W. Lewis Burke

Excerpted Wrom: SWZIDREXCAXZOWCONEUQZAAFXISHJEXXIMQ Justice: the Prosecution and Trial of Francis Lewis Cardozo, 53 South Carolina Law Review 361-410, 361-366 (Winter 2002) (401 Footnotes Omitted)

[W]e have been cheated out of our rights for two centuries, and . . . I want to fix them in the Constitution in such a way that no lawyer, however cunning or astute, can possibly misinterpret the meaning. If we do not do so, we deserve to be, and will be, cheated again. Nearly all the white inhabitants of the State are ready at any moment to deprive us of our rights, and not a loop-hole should be left that would permit them to do it constitutionally.  Francis L. Cardozo

Impartial justice is the quintessential ideal of the American judicial system. When justice is perverted for political purposes, the Constitution and justice suffer multiple wounds. The robe of justice is stained, the Constitution is denigrated, and history is distorted. Still, the pathology of political perversion of law recurs throughout American history and is a constant threat. While much has been written about these perversions in the nineteenth century Supreme Court cases on race, running from Dred Scott v. Sandford to Plessy v. Ferguson and the cases in between, few scholars have looked at these perversions at the trial level. So the trial of Francis L. Cardozo in South Carolina in 1877 is not an isolated story with no relevance to contemporary American society, law, and history. Instead it is a reminder of the illness that has long infected our system of justice. Just as physicians learn to recognize illness by case studies, lawyers, legal historians, and judges need to be reminded of this pathology at all levels of the judicial system so that they will recognize it and respond appropriately. It is unquestionably true that distorted history perverts our interpretation of justice.

The 1877 trial of Francis Lewis Cardozo, his predetermined conviction, and his pardon present a choice example of this perversion at the trial level. To the lawyer and judge, the political machinations are a chilling story. To the historian familiar with Reconstruction and its demise, the conviction is not surprising, but the facts of the actual trial and conviction are truly an untold example of post-Reconstruction injustice. Moreover, examining this trial should encourage us to begin to fully re-evaluate our notion of Reconstruction corruption. Cardozo's trial was the first and most important in a series of three political show trials intended by the South Carolina Redeemer Democrats to prove that Reconstruction was legally and morally corrupt. The three resulting convictions were the only ones obtained by the Redeemer Democrats in their massive post-Reconstruction corruption investigation. Cardozo's conviction was a personal tragedy not only because it stained his reputation, but also in that he was the only South Carolina Reconstruction politician who served any significant time in jail. Moreover, the conviction was a great symbolic victory for the Redeemer Democrats, as they were able to legitimize the charge that all African American and Republican officials were crooks and scoundrels thus perpetuating the myth of the depravity of Reconstruction governments in the South for decades.

In fact, Cardozo was so vilified that he was the inspiration for the chief villain, black leader Silas Lynch, in D.W. Griffith's film, The Birth of a Nation. Undeniably, Griffith's fallacious film helped to immortalize many racist fables about Reconstruction in the popular mythology of American culture and to resurrect the Ku Klux Klan in 1915. The climax to The Birth of a Nation has the white female heroine rescued by the Ku Klux Klan from the sexual assault by the black Cardozo figure, Silas Lynch. This scene in the classic American film stands as one of the preeminent examples of biased history by which justice is perverted. Even the racist histories before The Birth of a Nation portrayed the story of Reconstruction as one of simple political corruption. However, with the wide dissemination of the film The Birth of a Nation, the story of Reconstruction was morphed into a story of sexual perversion. The popular, racist culture of the times began to assume that rampant sexual depravity characterized Reconstruction, even though there appear to be no recorded cases of sexual assaults of white women by black political figures during that time. Modern scholarship has, in fact, thoroughly debunked the racist sexual mythology of "Birth of a Nation." However, the mythology of political and financial corruption is still a mainstay of the legal history of Reconstruction.

These images of political corruption have also been perpetuated by historians. Early historians, fixed on the notion of the "prostrate state," assumed that all Republican office-holders in Reconstruction South Carolina, including Cardozo, were corrupt, lining their pockets with embezzled state funds. Some modern historians have appropriately pointed out that Reconstruction corruption in the South was consistent with the American political culture of that era involving whites, blacks, Democrat and Republican politicians. Yet, no legal analysis has ever been done on Cardozo's trial nor any other Reconstruction-era corruption trial to test the validity of the verdict. In this regard, Cardozo's trial presents a unique opportunity.

Cardozo did not flee from prosecution. He did not plea bargain, and even after his conviction, he turned down a pardon to try and vindicate himself on appeal. There is a wealth of material from which to examine his case. Using the indictment against Cardozo, one prosecutor's trial notes, the purported "diary" of the chief prosecution witness, Cardozo's appellate brief, newspaper accounts, and the governor's pardon file, as well as other documents and letters, this Article will examine Cardozo's trial and conviction in depth.

These sources reveal the various intersections between politics and justice in Reconstruction South Carolina and Redeemer South Carolina. Often bizarre, and continually shifting, these connections and disconnections among South Carolina's politicians and lawyers do not lend themselves to easy analysis. Conundrums abound. How and why was Cardozo, perhaps the most influential African American in the state, an impeachment target in 1875 by members of his own race and his own party? And why after the Compromise of 1877, when Redeemers took power, would prominent white Democrat politicians who had supported him during his impeachment cut deals with the corruptionists of 1875 to obtain Cardozo's conviction for corruption in 1877? Was he targeted because of his leadership role? If so, then why was he pardoned in 1879 with the support of some of his chief adversaries, even though his trial had been the centerpiece of the Redeemers' systematic campaign against ex- Republican officials, and his conviction one of their greatest legal victories?

. Professor of Law, Department of Clinical Studies, University of South Carolina School of Law.