. Selby married 
Gertrude Horn, who was Gertrude Atherton, the author. 

That's right. That was George. 

That's right, Gertrude Atherton tells how, after his death in 
South America, his body was brought back pickled in a barrel of 
whiskey. 

Gertrude Atherton tells that story quite dramatically in her 
book. I gather that Mrs. Phleger 's father died just shortly 
before your wedding. 

He did. He died at the age of forty-nine, as did Mrs. Phleger's 
brother, Admiral Macondray. But fortunately Mrs. Phleger has 
survived to a hearty age [chuckles]. 

She didn't take after the men in the family. 
No. 

Then I came across names of people who were associated with 
Macondray and Company. A number of them are Macondrays and I 
assume that they were sons. Then there was a P.W. Selby. 



That's Percy W. Selby, who married Mrs. Macondray. 
built the Selby Smelter up in Crockett. 



His company 



Was there a deliberate attempt to keep the Macondray Company in 
family hands? 

The Macondray family owned it for three generations, but its 

interest was directed elsewhere when the only male in the 

fourth generation, Atherton Macondray, entered the Naval Academy. 



281 



Phleger: As you'll note from the brochure I gave you, the company now 
is headquartered in Manila and it's owned by a group who came 
in when Mrs. Phleger 's father was alive. As a matter of fact, 
Mrs. Phleger's father and his family, including Mrs. Phleger, 
spent four or five years in Manila at the Manila branch in the 
early 1900s. I think they returned from Manila in June 1905, 
before the earthquake in 1906. 

Stein: She must have been a fairly young child. 

Phleger: She was. She was born in 1898, so she was down there when she 
was quite young. 

Stein: Was there a stevedoring company also in Manila that was 
associated with the Macondrays? 

Phleger: Yes, you'll find the history of all those operations in that 
book. 

Stein: Is there anything more that needs to be said about your wedding? 
I found the newspaper account of it which reported that you were 
married by Reverend Hugh Montgomery. 

Phleger: Yes, that's right, in the little Episcopal Church in Menlo 

Park. I remember the church was decorated by the Donohoe girls. 
Mary Emma Flood, who is a close friend of Mrs. Phleger, was 
then abroad and could not attend. My wife is the godmother of 
the daughter of Mary Emma Flood, now Mrs. Theodore Stebbins. 
She's the godmother of Polly Phleger. 

Stein: I noticed also that your old friends and roommates, Archibald 
Tinning and Farnham Griffiths were your ushers. 

Phleger: They were, and my brother Carl was best man. 

Stein: Mrs. Phleger's sister was-- 

Phleger: Inez (Mrs. William Hume) was the maid of honor. 

Stein: Who gave her away? 

Phleger: Her brother, Admiral Macondray. 

Stein: One last question: How did you and Mrs. Phleger meet? 

Phleger: I don't remember the exact occasion. After Mrs. Phleger's debut 
there were a number of dances and balls to which I was invited, 
and I probably met her at one of these occasions. 



282 



Homes 



Phleger: The statistics show that the average American family moves 

every four and a half years. We have been fortunate because 
we have really had only three homes. After we were married we 
lived for six years in a walk-up flat, as Mrs. Phleger described 
it, at 2442 Broadway in San Francisco. Then we bought a 
residence at 3858 Jackson, where we lived from 1928 to 1937. In 
1937 we bought our home in Woodside, which we live in now. I've 
been a commuter for many years, although for many years we had 
an apartment in San Francisco during the winter four months. 
During World War II when gasoline rationing was in force we had 
an apartment at the Brocklebank for about five years and then for 
nine years we had an apartment in the wintertime at 840 Powell. 
But our home has been in Woodside since '37. 

When we went to Washington we were fortunate. Mrs. Phleger 
leased a historic home there called the Yellow Tavern, 1521+ 33rd 
Street in Georgetown. It was built in pre-revolutionary times 
and had originally been a tavern. Among other advantages it had 
the only swimming pool at that time in Georgetown. It was very 
attractive. When our lease was up, we moved to Senator John 
Sherman Cooper's home at 2900 N Street which was a fine example 
of the federal design. Later when Cooper retired as ambassador 
to India and we had to move out, Mrs. Phleger leased the Chris 
[Christian] Herter house at 3108 P Street which had previously 
been occupied by Allen Dulles, so we had some attractive homes 
when we were in Washington. 

I'll tell you just a little about Woodside. Here is the 
map which shows where our house is located and how you get 
there [hands map to interviewer]. We bought the house in 1937 
and here is a photograph of it. This is the kind of house that 
you don't see much of anymore. [Pause to look for photograph] 
That's an aerial photograph [hands photo to interviewer].* The 
architect of the house was Gardner Dailey, and it is the first 
residence he designed. 

Stein: That's very elegant. It looks like you have a formal garden in 
the back there? 

Phleger: We do. This is the house. This is the meadow. Our home is 

known as Mountain Meadow. There is the swimming pool. This is 

an apple orchard and this is the formal garden. That's the rose 

garden with a hedge of holly and this is the hot house and here 
is the picking garden. 



*The map and photograph are on deposit in the Herman Phleger 
papers, The Bancroft Library. 



283 



Phleger : 

Stein: 

Phleger; 

Stein: 

Phleger: 

Stein: 

Phleger: 



Stein: 

Phleger: 

Stein: 

Phleger : 

Stein: 

Phleger: 



Originally we bought 115 acres, which we call the home place, 
and then we acquired 1200 more acres so we have 1315 acres in all. 
Our nearest neighbor is a mile away. 

That's really quite remarkable. 

Here are two or three photographs which give some idea of the 
country [hands photos to interviewer] .* This is a view from 
the house toward the south. 

That's remarkable. You'd never know that you were in a 
metropolitan area. 

And this is a view of the meadow. 

How has the meadow survived the drought? 



We had enough water to continue 
'but we let it go to hay because 
relations to be watering a four' 
when others didn't have water, 
a picture of the meadow looking 
picture taken some years ago by 
Dassonville, who was a friend of 
interviewer] 



to irrigate it as we have springs, 
we thought it was poor public 
•acre meadow during the drought 
But it's all green now. Here's 
toward the house. This is a 
the famous photographer W.E. 
mine. [Hands photograph to 



This is a photograph of, our family, Mrs. Phleger and the 
three children, taken some years ago on the terrace. [Hands 
photo to interviewer] This is a photograph taken on our fiftieth 
wedding anniversary, April 2, 1971. There's the whole family 
with the exception of William Goodan who was ill. 

Are they all identified? No, they're not identified. 

You can identify Mrs. Phleger and myself. 

That's Atherton standing right behind you? 

Yes, that's right. 

Then this must be one of the daughters standing on your right? 

This is Mrs. Gates and this is Mrs. Goodan, and that's Mrs. 
Goodan 's daughter, Amanda. This is Mrs. Gates and this is 
Atherton Phleger 's son and this is Mrs. Gates' son, this is 



*0n deposit in the Herman Phleger papers, The Bancroft Library. 



284 



Phleger: Atherton Phleger's wife, Joan. This is Susie, who went to Paris 
and studied French and just made Phi Beta Kappa at the University 
of Colorado. Now, that was taken, of course, in '71, so they've 
grown up now. 

There aren't many big places like ours, anymore, and I 
doubt there will be many in the future. 

Stein: No, not at all. In fact, there's a very famous one, Filoli, 
that-- 

Phleger: Filoli's our nearest neighbor, one mile away, and that's been 
given by Mrs. William M. Roth, together with an endowment, to 
the National Trust for Historic Preservation. 

Stein: You were mentioning the various homes that you lived in in 

Washington. I came across a New York Times clipping that two 
Chinese household employees of yours had been indicted by the 
federal grand jury for passport fraud and having made false 
statements to the government, and I wondered what the story was. 

.Phleger: We had these servants for about twenty-five years, a remarkable 
Chinese couple. They were Lew Don Nai (Louie) and his wife, 
who had another Chinese name, but we always called her Missy. 
They were our cook and house maid for many years until he died 
about five years ago. We took them to Washington with us. She 
had a brother in Hong Kong, who applied for admission to the 
U.S. representing that he was Louie and Missy's son and therefore 
entitled to be admitted. Evidently Louis and Missy, unknown to 
us, made an affidavit supporting this statement. The true facts 
were discovered by the government and Louie was indicted for 
his false statement. Before the indictment came on for trial, 
Missy was admitted to citizenship. After the matter had been 
thoroughly aired, the government decided to dismiss the indictment 
against Louie and that concluded the matter. 

Stein: Well, that's all the questions I have. You've been most thorough 
in discussing the many facets of your career, and I'd like to 
thank you for all the time and preparation you've given to this 
project. This will be an invaluable addition to The Bancroft 
Library, and will be a rich source for a wide array of scholars. 
Thank you. 

[ end tape 2, side 1] 

Transcriber: Michelle Stafford 
Final Typist: Keiko Sugimoto 



APPENDIX A 285 

il Adviser 

the 



/ Remarks ly Herj.ian Phle$e? f The Local Adviser of 
he I>r art' 3nt cT Gtato, at the colei ration cf th< 
100th Anniversary cf the Founding cf Sacrament w 
;-ijh School. June 2, 1P5&. Sacr.rr.onto, Calif era' a. / 



Friends and £ 

In 1656, just 8 years aft.-:-- eold \rc.a diocovci-od in California, 
Sfecranonto Hi::h School vraa established. Today it celcbrato:: its cen 
tennial birthday. 

In that aaro year - lO^o - C;ooy billed Jan-^r, K*/ig cf viiiian, 

, 
and the Vigilantes '.;ere crcaniced; Jvhn Trov/n made h.ia ra'e in Kr:nsao; 

California's I'irot railroad - frcr. Cicraujntc to fetecm- <?f>enoc" -for 
traffic; Stephen Footer composed Gentle Annie; and ;\ichcr<j dfagner c-un- 
pleted Die V,'ai'-rarc. California 'a p0.pulatJ.on v/ao l3cr; tiiaii 



That tha early settlerc ci' r.acrancnto, burdoncci u/i« 

of earning ti iir daily bread, cntabi'ohln- lav; anc' Or-cor */\4- luildinc -* 

.,/ 
city in apite uf fires and floods, caoulo, at thin early dali^hav? race 

' 

the sacrificey necessary to found and maintain a hi£a c^hctl, ia i.ut 

another proof of their greatness . 



Uo VT.K. have ^een privll^geA to foilov." tha^ and whtf' have en- 
Joyed the^rrui'ws of t;-.eir fcrccicht n>;d jjenercoity, O.:s th<sn hcnaco and 
our deep gratitude. 



286 

It in said that the first corjumity act or the Filer in 
a-.ttlers after they landed in New England was to establish a church; 
while that of the California Argons ts was to build a cuhccl. Whether 
true or not, it is oicnificant that in the pioneer coi.nunities of 
California, the obligation to provide education for the youth was early 
recognized and discharged. Sacramento has continued on the hich plane 
set by these founders by providing free educational facilities tf the 
highest order. The generations of students who have cnjoysc these 
privileges o.;e a debt of gratitude for thia, also. 

They also owe a debt of gratitude to the teachers who over 
the years hav-j provided the instruction, without which the educational 
facilities would have been profitless. Overworked and underpaid, the'. ^ 
devoted and tireless servants cf education doservo and receive our 
deepest appreciation. It is one of the ircnies of fate, that it is 
cnly with the paoslng of the years, that tho atudont comes to realize 
the debt he owes hlo teachers - often too late to convoy thera in person, 

Now 100 years is a Ions tine. In speculating as to why I wa3 
asked to^ speak today, I ca.-r.o to th3 conclusion that it was because I 
represent Just the half-way mark. i?0 years ago I had Just finished nj 



287 
second year la High School. Evider. ly I was picked as Echii.it A of 

what the student of 50 years ago lcw!:-jd like. 

I'n sure you expected to sec our generation arrive In wheel 
chairs, wearing toupees, and tuning cur hearing aids. Inetcad of that, 
I ask you to observe our marcel waveo, our sport clothes ar.c our wander 
ing eyes. 

Whon I was in High School ;-c had a drawing teach.,-, Prof. U'm 
Ho had a sharp pointed board like Vr.n Dyko, though I assure you he was 
no Van Pyke. One day, I found him lookinc over ray shoulder. He said to 
ns, "Draw a big fish." I drew a fish that occupied moot of nt? drawinc 
pad. When 1 had finished, he locked at it and said, "That 1 - not u bic 
fish, that's a little fish - I want you tc draw rae a big f'~h.' 1 

I thought quite a while, then drcv; in c-nc corner, under the 
first fish, another fish, but a very snail figure cf a fish. "There," 
I said, "is a small fish, the first one is a bic fioh." "Correct," 
said Mr. Winter. Then and there I learnec a lesson that has over since 
stood ir.e in coo<2 stead - it is that values are co.v.;.:arativ^: that a thing 
is great ^>r c^vill, or high or low, or old cr yeunc, principally by com 
parison. Perspective tells you whether you are making progress. V.'e 



288 
naasure whei-o we ar? tocfay hy where ;;o v?<»re yesterday. 

So I Ju<?ee that one vrsy tr est.lnntf* whore this school *- today 
and what Its rrocrcoo has been. Is tc compare It with whit It was 50 
yaara ago. 

Racramrmto was then a beautiful city of about 30,000, entirely 
surrounded by leveeo. Front, and 31, and B and Y. Many a time I have 

x 

Gone up on the Cepltol Dome In winter, and seen nothlnr, tut water beyond 
the levees, with Sacramento like an loland In an ocean of flood water, 
50 years ago, the High School was at 9th and II. It rer.iaincd 

tnerc 31 years - fron 1877 to 1SOG - when it was novoU to l^th and K. 

at 9th an 5 M. 
I was in the Claso of 190o, the last claos to graduate/ tJucxx . I'ni sure 

the building collapsed tho very noxt year. 

It was a frame three-story building - a faded brov/n in color. 
Huge tliobor bearas had been put thrcuch from side to side tc keer Its 
tired frame from collapsing. 

It had no playground - no athletic field - and no cynnasiun. 
It was heated with wood stoves. There wao no auditor lun. ,.'e held our 

graduation exercises In the Assembly Chnmler at the Capitol. 

/* 

There v;asn't eufficiont rcon in the buildlnc for tho science 



289 

laboratories or drawlns so the stu4fc.it B ciarohoJ over to the Perry 



Somlnary at llth and I, for thc-ir classes Jn th^e3 subjects. 
Tli^re v;as no lunch room cr cafeteria. 

• 

The:'e were no athletic inntructora. The football toan 
practiced on tlw Capitol la\m. It uas coachecJ by Jedd McClatchy, and 
played its Iccal ganeo on the cenenfc-liko infield of the Vroeball 

dianiond at Oalc parlc. 

. 
/ 

V. f e had no automobiles, no movies, no radios, no televisions 

and no fly-nov, pay-later airplane vacations. 

But before ycu begin to foel ccrry fcr us, let ao tell you 



v:c did :.jtvo. 



We liad a wonderful croup cf teachers. Profcsocr Tado "as the 
principal, and anonc others we had as tenohers, Miss Barclay, riisc Itorttn, 



liiaa Constock, Mica Ilerrick, tho two Iliac C-reons anc ProfosoorBfryor and 
Clev;e - 16 in all. 

We had a selection of courseo that included Latin, Greek, Oilman, 
irench, Englioh, riath -..iatlc3, and hictcry. I can assure ; cu that when ycu 

. 

took a subject you passed it credl ly - or else. Althcur'i Si£?trand Freud 



was born the very year in which Sacramento High was fcundeO, we had net 



5. 



290 

; et heard of Inferiority complexes, ,o If we (!5<5n't make tl:o c^ade, w? 



took the oource ovc?r a^air.. 

I rcmenl-er an experience I had with one of our teachers, 
K3ss May Green, who taught English. She was onall and milt, but oho had 
a will of Iron. In her classea In Enjlloh you were expected to memorize 
a certain amount of poetry. I was tcld to memorise Cryant'c Thanatopsls. 

I got myself Into the frame of mind where I thought I couldn't learn It - 

, 
a mental block or eomcthins like that, oo I told Kiss Green. '.'no Miss 

Green sympathetic and say that's all richt - you are c-ccuc:o. Net at 
all. She 8ai«:, with a glint In her steel blue eyes, "We'll nee about 
that: you reru-in after school an ho;u- aao a half each cay u-.til you 
memorize that poea." Well, strange aa it may seen, after cciae t-;o weeks, 
I learned that poen, and so well that I can still recite it. Anc it v:as j 

^ 

years before I cane to realize that in order to kcc'j ne ono hour and a 
half after school, Mies Green had to stay toe. 

We r;;iy net have had tho selection cf courses you have new, and 
w» did not hava tlie elective syotcun, lut u*e had fine teacher e and worth 
while subjects. I have discovered t?v:t there is no royal r«.^d to learmir 

s- 

Electronic braino and calculating; m? shines are no holp tc you In plane 



291 
Lconeti-y ar.i :;o one 1.13 yet found successful ohci-t cut to ler.i nine 

composition cr Latin or. nathcaaticr, ur anything aloe for that matter. 
Blood, oweat, tsorc, sheer deteimination a.:c r ambition still seen tc be 
tno essential rcquironsnts Tor a wc:'thwhile education, i -oy co-.io - 
easy £o, is Juct as true in education as in economics. 

We had a wonderful body of students. There wars about 350 

in all, and en this vas the only Hi^h School in the county, they came 

• 
from far and v/ide, and boarded in town. They cana frcra Fclscn and 

Davis, and Mayhev,- and Florin and Rio Viota. 

Th3 girls v;c*re beautiful and the boys were husky and full of 
energy and fiui. The friendchir>s v;c raco then have lasted all our lives. 

Wo had c'ances in the winter in Turner's llall, ifhich had a 

famous spring floor. There we danceo the v?alts and tv;c-st?-r t^ the 

' 
strains of "Maet me in Dt'eaTiland" and "Unc^jr tho Bariboo Treo" played 



by Noack'a orchestra. Jitterbucsinc and ha-3ha had not beep invented, 
tut we never raiesed then. Dinco pr citrons v:ere made cut wcelcs in 
and trading dances '..'as a science In itself. No setting stud: then. 

On the night of the dance v;e all went in her so di^v.vu hocks, 
two couples to a hack, arranged long in advance. The early birds got 



7. 



292 
with iniVvor t*.r?~>, tho ln~rr- ?-: ••:~r-.: c: nJ^nn^^ tr. J. It a?. 13 en 



Iron tires. 



In th* Gurrerjr wo had picnics on the river. 

We had fcctball, baseball and basketball tosr-.o. The?-? teanc 
used to make adventurous trips to Auburn and to Vcodlar.O, v:hieh wore 
oo far away ws had to take the train on Friday afternoon, to ect there 
In tine for the game. 

\ 

And a dollar vras worth a dollar or maybe a lot ncre. 
J. H Hcltnan would make a fins tailored suit for *?5. You 
could buy wild duck from Panama Murphy, at Dierssons on J Street fcr 
each. 



If you had a thirot you could do somothi'ic about It. At 



RhUBtallera Brev/ory at 12th and I,ycu cculd ^et a hu^e vasi-likc 

\ 

of steam beer, with a free lunch thrown in, all fcr 5?'. 



Ycu could even get a haircut for 2$i and an ice cream soda 
for a dime. They Bold hot chicken ta-nalec and Alaraoda hot corn fron 
little wagons on the streets for 1C and 13 cento. 

It */as a erand and gloricua tine. We didn't niss a thine. 

x- 

I knovf It la Juct aa grand todny. V/ith this bcautlfuJ Dchool, 



293 

? s nO its fin-* faculty, opportunity 1., open to every student to achieve 
the ll"iit of his capabilities. It is up tc him - Just as it hac 
always been up to thu- student - for the first and essential requlro- 
r.ont for an education is anbltion, determination and industry. 



Fre'j education in America is the very foundation cf our 

• 

liberty and tray cf life. Freedom to think, to learn, to challenge, 
to go Just as far as one's own capacity and ambition will carry him, 
are part of our heritage. They are the best guaranty that cur children 
and our children's children will cnjcy those sano liberties. 

When I speak of free education, I nean freedom to sack and 
learn the truth. In corawunist countries, one does not have to pay to 
go to school, lut education is not free. The student must -take the 
courses r.-r escribed, think the thoughts ho is told to think, and accept 
as truth what is served out as the truth. Recently in Soviet Russia 
all the history tcoks in secondary schools were withdravm so the 
history about Stalin could be rewritten. The? only incidental benefit 
was that £he pupils were excused frc:n final history exams pending the 
issue of the now histories. 

9. 



294 

In repayment of the debt .re ouo to our oystcn tf frco -JC' 
tion wo must do all In our power t^ support, to sustain, and advance 
its cause. To do lees would be baoc ingratitude. 



We are Indeed fortunate to be here today. To 6-~ ".,:ncr to our 
school - and to our teachers - to renew old friendships ar.O j ay a 
tribute of gratitude to those who founded this school a:vJ Ir^v- -...a in- 

v 

tained it all these years. 

It is a rare privilege to have Veen brcj^it u"- i:. .'.asriinentc 
and to have enjoyed the benefits of Its schoola nn^ th^ vr.r-i-h«nrtr»f» 
friendship of its people. May we sll live to repay in full the; ( oL-t 
we owe to our city anu this school and tc the poorlo cf Cacvar 



10. 



295 
APPENDIX B 

Remarks by Herman Phleger at Funeral of Newton B. Drury 

December 18, 1978 

I first met Newton Drury in 1903 when we were 
classmates at the Sacramento Grammar School. Even then he 
showed the initiative and leadership that marked his whole 
life. 

He established a school paper; writing the news, 
setting the type and operating the press. 

Newton's father, Wells Drury was the editor of 
the Sacramento Union, and when in 1904, he became the 
Editor of a San Francisco newspaper, the family moved there. 

I did not see Newton again until 1908, when I 
entered the University at Berkeley as a member of the Class 
of 1912. I found he was a classmate, with Earl Warren and 
Horace Allbright and others who were to leave their mark 
on their times . 

He was a fine student and a leader. He was elected 
president of the Student Body in his Senior year. During 
his college years he acted as correspondent for San Fran 
cisco newspapers. 

\^ 

Newton was an excellent debater, and won the Carnot 
medal. He was the captain of the California debating team 
that debated Stanford in 1910. The topic was "Resolved, 
That the U.S. Should Extend the Voting Privilege to Women". 
Stanford chose the affirmative, leaving the negative to 
Newton and the California team. California won. This 
didn't prove that women should not have the ballot, but it 
was convincing evidence that Newton was a fine debater. 



296 



Newton was student speaker at his Commencement 
and remained at the University as Lecturer in English, 

* 

Asst. Prof, of Forensics and as Secretary to President 
Benjamin Ide Wheeler. He left the University to enter 
military service in World War I as a balloon observer in 
the Air Corps. 

Newton owes much to his University. He holds 
its Honorary Degree of Doctor of Laws, conferred in 1947, 
and in 1972 was chosen Alumnus of the Year. He has re 
paid his debt to his Alma Mater by the many services he 
has rendered her over the years. He met his charming 
wife, Elizabeth, the daughter of Professor Hugo Schilling, 
when both were students at the University. 

After graduation, Newton joined his able younger 
brother Aubrey in the Drury Company, an advertising and 
public relations firm. 

It was in connection with his work in this field 
that Newton became associated with Joseph D. Grant and met 
the Founders of the Save the Redwoods League, organized 
in 1919. He became its first Secretary. 

To borrow the title of Dean Achesoh's autobio 
graphy, Newton was "Present at the Creation" when John C. 
Merriam, Fairfield Osborn and Madison Grant founded the 
League . 

Except for interludes when he was Director of 
the National Park Service under President Franklin D. 

2. 



297 



Roosevelt from 1940-1951, and with the California Park 
Commission, 1929-40, and as Chief of the Division of State 
Parks and Beaches in 1951-9, he served continuously with 
the League. First as secretary, then as President (1971) 
and finally as Chairman. 

It is said that every great institution is 
the lengthened shadow of a man. This may fairly be said 
of the Save the Redwoods League. While it owes its crea 
tion to the vision and foresight of its founders, and its 
success to the loyal, generous and devoted service of its 
officers, members and contributors, Newton's almost 60 
years of devoted service shaped its form and directed its 
activities. 

A pioneer in conservation and the protection of • 
nature and the ecology, the League has consistently followed 
a course of education of the public, and of cooperation with 
government. This has resulted in the preservation of our 
Redwoods and their natural environment, and has provided a- 

* 

model for similar endeavors. 

The League's policy of dealing fairly with the 
owners of forest lands, and paying fair value for its ac 
quisitions, won the cooperation and support of many owners 
of forest land. 

The League programs of matching private gifts 
with state funds, and the establishing of memorial groves 
of Redwoods were unique. Education and persuasion brought 

3. 



298 



the League thousands of enthusiastic members from all over 
the world, and the Redwood groves are rightly considered 
a universal heritage. 

Newton Drury was gentle - he was kind - he was 
considerate. Above all, he was modest. 

He possessed outstanding ability, and when he 
finished college and faced a life career, he had all the 
qualifications necessary for success in many fields, 
education, letters, the law, the arts. 

But the Providence which looks after the interests 
of mankind, directed his energy and talents into the field 
of conservation, for this we should be eternally grateful. 

Many honors came to Newton in recognition of 

• 

his contributions to conservation, but his greatest honor 
and memorial are the great Redwood forests that will stand 
forever as a monument to his efforts. 

As the grey fog drifts silently through the 

topmost branches of our giant redwoods, I am sure the spirits 
that guard the forests have welcomed him to join them in 
their vigil. 






4. 



299 



INDEX — Herman Phleger 



Abrams, Jack, 20 

Acheson, Dean, 140 

Ackerman, Phyllis, 131 

Adams, Sherman, 200-201 

agriculture, 160-acre limitation, 91-92 

Agronsky, Martin, 250 

Ahwanee Hotel, Yosemite, 130 

Alameda-Contra Costa Transit District, 106 

Albright, Horace, 58-59 

Alderman, Sidney, 182 

Aldrich, Winthrop, 189, 217, 234 

Alexander and Baldwin, 93 

Allen, Chet, 20 

Alvarez, Luis, 148 

American Bar Association, 200 

Commission on Electoral College Reform, 270-272 

American Company, 107-111 

American-Hawaiian Steamship Company, 70, 73 

American Legion, 200 

American National Bank, 107 

American Red Cross, 144-145 

American Relief Administration, 144-145 

American Reparation Commission, 151 

American Trust Company, 107-111, 183 

Anderson, Marion, 244-245 

Anglo-London Paris Bank, 112 

Antarctica Conference, 1959, 193, 247-255, 268 

Antarctica Treaty. See Antarctica Conference, 1959 

Aquatania (steamship) , 52 

Arms Control and Disarmament Advisory Committee, 262-269 

Ashley, David, 20 

Ashley, Harold, 25-26 

Ashley, Rea, 132 

Association of American Railroads, 101 

Atherton, Faxon Dean, 278 

Atherton, Florence, 280 

Atherton, Gertrude, 279-280 



Bailey, Frazer, 57, 70, 73, 82, 93 

Baker, George, 108 

Bank of America, 109, 111 

Barnes, Stanley, 39 

Bartholomew, Frank H. , 254 

Baxter, Richard, 242 



300 



Bayley, Lewis, 56 

Boynton, Albert, 65 

Beale, Joseph, 28 

Beale, Number Forty (steamship) , 50-58 

Bechtel, Stephen, 133, 275 

Bechtel, Stephen, Jr., 275 

Bellmon, Henry, 270 

Ben Gurion, David, 223 

Bender, Albert, 119 

Bennett, James V., 152 

Bentley, Robert I., 45 

Berlin, Richard, 172 

Bermuda Conference, 1957, 232-233 

Bernstein, Irving, 81 

Bethlehem Shipbuilding Company, 74 

Betts, E.G., 152, 181 

Bevatron, 148 

Bevin, Charles, 235 

Biddle, Francis, 168 

Black, James B., 20, 104, 133, 275 

Black, John, 172 

Blough, Roger, 263, 267 

Blum v. Fleishhacker. 111-112 

Blumenthal v. Pi Giorgio, 89 

Blyth, Charles R. , 133 

Bogardus, Darrell, 20 

Bohemian Club, 274-275 

Bohlen, Chip, 195-196, 201 

Borah, William, 276 

Bowie, Robert, 192 

Bowles, Philip E., 16, 27, 107 

Brandt, Dave, 20 

Brause, Gus, 122 

Bricker, Senator, 199-201 

Bricker Amendment, 199-206, 209, 229-231, 265-266 

Bridges, Harry, 67, 70, 71-73, 82, 85-86 

Bridges, Styles, 195-196 

British Petroleum Company, 143 

Brobeck, Phleger and Harrison, 60-147 

Christian v. Waialua. 96 

Depression, effect of, 183-184 

Di Giorgio cases, the, 88-92 

Eva Plantation et al. v. Wallace, 97 

Grinbaum v. American Trust Company. 118-119 

National War Labor Board, 74-76 

public utilities cases, 100-106 

representing the Hawaiian Sugar Planters Association, 96-99 

representing the Matson Navigation Company, 92-96 

representing the William Randolph Hearst family, 113-119 



301 



United States v. American Petroleum Institute. 113 
United States v. Industrial Association, 63-69 
World War II, effect of, 184 
Yosemite Park and Curry Company, 128-131 

Brobeck, William I., 60 

Brobeck, William M. , 147-148 

Brown, Edmund G. "Pat", 38 

Brownell, Herbert, 186, 197, 234, 242 

Buckley, William, 254, 275 

Buckner, Emery, 94 

Budge, Alexander, 96-97, 99 

Bulganin, Nicolai A., 214 

Burger, Warren 234 

Burlingham, Charles C. , 172 

Burns, John, 53 

Butler, Pierce, 103 

Cahill, Arthur, 38, 132 

California Agricultural Society, 278 

California-Oregon Power Company, 43, 100 

Calkins, John, 39 

Camp Curry, 128 

Canfield, Clifford, 21 

Carpenter, I.W., 234 

Carpenter's Union, San Francisco, 64-69 

Carrillo , Leo, 116 

Carter, Jimmy, 262 

Cartwright, Morris, 25-26 

Casey, Richard G. , 210 

Castle, Alfred, 96 

Castle and Cooke, 96-97, 99 

Castro, Fidel, 206 

Cerf, Cedric, 20 

Chandler, Harry, 128, 133 

Charles, Mrs. Allen, 136 

Chavez, Cesar, 91 

Chessman, Caryl, 257-258 

Children's Hospital, San Francisco, 276 

China, Republic of, defense treaty with, 211-212 

Christian, Eliza, 96 

Church, Thomas, 137 

Churchill, Winston, 189 

CIA [Central Intelligence Agency], 192 

Clay, Lucius, 150, 154, 162-164, 178, 260-261 

Clay Committee, 1962, 260-262 

Clewe, Ernest, 25-26 

Cohen, Ben, 99 

Coldwell, Colbert, 138 

Coleman, Persis, 119 



302 



Conway, Edward, 263 

Cooke, Richard, 99 

Cooksey, Donald, 148 

Cooley, Richard, 35 

Cooley, Victor E. , 34-35, 234 

Cooper, John Sherman, 265 

Cooper Medical School, 146 

Corcoran, Tom, 99 

Coudert, F.C. , 172 

Cowles, John, 263 

Creed, Wiggington, 15, 64, 68 

Creel, George, 87-88 

Crocker, Templeton, 42-43 

Crocker, William H. , 23, 44 

Cuban Missile Crisis, 202 

Curry, David, 128 

Curry, Mary, 129 

Gushing, O.K., 71-72 



Dailey, Gardner, 282 

Daniels, Josephus, 55-56 

Daniels, Mrs. Josephus, 52, 57 

Daniels, Paul Clement, 249 

Dassonville, W.E., 35, 283 

Davis, John W. , 54, 172, 200 

De Gaulle, Charles, 236-237 

De Guigny, Christian, 44 

DeWitt, John L. , 123 

Diepenbrock, Al, 41 

Di Giorgio, Joseph, 88-92 

Di Giorgio Corporation, 88-92 

Di Giorgio Fruit Corporation v. American Federation of Labor and 

Congress of Industrial Organizations , 91 
Dillard, Hardy, 242 
Dillon, Douglas, 193 
Dills, Tom, 20 
Dinkelspiel, Lloyd, 136, 140 
Ditz, George, 133, 140 
Dohrmann, A. B.C., 128 
Dolores, Donna (Donna Shinn) , 28-29 
Dominguez Oil Fields Company, 112 
Donohue, Joseph, 44 
Dooling, Maurice, 68 
Douglas, William 0., 88 
Drew, Red, 126 
Drum, John, 44-45, 107, 109 
Drury, Newton, 5-9, 18, 19, 22, 25, 49, 113, 115-117, 122, 295-298 



303 



Dulles, Allen, 173, 256 

Dulles, John Foster, 143, 149, 184-187, 189-194, 198-200, 203, 205, 

207-209, 211, 212-213, 217, 219-222, 224-233, 238, 244 
Dunne, Peter F. , 60 
Dwiggins, Jay, 20 



Earl, Guy E. , 23 

Earl Fruit Company, 88 

Eban, Abba, 228, 274 

Eden, Anthony, 212, 220-224, 226-227, 232 

Edwards, Paul, 133, 140 

Ehrman, Sidney, 23 

Eisenhower, Dwight D., 150, 153-154, 162, 164, 186-187, 189, 204, 

226-227, 231-233, 236, 240, 247 
Eisenhower Administration, assessment of, 187 
Eisenhower Doctrine, 205-206, 229-232 
Electoral College, 270-272 
Eliel, Paul, 73 
Elliott, Amos, 20 
Elsey, Fred, 110 
Engle, Clair , 253 
English, Frank, 36 
En-Lai, Chou, 207 
Esberg, Alfred, 128 
Esberg, Milton, 119 

European-American Assembly on Outer Space, 259-260 
Evans, Clinton, 20 
executive privilege, 202-205 
Eyre, Edward L. , 280 
Eyre, Mrs. Edward L. , 114 
Eyre, Elena, 280 
Eyre, Perry, 280 



Fagan, Mrs. Paul, 276 

Fahy, Charles, 150, 152-153, 158, 164, 169 

Far East Resolution, 229 

Farmer, Milton, 20 

Ferguson, Homer, 201 

Fibreboard Products, 183 

Filoli, 284 

Finer, Herman, Dulles over Suez, 255-256 

Finnell, Bush, 36 

Fitzpatrick, James, 242 

Fitzpatrick, Timothy I., 65-66 

Flaherty, Martin C., 18, 26 

Fleishhacker, Herbert, 112 

Fleishhacker , Mortimer, 112 



304 



Fleming, Howard, 20 

Fletcher, Harold, 21 

Folger, James, 80 

Folger's Coffee Company, 80 

Forbes, John, 84 

Ford, Gerald, 261 

foreign policy, U.S., arms control, 262-269. See also Clay Committee, 1962 

Forrestal, James, 273 

Frank, Jerome, 98 

Frankfurter, Felix, 186, 235 

French Bank, 111 

Freund, Paul, 270 

Fulbright, J. William, 140, 252-253, 263 

Fuller, Palmer, Jr., 140 

Funs ten, Reed, 80 



Gambrell, E. Smythe, 270 

Gann, Ernest, 95 

Gar field, James, 97-98 

Garner, John Nance, 119 

Garnett, Porter, 36 

Gates, Mrs. Milo S. See Anne Phleger 

Gavin, James, 161-162 

Gay ley, Charles M. , 21 

General Strike, San Francisco, 1934, 70-74 

Geneva Summit Conference, 1955, 212-217 

George, Walter, 189, 232 

George VI, 189 

George Washington (steamship) , 54 

Germany 

denazification, 154-155, 164-165 

reunification, 215-216 

U.S. Military Government of, 1945, 149-152 
Giannini, A. P., 109, 111 
Giannini, Mario, 111 
Gibbs, William, 93 
Gibson, Harvey, 158 

Goldman-Sachs Trading Company, 109-110 
Goldwater, Barry, 254 
Goodan, Mrs. Roger, 133 
Goodan, Mrs. William. See Polly Phleger 
Gordon, Walter, 39 
Gossett, Ed, 270 
Gossett, William T., 270 
Gould, Lawrence, 252-253 
Grant, Joseph D. , 44, 133 
Green, Theodore F., 205 
Greening, Ernest, 253 



305 



Griffin, Franklin A. , 48 

Griffiths, Farnham, 19, 25, 27, 119, 121, 134, 281 

Grinbaum v. American Trust Company, 118-119 

Gromyko , Andrei, 214 

Gurley, Fred, 89 



Haas, Peter, 133 

Hackworth, Green Haywood, 241 

Hale, , 77 

Hammerskjold, Dag, 246 

Hand, Learned, 171 

Hanna, Edward J., 71 

Hardy, David, 20 

Harriman, Averell, 261-262 

Harris, Myron, 20 

Harrison, George MacGregor, 244 

Harrison, Gregory, 44 

Harrison, J. Stewart, 63 

Harrison, Maurice, 38, 60, 65, 75, 87-88, 110, 131 

Hawaii, 92-99 
Big Five, 92-93 
Moana Hotel, Waikiki, 94-95 
Princess Kaiulani Hotel, Waikiki, 95 
Royal Hawaiian Hotel, Waikiki, 94-95 
Surf Rider Hotel, Waikiki, 95 

Hawaiian Sugar Planters Association, 97-99 

Hearst, George, 113 

Hearst, Phoebe Apperson, 30, 114-115 

Hearst, William Randolph, 114-115 
family, 113-119 

Henderson, Loy, 191, 193, 221 

Herter, Christian, 193, 247, 252 

Hillman, Sidney, 74 

Hitchcock, Gilbert, 276 

Hohfeld, Edward, 34, 42 

Hollister, John, 234 

Hoopes, Townsend, 193-194 

Hoover, Herbert, 33, 133, 140, 142-146 

Hoover, Herbert, Jr., 142-143, 223-224 

Horn, Gertrude. See Gertrude Atherton 

Howard, Roy, 172, 254-255 

Howland, Silas, 94 

Hughes, Charles Evans, 102-103 

Hughes, Charles Evans, Jr., 172 

Hume, Mrs. William, 281 

Humphrey, George, 186-187, 227 

Humphrey, Hubert, 253, 263 

Hunt, Mrs. Harry, 280 



306 



Hunt, Leroy, 21 
Hupper, Roscoe, 172 
Hutcheson, "Big Bill", 65-66 



ILWU (International Longshoreman's and Warehouseman's Union), 67, 70-74 

1934 Strike, 77-87 

Indochina Conference, 1954, 206-208 
Indonesia, 261-262 

Industrial Association, San Francisco, 64-69, 80, 84 
International Court of Justice, 240-241 
International Panama-Pacific Exposition, 47 
Iran, Mossadegh takeover, 143 
Irwin, William G., 276 

Irwin, William G. , Charity Foundation, 276-277 
Irwin Memorial Blood Bank, 277 
Israel. See Suez Crisis 



Jackson, Robert, 168, 170, 178, 186, 235 

Jackson, William, 172 

Jacob Christiansen (steamship) , 94 

Jamison, William J., 270 

Japanese-American Relocation, 123 

Jessup, Phillip, 241-243 

Johnson, Grove L. , 8-9, 34 

Johnson, Hiram, 8, 276 

Johnson, Lyndon, 231 

Jones, William Carey, 25, 41 

Jordan, Ray, 20 



Kaiser, Edgar, 275 

Kai-shek, Chiang, 211 

Keating, Kenneth, 270 

Kendrick, Charles, 45, 121-122, 259 

Kennedy, John F. , 56 

Kennedy, Robert, 198 

Kern County Land Company, 110 

Kerner, Otto, 270 

Key System Transit Company, 100, 105-106 

Khan, Zarfulla, 209 

Kidd, Alexander Marsden ("Captain"), 25, 69 

Kilmuir, Viscount, 257-258 

Kirby, James G. , 270 

Kistiakowsky, George B., 263 

Knight, Goodwin, 115 

Knowland, William, 185, 200 

Koenig, Pierre, 153, 162 



307 



Korean War, 231-232 

Koster, Frederick J., 64 

Krock, Arthur, 193, 216, 234, 254-255 

Krushchev, Nikita, 214 

Kuhl, Max, 66, 68 

Kuznetsov, Vasili V. , 249 



labor 

agricultural, 88-92 

collective bargaining, 64 

U.S. v. Industrial Association. 63-69 

waterfront, San Francisco, 70-74. See also ILWU 
Lane Hospital, 146 
Lapham, Roger, 70, 73-76 
law practice, San Francisco, 60-63 
Lawrence, Geoffrey, 168 
Lawrence, Orlando, 147 
Lawrence Radiation Laboratory, 148 
Layton, J.B., 36 
LeConte, Joseph, Jr., 128 
Lenoir, Dr. , 158 
Leviathan (steamship) , 52 
Lewis, John L. , 88 
Lillick, Ira, 133, 140 
Lindsay, Ben, 52 
Link River Dam, 43-44 
Lippman, Walter, 170, 235 
Lloyd, Selwyn, 223, 232, 274 
Lochead, James K. , 110 
Lodge, Henry Cabot, 244-245, 276 
Lord, Mrs. Oswald, 244 

Los Angeles Gas and Electric Company, 100-101, 103, 112 
Los Angeles Steamship Company, 93 
Lourie, Donald, 198 
Luce, Claire Booth, 217 
Lundberg, Alfred J., 106 
Lusitania (steamship) , 53 
Lynch, Matthew Christopher, 25 



McAdoo, William, 87-88 
MacArthur, Douglas, 191, 209 
McBean, Atholl, 64, 68 
Macbeth, Alexander, 112 
McCarran, Patrick, 196, 274 
McCarthy, Joseph, 197-199 
McCarthy, P.H., 64 
McCloy, JohnJ., 149-150, 234, 263 



308 



McDuffie, Duncan, 15 

McCone, John, 275 

McEverney, Garret, 23, 101, 110, 114, 118, 272 

McGee, Dean, 263 

McGill, Ralph, 263 

McKee, John D. , 43, 107 

McKee, Paul, 43-44 

McKim, Joseph L. , 21 

McLaren, N. Loyall, 151 

McLeod, Scott, 198 

McLoughlin, James L. , 131 

McMillan, Edwin, 148 

MacMillan, Harold, 213, 217, 232-233 

McMurray, Orrin Kip, 25, 34, 38, 41, 69 

McNamara, Robert, 263 

Macondray, Atherton, 280 

Macondray, Elena, 280 

Macondray, Faxon Atherton, 279, 280-281 

Macondray, Frederick W. , 277-278, 280 

Macondray, Lucy, 277 

Madden, J. Warren, 150, 152 

Madison, Mrs. Marshall, 280 

Magsaysay, Ramon, 210 

Mailliard and Schmeidell, 80 

Malalo (steamship), 93-94 

Malatesta, Steve, 20 

Malik, Andrew, 246 

Manila Conference, 1954, 208-211 

Mansfield, Michael, 209, 244 

Marcus, Mickey, 180 

Mariposa (steamship) , 95 

Markwart, Irving, 20 

Martin, Walter, 45 

Matson, Lurline, 93 

Matson Navigation Company, 70, 73, 82, 92-96, 183 

Matsonia (steamship), 93, 95 

Matthews, Herbert, 206 

Maui (steamship), 93 

Maxwell-Fyfe, David, 169-170 

Meany, George, 74, 260-261, 263 

Meier, Golda, 228 

Melnikow, Henry, 71 

Mendes-France, Pierre, 207, 237 

Menzies, Robert, 221 

Mercantile National Bank, 107 

Mercantile Trust Company, 107, 276 

Merchant, Livingston, 191, 216 



309 



Merola, Getano, 44 

Merrill, Charles, 37 

Meyer, Agnes, 124-125 

Meyer, Eugene, 74, 105, 124-125, 170-171, 188, 254-255, 273 

Meyer, Theodore, 39, 62 

Miller, C.O.G., 100, 133 

Mills College, 42, 119-122 

Mindzenski, Cardinal, 225 

Moffitt, James K. , 23, 49 

Mollet, Guy, 223 

Molotov, V.M., 212-214, 217 

Mondale, Walter, 179 

Monnet, Jean, 238 

Monterey (steamship), 95 

Montgomery, Bernard, 153, 162 

Mooney-Billings Case, 48 

Moorer, Thomas H. , 56 

Moran, Edward J., 56-58 

Morell, George, 133 

Morgan, Junius , 56 

Morganthau, Henry, 154 

Morris, Monty, 20 

Morrison, Alexander F. , 42-43, 59, 76 

Morrison, Dunne and Brobeck, 34-36, 38, 40-45, 59-61 

Morrison, Hohfeld, Foerster, Shuman and Clark, 60 

Morton, Thurston, 234 

Mossadegh, Mohammed, 143 

Mountain Meadow, 282-284 

Muck, Carl, 28 

Mudd, Seeley, 140-141 

Murphy, Robert, 191, 220 

Music Corporation of America, 130 



Nabrit, James M. , 270 

Nance, J.T. , 49 

Nassar, Gamal Abdul, 221 

National Farm Labor Union, 89-91 

National Longshoreman's Board, 71-73, 81-82 

National War Labor Board, 74-76 

NATO Treaty, 235 

Near East Resolution, 230-232 

Neuberger, Maurice, 264 

Newhall Land and Farming Company, 183 

New Zealand Law Association, Eleventh Dominion Legal Conference, 257-258 

Neylan, John Francis, 84-85, 112, 117-119, 275 

Nixon, Richard M., 90, 201-202, 232, 240 

North American Company, 104-105 

Nurenberg Trials, 168, 235-236 

Nutting, Anthony, No End of a Lesson, 223 



310 



O'Brien, John Lord, 272 

O'Brien, Morgan J., 107 

Oceanic Steamship Company, 92-93, 117 

O'Grady, Edward, 71 

Olympic (steamship), 52, 54 

O'Mahoney, Joseph, 274 

O'Melveney, Stewart, 164 

Organization of American States, 205-206 

Otis, James, 277 

outer space. See European-American Assembly on Outer Space 

Pacific Coast Trust Company, 107-109 

Pacific Gas and Electric Company, 104.-105 

Pacific Lighting Corporation, 100-101 

Pacific Power and Light Company, 43 

Pacific Union Club, 274 

Panama-Pacific Exposition, International, 47 

Panama-Pacific Exposition Company, 76-77 

Parker, James, 168 

Patton, George, 164-165 

Pauley, Edwin, 151 

Payne, John Barton, 144 

Pearson, Mike Lester, 224, 274 

Peart, Stirling, 20 

Peck, David, 241 

Pennsylvania (steamship) , 54 

Perkins, Frances, 70 

Perkins, James, 263 

Permanent Court of Arbitration of the Hague Conventions, 240-243 

Phleger, Anne, 278 

Phleger, Atherton Macondray, 278 

Phleger, Carl, 2, 19, 21, 281 

Phleger, Charles C. , 2 

Phleger, Charles W. , 1-3 

Phleger, Fred B. , 2 

Phleger, Herman 

admission to bar, 40 

admission to practice before U.S. Supreme Court, 58 

associate director, Legal Division, U.S. Military Government 
of Germany, 149-182 

Brobeck, Phleger and Harrison, 63. For specific cases see Brobeck, 
Phleger and Harrison 

charitable activities, 276 

childhood, 3-5 

club memberships, 274-275 



311 



education, primary and secondary, 5-12 

European tour, 1914, 30-33 

Harvard Law School, 28-30 

homes, 282-284 

honors, 38-39 

Hoover, Herbert, association with, 142-146 

law instructor, 41 

law practice, 14 

legal advisor, U.S. Department of State, 184-239 

Mills College trustee, 119-122 

Morrison, Dunne and Brobeck, 34-36, 38, 40-45, 59-61, 76-77 

Panama-Pacific Exposition, International, 47 

parents, 1-3 

participation in Eleventh Dominion Legal Conference, 257-258 

representative to Hague, Permanent Court of Arbitration, 240-243 

resignation from State Department, 233-236 

Stanford University, association with, 131-148 

Union Oil Company, 112-113 

United Nations representative, 13th General Assembly, 244-246 

University of California, Berkeley, 14-27 
Alumni Association, 37-39 
Boalt Hall, 25-26 
debating, 46-47 

University of San Francisco, 121-122 

visiting professorship, Stanford Law School, 272 

World War I, 48-59 
Phleger, Irma, 2 
Phleger, Marie, 2 

Phleger, Mary, Memorial Scholarship Fund, 38 
Phleger, Mary Elena Macondray, 59, 93, 277-281 
Phleger, Mary McCrory, 1-2 
Phleger, Polly, 278, 281 
Pineau, Christian, 217 
Pius X, Pope, 31 
Plant, Forrest, 2 

Plant, Marie Phleger. See_ Marie Phleger 
Plant, Tom, 70, 73 
Pollock, George G. , 2 

Pollock, Irma Phleger. See Irma Phleger 
Pope, Arthur Upham, 131 
Pound Roscoe, 28, 100 

Poverty in the Valley of Plenty (film) , 90 
Price, Clarence "Nibs", 20 
Pritchitt, Herman, 270 
public utilities 

Ann Arbor case, 101-102 

Hoch- Smith resolution, 101 
regulation of, 100-106 

Rabi, Isidor I. , 263 

Radford, Arthur W. , 234 

Railway Equipment and Realty Company, 106 

Ramm, Charles, 23 



312 



Rankin, Lee, 197, 234 

Reed, Stanley, 88 

Reinhardt, Aurelia Henry, 119-121 

Reinhardt, Frederick, 120 

Reinhardt, Frederick, Jr., 120 

Reuther, Walter P., 270 

Robert, L.W. Chip, 255 

Roberts, Owen, 168 

Robertson, Walter, 234 

Robinson, Edgar E. , 140 

Rockwell, Alvin J., 63 

Roosevelt, Franklin D. , 56, 70, 204 

1932 campaign, 119 
Roosevelt, Theodore, 46 
Roth, William P., 73, 82, 93 
Roth, Mrs. William P., 284 
Roth, William P., Foundation, 276 
Rountree, William, 193 
Rubel, Cyrus, 112 
Rusk, Dean, 140 
Russell, Francis H. , 257 
Russell, John, 99 
Russell, Richard, 252-253, 255 
Russo-Asiatic Company, 144 
Ryan, Joe, 83 



Sacramento, California, 3-5, 285-294 

St. Paul (steamship), 51 

St. Sure, Judge A.F., 101-102 

SALT (Strategic Arms Limitation Treaty), 266-269 

San Francisco, California 

earthquake, 12-13 

War Memorial Opera House, 44-45 
San Francisco Call. 28 
San Francisco Chronicle, 85 
San Francisco-Oakland Bay Bridge, 106 
San Simeon, 114-117 

Savings Union Bank and Trust Company, 107 
Schaeffer, Jimmy, 20 
Schmitz, Eugene, 63 
Schussler, Herman, 43 
Schwartz, Bert, 20 
Scott, Austin, 28 
Scott, Henry T., 42-43 
sea, law of the, 244 
SEATO, 208-211 
Seavey, Clyde, 24 
Selby, Percy, 280 



313 



Seymour, Augustus T., 68 

Seymour, Whitney North, 182, 270 

Shanley, Bernard, 234 

Shawcross, Hartley, 169-170 

Shoup, Guy, 14 

Shoup, Paul, 14 

Sibley, Robert, 37 

Sibley, Shermer, 275 

Simmons, John, 189 

Sloss, M.C. , 133 

Smith, Bedell, 188, 207 

Smith, P.M. , 105 

Smith, H. Alexander, 209 

Smith, Harold Armstrong, 241 

Smith, Paul, 85 

Solomon, Irving, 244 

Southern California Gas Company, 101, 103, 112 

space exploration. See Sputnik 

Sparkman, John, 196 

Spivack, Lawrence, 144 

Sproul, Robert, 151 

Sputnik, 238-239 

Standstill Committee, 158 

Stanford Shopping Center, 138-139 

Stanford University, 131-148 

Law School, 272 

Medical School, 146-147 

Stanford Linear Accelerator, 147-148 
Status of Forces Treaty, 196 
Steinhart, Jesse, 39 
Stennis, John, 210, 264-265 
Stephens, Henry Morse, 21 
Sterling, Wallace, 141-142, 146, 272 
Stevenson, John, 242 
Stewart, Lyman, Jr., 112 
Storey, Robert G. , 270 
Strauss, Lewis L. , 145 
Strong, Silas, 172 
Stroud, John, 20 
Stryker, Lloyd, 172 
Subarno, Achnied, 261 
Suez Canal Users Association, 222 
Suez Conference. See Suez Crisis 
Suez Crisis, 1956, 187, 219-228, 230, 255-256 
sugar, litigation concerning growers of, 97-99 
Sukarno, Achmed, 261 

Supreme Court, U.S., 1939 vacancies, 87-88 
Sutherland, George, 69 
Swan, A.J. , 171 
Sweet, Joe, 25-26 
Symington, Stuart, 210, 264-265 



314 



Taft, Robert, 171, 196 

Taft, William H., 45, 68, 102 

Taylor, Edward Robeson, 35 

Taylor, Henry, 34 

Taylor, Reese, 112, 141 

Tenney, E.D., 96 

Tenth Inter-American Conference at Caracas, Venezuela, 205-206 

Thatcher, Thomas, 171 

Thompson, Llewellyn, 217 

Tinning, Archibald, 25-26, 28, 34-35, 281 

Tito, Marshall, 218-219 

Toms, Parker, 110 

transportation, public, 105-106 

Tresidder, Donald B. , 129-132, 134 

Truman, Harry S., 168, 171, 204, 231 

Tugwell, Rex Guy, 98 

Tunkin, Grigory, 249 

Turbulent Years: A History of the American Worker, 1933-1941, 79, 81 

Turner, Stansfield, 192 

Tydings, Millard, 274 



Underwood, Gilbert Stanley, 131 
Union Oil Company, 183 
United Bank and Trust Company, 111 
United Nations, 149, 242-243 

13th General Assembly, 244-246 
United States (steamship), 93 
United States 

Department of State 

Antarctica Conference. See Antarctica Conference, 1959 

Foreign Service, 191-192 

Joseph McCarthy's attacks upon, 197-199 

protocol, 188-191 

Interstate Commerce Commission, 101-103 

National Park Service, 130 

United States v. American Petroleum Institute, 113 
United States v. Industrial Association, 63-69 
University of California, Southern California campus, 23-24 
University of California, Berkeley 

Alumni Association, 37-39 

athletics, 19-21 

Berkeley Fellows, 38 

Boalt Hall, 25-26 

Earl Warren chair of government, 38, 127-128 

Boalt Hall Law Association, 38 

Board of Regents, 23, 39 

debating, 18-19 

Golden Bear, 21-22 



315 



Hearst benefactions, 113 

International House, 27 

Morrison Library, 42 

Phi Delta Phi, 21 

Phi Delta Theta, 15-17 

Mary Phleger Memorial Scholarship Fund, 38 

Skull and Keys, 21 

state financing, 24-25 

Sword and Scales, 22 

university meetings, 46 

visits by U.S. presidents, 45-46 

Winged Helmet, 21 

University of San Francisco, 121-122, 259 
Urban, Joseph, 28 

Vietnam, 207-208 

Vietnam War, 231-232, 263 



Wadsworth, James J., 244 

Wahrhaftig, Matt, 41 

Walker, Frank, 140 

Walker, H. Alexander, 99 

Wallace, George, 271 

Warren, Earl, 19, 20, 22, 26, 122-128, 140, 168, 234 

Warren, Edward, 28 

Waste, William, 15 

Waterfront and General Strikes, San Francisco, 1934; 

a Brief History, The, 73 

Waterfront Employers Association, San Francisco, 70 
Waterhouse, John, 99 

water rights. See Link River Dam, 43-44 
Watts, Louis, 20 
Waugh, Sam, 234 
Waybur, Robert, 30 
Webster, Bethuel, 241 
Weeks, Edward, 170 
Wells Fargo Bank, 110-111, 276 
Wentworth, Frank, 120-121 
Wheeler, Benjamin Ide, 21-23, 49, 134 
Wheeler, Charles, 20, 30 
Wheeler, John Burton, 274 
White, Thomas D. , 263 
Whitney, John H. , 232 
Wilber force, William, 158 
Wilbur, Ray Lyman, 134 
William Cramps Shipbuilding Company, 93-94 



316 



Williston, Samuel, 28, 41 
Wilson, Woodrow, 45, 54 
Wise, Watson, 244 
Wiseman, Gertrude, 117 
woman's suffrage, 46 
World War I 

naval training, 49-51 

outbreak of, 32 
Wright, Gordon, 171 
Wyman , Bruce , 100 
Wyoming (steamship) , 54-55 
Wyzanski, Charles, Jr., 170-171, 177 



Yalta papers, 203 

Yeh, George, 211 

York, Herbert, 263 

Yosemite Lodge, 128 

Yosemite Park and Curry Company, 128-131 

Yosemite Park Company, 128 



Zhukov, Grigori, 153, 162, 214 



Miriam Feingold Stein 



B.A., Swarthmore College, 1963, with major in history 

M.A., University of Wisconsin-Madison, 1966, in American 
history; research assistant - Civil War and Reconstruc 
tion. 

Ph.D. , University of Wisconsin-Madison, 1976, in American 
history, with minor field in criminology. Dissertation, 
based in part on oral history material, entitled "The 
King-Ramsay-Conner Case: Labor, Radicalism, and the 
Law in California, 1936-1941." 

Field services and oral history for the State Historical 
Society of Wisconsin, 1966-1967. 

Instructor: American history, women's history, and 
oral history at Bay Area colleges, 1970 to present. 

Leader: workshops on oral history, using oral history 
as teaching tool, 1973 to present. 

Interviewer-editor for Regional Oral History Office, 
1969 to present, specializing in law enforcement and 
corrections, labor history, and local political history. 



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