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 1828. the Court of By THOMAS 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, and, without violence, or terror, except to the wrong-doer, metes justice to all. The two volumes of Maryland reports, standing first at the head of this article, remind us to take notice of the constitution of the courts of that state, which bears a striking resemblance to those of England, while it yet differs from them in some points. The court of appeals consists of six judges, before whom appeals and writs of error are brought from the inferior courts of law and equity; this being, as we understand the system, the supreme judicature, both in law and equity. In this circumstance the system differs from the English, if we exclude from the latter the house of lords, but agrees with it, if that house, in its judicial capacity, is included; for in the superior courts subordinate to the house of lords, those of equity are entirely distinguished from the courts of law. The house of lords, in its judicial capacity, unlike the other judicial tribunals of the kingdom, exercises the functions of both a court of law and equity, cases being brought before it both on writs. of error and appeal. Whatever arguments there may be for uniting or separating the administration of justice in law and equity, in inferior tribunals, it is obvious that if it is separated, and distributed among distinct sets of tribunals of law and equity, there ought to be a common superintending jurisdiction; since without such an umpire, the independent tribunals might diverge into different and clashing systems and doctrines. For trials by jury, the state is divided into six counties, in each of which a court is held by one of the judges of the court of appeals, assisted by the associate justices, similar to the English courts of common law, inasmuch as the judges in these latter may have the assistance of eminent barristers and sergeants at law on the circuits; but different, in that the associate justices of the Maryland circuits are regular and permanent officers of the court. This system appears to us, to be, on the whole, admirably well constituted. It might be made a question by a foreigner whether the chief justice of each of these circuit courts, being a judge of the court of appeals, is not likely to have a predominant influence in the county courts, and in effect neutralize the voices of his associates; but such a question would only be made by a person not acquainted with the general character and habits of thinking and acting of our people (including judges among the rest), who are not by any means in the habit of yielding implicit deference to the authority of a name or station, but rather disposed to err, if at all, in giving it too little weight. In this respect these courts are at least not liable to any greater objection, than if the trials on the circuit were had before one judge of the court of appeals sitting alone. These two volumes of Messrs. Harris and Gill contain a little over one hundred cases, a large proportion of which, particularly in the first volume, involve important questions, and the cases are in general ably argued and skilfully reported. The abstracts, the making of which is a very material part of the reporter's labor, and on the accuracy and precision of which the usefulness of every book of reports very much depends, are well made, so that the index not only presents what the volumes do contain, but, what is equally material, nothing that they do not contain ; and the subjects are arranged under appropriate heads, so that a person consulting them with a reasonable degree of legal intelligence, is pretty sure to find readily whatever they contain to his purpose. 6 After giving our testimony thus decidedly in favor of the general character of these volumes, we ought, perhaps, to qualify it with some few exceptions. There are not wanting instances, both in the opinions of the court and reported arguments of counsel, of too great vehemence and figurativeness of expression, for the discussion of abstract principles of law. In a case on a policy of insurance against fire, for instance, in which the question was, whether the assured had forfeited his policy in consequence of an alleged enhancement of the risk, by making repairs on the building insured, Mr. Justice Dorsey, in delivering the opinion of the court, vol. 1, p. 302, uses the following expressions: To infer, without any express provision or necessary implication arising out of the contract itself, or public policy demanding it, that the assured surrendered all right to make such common-place, trivial, unimportant additions to, and alterations of, his property, as its safety and his comfort and convenience might suggest, is a construction too rigorous to be rational; the effect of which would be to render worse than useless those most useful and indispensable institutions in populous cities-the fire insurance companies; and give a fatal stab to our rising manufactures.' This phraseology, it will be perceived at once, is not appropriate. There are a few other instances in the opinions of the courts, as well |