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and also included construction of Sec. 5280, R. S., in harmony with the treaty provision.
For an instance of allegation of violation by acts of a revolutionary force against an American, William Fowks, see Moore, Digest, VI, 993–994. An indemnity was paid and accepted without entering into the merits of Peru's liability under Articles II and XV of the treaty of 1887.
For evidence that cutting submarine telegraphic cables in war time is not a violation of Article XV of the treaty of Paris of March 14, 1884, on the protection of such cables, see Moore, VI, 924–926.
For alleged contravention by the viceroy of Nanking of Article I of the Whangpu river conservancy agreement of September 27, 1905 (For. Rel., 1905, 122), see For. Rel., 1909, 70 ff.
For alleged discrimination against Italian subjects by an ordinance of Richmond, Va., in contravention of Articles II and III of the treaty of February 26, 1871, between the United States and Italy, see For. Rel. 1909, 386–389. A similar instance occurring in South Carolina in 1893 was dealt with in Cantini et al. v. Tillman et al., 54 Fed. Rep. 969.
For the Maiorano case, see For. Rel., 1909, 391–393. Here the Department of State held that a Pennsylvania law denying nonresidents of Pennsylvania the right to institute damage proceedings on account of violence or negligence resulting in death did not violate Articles 3 and 23 of the treaty of February 26, 1871, with Italy. Cf. Maiorano v. B. & O. R. R. Co., 213 U. S. 268 (1909).
JOHN WATSON FOSTER
The State of Indiana has a goodly list of soldiers, statesmen, and men of letters to its credit. In not a few instances the reputation which they have achieved has been national; in one, and the most recent, international. It is rare that distinction has been achieved in the three fields of activity, but whether soldier, statesman, or man of letters, or whether they be combined in one, the son of Indiana remains loyal to Indiana, whether he live within the State, at the capital of the nation, or perform the duties assigned to him in the larger world beyond our boundaries. He is never too great for the State; to the State he returns, and in the State he is laid to rest amid the admiration, respect, and regard of his fellow-citizens.
John Watson Foster, known alike as soldier, statesman, and man of letters, was a native of Pike County, State of Indiana, and in Evansville, State of Indiana, he sleeps his last sleep. Born on March 2, 1836, he died on November 15, 1917, and he justified his length of days not merely by good works, which alone would have been a justification, but also by great deeds, which gave him standing at home and abroad and an enduring reputation.
A graduate of Indiana State University, a student of the Harvard Law School, and a lawyer by profession, he served three years and a half in the war between the States, took part in many important engagements in the west, and commanded at various times three different regiments, a brigade, and a division of cavalry. The skill and the courage exhibited at Fort Donelson, where, although a major, he commanded and led the charge of his regiment, attracted the attention of General Grant, won his friendship and regard, and laid
the foundations of that diplomatic career which began in 1872 upon his appointment by President Grant as Envoy Extraordinary and Minister Plenipotentiary to the then distracted Republic of Mexico. The incidents of this appointment the veteran diplomatist himself very modestly relates in the two volumes published in 1909, under the caption of Diplomatic Memoirs, an admirable work which supplies the facts of his career and only leaves to other hands its appreciation.
General Foster had been Chairman of the Republican Committee of his State in the presidential campaign of 1872, in which, at first, the tide seemed to be against General Grant, but which, in the end, turned strongly toward him and resulted in his triumphant reëlection. As Governor of Indiana, Oliver P. Morton had appointed Mr. Foster, as he then was, a major of volunteers, without solicitation and without his knowledge. Governor Morton was now United States Senator, and, realizing the obligation of the party to General Foster and desiring to recognize it by an appointment, asked him to choose the position which he most preferred and to give himself no worry about his appointment to it. The General was somewhat taken aback at this mark of confidence in his abilities, which he never rated so highly as his friends. He asked time to consult with Mrs. Foster, whom he had left to go into the army, but who, for fifty-eight years, administered to his comfort, making a great career possible, notwithstanding his delicate constitution and precarious health. They came to the conclusion that "a brief residence in Europe would be both pleasant and useful,” and they picked upon the ministry to Switzerland, which General Foster says in his Memoirs “was in the lowest grade of our diplomatic service.” Switzerland was promised, but Mexico was free; and in this casual, indeed accidental way, he began that diplomatic career which has given him an abiding place in the history of his country.
During his seven years in Mexico that country passed through the storm and stress of revolution and settled down, with a brief interval, to a policy of order, if not of law, under President Diaz, relapsing, as General Foster feared and for the reasons he stated, into anarchy after the strong hand was stayed. Commenting upon his service in the army, he had said, “My military life greatly enlarged my knowledge of men and gave me fuller confidence in myself.” And no better example can be found of his knowledge of men and the reason why his countrymen had confidence in him than his analysis of the Diaz régime. its nature and its consequences:
It would have been a wise and patriotic act for General Diaz to have retired from the Presidency at the end of his second term, leaving the prohibitive clause of the Constitution in force. He would then have been in a position to guarantee a peaceful election of a successor and a continuance of the good order and prosperity which he had established. The people also might have had an opportunity to test their ability to conduct a government by means of a free and untrammeled exercise of the electoral franchise, a condition as yet unknown to Mexico. The benevolent autocracy under his administration has resulted in great prosperity for the country, but it has done little to educate the masses of the people in their duties under a republican government.
The biographer of Pericles, the greatest of the republican rulers of Athens, in describing the disorders which followed his death, makes these comments: “In his determination to be the foremost man in the city, he left no room for a second. ... Under his shadow no fresh shoots sprang. He taught the people to follow him as leader, and left no one behind to lead them; he destroyed their independence
or at least the mutual play of opposite forces — and when he died came 'the deluge.' There was no one who could succeed him. A democracy without great men is a dangerous democracy." ;
While still in Mexico, General Foster was, without consultation, and indeed without his knowledge, notified by telegram that he was to be transferred to the Russian mission. On January 19, 1880, President Hayes nominated him for that post, and General Foster recalls with pleasure that his name was sent to the Senate with that of Mr. James Russell Lowell, transferred from Madrid to London. He arrived in Russia on May 28, later than was expected, owing to the fact that he stayed in Mexico to receive General Grant, then visiting the country. He remained in Russia during the balance of 1880 and in August, 1881, he obtained a leave of absence to visit the United States, which, however, proved to be not only his farewell to Russia but his renunciation of diplomacy as a permanent career. For, although he later filled posts temporarily and was sent on diplomatic missions, they were as incidents or as interruptions in the career of a publicist and international lawyer, — not to be sought, yet not to be avoided if offered.
Having stated with frankness in his Memoirs the reasons which led him to enter, so with equal candor he gives the reasons which caused him to leave, the diplomatic service. Thus, he says:
After reaching home I came to the conclusion that the interests of my family and due consideration for my own future demanded my retirement from office. I had been continuously in the Diplomatic Service for nearly nine years. They
· Diplomatic Memoirs, Vol. I, pp. 106-107.
had proved very interesting and instructive and I had reason to be satisfied with my labors. But under our system of government I could not hope to make the Diplomatic Service a life career. I was giving to the Government the best years of my life, and I thought it better to choose my own time for retirement than to have it determined by a change of administration.
I had a growing family and I preferred to give them an education in our own country rather than abroad. Financial considerations also influenced my determination. Before entering the Service I had not accumulated a competency, and the salary received from the Government required me to exercise economy in office. I did not consider it either prudent or honest to adopt a style of living beyond my income. I do not advocate large salaries for our diplomatic representatives, but permanent houses should be provided for them, and there should be such a moderate increase in their salaries as would justify men of talents without fortunes entering the Service. Lavish display is not becoming in the representatives of a democratic government, but they should be enabled to live comfortably and in becoming style without drawing upon their private means or credit.
In an earlier portion of his Memoirs, in connection with his entrance upon “the highest and most difficult mission on the American hemisphere,” for such the Mexican mission then was, he makes the following observation upon diplomacy as a career, wise in itself and the fruit of his experience, which is an appropriate pendant to his observation upon leaving the service:
I am a strong advocate for the establishment of a regular career for the diplomatic service of the United States; I would have all Secretaries of Legation enter the service through a competitive examination; continue in office during good behavior; and, as they should prove worthy, have them promoted to Ministers. But I doubt whether the time will ever come when our Government will think it wise to confine the appointment of Ministers and Ambassadors entirely to promotions from the posts of Secretary. It has never been so in the Governments of Europe where the regular diplomatic career has long been an established system. Many of their most useful and distinguished diplomats have been those who never entered the service through a competitive examination, but who were appointed from other branches of the public service or from private life.?
By resigning, on November 1, 1881, from the mission to Russia, to settle in Washington and to engage in the practice of law, particularly of international law, in which he prospered and acquired fame, he doubtless thought that he had severed his relations with Russia; but in this he was mistaken, and it is probably the only mistake with which he can be taxed in his diplomatic career. He was sent on special mission by President McKinley in 1897. And if he really thought that he
i Diplomatic Memoirs, Vol. I, pp. 213-214.
? Ibid., pp. 12–13.