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Walter Clark and the Long Progressive Era in North Carolina. (2015) Directed by Dr KAISER, JOHN JAMES, Ph.D. Judicial Knight Errant: Walter Clark and the Long Progressive Era in North Carolina. (2015) Directed by Dr. Mark Elliott. 277 pp. From 1889-1924 Walter Clark served on the North Carolina Supreme Court. Clark, the son of a wealthy slaveholding eastern North Carolina family, emerged as a force for progressive change in North Carolina law and politics. During Justice Clark’s tenure on the North Carolina Supreme Court (Associate Justice, 1889-1902; Chief Justice 1903-1924) he forged a progressive jurisprudence that defied the traditional perception of the judiciary as a conservative bulwark against reform and instead promoted labor rights, women’s rights, and public regulation. Clark’s often controversial judicial decisions and political positions led to conflict with the state’s railroad interests, textile mills, and even the wealthy Duke family. While Clark’s activism often pushed the limits of acceptable political engagement by a sitting Supreme Court justice, he was continuously reelected to the North Carolina Supreme Court up until his death in 1924. Clark’s judicial and political career provides insight into progressive politics in North Carolina history. Early twentieth century progressives in North Carolina enacted moderate reforms in education, child labor, women’s rights, and utility regulation through the legislature. Yet Chief Justice Clark offers us a popular political figure whose views pushed for much greater reform. Clark, through legal and political means, influenced Supreme Court opinions and legislation that protected North Carolina’s laborers from workplace injury, limited child labor in the industrial workplace, expanded property and voting rights to women in North Carolina, and pushed for active public regulation of private utility companies. These changes can be attributed to the unique way in which Clark used the usually conservative courts as a means of influencing the legislature toward embracing progressive change. Although in the age of segregation and disfranchisement, Clark’s progressivism did not extend to black citizens, and his support of white supremacy may be one reason why his other egalitarian reforms have gone unappreciated. While Clark did not live to see many of the transformations of law and politics he hoped to see enacted, his influence can be seen in many progressive changes in North Carolina both during and after his life. JUDICIAL KNIGHT ERRANT: WALTER CLARK AND THE LONG PROGRESSIVE ERA IN NORTH CAROLINA by John James Kaiser A Dissertation Submitted to the Faculty of The Graduate School at The University of North Carolina at Greensboro in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy Greensboro 2015 Approved by Mark Elliott Committee Chair To my wife, Allison Jane Kaiser and My children, Oleksandra, Sasha, and Aramis ii APPROVAL PAGE This dissertation written by John James Kaiser has been approved by the following committee of The Faculty of The Graduate School at the University of North Carolina at Greensboro Committee Chair _____________________________ Mark Elliott Committee Members _____________________________ Charles C. Bolton _____________________________ Linda M. Rupert _____________________________ Alfred L. Brophy ____________________________ Date of Acceptance by Committee _________________________ Date of Final Oral Examination iii ACKNOWLEDGEMENTS I wish to express my thanks to the faculty of the Department of History at UNCG for their support, the always helpful and patient members of the staff, and my fellow graduate students that have joined me on this journey. This project would never have been completed without the support and encouragement of Dr. Mark Elliott, who chaired my doctoral committee. I am also thankful to Dr. Charles C. Bolton, Dr. Linda M. Rupert, and Dr. Alfred L. Brophy for their guidance and support. All four have served as an exemplary model of scholarly mentoring. Among the staff, I want to thank Laurie O’Neill, Kristina Wright, and Dawn Avolio for their assistance in navigating the graduate school experience, from my first course registration to scheduling my dissertation defense. And I would like to thank several of my fellow graduate students: Chris Graham, Keri Peterson, Sarah Gates, Therese Strohmer, Joseph Ross, and Maggy Williams Carmack. Thank you the many chapters you read and your valuable comments and criticism. I am grateful to the librarians at the UNC Southern History Collection and the State Archives of North Carolina. With special thanks to Chris Meekins who first introduced me to Chief Justice Walter Clark. Without that introduction this dissertation could not have happened. Research for this dissertation was funded in part by the Allen W. Trelease Graduate Fellowship and Archie K. Davis Fellowship. The generosity of the late Allen W. Trelease and the North Caroliniana Society are greatly appreciated. iv Last, I offer my sincerest thanks to family and friends for their support. To my wife, Allison Kaiser, thank you for being patient and understanding through the many days I spent at the archives and the many long nights of writing. To my children, Oleksandra, Sasha, and Aramis; thank you for loaning your father’s time to this project. And to my parents, Deborah VonGonten and Calvin Kaiser, thank you for the many history books you bought your son so many years ago. v TABLE OF CONTENTS Page CHAPTER I. INTRODUCTION .................................................................................................1 II. ROOTS OF A PATRICIAN RADICAL .............................................................26 III. FORGING A PROGRESSIVE JURISPRUDENCE ...........................................70 IV. LEARNING, RELIGION, AND TOBACCO: THE BATTLE OVER PUBLIC AND PRIVATE EDUCATION .........................................143 V. RECONSTRUCTION AND REDEMPTION REDUX ....................................171 VI. “WITHOUT DISTINCTION OF SEX OR BIRTH”: WALTER CLARK AND WOMEN’S SUFFRAGE ....................................218 VII. CLARK V. DUKE: THE STRUGGLE FOR WATER RIGHTS ......................235 VIII. CONCLUSION: LEGACY OF A SOUTHERN PROGRESSIVE JURIST .....254 BIBLIOGRAPHY ............................................................................................................267 vi CHAPTER I INTRODUCTION He found the law dear, and left it cheap; found it a sealed book—left it a living letter; found it a patrimony for the rich—left it the inheritance of the poor; found it a two edged sword of craft and oppression—left it the staff of honesty and shield of innocence. — Henry Broughman, British Reformer1 In the spring of 1903, William Jennings Bryan posed the question, “What do you say to Judge Walter Clark, of North Carolina?”2 Bryan was advancing Clark’s name for consideration for the Democratic presidential nomination—Bryan was sitting out the 1904 election after two consecutive losses. Several weeks before Bryan’s statement, The Commoner had lauded Clark as “one of the leading democrats of the south, a lawyer of great ability and a jurist with the (sic) record of long years of able conscientious service.”3 The New York Evening Post, a Republican newspaper, published an incredulous editorial, that “ninety-nine-one-hundredths of the party would [say] ‘Never heard of the man.’”4 The Post’s exaggerated response, given their past articles about 1 From Henry Brougham’s six-hour speech in the House of Commons on February 7, 1828, urging the English Monarch to enact legal reforms similar to Napoleon’s Civil Code. Kieran Dolin, Fiction and the Law: Legal Discourse in Victorian and Modernist Literature (Cambridge: Cambridge University Press, 1999), 79. 2 “The Democratic Dilemma,” Washington Post, May 23, 1903; “Nebraskan Favors North Carolinan [sic] for the Nomination,” San Francisco Call, May 20, 1903; “Clark Bryan’s Choice,” Minneapolis Journal, May 20, 1903. 3 “Judge Walter Clark,” Lincoln (Nebraska) Commoner, May 1, 1903. 4 “The Democratic Dilemma,” Washington Post, May 23, 1903. 1 Justice Clark, is echoed by twentieth-century historiography. Clark’s legacy as a southern reformer during the long Progressive Era has slumbered with only brief interruptions since his death in 1924. This dissertation poses Bryan’s question to a different audience—historians and legal scholars. Within North Carolina politics Walter Clark rose to fame and prominence as the son of a prominent antebellum planter and as a distinguished Confederate Civil War veteran.5 His work collecting and editing sixteen volumes of the State Records of North Carolina and the definitive five-volume Histories of the Several Regiments and Battalions from North Carolina in the Great War 1861-‘65 (both labors completed without monetary compensation) around the turn of the century left both his contemporary North Carolinians and modern historians and genealogists in his debt.6 His antebellum and Confederate bona fides granted Clark considerable leeway from orthodox Democratic politics of the Gilded Age and Progressive Era to advocate unorthodox reforms locally and nationally—although it did not protect him from occasionally being labeled a Populist, radical, or, worse still, socialist.7 Clark’s successful legal practice and 5 Aubrey L. Brooks, Walter Clark: Fighting Judge (Chapel Hill: University of North Carolina Press, 1944), 25- 26; 1860 U.S. Census, Halifax County, North Carolina, population schedule, Western District, p. 45, dwelling 463, Family 425, David and Anna Clark; digital image, Ancestry.com, accessed February 26, 2015,
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