Chapter One

Cardozo's Heritage: The

Sephardim and Tammany Hall

Benjamin Nathan Cardozo lived for the law, and the law made him famous. He earned his fame both by his influential judicial opinions and by his lectures and books, which explained the work of judges and defended a creative lawmaking role for them. He enhanced his fame with a memorable literary style and a personal kindness, courtesy, and gentleness that led many to describe him in later life as a saint. Cardozo was no saint, though, for his life included the toughness of his many years as an ambitious lawyer, and his character contained such human failings as vanity and prejudice; however, he was a good man with extraordinary talents. He became one of the most distinguished judges in the history of American law.

Cardozo's life spanned a period of great change in American history. He was born in 1870, just after the Civil War, and died in 1938, near the end of the New Deal. His family, the Cardozos and the Nathans, were rooted in New York's old Sephardic Jewish community, and he took pride in the fact that his ancestors had arrived in America before the Revolution. Cardozo's father had disgraced the family, however, when he engaged in conduct that forced his resignation amid charges of judicial corruption. In the course of time, Benjamin Cardozo's achievements would help redeem the family name. His relationship with his older sister Nellie provided him with support and warmth as she helped raise him in his early years, as they later presided together over their family and their home, and finally as he took care of her during her last, long illness. These experiences helped contribute to his strong personal values of duty, honor, and individual responsibility that were often evident in his judicial opinions. Cardozo's family life and loyalty to his Sephardic heritage also reflected a moral and social conservatism that balanced his progressive, modernizing instincts.

Cardozo was well bred, well educated, and elaborately courteous, and over time he revealed qualities of devotion and serenity. But he was also a self-confident, ambitious, and tough-minded man who looked out for himself and those he loved in a conscientious pursuit of success. For twenty-three years he was a first-rate practitioner in the trial and appellate courts of New York. His skill and his ties in the Sephardic community attracted the notice of influential people who referred cases to him and then helped advance his judicial career at every stage. Cardozo observed the conventions of judicial politics; he did not actively seek the positions that he attained, but he allowed his friends and supporters to work for him.

Cardozo earned a national reputation as an outstanding judge within a few years of his promotion to the New York Court of Appeals in 1914. During the twin eras of progressivism in politics and legal realism in jurisprudence, Cardozo supported the modernization of the law, approved many forms of legislative and executive activism, and practiced and advocated the role of the judge as a creative lawmaker. He did so not only eloquently and persuasively, but also carefully. Cardozo's eighteen years on the New York bench won him a national reputation as an outstanding judge, second only to that of Oliver Wendell Holmes among American judges; and when Holmes retired in 1932, Cardozo succeeded to Holmes's place on the United States Supreme Court. Cardozo spent the last six years of his life arguing out the constitutional issues that divided the country, and finally he became part of the majority that reshaped American constitutional law and set the Supreme Court on the doctrinal path that it has followed ever since.

Cardozo's importance lies in the impact of his judicial opinions and writings in a critical period in American law. During Cardozo's tenure as a judge, the central innovative forces in lawmaking were legislative and, to a lesser degree, executive; but the courts too responded to great changes in society, sometimes negatively. At the end of the nineteenth century an influential method of legal thought called legal formalism concealed or even denied the creative role of judges. Cardozo, following Holmes and Roscoe Pound, helped combat that doctrine. As a judge, he reshaped rules in many areas of private and public law, such as refining many elements of negligence law and expanding the boundaries of government's power to regulate the economy in constitutional law. At the same time, in his extrajudicial work of lecturing and writing, he explained and defended judicial lawmaking.

The progressive side of Cardozo's work is well known, but there was also a cautious side to his work as judge and theorist. Cardozo was no revolutionary. What he described was a version of what English and American judges had done for centuries, reaffirmed and adapted for modern use. He believed that the major role in guiding social change in a democracy belonged to the legislature and the executive. Thus, he innovated the most when the step to be taken was modest and when the innovation did not violate the prerogatives of other institutions of government--and ideally when the legislative or executive branch had already pointed the way. Although Cardozo, often adapted law to new social conditions, he also often declined to make such adaptations. Fairness was important to him, but he did not believe that judges could simply do whatever they thought was fair or just. Cardozo believed that he had to respect precedent, history, and the powers of other branches of government. He believed that judging involved taking all of those factors into account, methodically and impartially. The example that he set as a common law judge was another element of Cardozo's importance.

Cardozo presented his views to the profession and the public in a powerful and wide-ranging fashion. Even though he led a sheltered personal life, he was adventurous in the world of ideas. From his college years to his death he read widely, and he shared his learning as he tried to educate the legal profession and the public about the role of judges. His theories of judging, like his substantive decisions and his methods of decision-making, were often finely balanced, carefully limited, and subtle. Those theories fused and accommodated contending schools of thought. Cardozo's style, reflecting his personality and education, was elegant but, to modern ears, ambiguous. All these elements have made many of Cardozo's opinions a staple of legal education and a continuing influence in judges' work even sixty years after his death. Cardozo helped to modernize the law and to provide a structure for other judges to modernize it further; he illuminated the tradition and craft of judging; and he practiced that vocation supremely well.

The family into which Benjamin Nathan Cardozo was born on May 24, 1870, was part of a distinct and well-established Jewish community in New York City. It was a Sephardic family, descended from those Jews who had fled from the Iberian peninsula during the Inquisition and had come to America via the Netherlands and England. Both branches of the family (the Cardozos and the Nathans) had arrived in the American colonies before the American Revolution. Albert Cardozo, Benjamin's father, was at the height of his legal career. The family was well-to-do, lived in a fashionable neighborhood just off Fifth Avenue, and had links with the political and mercantile powers of the city. Albert had been a judge for six years, the last two as a Justice of the Supreme Court of New York County, but trouble was brewing in his career. In addition, because Rebecca Nathan Cardozo, Benjamin's mother, had been in delicate mental health for several years, her condition was a matter of considerable concern within the family. Each of these elements--the Sephardic community, the prominent but tainted career of his father, and family duties--would play important roles in the life of Benjamin Cardozo.

Cardozo family tradition holds that their ancestors were Portuguese Marranos--Jews who practiced Judaism secretly after forced conversion to Christianity--who fled the Inquisition in the seventeenth century. They took refuge first in Holland and then in London. Later members of the family emigrated to the New World. Aaron Cardozo, was the first Cardozo to settle in the American colonies, arriving in New York from London in 1752. He lived in Wilton, Connecticut, during the Revolution and later resided in Richmond, Virginia. He married Sarah Nunez, his double first cousin. In the small Sephardic community, marriage of close relations was common.

Two of Aaron and Sarah Cardozo's six children, David and Isaac, lived in Charleston, South Carolina, where there was an active Jewish community. They both served in the Revolutionary War, David as a soldier who participated in the defense of Charleston, Isaac as a seaman. David Cardozo remained in Charleston after the Revolution, where he was a schoolteacher, a lumber measurer, and a prominent member of Congregation Beth Elohim. David's son, Jacob Nunez Cardozo, who later called himself Jacob Newton Cardozo, was well known as a political economist and statistician, an editor and later owner of an influential newspaper, The Southern Patriot, and a leading exponent of free trade and an opponent of nullification. Jacob's brother, Isaac, was a weigher in the Charleston customs house and a vice president of the Reformed Society of Israelites. One of the two brothers, apparently Isaac, cohabited with Lydia Williams, a free woman of African American and Native American descent. Their three children are ancestors of the well-known African American branch of the Cardozo family.

The Isaac Cardozo who was Aaron Cardozo's son left Charleston after the Revolutionary War and lived in Philadelphia for a while, where he helped found the Philadelphia Congregation. He married Sarah Hart, also a Sephardic Jew, whose family was among the founders of Easton, Pennsylvania. One of their children, Michael Hart Cardozo, was working in a shoe and clothing store in Richmond, Virginia, in 1819 when he married his first cousin, Ellen Hart. Michael and Ellen Cardozo lived in Richmond for several years and then moved to Philadelphia, where Albert Cardozo, their fourth child and the father of Benjamin Cardozo, was born in 1828. Shortly after Albert's birth, the family moved to New York City and joined the oldest community of American Jews in the colonies.

------------

In the nineteenth century, many Sephardic Jews considered themselves the elite of American Jewry. The Cardozo and Nathan families, which had arrived in the middle of the eighteenth century, shared this sense of superiority. Benjamin Cardozo, a fourth-generation member of this proud community, was influenced by its heritage all his life.

The Sephardic Jews had established their first permanent community in the New World in New York in the seventeenth century. A group of twenty-three refugees from Brazil arrived in New Amsterdam in 1654 after the Portuguese capture of Bahia from the Dutch. This first community of Jews in New York City grew, and in the last years of Dutch rule and the early years of English rule in New York, the community won freedom of religious worship. At first, the members held religious services in their homes; later, in 1730, their congregation, Shearith Israel, to which Cardozo belonged, built their first synagogue. Although its traditions and services remained Spanish-Portuguese Sephardic, Shearith Israel admitted Jews of other backgrounds as members. By the early years of the nineteenth century, the influx of the other main body of Jewish practice, the Ashkenazim, from Central and Northern Europe, transformed the congregation from a Sephardic to a heavily Ashkenazic majority; however, the ritual and Sephardic traditions remained unchanged.

Thus, in the mid-nineteenth century, when all of the other Jewish congregations were quite young, Congregation Shearith Israel was celebrating two hundred years of existence. Whereas the other congregations were composed largely of newcomers to the United States, most of the families of Shearith Israel had deeper roots in the city. Many of the family members had built business and civic relations with the Protestant leaders who controlled the political, social, and economic life of the city. Colonial Jews had entered the trading life of the country in substantial numbers, and many of them became important in business and amassed substantial fortunes. Close family ties were reinforced by intermarriage within the community. Thus, when the numbers of Jews began to swell in the 1830s, 1840s, and 1850s with increased immigration from Western Europe and especially when huge numbers of people came at the end of the century from Eastern and Central Europe, there existed in New York City a small, closely connected group of older Jewish families, many of whom had achieved economic success and even some cultural and political influence. Emma Lazarus, author of the famous poem of welcome to newcomers inscribed on the pedestal of the Statue of Liberty, was one of Benjamin Cardozo's many first cousins. Small wonder that a feeling of pride and achievement existed within the older group and that many felt superior to the struggling newcomers.

That family feeling was evident years later as Maud Nathan, another of Benjamin Cardozo's first cousins, gave a revealing explanation of her resentment about the exclusion of Jews from the Grand Union Hotel in Saratoga in the 1880s: "Proprietors of fashionable resort hotels and of New York apartment houses frankly advertise that they exclude all Jewish patrons, using no discernment between Jewish families who have had generations of culture and refinement and those who lack such a background." Her sister, Annie Nathan Meyer, one of the founders of Barnard College, expressed the same point of view somewhat differently:

We are all Sephardim which is defined in the Jewish Encyclopaedia as those whose "many sufferings, which they had endured for the sake of their faith, had made them more than usually self-conscious; they considered themselves a superior class--the nobility of Jewry." Looking back on it, it seems to me that this intense pride, accompanied by a strong sense of noblesse oblige among the Sephardim was the nearest approach to royalty in the United States. The Nathan family possessed this distinguishing trait to a high degree. Noblesse oblige is certainly not a bad slogan to live by.

Although Mrs. Meyer was progressive and egalitarian in many respects, she still considered herself as noblesse. As we shall see later, there were traces of that attitude in Benjamin Cardozo as well.

------------

If the name Cardozo today means Benjamin Cardozo and if it stands for a distinguished model of judging, in the nineteenth century the name Cardozo meant Albert Cardozo, and it stood for the corrupting effect of politics on law. Albert Cardozo's career was thus a chapter in American political history, as well as a chapter in the life of his son Benjamin.

Albert was educated in the New York City public school system. Having decided to become a lawyer, he eventually went to work in the law office of Archibald Hilton. Hilton had a reputation as a fine lawyer, and Albert, known for his hard work and ambition, must have learned much from him. Albert was admitted to the bar in 1849 and apparently declined an opportunity to work in the city government early in his career, devoting himself to building up a "good business as a lawyer" and a "reputation as a skillful politician." He appears to have practiced law with Hilton until the latter's death in 1854. Until this time, Albert had also lived in his parents' home. Then on August 16, 1854, he married Rebecca Washington Nathan, daughter of Seixas and Sara Seixas Nathan, and the couple moved to a house of their own at 23 West 27th Street.

The Nathans were a well-to-do and prominent Sephardic family. Simon Nathan, the first American representative of the family, had come to New York from England between 1746 and 1750. He moved to Philadelphia during the American Revolution and established himself quickly in a "handsome genteel House, Garden and Stables in Arch Street known by the name of Rock Hall." Following the Revolution, he returned to New York, describing himself as a merchant, and served as parnas (president) of Shearith Israel. Simon married Grace Seixas, a member of another prominent Sephardic family. One of Grace's brothers, Gershom, was hazzan (cantor-reader of the service) of Shearith Israel at the time of the Revolution and for a generation thereafter. Gershom was also the first Jewish trustee of Columbia College and was the last Jew to serve in that position until Benjamin Cardozo. Seixas Nathan, son of Grace and Simon and father of Rebecca Nathan Cardozo, was a member of the original board of the New York Stock Exchange in 1820, an inspector of customs at the Customs House in 1849, and a president of Shearith Israel.

Seixas and Sara Seixas Nathan had fifteen children, all but one of whom survived to adulthood. Rebecca, Albert Cardozo's wife, was born in the middle of this large brood. Many of her brothers and sisters were prominent in the professional and religious life of the Sephardic community in New York City. Her oldest sister, Grace, was married to Jacques Judah Lyons, for thirty-eight years hazzan of Shearith Israel. Her oldest brother, Jonathan, began his legal career in one of the leading law offices in the city, Strong & Griffin, where he was "a favorite law student" of George Washington Strong. Jonathan practiced law for many years; and he too was a president of Shearith Israel.

Rebecca Nathan's next oldest brother, Benjamin, was a well-known figure in New York. Initially an importer, he was later a broker, vice president of the New York Stock Exchange, and, at the time when Albert Cardozo was courting his sister, president of Shearith Israel. Benjamin was also active in Jewish social and philanthropic organizations. Some of the other brothers were also brokers, and one was a bookseller. The city and the Jewish community were still small enough, and the leading Sephardic families had been in the country long enough, for considerable interaction between prominent Jews and non-Jews. Although the Sephardic Jewish community was not part of the socially exclusive "Old New York" that is so well characterized in Edith Wharton's Age of Innocence, it nevertheless had numerous connections with members of that group.

Albert Cardozo's alliance with the Nathan family helped bring him into prominence. Benjamin Nathan was an incorporator and secretary of the new Jews' Hospital, now called Mt. Sinai. That participation doubtless accounted for the invitation to Cardozo to speak briefly at the dinner prior to the hospital's dedication a year after his marriage to Nathan's sister.

Two children were born in the first two years of Albert and Rebecca's marriage, but they were either stillborn or died almost immediately after birth. Thereafter, they had three children in less than three years: Albert, Jr., born in 1857, Ellen in 1859, and Grace in 1860. Cardozo's career prospered in the years following his marriage; thus, in 1861 he moved his growing family to a large brownstone house in a fashionable new neighborhood at 12 West 47th Street, just off Fifth Avenue. Six years later, a fourth child, Elizabeth, was born. She had a severe spinal problem and within the family became known as Albert's "special pet."

As Albert Cardozo's legal practice grew, he embarked on a political career in the 1850s. In this undertaking he followed the example of many members of Shearith Israel who took an active role in politics, including leadership positions in Tammany Hall, which was the major force in the Democratic Party in New York City. In the early 1860s, Mayor Fernando Wood, one of the first of the big city machine politicians, fought for control of the local Democratic Party. His organization was known as Mozart Hall, and his major antagonist was the rising political star and chairman of the Board of Supervisors, William Marcy ("Boss") Tweed, who had gained control of Tammany Hall. Originally allied with the Wood partisans, Albert Cardozo joined Tammany Hall and managed to keep a foot in each camp. Consequently, he was in a good position when Tammany Hall and Mozart Hall cooperated in the face of attacks from Republicans during the Civil War.

When the two groups allocated the various nominations in the local elections in 1863, Cardozo was an acceptable choice to both factions, so that they agreed to nominate him for a Court of Common Pleas judgeship. That was an important position, for the Court of Common Pleas conducted trials and heard appeals and was the highest New York City court. The New York Leader, a newspaper allied with Tammany Hall, commented, "Albert Cardozo is one of the rising men of New York. He is a well read lawyer, and one of the workers in his profession. He is peculiarly gifted as a speaker. His speeches are marked by conciseness of language, closeness of reasoning and practical good sense. He will shine especially at nisi prius [the trial level]. He is withal a gentleman of cultivation and elevated social relations." In the November balloting, Albert Cardozo was elected to the Court of Common Pleas over the incumbent, Judge Henry Hilton, brother of his former mentor, Archibald Hilton. He took his seat the following January.

A political man, Albert Cardozo did not put politics behind him when he went on the bench. One example was his handling of a "blue law" case early in his judicial career. In 1866 the state legislature, over the opposition of most Democrats, passed a statute prohibiting the sale of liquor after midnight and on Sundays. In a test case, Holt v. Commissioners; of Excise, Cardozo held the statute unconstitutional as a violation of both the Due Process Clause of the New York Constitution and the Contract Clause of the United States Constitution because one provision required old license holders to apply for new licenses at higher fees before the old licenses had expired. Cardozo then held, without discussion, that the effect of that holding was to render the whole act void.

When his fellow judges suggested a procedure for speedy review by a special session of the General Term so that this important public question could be presented to the Court of Appeals, Judge Cardozo reacted strongly. He wrote a long, heated letter objecting to a special session and defending his decision: "I have announced the law, as I believe it to be and while I do not doubt that any other conclusion would have been my political death, I know my own firmness sufficiently to assert that if I had had different convictions of the law, I should have boldly declared them." The liquor law and the judges who had upheld it, he continued, "will assuredly ultimately meet the condemnation which they deserve at the hands of the people, to who[m] I shall also make an appeal in due time." Although Cardozo claimed that political factors did not determine his decision, he was remarkably frank in asserting the appropriateness of keeping the political context of a case in mind when deciding how to cast his judicial vote. For Albert Cardozo, judicial decision-making was part of the democratic political process, subject to approval or condemnation by the electorate. As a judge, he not only followed the election returns but also anticipated them.

Despite Cardozo's conduct in the Excise Law case, there was little public comment about the effect of his political connections on his judicial decisions while he was a member of the Court of Common Pleas. Even his performance in naturalizing an enormous number of new citizens, and hence new voters, before the election of 1866--up to 800 per day--did not attract much notice.

In 1867, the term of a justice of the Supreme Court in the First Department (comprising Manhattan and a small portion of the Bronx) expired. The Supreme Court was the principal trial court in the state and, professionally, a step up from the Court of Common Pleas. Cardozo, who again allied himself with both Boss Tweed and Fernando Wood, secured support from all factions of the Democratic Party in place of the incumbent. In his nominating remarks, Fernando Wood reportedly made quite explicit the necessity of selecting a judge who would decide cases according to correct political principles: "Judges were often called on to decide on political questions, and he was sorry to say the majority of them decided according to their political bias. It was therefore absolutely necessary to took to their candidate's political principles. He would nominate as a fit man for office of Judge of the Supreme Court, Albert Cardozo."

Cardozo's candidacy produced an unusual statement of editorial support from the World. It used its formal endorsement of Cardozo to comment on the relationship among judges, the law, and public policy. Moreover, the World noted the growing public participation in politics and asserted that the most delicate and difficult task of judges was "the adjusting of old principles to new cases, presented by the rapid transition of the business of men." Although the editorial referred to Cardozo's ability and conscientiousness, it especially emphasized his facility for expressing the popular will by transforming outmoded precepts into new principles of law. The editorial presented a more thoughtful defense of popular election of judges than was usually seen at the time. In an era when even lawyers and judges did not always perceive clearly the role of judges in lawmaking, the World obviously understood that a judge was a lawmaker.

On election day, Cardozo participated in the general Democratic sweep, rolling up a margin of fifty-seven thousand votes over his Republican opponent, with 76 percent of the vote. In January 1868, Cardozo took his seat as Justice of the New York Supreme Court.

------------

Although Cardozo's performance on the Court of Common Pleas had not drawn a great deal of public notice, his activities on the Supreme Court led to an increasing volume of public criticism. First, there was the manner in which he conducted business. He occasionally heard matters in a room at the courthouse that he had had fitted for his own use: it could be opened from the outside only with a key and had special locks that permitted it to be locked from the inside. Exactly what occurred in that room was a matter of conjecture, and many lawyers readily concluded that such a setting hid a host of irregularities.

Then there was the actual judicial performance itself. Early in his tenure on the Supreme Court, Cardozo came under fire for his handling of the Wood Lease case. This case involved a fraud suit brought by New York City against former Mayor Wood to set aside a lease of property from Wood to the city on the ground that Wood had procured it by fraud or bribery. Cardozo first rejected the city's proposed evidence because he found technical defects in the city's pleadings, and then he directed a verdict for Wood.

Cardozo was also involved in many of the notorious cases in which some of the leading capitalists of the nineteenth century sought to use the courts to further their business schemes. He issued several controversial orders in the later stages of the struggle over the Erie Railroad between the forces of Jay Gould and Jim Fisk, who controlled the railroad and had put Boss Tweed on its board, and those of Commodore Cornelius Vanderbilt and the New York Central, who wanted to gain control. The contest became a public scandal after Charles Francis Adams described it in "A Chapter of Erie" in the North American Review in 1869.

The courts became heavily involved when the parties sought to enjoin one another from all sorts of activity relating to the Erie Railroad. There was a bewildering series of injunctions, stays, and counterinjunctions, and many receivers (court-appointed private parties who took custody of specific property) were named almost simultaneously by state and federal judges to take over Erie property. Although the Gould and Fisk forces had obtained most of their orders from Judge George Barnard, late in the struggle they turned to Judge Cardozo for judicial protection. He responded by issuing an order, even before his own term as sitting justice began, setting aside an order of the regular sitting justice in his own district.

In discussing the shift that Gould and Fisk made from Barnard to Cardozo, Adams made this assessment of Cardozo:

The change spoke well for the discrimination of those who made it, for Judge Cardozo is a different man from Judge Barnard. Courteous but inflexible, subtle, clear headed, and unscrupulous, this magistrate conceals the iron hand beneath the silken glove. Equally versed in the laws of New York and in the mysteries of Tammany, he had earned his place by a partisan decision on the excise law, and was nominated for the bench by Mr. Fernando Wood ... Nominated as a partisan, a partisan Cardozo has always been, when the occasion demanded.

Adams's charge that Cardozo was unscrupulous was echoed within the bar as well.

Cardozo's appointments of receivers and referees formed the basis for one of the most serious criticisms leveled against him. Cardozo clearly used his appointing power for political and personal patronage purposes. The principal beneficiary of Albert Cardozo's favor was his wife's young nephew, Gratz Nathan. Out of 1,182 references made by Judge Cardozo in the years between 1868 and 1871, 407 were to Gratz Nathan. Cardozo also appointed Nathan a commissioner in lunacy hearings and in city actions to open up new streets. Nathan was often selected as counsel for other receivers appointed by Cardozo. Cardozo also favored other family members and those closely associated with Tammany Hall. Even though such favoritism was common practice in New York and elsewhere, it added to Cardozo's image as an unscrupulous and corrupt partisan.

Critics used his personal appearance to embellish attacks on his professional conduct. Albert Cardozo's appearance and demeanor were notable. His niece, Annie Nathan Meyer, described him as "tall and striking looking--great bushy eyebrows hung low over dark piercing eyes. There was in his lean, nervous face nothing of the repose or the kindliness of his son's [Benjamin]." While commenting on Albert Cardozo's skill, self-possession, and calm, courteous manner, one writer then got carried away by apparent hatred, with a flavor of anti-Semitism: "His features had a slight Hebrew cast; his face was beardless and his complexion almost livid; he wore long, thick curly hair but his eye was his most marked feature. It was black, piercing, and ever alert. A bitter opponent once said that he had the eyes of a serpent looking from the face of a corpse."

The year 1870 was an important one in the life of the Cardozo family. Albert Cardozo was at the height of his career. He received an honorary Doctor of Laws degree from Fordham. On May 24, Rebecca Nathan Cardozo gave birth to twins, Benjamin Nathan and Emily Natalie Cardozo. Benjamin, however, had a difficult start; in his early days of life, he was reported to be in "feeble health." The day after the twins were born, Albert Cardozo was the "orator of the day" at the laying of the cornerstone of a new building at Mt. Sinai Hospital. His brother-in-law, Benjamin Nathan, was an incorporator and secretary of the hospital, and Nathan invited Governor Hoffman and Judge Cardozo, to lunch at his home before the dedication.

Shortly after Benjamin's birth, disaster struck the family. Benjamin Nathan, the uncle for whom Benjamin Nathan Cardozo was named, was savagely beaten to death one night in his newly built home on West 23rd Street. The murder created a sensation. It was featured on the front pages of New York newspapers; crowds filled the streets in front of the Nathan home for days; and Mayor Hall offered a reward for discovery of the murderer. Adding to the family distress, Washington Nathan, the victim's handsome and extravagant son, was first mentioned publicly as a suspect. Then, to establish an alibi, he had to admit that he had spent a large part of the evening on which the murder occurred with a lady in a neighborhood bordello. No one was ever prosecuted for the murder. The tragic death of a family leader, together with a whiff of scandal, cast a pall over the whole Nathan-Cardozo family.

At the same time, trouble loomed for Albert Cardozo. Some two hundred lawyers, responding to perceptions of judicial corruption, organized a reform movement. Secret meetings followed, and the result was the creation in 1870 of the Association of the Bar of the City of New York. The bar association began its reform efforts in April 1870 by attempting to persuade Governor John Hoffman to appoint judges from outside the city to the General Term of the Supreme Court that sat in New York City. Boss Tweed, however, persuaded Governor Hoffman to appoint Cardozo and his two New York City Supreme Court colleagues, George Barnard and Daniel Ingraham. With this appointment to the General Term, Albert Cardozo's career reached its peak, but it also was to be the prelude to his fall.

Shortly thereafter, in the summer of 1870, the New York Times began a new crusade against the Tweed Ring. At the end of June, suspicion of graft was replaced by firm evidence when members of the Ring gave various city records to the Times, which began publishing them. The public clamor that followed resulted in a "nonpartisan" reform movement whose candidates were largely successful in the fall elections of 1871. Following the election, the Association of the Bar forwarded a report to the New York legislature outlining various abuses of power committed by unnamed judges in the city and requesting action. In response, the Judiciary Committee of the Assembly requested the Association to specify charges, and it did so with respect to Judges Cardozo, Barnard, and McCunn. Counsel for the Judiciary Committee and three members of the Association prosecuted the charges against all three judges before the full committee from February 19 through April 11, 1872. The purpose was to enable the Judiciary Committee to decide whether to recommend that the Assembly prefer impeachment charges for trial by the Senate. Conviction would result in the removal of the judges from office.

At the hearings Cardozo faced five specific charges of misbehavior. The first charge related to Cardozo's part in the aftermath of the Gold Conspiracy of 1869 when Jay Gould and James Fisk, having failed in their effort to corner the gold market, sought to employ the legal system to reduce their losses. The second charge involved unlawful release on habeas corpus of convicted clients of the law firm of Howe & Hummel. The third charge alleged that Cardozo failed to specify charges against two women whom he had imprisoned in an effort to force them to reveal the whereabouts of a child whose custody was at issue, the charge also alleged that he had prevented a lawyer from acting on the women's behalf. The fourth charge concerned his refusal to vacate an order that Judge Barnard had issued in a case that Barnard had not himself heard. Cardozo, allegedly would not correct the obvious error because Barnard's order had denied alimony to the wife of State Senator Thomas C. Fields, an influential member of Tammany Hall. The fifth charge concerned both Cardozo's alleged nepotism respecting Gratz Nathan and his general political favoritism in the appointment of receivers and referees.

The evidence that was presented by the Bar Association is difficult to assess. Although the significance of some of the evidence was doubtless clear to lawyers familiar with events in New York at the time, now we can but guess at its relevance. Moreover, the committee received much testimony of uncertain reliability that would have been excluded in formal court proceedings. Finally, proof of most of the allegations required evidence that the judicial actions in question had been motivated by corruption rather than by honest misinterpretations of the law. Since there was no proof of bribery, the Bar Association needed to establish either that Cardozo had improper motives for particular decisions or at least that he must have known that there was no possible legal justification for a specific decision. The Bar Association's evidence was aimed at proving both conclusions, but it had a very difficult task.

The Gold Conspiracy charge was the principal focus of the testimony. Albert Cardozo was charged with having entered orders in a receivership proceeding against the Gold Exchange Bank without proof of the necessary facts and with the intent to benefit Jay Gould and James Fisk in violation of the rights of the bank. Although the papers prepared in support of the receivership seem inadequate to support the claim of insolvency, and Cardozo's political connections with Gould and Fisk rendered his conduct suspicious, the Bar Association's evidence appears insufficient to prove guilt. The next three charges leveled against Cardozo typically asserted that a particular order handed down by Cardozo lacked sufficient factual support or that it involved assertion of some rather far-reaching judicial power. The suspected, but unproven, presence of political or personal considerations motivating Cardozo's actions gave bite to the charges. Without that suspicion, Cardozo's conduct would doubtless have been discussed privately among lawyers in the same manner in which they typically complain about the "incompetence" or "arbitrariness" of even the best judges, especially trial judges who have to make decisions without time to reflect on all the issues and alternatives. However, it would probably not have led to misconduct hearings.

The fifth charge, corruption in the appointment of referees, was the one for which the Association's lawyers produced substantial proof. Nepotism, especially in favor of Gratz Nathan, and other political patronage were clearly demonstrated. The evidence also showed that Gratz Nathan split with Albert Cardozo fees that he had received as a result of those appointments. That charge alone would have justified impeachment and conviction.

After the hearings were completed, the committee's report to the legislature was remarkable for its brevity. The report set forth the efforts that went into the inquiry and the procedures that the committee adopted, and then without discussing the evidence at all, it concluded that "the evidence adduced before them contains sufficient to make it proper that [Albert Cardozo] should be placed on trial before the court of impeachment." The committee therefore recommended that the Assembly adopt a resolution "That Albert Cardozo, a justice of the Supreme Court of this State, be, and he hereby is, impeached for mal and corrupt conduct in office, and for high crimes and misdemeanors."

On May 1, 1872, the day that the report of the Committee on the Judiciary was to be presented to the legislature, Assemblyman David Hill read to the legislature a letter from Judge Cardozo resigning his judgeship. Noting that he had "accepted judicial office for the honor and distinction which it conferred, and at pecuniary loss in surrendering a lucrative practice at the Bar," Cardozo attacked the decision of the committee as partisan, but he stated that the proceedings had made it impossible for him to command the public confidence and freedom from suspicion demanded of a judge.

Within the Cardozo-Nathan family the story was told that Albert Cardozo resigned at the urging of his wife, who had become paralytic and said that a trial "would kill her," and that he was "entirely vindicated" when at his death he was found to have left only "a very moderate fortune." That hardly constitutes vindication. The Assembly voted to proceed against Justices Barnard and McCunn, and the Senate subsequently removed both men from office. There is no doubt that Cardozo would have been convicted as well.

After Cardozo's resignation, the Association of the Bar considered whether to take further steps to urge that he be disbarred. His former colleague on the Court of Common Pleas, Judge Charles Daly, noted later that "Judge Brady, at his [Cardozos] request, induced the Bar committee not to take any steps afterwards, so that he ... might remain in the City, which he did, and practice his profession until his death." In fact, Cardozo opened an office almost immediately, and he soon appeared in court as counsel for two defendants in a murder case before the Court of General Sessions. But his disgrace had an immediate impact on the family's comfortable lifestyle, and they were forced to move from the large brownstone at 12 West 47th Street to less elegant quarters at 62 East 53rd Street and a year later to 212 West 44th Street.

Albert Cardozo's new law firm was the one that his son Benjamin would join seventeen years later. Albert's partner was Richard S. Newcombe, who also had Tammany connections. The New York Times, later commenting unfavorably on Newcombe's political aspirations, stated that he was "known as a `smart' lawyer, who has no superior in the special field of legal practice to which he is devoted, except, possibly, it be his own partner, ex-Judge Cardozo." The firm's special field was insolvency practice, with some matrimonial law as well. Albert also did some criminal work and had some poor clients, perhaps through his Tammany connections. Cardozo's friends at Tammany Hall did not forget him. In 1878, he was made a member of its General Committee, and later he became one of its sachems. Finally, in what appears to have marked a return to former comfort, the Cardozos moved in 1877 to a substantial home, still standing, at 803 Madison Avenue between 67th and 68th Streets, where they lived for many years next door to Albert Cardozo's partner, Richard Newcombe. Cardozo continued to practice with Newcombe until his death in 1885.

The career of Albert Cardozo permits us a glimpse of the seamier side of the relationships between the legal profession and the new economic and political forces that were emerging in America. But what of Albert Cardozo himself? What was it that drew this hard-working family man into partisan and corrupt conduct on the bench? He was not a new immigrant struggling for survival. He came from a well-established family with deep roots in the country. He married into a family that was even richer and more prominent. His early professional career was promising, and he developed a feel for the nuances of New York City politics. However, his political ambitions and greed led him into trouble. By the end of his career, he had certainly mastered the political game, to his own benefit--and detriment.

The most striking feature of Albert Cardozo was the disparity between the conscientious, temple-going, family man and the public man, the partisan judge motivated by political considerations who took money beneath the table. He got caught up in, and then caught by, the colorful, corrupt world of New York City politics in the latter half of the nineteenth century. Albert Cardozo was a "good family man" who had a weakness in his public character.

The Sephardic community, family devotion, and hard work were also features in the life of Albert's son Benjamin. But the contrast in their professional careers was enormous. Politics was a major feature, and merit but a minor feature in Albert's advancement. The opposite was the case in Benjamin's rise to prominence. As a judge, he decided cases according to a well-considered judicial philosophy. His concept of public policy did not include personal or political favoritism. And there was never a whisper of scandal.

Rent More, Save More! Use code: ECRENTAL

Rent More, Save More! Use code: ECRENTAL

5% off 1 book, 7% off 2 books, 10% off 3+ books

Cardozo

9780674001923

0674001923

How To: Textbook Rental

Summary

Table of Contents

Supplemental Materials

Excerpts

Rewards Program