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