tropics. There are also certain sections where tetanus is much more common than elsewhere and where it may be said to be almost endemic. * * * Tetanus usually appears about the end of the first week after a wound has been received, but it may not appear for a longer period, even three or four weeks, so that the wound may have been sometime healed. To connect tetanus with a particular wound, note (1) if there were any symptoms of it before the wound or injury, (2) whether any other cause intervened after the wound or injury which would be likely to produce it, and (3) whether the deceased ever rallied from the effects of the injury.

In the work of Allan McLane Hamilton and others, entitled "A System of Legal Medicine," Vol. II, page 585, it is said that—

Tetanus occurs most frequently in wounds accidentally inflicted, particularly in punctured and penetrating wounds, and in those in which a foreign body remains behind. Its existence is now believed to depend upon the presence of a special organism, the Bacillus tetani. A variable length of time is occupied in the period of incubation, according to the number of bacilli introduced (Watson Cheyne), the location of the point of infection, the anatomical characteristics of the surrounding tissues, and the capacity of the different tissues to yield the ptomaïnes under the influence of the bacillus. It is also probable that the degree of virulence governs, to a certain extent, both the duration of the stage of incubation and the severity of the attack. * and as the bacillus of tetanus requires the exclusion of oxygen in order to grow, it is evident that a punctured wound quickly closed offers just the conditions appropriate for the reproduction of the germ, if it has been introduced into the depths of the wound.

* *

Trauma means, strictly speaking, a wound. The term is used justly as synonymous with an injury. Ib., 298.

When it comes to the actual trial of actions for personal injuries, there are two difficult questions, to the solution of which the testimony of the medical expert may be directed. One of these is how far the defendant's negligence is responsible for some subsequently developed infirmity or disease or, in other words, how far a given injury may be said to be the natural and proximate cause of a subsequently developed condition and therefore render the defendant liable for that condition.

The general rule is easily stated, to wit: if the subsequent disease or infirmity is one which would occur as the natural result of the injury, and it is not shown that any other independent cause existed of which it might have been the result, then the author of the original injury is liable for the subsequent disease or infirmity. Ib., 379.

From the foregoing authorities it easily develops that tetanus usually follows trauma, that it is a natural sequence of it, and that neither the severity of the laceration nor the length of time which had elapsed in this case after the wound was given, nor the apparent partial recovery have any significance in determining whether the traumatic tetanus stated by the physicians to be the cause of Juan's death was the result of the wound received on the 15th of May preceding. Tetanus from that wound was a natural result within the period which in fact elapsed between May 15 and the beginning of the tetanic attack. An early healing of the lacerated wound was an apt aid to tetanus. When the physicians in attendance ascribed Juan's death to traumatic teta

nus, they said, in effect, that it was tetanus arising from wounds or external injuries. As no other wound or injury is even suggested, they also said, in effect, that the tetanus related back to the trauma inflicted by the machete of the officer upon Juan when he was under the care of the Government troops and in the presence of the commanding general. Since his death resulted through a line of natural sequences from a wound inflicted under the circumstances named, the responsibility of the respondent Government is the same as though death had been the immediate result of the machete stroke.

Whether the physicians who gave the certificate were intelligent and trustworthy is of course a proper inquiry. There is no question made by the respondent Government, and there is no indication in anything connected with the facts of this case which suggests the contrary.

It becomes, then, the duty of the umpire to hold that Juan Maninat came to his death because of a wound inflicted upon him under such circumstances as to impose responsibility upon the respondent Government.

In this case, unlike that of Jules Brun, there are other considerations than the loss which Justina de Cossé has suffered through the death of her brother Juan. There is no evidence that she was ever dependent upon him for care or support, or that he ever rendered either, or that she was so circumstanced as to need either, or that he was of ability or disposition to accord either. Therefore it is difficult to measure her exact pecuniary loss. There exists only the ordinary presumptions attending the facts of a widowed sister and a brother of ordinary ability and affection. Some pecuniary loss may well be predicated on such conditions. For this she may have recompense. But the more important feature of this case is the unatoned indignity to a sister Republic through this inexcusable outrage upon one of her nationals who had established his domicile in the domain of the respondent Government. There was abundant reason, which France may well appreciate, why the respondent Government could not censure or punish the general in command or the officer who, in fact, made the attack upon Juan. The country was in the throes of a strong revolution, the supporting hand of every one loyal to the titular government was essential to its support. It could not meet successfully the possible results if it had undertaken to censure or punish the guilty parties. Silence and tacit acquiescence was the only position then open to the titular government. Since that period and prior to the sitting at Caracas of this mixed commission there had been no real opportunity for the two governments diplomatically to consider or pass upon the merits of this case, and it remained practically for this tribunal to speak the voice of regret and to tender atonement for a sad result. Justina de Cossé can be the medium of transmission of this atonement from the respondent Government to France and by a payment of money honorably answer

the just demands of the claimants and assure to the intervening Government the constant willingness of Venezuela to atone for this wrong by the only means now in her power.

The honorable commissioner for France disclaims all right to an award based upon the injuries directly attributable to the failure of Maninat Brothers as a claim consequent upon the death of Juan for reasons which he succinctly states; but he holds that some disastrous results following his death and the pillages and requisitions preceding his injury may properly move the generous impulses of the umpire when he comes to make up his award.

It is probable that the honorable commissioner for France and the umpire do not, in fact, really differ in their conception of what is equity in such a matter. But to plant an equity always requires the basic quality of a right in the party receiving, because of a wrong moving from the party to be charged with the onerous conditions of the equitable conclusion. Generosity is not equity; equity has no part in generosity. Equity exists when exactly the right thing is done between the parties. Neither more nor less than this is equity. A just conclusion only opens the door to equity. So far as the respondent Government is responsible for the wrongs suffered by the next of kin of Juan who have a right to the intervention of France because of their nationality, so far and so far only does equity require or permit action on the part of the umpire. In every respect other than this, he has no right either to add to nor subtract from. To act at all, he must find a right to claim on the part of the claimant, and a wrong to be redressed on the part of the respondent Government. Within those circumscribed limits he has liberty of and necessity for action; outside of those limits he is a trespasser. He can not be generous; he can only deal justly and equitably.

So far as the injuries to the Society of Maninat Brothers is concerned, the interest of Juan in the requisitions and pillages mentioned, which occurred prior to his death, it is sufficient to say that the claimants have had the preparation of this cause for presentation before this tribunal. No reason is given why this reclamation did not include a definite and precise statement under that head, if reimbursement was sought. It was surely capable of some degree of exactness in the statement and some degree of certainty in the proof. Neither has been attempted. By their own inattention and inaction they have deprived the umpire of all opportunity to know anything of this branch of their alleged injuries, and they must not ask him to conjecture and estimate when they might have permitted him a settled judgment, nor can they at all expect that he will add aught to his award because of these probable, but vaguely uncertain, losses which they project into this reclamation.

Because of the holding by the umpire that Pedro Maninat is a Venezuelan, it results necessarily that nothing can be considered in his behalf on account of failure of justice or denials of justice, if such occurred, succeeding the death of Juan and personal to him or to the mother of his wife, who attempted to assist him.

In naming one only of the Maninat heirs as competent to present a claim under the protocol of February 19, 1902, no inequity is done the other heirs. It does them no harm that she is not a Venezuelan, but of French nationality only. The laws of France governing the distribution of estates are not involved in this decision, neither are they invaded nor disturbed. This tribunal has no part in the final allotment or distribution of the sum which by the award herein is made payable to France, through the personality of Justina de Cossé, for whom that country has right of intervention. Over the proceeds of the award here made France has absolute dominion, so far as this tribunal is concerned, and in the perfect justice and equity of her procedure there can be complete content.

It is the judgment of the umpire that a just compensation which covers both aspects of this case is 100,000 francs, and the award will be prepared for that amount.

NORTHFIELD, July 31, 1905.

CLAIM OF ANTOINE FABIANI.-NO. 4.a

HEAD NOTES.

This claim came to the umpire after having been once heard and determined by the honorable President of the Swiss Federation, being submitted to him under the protocol of February 19, 1891, the first paragraph of which reads:

"The Government of the United States of Venezuela and the Government of the French Republic have agreed to submit to an arbitrator the claims of M. Antonio Fabiani against the Venezuelan Government.”

Against the proposition that such an arbitrament and award is conclusive upon all parties the claimant urges that the Swiss arbitrator held that he had not jurisdiction over a large part of the claims and therefore was incompetent to consider and to pass upon them; that the Swiss arbitrator in fact extracted and subtracted from those claims such as he held were without his jurisdiction and only awarded concerning the rest.

The umpire holds, however, that no jurisdictional questions were before the Swiss arbitrator, none were urged by either party, and none in fact were determined; that all claims of Fabiani were in fact submitted by the protocol to the decision of the Swiss arbitrator and all were in fact decided by him.

That there were certain restrictions placed upon the Swiss arbitrator in the protocol which had the effect to limit the scope of the claims left undisposed of by the two Governments for decision by the Swiss arbitrator.

That under the protocol the Swiss arbitrator must first determine whether the Venezuelan Government was responsible for any damages to Fabiani; that this responsibility must be determined in view of the limitations of the protocol which were to the Swiss arbitrator his supreme law. These limitations were essentially that the decision was to be

a EXTRACT FROM THE MINUTES OF THE SESSION OF MAY 30, 1903.

The claim of Antoine Fabiani was then taken up.

Doctor Paúl rejects it as having already been judged by the arbitral court of Berne, the award of which, in his opinion, has decided definitely on all the points of indemnity presented by M. Fabiani.

M. de Peretti, on the other hand, claims that the Swiss arbitrator has brushed aside all the points represented to-day by M. Fabiani as not being covered by the agreement of arbitration signed the 24th of February, 1891, by the two Governments. The President of the Swiss Confederation has, then, declared himself incompetent to examine the aforesaid points, which by this very fact have found themselves reserved for the examination of the commission instituted by the protocol of Paris. Consequently M. de Peretti admits the demand of M. Fabiani, which he recognizes to be well founded, and accords to him the sum which he claims.

Doctor Paúl declares that the decision taken by M. de Peretti, according to M. Fabiani the sum which he claims, has not been preceded by any discussion between the arbitrators upon the amount of the claim, which Doctor Paúl rejects for the reason already expressed— namely, that all the claims newly presented by M. Fabiani have become res judicata.

This claim will then be submitted to the examination of the umpire.

S. Doc. 533, 59-1-6

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