purpose of extenuating malice.' It would seem, however, on principle, that such evidence ought not to be admitted for any purpose. For the only allowable purpose, viz. that of showing the real extent of the plaintiff's injury, it is exceedingly loose and unsatisfactory, and is liable to gross abuse. See Holt's N. P. R. 533, Mills v. Spencer; 4 Conn. Rep. 408, Treat v. Browning; 2 Stark. Ev. 880, and cases cited in the Ameri'can editor's note; Stark. on Slander, 410.

Evidence that the plaintiff has libelled the defendant has been said to be admissible in mitigation of damages, in an action for a libel. 2 Campb. 72, Finnerty v. Tipper; 2 Stark. Ev. 877, & note (1). If the plaintiff is proved to be a common libeller, it is easy to see that his injury from a libel on himself is entitled to little consideration, because his character, being necessarily infamous, can suffer but little from a libellous attack. But it is not so readily perceived why a single libel by the plaintiff on the defendant should reduce, his damages, when he sues for a libel on himself by the defendant. The law of set-off does not extend to such a case. And the last decision which has been seen, on this point, leaves a serious. doubt on the question whether evidence of the plaintiff's having published a libel on the defendant is at all admissible. It was however decided that, at the furthest, such evidence could be received only in case of a libel concerning the same matter. 3 Barn. & Cres. 113, May v. King. If even in this restricted manner, the evidence is admissible in mitigation of damages, it must clearly be only on the ground of provocation; not for the purpose of showing the extent of the plaintiff's injury, but to show that the plaintiff, through his own misconduct, is not entitled to compensation for his actual injury. In other cases, however, (as will shortly be seen) provocation is allowed to be proved in mitigation of damages only when the injury immediately follows it, 'before the blood has time to cool;' which certainly does not hold in the case of publishing a libel.

On this doctrine of mitigating damages in consequence of provocation given by the defendant to the plaintiff, only one English case has been found. If there are more, they have eluded a laborious search. In 12 Vin. Ab. 159, it is said that in an action for slander, in the case of Dennis v. Pawling, Price, B. allowed provocation given before the speaking of the words, to be shown in mitigation of damages.

If a battery is inflicted in self-defence, it is justifiable; and no

damages can be recovered, if the pleading is correctly conducted. The plaintiff, though he has suffered, (it may be grievously,) is entitled to no redress, because he brought the evil upon himself by his own misconduct. So, it seems, if the plaintiff provoke the defendant by insult and abuse, and a battery or actionable words immediately ensue, the provocation, though it does not justify the defendant's acts or words, may be shown in mitigation of damages; for the plaintiff was in fault, and should bear a part of the injury which his misconduct induced. But after the blood has time to cool, if the defendant assault or slander the plaintiff, he is not regarded as a subject for clemency on account of the provocation given 1 Mass. Rep. 12, Avery v. Ray; 2 Root, 252, Guernsey v. Morse; 19 Johns. Rep. 319, Lee v. Woolsey.

So in an action for false imprisonment, a reasonable cause of suspicion that the plaintiff had committed a felony may be shown in mitigation of damages. Ryan & Moody, 424, Chinn v. Morris. Where a party is placed in suspicious circumstances, the law regards it as his fault or his misfortune, and very properly casts a part at least of the ill consequences upon himself. See 1 Phil. Ev. 140, (2d ed.); 2 Stark. Rep. 143, Wallace v. Jarman.

So in an action for seduction of a wife or daughter, evidence may be given in mitigation of damages, which shows that the consequence resulted in part from the improper, negligent and imprudent conduct of the plaintiff himself. 3 Stark. Ev. 1310; 2 Phil. Ev. 155.

In actions for assault and battery, the courts have some times seemed to be influenced by the rules of criminal law, and to have compared a civil action to an indictment for homicide, where sudden passion reduces the crime from murder to manslaughter. It is believed that this is by no means the correct view of the matter. If provocation can, on principle, be allowed to reduce damages below the actual injury received, it would seem to be only on the ground that the defendant has been culpably instrumental in bringing the mischief on himself. In this view of the doctrine, no principle, perhaps, is violated; one principle (as in divers other instances) is held to control or modify another.

It might be more satisfactory, perhaps, to minds accustomed to bring all questions to the rigid test of elementary principles, if the decisions had proceeded no further than this, viz. that

provocation shall be received as an excuse for the insult and abuse accompanying an injury, and which would not in themselves be actionable, though they ordinarily aggravate the injury which they accompany. The case of Tomlinson v. Booth, 2 Root, 32, illustrates the meaning here intended. That was an action of trespass for shooting the plaintiff's horse on a military parade. The defendant, who was member of a company of infantry, was allowed to show in mitigation of damages, that the plaintiff, who was a member of a company of cavalry, had violated orders and crowded on the infantry in different parts of the parade in their manoeuvring, at the time when the horse was shot; but not at a previous manoeuvring.

The value of the horse would seem, in this case, to be the least that a jury would give, even after allowing for the provocation. But if no provocation had been given, the plaintiff (as has been seen heretofore) would be entitled to what is called vindictive damages; that is, to damages for the violence, and for the insult given him on a public parade. It would seem very proper, and at variance with no principle, that the plaintiff should be limited in his damages to the value of his horse; the aggravating circumstances, which ordinarily would entitle him to vindictive damages, having been brought upon him by his own arrogance and misbehavior. One mere insult, which is not per se actionable, may well be offset against another. The decisions, however, carry the effect of provocation further.

It is not to be denied that writers on natural law, and the civilians, mention rules for the estimate of damages, which depend much on the supposed moral desert of the parties. A kind of moral balance is struck, and damages adjusted accordingly. Domat says the prudence of the judge is to determine questions of damages; 'he joining to the light, which the principles of law and equity may give him, a prudent discernment of the circumstances, and of the regard that ought to be had to them; whether it be for lessening the damages that are to be adjudged, by cutting off pretensions for distant losses, and upon other considerations, if there be ground for it; as in the cases where no bad design, nor any fault, can be imputed to the person who is bound to make good the damages; or for increasing the damages which are to be given in consideration of the intention to hurt, if there was any.' Book iii. title v. sect. iii. 13. See also Heineccius Elem. Juris Civ. secundum

ordinem Institutionum, Lib. iv. tit. iii. Ibid. Pandectarum, Part ii. lib. ix. tit. ii. Pufendorf, Book iii. chap. i. Hutcheson's Moral Philosophy, Book ii. chap. 15.

It was probably this 'prudence of the judge,' joined to the light of a supposed natural equity, and operating according to the theory of the civil law, which produced the decree for fifty dollars damages, in the case of Roberts v. Dallas, Bee's Rep. 239. That case was in the instance court of admiralty, which is governed by the civil law, the laws of Oleron, and the customs of the admiralty, &c. The suit was for an assault and battery and false imprisonment of a seaman by the master of a vessel. The actor (plaintiff) had been mutinous on board the ship, and the master, though accompanied by a strong guard, struck him on the breast with a drawn sword, and sent him ashore under the guard. He was afterwards tried by a court martial and sentenced to receive a hundred lashes for mutiny; but the punishment was withheld at the master's request, who brought him again on board the vessel, put him in irons, and kept him for sometime on prisoner's allowance.

The judge awarded the sum abovementioned as damages to the seaman, though the blow with the sword and the confinement in irons were wholly unjustifiable. The master, having voluntarily received him on board, had no right to confine him. 'I am of opinion,' said the judge, 'that this misconduct of the captain is considerably mitigated by the former conduct of Roberts, and by the remission of a hundred lashes awarded by the court martial, which was obtained at the captain's entreaty.' It is certain that such a cause for mitigating damages cannot be found in the common law. See 2 Stark. Rep. 454, Rhodes v. Leach.

ART. VIII.-RECENT REPORTS.

1. Reports of Cases Argued and Determined in the Court of Appeals of Maryland, in 1826 and 1827. By THOMAS HARRIS and RICHARD W. GILL. 2 Vols.

Annapolis.

2. Connecticut Reports. Vol. VII. Part I. Or Vol. II. Part 1. of New Series. Containing the Decisions of 1828. By THOMAS DAY. Hartford. Packard & Butler. 1830. THE judicial administration of the United States and of the several states, presents a spectacle of which the world had not before an example, that of more than twenty independent tribunals contemporaneously administering very similar, and, in many respects the same laws; the decisions of each one being a commentary upon those of the others, all of them thus mutually imparting light, and confirming, qualifying, and correcting the decisions of each. It is matter of interesting speculation to observe the coincidences and diversities in the application of the same principles, to the infinite variety of cases arising under all these jurisdictions; and the law, considered as science, could hardly be subjected to a severer test, than submitting its principles, so great a proportion of which in the United States are common and universal, to the independent developement and application made by these various tribunals. Should the results of these separate simultaneous judicial processes of investigation continue to be as consistent and consentaneous as they have been hitherto, and still more, should they, as they probably will, approach nearer and nearer to the same direction, they will afford the most flattering testimony in favor of the certainty and uniformity of the interpretation and practical application of legal principles, and of the laborious and learned research, sound reasoning, and moral and professional integrity of the judicial officers. In such case, which, according to the present course of decisions is not an imaginary one, the results exhibited in our journal, from quarter to quarter, of these diverse and distantly conducted proceedings for the developement of law and equity, will afford successive and striking displays of a beautiful harmony and correspondence in the operations of that intellectual, invisible power of the law, which controls the strong, protects and befriends the weak,