The Jews in America Trilogy (108 page)

And so, at 803 Madison Avenue, where the family had moved after Albert Cardozo's downfall, it was now just Miss Nell, eleven years older than her brother, and Ben. Their father had left a depleted estate of less than $100,000, and much of this was required to care for the afflicted Lizzie. Young Ben, working furiously in law offices downtown, became the breadwinner. Nell kept house for him. Darkly handsome, but small and frail of physique—he was described by one of his Columbia professors as “desperately serious”—Ben buried himself in study and work from early in the morning until late at night. At Columbia he had been too young for the social life—he was a sophomore before his voice began to change—and by the time he began to practice law he had lost all taste for it. He usually brought work home with him from the office and, after a
quiet dinner with Nell, he would be back at his desk until after midnight. His girl cousins used to try to persuade him to accompany them to dances or to concerts or the theater. He always refused, using the press of work to do as an excuse. Sometimes he would break his routine with a bit of four-handed piano with Nellie of an evening, but that was all. He had, he once admitted, hesitated before deciding to go into law. He had considered studying art. But he hadn't hesitated for long, because forces from the past stronger than he were driving him to expiate his father's guilt.

Benjamin Cardozo brought a particular and individualistic “style” with him to American justice. Though he was often called a “lawyer's lawyer,” with a photographic memory that could cite cases, chapter and verse, without looking them up in the lawbooks, he was also an early champion of the little man against what often seemed the giant and uncaring mechanism of urban or corporate society. For instance, in an early—1916—automobile-safety case that came before the New York State court of appeals, a man named McPherson was suing an automobile company for injuries incurred when a new car he had bought turned out to have a defective wheel. The manufacturer had argued that it was not responsible, since it had not sold the car directly to McPherson, but to a dealer. There was no proof, the company argued, that it had known of the defect—though the car had collapsed when being driven at eight miles an hour. This defense had been upheld by the lower court.

Not so, replied Judge Cardozo in his reversing opinion. He wrote: “Beyond all question, the nature of an automobile gives warning of probable danger if its construction is defective. This automobile was designed to go fifty miles an hour. Unless its wheels were sound and strong, injury was almost certain. It was as much a thing of danger as a defective engine for a railroad. The defendant knew the
danger.” Cardozo also pointed out that the company obviously knew, when it supplied its dealers with cars, that they were for the ultimate sale to motorists, and that any claim to the contrary was silly and “inconsequential.” He added: “Precedents drawn from the days of travel by stagecoach do not fit the conditions of travel today. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.”

Cardozo was also one of the first American jurists to spell out clearly that what is a legal wrong is not necessarily a moral wrong, and that this fact must be considered in, for example, judging the crimes of the criminally insane. Cardozo was the kind of jurist who always looked for ways in which the laws, as written, were either too vague or too universal. There was the case of a cigar packer named Grieb who, under the instructions of his employer, was delivering a crate of cigars to a customer and stumbled on a staircase and fell. The accident proved fatal but, since the man had been delivering the crate after regular working hours, his employer had argued that his widow and children were not entitled to the customary death benefits under the Workmen's Compensation Act. The man was not, his employer insisted, legally employed at nighttime. This position had been upheld in the lower court.

But, said Judge Cardozo in his reversal:

Grieb
'S
service, if it had been rendered during working hours, would have been incidental to his employment. To overturn this award, it is necessary to hold that the service ceased to be incidental because rendered after hours. That will never do. The law does not insist that an employee shall work with his eye upon the clock. Services rendered in a spirit of helpful loyalty, after closing time has come, have the same protection as the services of the drone or the laggard.… What Grieb then undertook to do with his
employer's approval was just as much a part of the business as if it had been done in the noonday sun.… If such a service is not incidental to the employment within the meaning of this statute, loyalty and helpfulness have earned a poor reward.

For all the clarity of his thinking and the lucidity of his judgment, he remained an exceedingly modest man and often expressed a low opinion of himself. Once, accepting an honorary Doctor of Laws degree from a university, he described himself as “a mere plodding mediocrity.” When asked what he meant by this, he said: “I say plodding mediocrity, for a mere mediocrity cannot go far, but a plodding one can go quite a distance.” This was about as generous with himself as he permitted himself to be, though he once went so far as to describe himself as a “judicial evolutionist.” And he remained a solitary, moody man who entertained—with sister Nell acting as his hostess—only when it seemed to him an absolutely inescapable necessity, and who spent his leisure time reading poetry, studying law, or—for a rare diversion—studying Italian and playing a bit of gentlemanly golf.

He spent a great deal of time answering letters. Each letter he received—even as a Supreme Court justice—was personally answered by him, and in longhand. He wrote a beautifully flowing script. One of his lifelong friends was Mrs. Lafayette Goldstone and, throughout his long correspondence with her over a period of more than twenty years, the wistful, self-deprecatory spirit of melancholy pervades. When he was appointed to the New York State court of appeals, in 1914, a certain amount of time spent in Albany was required, and he always treated these “exiles,” as he called them, as though Albany were Devil's Island. Years later, after his appointment to the United States Supreme Court, he took an apartment in Washington, and his view of life in the capital was equally dismal. From his apartment at 2101 Connecticut Avenue he wrote in a
characteristic vein to Mrs. Goldstone: “The letterhead tells the story. Alas! I am homesick for the old scenes and the old faces. The apartment is beautiful, but my heart is far away.” The following year, he wrote: “I feel more than ever an exile.… [New York], the great city—election is on, and I am condemned to take no part in it. ‘Hang yourself, brave Crillon,' said Henry IV after a great victory had been gained. ‘Hang yourself, brave Crillon, we fought at Argeres, and you were not there.'”

Of life in Washington, he wrote: “I call myself Gandhi, an ugly old saint—or at least a putative saint—to whom the faithful pay obeisance. They come here in great numbers, young and old, stupid and clever, some to stare and some to talk. Among the clever was Irwin Edman.… What a delightful youth he is!”

His great idol was Oliver Wendell Holmes, whom he replaced on the Supreme Court bench, and after a visit with Holmes at Beverly, Massachusetts, Cardozo wrote: “Holmes is a genius and a saint, enough of the mischievous devil in him not to make the sainthood burdensome, but still, I think, a saint, and surely a genius.” Yet Cardozo's own reticence and shyness hampered him during the visit and, writing again to Mrs. Goldstone, he said: “I wish I could talk freely like you. I'm fairly paralyzed when I visit strangers whom I admire and revere. But the old man sent word to me that he entreated me to visit him, so what could I do? My friend, Felix Frankfurter, who knows him well, drove me there from Boston, and back to my hotel. What an egocentric letter! I'm ashamed of it.…”

When Holmes died, Cardozo wrote: “Holmes was great. His life work had been finished, but he remained a magnificent symbol. The world is poorer without him. I was the last person to visit him before he took to his bed.”

Cardozo was capable of a certain gentle humor. Once, after a visit to New York's Metropolitan Museum, he wrote:
“Almost as one enters, one is greeted by two gigantic effigies of the Pharaoh of the Exodus, a gift of the Egyptian government, brought from the Temple at Luxor and wrought by some Egyptian sculptor about 1250
B.C.
If the effigies could see, they would probably surmise that New York was the place to which the Jews, driven forth from the land of Egypt, had been guided by the wise old Moses.”

But the note of sadness was forever creeping in. “May all happiness be yours in your bright and sunlit dwelling,” he wrote to Mrs. Goldstone. “I cling to you, says an Italian (I am airing my new learning) ‘come l'edera il muro,' as the ivy to the wall. That is the way I feel about my friends as I watch the devastating years.” And, a little later, from his summer home in Rye: “I am glad you like me for myself and not for my supposed greatness which, alas, is non-existent.… Whatever greatness I have is the greatness of a drudge.”

As he grew older, and more celebrated, people—particularly his female relatives—kept trying to make matches for him, but to no avail. He remained steadfastly a bachelor, and increasingly devoted to and dependent upon his sister Nell. They were like mother and son, she reminding him to take his umbrella if it looked like rain, telling him to bundle up warm in case of snow. It is likely that if he had ever wanted to marry, strong-willed Nell would not have let him. Her entire life revolved around him, and she was jealous every moment they were apart. His biographer George Hellman wrote: “He knew all that he meant to her—the jealousy as well as the depth of her affection. He made allowances for the jealousy; he was grateful for the affection.” To a cousin who once asked him why he denied himself the pleasures of a wife and children, Cardozo replied quickly, “I can never put Nell in second place!” And once, at a New York dinner party, a young woman seated next to the great jurist had the temerity to say to
him, “Won't you tell me, Judge Cardozo, whether you were ever in love?”

He looked briefly startled, and said, “Once.” Then, adroitly, he changed the subject. He never revealed any more than that.

It is possible that Cardozo saw himself as a kind of missionary, not only to redeem the Cardozo name but also to restore prestige and authority to Sephardic Jewry in general—to help this tiny band (“We few,” he used to say) retain its place in history. Because certainly the spunk and individuality that characterized the earlier generations in America seemed to be disappearing as the world moved into the twentieth century. After two hundred fifty years, the fabric of Sephardic life seemed to be shredding, flying apart, no longer a knit thing and all of a piece. Cardozo had always been fiercely proud of his forebears, the ancestors who had fought as officers in the Revolution, who had founded banks and captained vessels, who had sat at the right hand of Presidents from Washington on down. And yet the tragic fact was that the importance—economic, political, and social—of the oldest Jewish families was diminishing. They were being eclipsed by Jews from other lands and, at the same time, the old standards were disappearing. Suddenly, in the finest and oldest families, there were suicides, divorces (his cousin, the writer Robert Nathan, had already been divorced three times), alcoholics, wastrels, and people who had to be locked away with custodians. Did Cardozo see his father's troubles as symptomatic of a larger trouble—a trouble reflected also in his sister Emily's marriage to a Christian, and his sister Lizzie's unhappy state? Was the end of the line at hand for “we few”? He may have sensed this, and spent much of his life attempting to reverse the trend.

The year 1868 was a shattering one for all the Sephardim. It was the year that the splendid new Reform Temple
Emanu-El opened its doors, with a cluster of the wealthiest German Jews in New York on its committees and board of directors. Not only was the new edifice splendid, and obviously expensive, and not only was it right on Fifth Avenue at Forty-third Street, far north of Nineteenth Street, where Shearith Israel then more modestly reposed (inherent in Emanu-El's choice of site was the statement that the forties were now more fashionable than the area around Thirty-third Street), but it represented—on a national scale—a triumph for the Reform movement, which the Sephardim had so long opposed. When the temple was dedicated, the
New York Times
editorialized that Emanu-El's congregation was “the first to stand forward before the world and proclaim the dominion of reason over blind and bigoted faith.” The Judaism of Emanu-El was praised as “the Judaism of the heart, the Judaism which proclaims the spirit of religion as being of more importance than the letter.” The farsighted Germans behind Emanu-El were extolled for having “become one with progress.”

Immediately there was a great deal of grumbling within the Shearith Israel congregation, and it wasn't long before a faction had formed that talked of the need for a new building and of “modernization” and “improvements” in the service. One group wanted to introduce family pews—eliminating segregated seating—and to install an organ. Another urged that the fixed prayers should be fewer in number, with less repetition, so that “in these modern, busy times,” the service would be shorter. Still another group thought that the ancient Spanish music had outlived its usefulness and meaning. By 1895, the debate had reached such a point of ill feeling and crossed purposes that a meeting of the elders of the synagogue was held.

The meeting started off stormily. Then Ben Cardozo, still a young lawyer, got to his feet. Nothing, he said, must be allowed to change the Sephardic ritual of the
synagogue, the oldest in America. Its very name, meaning “Remnant of Israel,” indicated that there were values here worth clinging to at all costs. Perhaps the weight of his Nathan-Seixas-Levy-Hart ancestors added strength to his words, for he was certainly effective. After his speech, a vote was taken, and the proposed changes and updatings were defeated by a count of seventy-three to seven. Thus Sephardic tradition stepped into another century of imperturbability.