Page:Harvard Law Review Volume 8.djvu/408

392 392 HARVARD LAW REVIEW. trespass to property, etc. — may be inflicted for defending the particular kind of interest in hand ; for the law may well license one and stop at another. By such a grouping, it would seem, an opportunity is gained for distinguishing and comparing various shades of policy and detecting their effect, if any, in the con- crete rules. 2. Akin to the preceding topics, in that there is involved on the one hand some blame in the plaintiff, and on the other some legiti- mate interest of the defendant's to be protected, is the subject of Discipline and Correction, — the limitations allowable in favor of parents, teachers, masters, ship-captains, and the like. The arrest and imprisonment of an admitted wrong-doer belongs theoretically here, C. We come now to the group of excuses which rest upon the needs and interests of others than the plaintiff, — whether of the defendant or of another or of the community in general. We find here a tendency to be chary with excuses where the interests of one person alone, particularly the defendant, are urged, and to be liberal where the community at large is concerned. For a first grouping, a distinct separation can be made of those limita- tions which rest specially upon the needs of the administration of justice ; the remainder form a second group. I. The reqiiii'ements of the administration of Justice offer room for conceivable differences of policy according as the person who is responsible for the harm is {a) a party litigant claiming the enforce- ment of a right, {b) an officer of justice, or a person acting as such, proceeding in the interests of justice. (^) Here we discuss the limitations available in excuse for an arrest, attachment, or other legal proceeding causing harm to an innocent plaintiff, and usually treated under the action for malicious prosecution, attachment, etc. When we have here a conceded harm and a conceded responsi- bility, it seems clear that the remaining question is as to the proper limitations — reasonable cause, etc. — within which one may with impunity inflict such harm while claiming to enforce his rights. {b) The policies here involved lead us to a further grouping ac- cording to the injuries committed, (i) Where an injury to person or to property is involved (arrest, attachment, etc.), there are first to be considered the limitations in favor of one arresting (with and without a warrant),^ or attaching, including the protection allowable ^ Under this head we treat also of private persons making arrests, because the protection given them rests on the general requirements of justice, not on their private