USA > New York > Encyclopedia of biography of New York, a life record of men and women whose sterling character and energy and industry have made them preeminent in their own and many other states, Vol. 3 > Part 34
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Mr. Clarke's father, Lemuel Clarence Clarke, born at St. Marys, Georgia, Au- gust 4, 1831, later removed to Columbia, South Carolina, and there married Caro- line Beaumont Clarkson, of Columbia, South Carolina, December 17, 1859. He was a merchant in Columbia, South Caro- lina, before and during the war, and then removed with his family to New Orleans and later to New York, and died in New York, April 30, 1893. Mr. Clarke's mother, Caroline Beaumont (Clarkson) Clarke, of Columbia, South Carolina, born October 10, 1834, died at New York City, October 26, 1912, she being the first daughter and fourth child of Thomas Clarkson and Sarah Caroline Heriot, men- tioned above. This couple had seven chil- dren, all save one dying in infancy. Their third child and second son, R. Floyd, born
after his twin brother, October 14, 1859, is the sole survivor of the whole family.
This family of Clarksons had come over to Charleston, South Carolina, in the eighteenth century, and in 1851 they were represented by three brothers named Thomas Boston Clarkson, William Clark- son and John Clarkson, and by the child of a deceased sister, W. C. Johnson. Thomas Boston Clarkson and William Clarkson had married, and had large families, but the third, John, was a wealthy bachelor.
As an indication that all Southerners of this period did not believe in slavery, the following episode may be of interest: In December, 1841, the Legislature of South Carolina passed an act to prevent the emancipation of slaves. John Clarkson died in 1849, leaving a will in which, with the exception a few legacies, he be- queathed all of his property, on certain conditions made with him, to his brother, William Clarkson, and appointed the latter executor. The executor having qualified, the infant son of the deceased sister brought a suit to be found as "W. C. Johnson, by next friend, vs. William Clarkson and Thomas Boston Clarkson, Charleston, January, 1851, 24 South Caro- lina Equity Reports, 305," in which he declared that the object of the will, and the conditions under which it had been given, had been to free the slaves of the testator, and asked for a decree to set aside the will. John Clarkson's property consisted of a plantation, a large number of negroes, together with stocks and other personal estate.
The answer of the defendants admitted that the property was left to them, and accepted by them upon the conditions ex- pressed by the testator in certain papers accompanying the will unless prevented by the court, and upon condition that they were to practice no evasion of the law, but to make application to the Legis-
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lature of the State, which body alone could emancipate slaves, to emancipate all the slaves belonging to the testator at death, or to give the defendants a license to send them out of the State; and if the said negroes be emancipated by the Leg- islature, or defendants permitted to send them out of the State, then to sell the plantation and out of the property and proceeds pay certain legacies, and the balance to divide among the negroes. If the foregoing could not be done, then to sell and divide according to other direc- tions given. The court held that no bene- ficial interest was given by the will to William Clarkson and the conditions im- posed by the testator being void under the law of South Carolina, the estate went to the next of kin. Among the memo- randa left by John Clarkson with his will were the following:
Husbands and wives must on no account be separated.
Nov. 25, 1842.
JOHN CLARKSON.
I do not wish my negroes forced to go to Africa, if they do not wish it.
Aug. 13, 1849.
JOHN CLARKSON.
R. Floyd Clarke, son of Lemuel Clar- ence and Caroline Beaumont (Clarkson) Clarke, was born October 14, 1859, in Columbia, South Carolina. He was in that town at the time it was burned dur- ing Sherman's march in 1865; was later, at the age of seven, in the yellow fever epidemic of 1867 in New Orleans, recov- ering from an attack of the same, including the black vomit, from which stage of the disease a very small percentage ever sur- vive. Afterwards, the family being im- poverished by the war, Mr. Clarke was brought as a child to New York about 1870, where he was educated in Public School No. 35-the old 13th Street School near Sixth Avenue, and in the College of the City of New York, then at 23rd Street
Stand, Lexington Avenue. He graduated from the College of the City of New York, A. B. in 1880, and in 1899 received from that institution the degree of A. M. Taking up the study of law at Columbia College Law School, he was graduated LL. B. cum laude in 1882, taking the first prize in Municipal Law. Shortly after- wards he was admitted to the New York bar, obtaining, with others, honorable mention as the result of the examination, and has since practiced law in New York City, first as managing clerk in the office of Olcott & Mestre, 1882-83; then as a member of the firm, 1883-84; then as a member of the firm of Clarke & Culver, 1895-1903; and from that time under his own name. He has been counsel for large interests and corporations; and has been identified with important litigations and international cases, notably in the follow- ing litigations: The George Kemp will case; the Edward Kemp will case; the Dunlap Estate litigation; the Consoli- dated Lake Superior Corporation litiga- tion ; the James R. Keiser trade name lit- igation over "Keiser Cravats" and others.
He has been counsel in the following international cases, notably in connection with the claims of private claimants under the Mexican title in the interna- tional arbitration case of Mexico vs. United States in the El Chamizal District, El Paso, Texas, decision for part of the land in favor of Mexico, June 15, 1911, decision protested by the United States and matter standing in statu quo; the claim of the United States & Venezuela Company, known as "the Crichfield As- phalt Concession" against Venezuela, which, by protocol of February 13, 1909, was sent to the Hague Tribunal, but was afterwards settled out of court for $475,- 000; the claim of the McGivney & Roke- by Construction Company against Cuba which resulted in obtaining enforcement
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through diplomatic intervention by the United States under the Platt Amend- ment of their contract to sewer and pave the City of Havana, work on which is going on and has now been practically completed; counsel for Porter Charlton (the Lake Como murder case) in habeas corpus proceedings to prevent his depor- tation to Italy on the ground that Italy having admittedly broken the Treaty of Extradition, it could not be heard to en- force it. This issue was taken through the Secretary of State's office and all the courts to the Supreme Court of the United States without success; but on the subsequent trial of the case in Italy, the delays of the litigation in America counting on the sentence, Charlton was sentenced to only twenty-eight days of imprisonment and is now a free man; counsel also in important contraband cases arising as to steamers and cargoes in the recent world war; and others.
He is the author of "The Science of Law and Law Making" Macmillan & Com- pany, 1898) and articles including "A Permanent Tribunal of International Law -Its Necessity and Value," I American Journal of International Law, April, 1907, P. 342; "Castro, The Ungrateful," North American Review, April, 1908; "An Epi- sode on the Law of Trusts," Columbia Law Review, May, 1905; "Intervention for Breach of Contract or Tort Com- mitted by a Sovereignty," Proceedings of American Society of International Law, 4th Annual Meeting, 1910, pp. 149-191.
He is a member of the New York State Bar Association, the Association of the Bar of the City of New York, the New York County Lawyers' Association, American Society of International Law. Delta Kappa Epsilon Fraternity, Phi Beta Kappa Society. He is a life member of the New York Southern Society. His recreations are: Yachting, motoring and chess. He owns the sloop yachts "Atala"
and "Golliwog," and has a country place at Stony Creek, Connecticut, opposite the Thimble Islands. Clubs: Life member of the University Club of the City of New York, New York Yacht Club, Larchmont Yacht Club and Atlantic Yacht Club. Member of Colonial Order of the Acorn and Manhattan Chess Club.
Mr. Clarke's book, "The Science of Law and Law Making," being a treatise on the vexed question of the propriety of codifying the whole of the Civil Law, and taking strong ground against its entire codification, has been much discussed and has received many reviews both in the United States and England. As might be expected from the nature of its subject matter, these have been partly compli- mentary and partly the reverse. As a sample of the diversity of the human mind, the following extracts from some of these reviews may be of interest :
From "The Harvard Law Review," May, 1898, vol. xii, p. 68: Mr. Clarke's book should be wel- comed as affording to the general reader an introduction to the study of law suggestive of the beauty and interest of its problems, and as giving for the first time a comprehensive discussion of the problem of codification *
In advocating the cause of the case law system, the real substance of the book, the writer has accomplished his purpose well. The division of the chapters into so many headings adds little to the clearness or literary merit of the work, but the argument is, on the whole, coherent and con- vincing.
From "The Green Bag," May, 1898, vol. x, No. 5, p. 228: This work is intended especially for the layman, but the legal profession will also find it both readable and instructive. Mr. Clarke gives his readers a clear and true conception of the system of law under which they live, explain- ing in popular terms the general outlines of legal systems and making the subject perfectly intelli- gible to the ordinary mind. He then proceeds to discuss the question of codification, and his con- clusions seem to us to be sound and to be sus- tained by facts. We commend the book as one which may be read with profit by all thinking men.
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From "The Albany Law Journal," Saturday,
April 2, 1898, vol. 57, No. 14, p. 223: * * * Within the 475 pages of this work the author has condensed in an admirable manner all the leading arguments for and against codification, in ad- dition to which he has given a large amount of elementary matter, valuable not only to the stu- dent, but as well to the professional reader, in refreshing his recollection and aiding to a clearer conception of the generalizations involved in the arguments advanced. His style of writing, it may be added, is charmingly clear, as well as remark- ably vigorous. * * * it will probably be con- ceded that it would be difficult to put the argu- ment against codification more strongly and forci- bly in so many words. Mr. Clarke has certainly made a valuable contribution to the solution of a very important and exceedingly complex problem.
From "The Yale Law Journal" (New Haven), May, 1898, vol. vii, No. 8, p. 374: * * * Mr. Clarke takes strong ground against codification. The arguments for and against are reviewed and the question made distinct and clear. This method of illustrating the working of the systems of Case and Code Law, by applying their methods to the solution of the question of a contract in restraint of trade, is ingenious and convincing.
From "The New York Law Journal," Friday, May 13, 1898, vol. 19, No. 36, p. 522: * * This work will certainly accomplish one of its principal purposes in imparting to intelligent lay readers the science of jurisprudence and the pro- cess of the building of the common law. * * * It is therefore a distinct advantage to general culture to have a work, such as Mr. Clarke's, from which the ordinary reader may learn the rudiments of our legal system.
This author furthermore presents the argu- ment against codification very forcibly and com- pletely and with much originality of suggestion and ingenuity of illustration.
From "The New York Evening Post," Saturday, August 20, 1898, vol. 97, p. 15: * * * Where we find ourselves at one with the author is in believing that some subjects lend themselves better to statutory, others to common law regu- lation.
From "The American Law Register," May, 1898, vols. 46 O. S., 37 N. S., No. 5, p. 335: The importance of the question considered by the author, and the growing interest in it, insure something more than passing attention to the
book under review. * The method of adducing concrete examples of case, statute and code law is very effective, often rendering argu- *
ment on a given point almost unnecessary.
To the lawyer, the book will commend itself as one in which a vital problem is impartially treated. None of the advantages of codification are underestimated, nor are its disadvantages slighted. The conclusions reached by the author are evidently the result of careful thought and, insofar as a cursory examination can show, valid.
From "The Banking Law Journal," May, 1898, vol. 15, No. 5, p. 261 : *
* * To all intelli- gent laymen, as well as to all lawyers desirous of brushing up on the fundamentals, we would com- mend Mr. Clarke's work, which is written in a style that will find favor with the popular reader, and which admirably fills the want we have out- lined. No one who reads this work will say that the law is dry; on the contrary, it will be found to have a peculiar fascination for the general reader.
The work gives the most complete and best presentation of the whole subject of codification -the arguments and reasons pro and con-yet written; and while, as such, it will command the attention of the foremost legal minds on both sides of the Atlantic, it is none the less a work which will be found intelligible and highly in- structive to, and entirely within the comprehen- sion of, the general reader.
From "The New Jersey Law Journal," vol. 21, No. 5, p. 159, May, 1898: A general introduction to the study of the law is followed by concrete examples showing its expression and application in a suit at law and in reported cases, digests, text-books and in statutes, and from these ex- amples it is shown how different are the methods and results when the law is found in reported cases and when it is expressed in statutes or codes; and then there is a statement of the exist- ing provinces of case and statute law and a dis- cussion of the question whether the province of the latter should be extended and a clear ex- position of the essential differences between the two and an earnest argument against the effort to crystallize the whole law in a definite code it has the merit of bringing the question by means of examples within the comprehension of any intelligent man not familiar with the law.
From "The Western Reserve Law Journal," vol. iv, No. 3, p. 81, April, 1898: Here is a work, written with scholarly accuracy and
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clearness, so simple as to render a dictionary un- necessary, and yet so complete and profound as to invade the depth of a science on which many of our law givers are painfully ignorant. * *
To those who, with a mental aggressiveness, are continually alive to the absorption of useful and valuable, even necessary knowledge, we gladly commend this work as a new contribution to the field of scientific legal thought.
From "The New York Daily Tribune," Tues- day, July 26, 1898: Mr. Clarke has seized the idea of evolution in law with a grasp not easily loosed. * *
* The evolutionary process had been a natural one, and both Professor Jenks and Mr. Clarke, however much they might differ about other things, evidently hold that it continued to be natural. Mr. Clarke goes on to say that the process in the mind of successive generations of judges was inductive, not deductive. The prin- ciple was sought in the actual concrete case, not inferred from some universal premise and applied to the case. Professor Jenks says the same thing by contrast, when he describes the method of interpreting the Roman Law as scholastic. Mr. Clarke's argument is that after all these ages of legal development on lines that are now found to be just the natural lines of investigation, and above all of scientific investigation, it is absurd for men to go back to the scholastic method of a fixed code.
From "The American Law Review," vol. xxxii, No. 4, p. 637, July-August, 1898: The briefest description of this work would be to say that it somewhat resembles, in outline and substance, the celebrated work of Judge Dillon on English and American jurisprudence and laws. It carries us into new lines of thought and widens out many fresh fields of discussion. It will repay reading by everyone who has time to think upon the foun- dations of the jurisprudence of his country.
From "The Nation" (New York), vol. Ixvii, No. 1729, p. 137, August 18, 1898; * *
* Where we find ourselves at one with the author is in believing that some subjects lend themselves better to statutory, others to common law regula- tion.
From "The Law Quarterly Review," vol. xiv, No. 55, July, 1898: This book professes to be an introduction to law for the use of laymen, but it is really nothing but an elaborate argument against codification, in which the general reasons
pro and contra are set forth with sufficient fair- ness and, we venture to think, more than sufficient fulness.
From "The Athenaeum," No. 3695, August 20, 1898: "The Science of Law and Law Making," by Mr. R. Floyd Clarke (Macmillan & Co.), which purports to be an important philosophic, or at least scientific, inquiry of more than usual interest, because seldom undertaken, proves on perusal to be an unscholarly discussion of the comparative advantages of statutes or decisions as methods of legal expression. * * *
Admitting all he has to say as to the practical difficulties in the way of the statutory form, we still think that it is the right form to aim at, and Mr. Clarke's arguments to the contrary are far from being irresistible. We have not the space to go into the merits of the question, nor can it be urged that Mr. Clarke's treatment of it tempts his critics to do so. Law books are seldom happy in style, and in this respect his work can success- fully claim to be a law book.
From "The St. James' Gazette," vol. xxxvii, No. 5676, September 21, 1898: The latest discus- sion of the whole subject of codification is to be found in a bulky volume, the "Science of Law and Law Making," by Mr. R. F. Clarke, of the New York Bar. Mr. Clarke, who is a convinced opponent of codification, has spoiled his case by going too far and endeavoring to establish a fanciful theory as to the respective provinces of case and statute law. According to him, legal rules of conduct involving an ethical element should be left to be fixed by the common law in decided case; while rules about conduct ethically indifferent but requiring regulation for general convenience, say the rule of the road, should alone be left to the Legislature. * * *
On the general subject Mr. Clarke has much to say that is sound and ingenious; but the book is illarranged and intolerably diffuse.
From "The Irish Law Times and Solicitors' Journal," vol. xxxii, No. 1641, Saturday, July 9, 1898: * * * The fifth chapter, treating of English law as it is, is very interesting and novel in its methods, contrasting concrete examples of Statutes, of Reported Cases, of Text Books, of Digests. That dealing with English law as it would be if codified is also noteworthy. As regards Case Law the author asks if there is no relief from the ever increasing mass of Case Law, with its bulk, contradictions, and uncer-
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tainties. And certainly any one who has glanced through the American Digests will appreciate the query. He answers that a perfect system of law is unattainable and that both Statute and Case Law must continue to flourish side by side. Codi- fication of the Case Law of England is, he says, the mirage of enthusiastic speculation, and would be the forging of fetters on the Science of law, precluding its true development. To all interested in this Science the present work will prove the most interesting holiday reading.
From "The London Times," No. 35,559, Mon- day, July 4, 1898: Mr. Floyd Clarke has written a clever book though he does refer to Sir "Thom- as Moore" as Lord Chancellor, and though he maintains a thesis which is hopelessly wrong. "The Science of Law and Law Making" (Mac- millan) is another name for "No Codification." * Perhaps the cleverest, and we are tempted to add, not the least absurd, chapter in the book is that in which Mr. Clarke seeks to show that there is scientific warrant for the dis- tinction between statute and case law; that their provinces are properly different; and that while statute law deals with morally indifferent con- duct, case law relates to ethical conduct. There are many things in the volume much more valu- able than these whimsical distinctions-or the contention that "the necessity for codification arises from the clash of wills." The author throws out several hints and suggestions well worthy of the consideration of law makers, and shows that much remains to be done to perfect the mechanics of legislation.
From "The Manchester Guardian," Tuesday, August 23, 1898, No. 16,235 : * *
* The book is indeed the most formidable attack on codifica- tion which has appeared for a long time -- well planned, clearly written, ably and ingeniously argued.
From "The Canada Law Journal," vol. xxxiv, No. 17, October 15, 1898: * * * As the au- thor states, it is a curious fact that no work exists in which the general outlines of legal systems are explained in popular terms, so as to be intelligible to the ordinary man not versed in technicalities. The book is, firstly, an introduc- tion to the study of law and secondly, gives the ground work on which to build up an argument on codification. It should, therefore, be helpful to those students of the law who desire to be lawyers and not merely practitioners. It exhibits
much thought and research, and is written in an interesting style and clear in expression. There is entirely too little thought and time given to the study of foundational truths, such as are presented in this book, and the sooner the student is compelled to know more of the science of law and law making, the better for the profession.
From "The Evening Sun" (New York), Satur- day, June 3, 1899: The layman is accustomed to associate dullness with treatises on the law. But how foolish this notion is he would speedily admit were he to glance into "The Science of Law and Law Making" (Macmillan), by Mr. R. Floyd Clarke of the New York Bar. It is a philosophical and scholarly statement of first principles and their application. The great sub- ject is handled with such grasp and skill as to make the questions dealt with interesting to the least sympathetic. The volume, which only runs to 450 pages, is one which no lawyer's library should be without. As for the student and the legislator, they will find it the best possible in- troduction to what has been until recent years a puzzling and bewildering wilderness. Mr. Clarke speaks with authority, but in no case have we come upon a quotation in his book which could be described as having been used for the purpose of ostentation. * * *
Were it only to be regarded as a book of reference, this treatise would be very valuable. Mr. Clarke has the trick of clever definition and apt illustration.
From "The Speaker" (London), vol. xviii, No. 466, p. 675, December 3, 1898: This is a very able, if somewhat diffusive, argument against the codi- fication of English case law, but we cannot ex- actly understand how it came to be labelled "The Science of Law." *
Mr. Clarke's book, though the unscientific lawyer may perhaps think it too conclusive to have needed writing, may with great confidence be recommended to all professors and laymen who take an interest in legal reform. It comes with added authority from across the Atlantic.
Munroe Smith in "The Political Science Quar- terly," vol. xiv, No. 2, p. 347, June, 1899, says : * * * He therefore begins at the beginning and writes "an introduction to law" which pre- pares the way for an exhaustive analysis of the difference between statutory and judicial law. This part of the work is well done, and the book can be cordially commended to every layman who
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desires a more definite conception of the ways in which law comes into existence. The method of concrete illustration is perhaps pushed to an ex- treme; the layman may be induced to read a case or two, and even a statute or two, but he is hardly likely to peruse with care extracts from a digest or the table of contents of a code.
As regards the treatment of the special question of codification, the book has great merits. The author really makes it possible for a layman to see, as few lawyers really see, what is meant by the "flexibility" of case law. When he says (p. 255) that "the case law deals with the actual phenomena, while the code law deals with human abstractions from the phenomena as the counters for its reasoning." he has really gone to the bottom of the question.
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