In the days when England was not only the workshop of the world but banker to it as well, there came our great commercial codifications: the Bills of Exchange Act in 1882, the Sale of Goods Act in 1893 and the Marine Insurance Act a number of years after that. Chalmers and Guest on Bills of Exchange is a direct link with this period, and also with the first, and most experimental, of these efforts. Since Sir Mackenzie Chalmers wrote the 1882 Act almost unaided, it is not surprising that his commentary on it should have been regarded ever since as possessing a peculiar air of authority. (They do things differently these days, of course. In the law-making of the European Union, intellectual pre-eminence is now accorded privileged publicists by legislative fiat, as it was by Justinian: see, for example, the interpretation instructions attached to the Brussels Convention. But enough of that).

And, indeed, even after 15 editions Chalmers remains very much the 19th century masterwork that its creator envisaged. In structure, it still oddly resembles classics such as Smith’s Leading Cases: just as in Smith we have a practitioner’s series of notes in which the common law appears as discursive commentary on certain major authorities, so also Chalmers & Guest undertakes to fit the late 20th century law of commercial paper into an ordered exegesis, section by section, of the 1882 Act. And that, in essence, is Chalmers & Guest’s continuing problem. Its bedrock, the Bills of Exchange Act 1882, never was the most limpid of statutes, despite the praise sometimes accorded it—as, indeed, anyone with an elementary question to ask by reference to it will soon discover. This difficulty, of necessity, affects the book too: if the statute won’t look you in the eye and give you a straightforward, succinct answer to a sensible question, then neither will a treatise constructed around it.

If this seems a harsh judgment, take a couple of simple, and absolutely plausible, examples. To begin with, imagine a Swiss attorney instructed to check a point of English law: who is the holder in due course of a bill, and what rights does he enjoy? Now, how does the attorney (who, we will assume, is armed with Chalmers & Guest) go about his task? For a start, he will have to consult the commentary on two entirely separate sections, ss 29 and 38, divided by nearly 70 pages expounding unconnected matters. Very well: consider it done. Does he then have the whole story? Er.. . not quite. He may well need to know, for example, whether a person can have the rights of a holder in due course if his claim is brought through a forged indorsement (as he generally can in Geneva Convention countries). Now, the answer to this question, as we are aware, is No. But to find it, the aspiring jurist will have to back-track some 100 pages to the coverage of s. 24, read and note it and then realize that (despite what he has just read) a different rule applies where the defendant is an indorser who signed the bill subsequent to the forgery, in which case the estoppels in s. 55 come into action. And so the process goes on.

Or again, suppose a German lawyer is asked this: how do you guarantee payment of a bill under English law, and what are your rights and duties if you do? The point clearly matters. Anyone selling against commercial paper will clearly be interested in the possibility of getting the acceptor’s name effectively backed by someone else—a fact which no doubt explains why the law of aval looms large in any Continental lawyer’s discussion of negotiable instruments. But you won’t get much help from the Act. The Act has nothing to say about guarantees at all, at least in so many words. The index to the Chalmers is admittedly a bit more helpful—but even then not much. By and large, the answer to the query simply has to be worked out by reading the bits about anomalous indorsers (s. 56) and, if you please, inchoate instruments (s. 20, in combination with cases such as McDonald v. Nash [1924] A.C. 625). And people are still surprised that foreigners find English law difficult.