Charles E. (Charles Elliott) Fitch.

Encyclopedia of biography of New York, a life record of men and women whose sterling character and energy and industry have made them preëminent in their own and many other states (Volume 5) online

. (page 36 of 58)
Font size
QR-code for this ebook

living in Newport and Westerly and occu-
pying various religious and political posi-
tions from time to time until the eighth
generation was represented by Thomas
Clarke, of Westerly, and later of North
Stonington, Connecticut, born June 10,
1749, died May 28, 1832, married, June 10,
1770, Olive Marsh, of Hartford, Vermont,
among whose eleven children was a son,
Samuel, born June 23. 1790 (ibid. p. 69).

This .Samuel Clarke was the grand-
father of R. Floyd Clarke. The story as
told in the family is that Samuel Clarke
was of a studious turn of mind, and pre-
ferred books to ploughing, much to the
chagrin of his father, Thomas Clarke ;
that on one occasion when the boy was
about fifteen years old, his father caught

in the furrow. Result— serious parental
chastisement, and that night the young-
ster ran away to sea. Beginning as a
cabin boy in the New England West
Indies trade, he soon became a super-
cargo, waxed well in this world's goods —
married Eliza Burnell, daughter of an
English sea captain at Nassau, in the Ba-
hamas, and taking her to the United
States established himself as a factor, etc.,
in marine stores, etc., at St. Marys,
Georgia, on the river St. Marys, a tribu-
tary of the river St. Johns. Later he was
practically ruined by the burning of his
warehouse and stock, etc., by a predatory
expedition of the British up the St. Marys
river in the War of 1812. Making a new
start at the same place, he again im-
proved in this world's goods when the
Seminole War came along, and with it
the destruction of his warehouse and
goods and family residence by flames, he
and his family barely escaping with their
lives. Again a new start in life, with a
wife and large family on his hands, in
Savannah and St. Marys, and again a
successful issue and the death of the old
gentleman at his place of residence,
"Glenwood," St. Marys, Georgia, Octo-
ber 26, 1858, where he had been accus-
tomed to entertain his friends in the style
of the old Southern hospitality of "before
the war." He left his second wife sur-
viving; he had no issue by her, but had
issue by his first wife of some fifteen chil-
dren. Lemuel Clarence Clarke, the sixth
son and tenth child of this couple, was the
father of R. Floyd Clarke.

On his father's side Mr. Clarke has a
small mixture of Spanish blood. His
great-grandmother, Elizabeth Sanchez, of
the Venanchio Sanchez family of St. Au-
gustine. Florida, married Captain Bur-
nell. an English sea captain, the father of



his grandmother, who became the wife of
the Samuel Clarke, above mentioned.

On his mother's side Mr. Clarke is of
mixed English and Scotch blood — his
grandmother. Sarah Caroline Heriot, be-
ing of the Heriots hailing from George-
town, South Carolina, and prior to that
from Haddington, in Scotland. Of this
family was that George Heriot who
founded a hospital in Edinburgh, and a
sketch of whose life may be found in
the 13 Encyclopaedia Brittanica (nth
Ed.) p. 363. His grandfather on the
mother's side, Thomas Boston Clarkson,
was a resident of Charleston, and later of
Columbia, South Carolina, and was a
wealthy cotton planter owning four plan-
tations and many slaves. He was de-
scended from the Clarksons of England,
and through the female line from the
Scotch divine, Thomas Boston, Calvin-
istic Theologian, 1676-1732, author of
"The Crook and The Lot," and other
theological works, — a sketch of whose life
may be found in 2 Appleton's American
Encyclopaedia, p. 139, and 4 Encyclopae-
dia Brittanica (nth Ed.) p. 289.

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. Flovd,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 bv them upon the conditions ex-
pressed by the testator in certain papers
accompanying the will unless prevented
by the court, and upon condition that
thev were to practice no evasion of the
law, but to make application to the Legis-



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

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. cu>ii laudc 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, 191 1,
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



through diplomatic intervention by the
United States under the Piatt 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 Httle to
the clearness or literary merit of the work, but
the argument is, on the whole, coherent and con-

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



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-

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 foimd 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 appHcation
in a suit at law and in reported cases, digests,
te.xt-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 dilTerences 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



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 pam fully 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 20, 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 EngHsh
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-

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 sufticient fair-
ness and, we venture to think, more tlian sufficient

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-



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