Codification has usually been more easily accomplished in States under autocratic government and in Colonies under the direct control of the Crown, but the example of the autonomous Colonies indicates that progress towards a well-ordered simplification of law is not incompatible with the most democratic constitution. The Mother of Parliaments alone seems unwilling itself to undertake or to trust others to complete the task of codifying a branch of the law which, above all others, ought to be included in a single well-penned and well-considered statute, a task which other legislators within and without the Empire have found not only possible, but beneficial.

TRADE UNIONISM AND LEGISLATIVE

REFORM.1

[Contributed by D. R. CHALMERS-HUNT, ESQ.]

Aggressive Competition and its Limits.-There are, as is well known, certain kinds of conduct which for various reasons of policy are all in a sense prohibited by law. One may not, for instance, with impunity assault another; one may not traduce another man's character, or prosecute him without reasonable and probable cause; one may not break the contract which he has made with another, or convert another's property to his own use; or trespass on another's land, or use his own land or otherwise so conduct himself towards his neighbour as to constitute a private nuisance towards him in the enjoyment of his property. Nor is a man safe from civil proceedings if he conducts himself towards the public in an illegal and criminal manner under circumstances which prejudice an individual in a special way over and above that in which the rest of the public are affected. I do not, of course, mean that under any conceivable circumstances any or every one of these acts is never deemed legally justifiable; for that is far from being the case; indeed, it is not invariably criminal or illegal even to destroy a man's life. And in many of these cases it is essential, to give rise to civil liability, that a person alleging himself to have been the victim of a prohibited act show a specific and appreciable damage to himself. But for the most part all these things are prohibited by law on various grounds of policy. I will therefore ask the reader to detach from his mind these instances of wrong-doing and the like, which the law characterises as wrongful on more or less well-established grounds, and to which various special considerations of policy apply; and I shall ask him to suppose, for the sake of argument, that we live in a Utopian state of society where no one ever indulges in prohibited acts of this character, and where the only way in which a man ever does harm to his neighbour is by refusing to deal with him in business, or by getting other people or

1 Since the type of this article was set up, the Court of Appeal have delivered judgments in the cases of the Glamorgan Federation and Giblan v. National Amalgamated Labourers' Union, overruling the decisions of Bigham J. and Walton J. respectively; and the House of Lords has affirmed the decision of the Court of Appeal in the Glamorgan The salient points of the judgments are inserted as footnotes hereto, and render no other alteration necessary.

case.

by threatening to get other people not to so deal with him. In short, I will ask him to treat the law of tort, for the moment, as if it were no more than a law of compensation for the infliction of a money loss—a law of compensation for acts of any kind whereby a man's financial position is rendered relatively inferior to what it was before. And I will then venture to propound this question for his consideration: At what point ought the opportunity in a well-ordered community to cause annoyance and financial loss, with the object of diverting money from the pockets of other people into one's own, to be arrested by the State?

Here, it will be seen, we have a conflict of two great principles or matters of policy. On the one hand, one has it that it is the business of the State to preserve individual interests as far as possible. A man, one can surely say, has an abstract right to the security of his pocket-a claim to be recompensed for a loss which is unjustifiably inflicted upon him, provided there be no paramount policy of a contrary nature to step in and prevent the adjustment being made. That is part, I think, of the broad foundation of law and order. On the other hand, it is equally certain that the State must tolerate or encourage, and does tolerate or encourage, competition. But what is meant by "competition"? If one looks up the word in an approved dictionary, one finds that it expresses "a seeking by two or more for the same thing," a definition which is accurate enough if the word be used in its widest and most literal sense. But for the lawyer, the judge, and the statesman, this word "competition" has, I think, a far narrower signification. In connection with the subject of trade interference it may mean, may it not, "an ostensible, and not merely an actual, seeking by one person or set of persons as against another person or set of persons, to divert money or its equivalent, by way of business enterprise in a given market," whether that market be one for the disposal of valuable commodities, or for the disposal of personal services, which is the market of Labour. With regard to this definition nothing more need be said at present, except to point out that the word "competition" literally implies the opposed efforts of two or more persons, and to that extent imports, hypothetically at least, a psychological fact or phenomenon. And also, it may be observed, every great shipping federation, as also every great railway company, in that it carries for hire cargoes living or inanimate, persons or property, in competition with all comers, and with all would-be appropriators of custom in the trade, plies its calling in the market of service equally with the humblest labourer who breaks stones in the street. Now, the State encourages or tolerates, and must encourage or tolerate, competition. But upon what ground? The answer is that competition, in the limited sense in which I have used the term, is not only a necessary and inevitable feature of social and commercial life, but is, when restricted within proper limits, an incident of national existence and prosperity. But it is impossible to compete, whether in the field or market of trade or of labour, without hurting

other people, and not only that, but it is idle to say that it is possible thus to compete without intending in some sense to hurt the people competed against. The well-regulated State, therefore, adverting to its general duty to safeguard the interests of the individual, is forced to strike a balance somewhere. At what point, then, does sound judgment, sound statesmanship, and sound legislative policy demand that the line should be drawn?

"The Nearer the Gain, the Better the Right."-Long meditating on the Mogul case, Temperton v. Russell, and Leathem v. Craig, it occurred to me that since the desirable end was to find a principle which should accurately differentiate competition which could be considered as a good, or at least as an inevitable necessity within the community, from that which could not, it was possible to determine the legality of aggressive conduct by estimating its relation to an expected gain, not in the ratio of their commensuration or respective quantities or amounts, but in the ratio of cause to effect. The policy of the State, I began to suspect, and later to clearly see, must depend, ceteris paribus, on a principle which I formulated in the following terms: "The nearer the gain, the better the right." The truth of the proposition may be demonstrated as follows: We may start with the premises that competition in a market of exchange is in some sense a necessary evil and perhaps a national good. One cannot compete without hurting others, and without in a sense intending to hurt them. Neither of these facts admit, I think, of doubt. Then take two extremes of competitive aggression: first, aggression by a prudent man of business, whereby he intends to divert, and does in the result divert, another's trade to himself; then compare the case of an aggression by a fanatic or a lunatic which is in no way related to competition in a market, but who nevertheless thinks that he is thereby competing in a market. That clearly must be an unnecessary evil. For in such a case injury is inflicted without any corresponding benefit either to an individual or the community. We will call the first instance a case of gainful damage and express it in terms of x. The second case we will term a case of gainless damage and express it in terms of y. It follows that the exact point where competition ceases to be beneficial to, or a necessary evil within, the State lies somewhere between the extreme types of conduct represented by x and y. And that exact point must be in truth the point where a damage ceases to be gainful, according to the judgment of an exactly accurate, infallible, and prescient opinion, in its nature or calculated effect and as inflicted in a market of exchange. But inasmuch as absolute prescience is unattainable in this world, and no one can be expected to have a greater share thereof than is possessed by ordinarily reasonable and well-educated men, it is necessary to substitute for the arbitrament of a prescient infallibility that of the opinion of all reasonable and well-instructed minds.

Now this principle of policy is equally applicable whether we suppose what was denied in Allen v. Flood to be true, namely-that it is prima facie

wrongful to procure a man not to deal in business with a third, or to interfere with him in his trade-or whether we admit the correctness of that denial, and suppose (as I understand Lords Macnaghten and Brampton to imply by their judgment in Quinn v. Leathem) a simultaneous and preconcerted attack by two or more to be itself wrongful in character and to need justificacation. It does not, however, affect in the least those cases of wrong-doing referred to at the commencement hereof, which present various considerations of policy, and any one of which is incapable of being overridden by any element of competition in a market.

Competition and Public Necessity.-Assuming, then, the authoritative faculty of differentiation to lie, failing the Legislature, with the judiciary, as representing the Crown and as being both the repository and the mouthpiece of high legal policy, the next question arises, Upon what principle or principles is it to be determined when competition ceases to be a public necessity or a public good? The answer is, that aggression ceases to bear this character when its objectively calculated effect is not to adjust market values or otherwise is not to further a commercial struggle or opposition of interest in a market. By "objectively calculated effect" I mean that the question for determination is not what was the nature of the actual intention, object, or motive underlying the effort, but whether the relative position of the parties and the circumstances generally under which the act of aggression took place are such as will lead a reasonable and wellinformed person, say the judges or the Legislature, to say, "This act of aggression is presumably referable or proximate to the furtherance of a commercial struggle or opposition of interest in a market. This effort is legally competitive in character, and is therefore unobjectionable."

The reason for all this is surely obvious. Experience teaches us that human nature is prone to act on assumptions which are false and beliefs which are erroneous-a tendency which is as apparent in commercial as it is in social matters-and thus it becomes imperative, since we are dealing with a question affecting the public good, to superimpose an artificial signification of the term "competition "—namely, by assigning to it this objective sense as opposed to the subjective use in which the term has hitherto, to the best of my belief, always been employed and understood. The reason for the insertion of the words "in a market" will be equally plain. Ex hypothesi, competition is and always will be a necessary incident of civilisation, to be tolerated as such by the State only so far as it tends to further the successful overthrow of an opposed interest or claim in a market. And in a case where it is not suggested, nor could be suggested by anybody in his right mind, that the aggression complained of can effect any such result, the duty of the State to protect the individual remains paramount upon a judge declaring that there are no facts at all from which such an effort can be presumed; just as it remains paramount, as will be shown, where a judge should declare that whether or no there might be such an effort