stone, metal, or plaster, may be reprinted or moulded by the buyer, who may publicly sell the copies thus produced; in general, whatever I can do with my own thing in my own name is permitted of itself, without the consent of any other. Mr. Lippert's collection of impressions of ancient gems might be imitated by every possessor, of sufficient skill to do so, and the inventor could not complain of these imitations being exposed to sale; for this collection is a work (opus and not opera alterius); every possessor may sell it without indicating and engaging the name of the author; and he may consequently imitate it and sell the imitations which are his own work. The ground, therefore, on which all works of art may be imitated, and their imitations publicly sold, whilst the counterfeiting of books published by a publisher lawfully constituted is unlawful, is, that the first are works (opera) and the second actions or facts (opera); the former exist of themselves, whilst the latter exist only as the emanation of a person. Thus, a book, which must be distinguished from its copies, belongs exclusively to the person of the author, who, in this respect, enjoys the inalienable right, jus personalissimum, of speaking himself by the organ of another; that is to say, no person is authorized to communicate to the public the words of the author otherwise than in his name.

"A change in the writing, however, by abridging, enlarging, or recomposing it, so that it would be wrong to attribute it from thenceforward to the original author, ought not to be considered a counterfeit; it would be a new composition made in the name of the publisher. In fact, another author then conducts by his publisher a different affair from that of the original author; the second publisher does not encroach upon the affair which exists between the first and the public; he does not present to the public the first but a different author as speaking by his organ.

"In like manner, a translation of the writing into an

other language is not a counterfeit; for the translation does not contain literally the words of the author, though the ideas may be the same."

The principles of Kant have not been adopted by all the publicists and jurisconsults of Germany; and, there, as well as in France, the theory of the rights of authors is still the subject of controversy. But, I have thought, that, in a treatise on a matter which Kant has discussed, his opinion could not be passed over in silence. It will be seen also, by a perusal of the different laws, which have been adopted in Germany, on this subject, that the theory of Kant has sometimes had an influence in their composition.

L. S. C.

ART. IV.-CRUELTY TO SEAMEN-CASE OF NICHOLS AND

COUCH.

A GOOD deal of interest has been felt by the community at large, and by the legal profession in particular, in the late trial and sentence of the master and mate of the ship Caravan, for cruel treatment of a seaman. As the sentence pronounced by judge Story, which created much surprise at the time, is founded upon and partially exhibits certain principles in the application of an important statute, and certain rules of court as to the credibility and weight of the testimony of a large class of witnesses, which must give it great importance with the profession and the public, it has been thought worth while to prepare a notice of the case, to which the writer has ventured to add a few remarks of his own, hoping that they may at least have the effect of calling the attention of abler men to the subject.

The statute of the United States, of March 3, 1835, passed expressly for the protection of seamen against the cruelty of their officers, enacts that "If any master or other officer

of an American vessel on the high seas shall, from malice, hatred, or revenge, and without justifiable cause, beat, wound, or imprison any one or more of the crew of such vessel, or withhold from them suitable food and nourishment, or inflict any cruel or unusual punishment, every such person so offending shall, on conviction thereof, be punished by imprisonment not exceeding five years, or by fine not exceeding $1000, or by both, according to the nature and aggravation of the offence."

Under this statute, William Nichols, master, and William Couch, mate, of the ship Caravan, of Newburyport, were arraigned upon an indictment charging them with unjustifiably beating, "with malice, hatred, and revenge," Henry Burr, cook of the said ship, on a voyage from Liverpool to Boston, and who died upon the passage; and also for inflicting "cruel and unusual punishment" upon the deceased.

It appeared by the evidence for the government, that Henry Burr was a foreigner, and shipped on board the Caravan, at Liverpool, as cook, a day or two before she sailed for Boston, and proving unfit for his duty was turned into the forecastle and required to do the duty of a seaman, A few nights after the vessel got to sea, an order being given to reef the foretopsail, and Burr not laying hold of the reeftackle as a sailor should have done, the mate struck him twenty or thirty blows with the foretopsail halyards, continued beating him until he fell down, and then stamped upon him, and left him lying upon deck. About three quarters of an hour afterwards, the men on the maintopsail yard heard mournful cries from the quarter-deck, and saw the captain beating Burr near the mizzen-mast. After the beating, Burr lay as if dead; and was lowered down into the forecastle by a rope. His face and head were bloody, and his mouth was filled with blood. The next day he spat blood, and was taken upon deck by order of the captain, placed upon a spar, and kept there throughout the

day in the rain and cold (it being early in April and bad weather), until two or three hours after dark, when he was again lowered into the forecastle. Sometime during that night he died, being found dead in his berth by the morning watch.

The district attorney then showed to the jury a piece of bamboo, upon which was fastened a sail-needle, projecting about three-fourths of an inch, and called several witnesses, who testified that the captain and mate were in the daily habit of pricking the deceased with this instrument, in the arms, legs, back, and thighs. The steward also testified, that one morning at breakfast, the captain said to the mate they might use up every rope in the ship on the d-d Frenchman, without beating any thing into him. After breakfast the mate brought down a piece of bamboo, saying that he would put life into Burr. They then took twine and needle, and made the pricker. After Burr's death his body was found badly marked by the needle and by cuts from ropes. He was thrown overboard the morning after his death, without any religious services. It also appeared that he had been kept at holystoning the decks, and that while so employed the captain amused himself by throwing buckets of water over him. And one witness being asked, if he ever saw Burr wet more than once, replied that he "hardly ever saw him dry."

The second mate said, "the Frenchman died of the same disease that the dog is dying of," pointing to the dog whose head was badly swelled by the use of the pricker; and asked the mate if he was not afraid that Burr's ghost would appear to him.

On the part of the defence, it was admitted that Burr had been beaten, and that the needle had been used upon him; but it was contended that the beating was justifiable, because Burr had neglected his duty at an emergency which admitted of no delay, and for which the instant infliction of

some punishment was necessary. As to the pricker, it was contended that although it was an "unusual" mode of punishment, it was not "cruel," being used merely as a spur is used to quicken the movements of a horse. The counsel also suggested the habit of sailors of shamming sick, by which officers become incredulous, and the fact that all the witnesses except one against the prisoners had been punished by them during the voyage; for which reason great allowance should be made for exaggeration. Witnesses were also produced, who testified that when Burr joined the vessel he appeared to have but a few days to live, and that the captain said he had the consumption. From this the counsel argued that his death came on by natural decline; and there being no exposure or punishment but what was justifiable and necessary, the prisoners were not answerable.

They also called several merchants, insurers, and masters of vessels to testify to Nichols's previous good character, and his respectable deportment while on shore; and it was stated that Couch was very poor, and had a mother and sister who depended upon him for their support.

Judge Story, in charging the jury, said, that in some material points he considered the prisoners' witnesses had confirmed the testimony of the witnesses for the government; and if the latter were to be believed, there could be no doubt that both counts in the indictment were made out, viz. first, for unjustifiably beating the deceased from "malice, hatred, and revenge;" and, secondly, for inflicting a cruel and unusual punishment with a sail-needle. He asked the jury if a single witness had contradicted the beatings, or the condition of the man before and after they were inflicted. Upon all these material points there was no conflict whatThe use of the needle must be considered "cruel," if there was any meaning in the word, even when used upon the dog. His honor also doubted the right of an officer

ever.