Hanged on a comma: drafting can be a matter of life and death

Sir Richard

Sir Richard

The news that Britain’s fourth-richest man, Sir Richard Branson, is a tax exile and has been for 7 years (which presumably means that he claims to be domiciled abroad as well as resident abroad, for tax purposes) prompts a line of enquiry that leads indirectly to Sir Roger Casement, who was hanged as a traitor to Britain in 1916, and on to a question of interpretation that depended on a comma. [Heraldry alert: several knights of the realm feature in this story.]

Sir Richard’s public persona is not to everyone’s taste.  He left school at 16 and consorted with rock stars.  He has promoted himself and his businesses in a very un-British way.

Sir George

Sir George

And yet his family background is far from bohemian. His father, grandfather and great-grandfather were all barristers.  His grandfather, Sir George Branson, eventually became a High Court judge and a Privy Counsellor.  Earlier in his career he had written books on the law of the Stock Exchange and had been a junior barrister on the prosecution team that obtained the conviction of Sir Roger Casement for treason.

Sir Roger was an Irish nationalist activist.  He was tried under the Treason Act 1351 – text here.  A full description of the trial appears here.  For reasons that are discussed below, he was famously said to have been “hanged on a comma”.

Sir Roger

Sir Roger

The actions for which Sir Roger was convicted included trying to persuade Irish prisoners of war who were held in Germany to form an Irish Brigade to fight against the British.  During the trial, Sir Roger’s counsel argued that acts performed outside the UK could not amount to treason within the UK.  This argument was based on interpreting the wording of the statute.  Or rather, interpreting the English version of the statute, for the original was written in Norman French – see below.

treason actThe English version on the official UK legislation website includes the following key text:

…if a Man do levy War against our Lord the King in his Realm, or be adherent to the King’s Enemies in his Realm, giving to them Aid and Comfort in the Realm, or elsewhere …

However, in the version under discussion in R v Casement, the final comma in the above text (after the third “Realm”) was not included – see the report of the case linked above.  IP Draughts surmises that the comma was added to the official version after the Casement trial.

Serjeant Sullivan

Serjeant Sullivan

Sir Roger’s counsel, Serjeant Sullivan KC, argued that these quoted words created two offences, namely:

  1. levying war against the King in his realm
  2. adhering to the King’s enemies in his realm

and that the words “giving to them Aid and Comfort in the Realm or elsewhere” were by way of explanation of how assistance (adherence) might be given to the King’s enemies.  In other words, the assistance had to be given in the King’s realm, but the effect of that assistance could be to aid and comfort the King’s enemies wherever those enemies were located.

(In case any reader feels brave enough to tackle the Norman French original, the equivalent phrase to the “giving to them Aid and Comfort” begins at the top of the second column above, with the words “donant a eux…”.  In the words of the Lord Chief Justice, “The Norman French does not help you; it just brings you back to the same point.”)

The alternative meaning of these quoted words is that the phrase “or elsewhere” applies to all 3 instances of “in his Realm” in the English version quoted above.  This is the meaning that was accepted by the court (and it seems, by most of the cases and legal writers in the intervening centuries, including Lord Coke), which effectively read into the wording a set of brackets (parentheses) around the phrase “giving to them Aid and Comfort in the Realm”.  An alternative (but less satisfactory) way of improving the sense of the wording is to add a comma after the third “Realm” in the way that has been done in the official version quoted above.

After the court rejected Sullivan KC’s submission, Sir Roger was permitted to make a statement to the court, and then counsel for both sides made their closing speeches.  Finally, the Lord Chief Justice summed up, and the jury retired.

The jury unanimously found Sir Roger Casement guilty of high treason.  Before passing sentence, the Lord Chief Justice invited Sir Roger to say why the court should not pass sentence on him.

Sir Roger responded that there was an objection, “possibly not good in law, but surely good on moral grounds, against the application to me here of this old English statute, 565 years old, that seek to deprive an Irishman today of life and honour, not for ‘adhering to the King’s enemies’ but for adhering to his own people.”

On the conclusion of Sir Roger’s response, the Lord Chief Justice sentenced Sir Roger to death by hanging.

Sir Roger appealed.  The appeal was heard in July 1916 before a panel of 5 High Court judges.  Sullivan KC again argued that treason outside the King’s realm was not treason under the terms of the statute.  Two of the appeal judges seem to have blindsided him by pointing out that they had visited the Record Office and compared the Statute Roll and Parliamentary Roll and noticed some discrepancies in the wording of the Norman French in the equivalent of the “giving aid and comfort” wording.  At one point during the appeal hearing, the discussion descends to whether a mark on the original roll indicates a comma, a bracket or just a centuries-old fold in the paper!

Sullivan KC shrugged off these objections and persevered with his argument on the meaning of the words used in the statute.

The appeal was rejected.  In August 1916, Sir Roger Casement was hanged at Pentonville Prison, in London.

This blog is concerned with drafting issues and not with the politics of Irish independence. It seems that there have been problems with interpreting long, convoluted sentences in legal documents since at least the fourteenth century.  Usually, the stakes are not as high as they were in the case of R v Casement.

8 Comments

Filed under Contract drafting

8 responses to “Hanged on a comma: drafting can be a matter of life and death

  1. Reblogged this on IP Draughts and commented:

    Some tweets today about the US definition of treason brought this old blog post to mind. It seems that the US legislative drafters followed the English definition but avoided the problem that arose in the Casement case.

  2. A truly absorbing report, and a great case study in statutory construction. My difficulty, m’luds, is that with or without the comma the arguments make no sense whatever from either side. What ought to have been important was the appearance of “or elsewhere” at the end of a phrase speaking about “them,” which could only refer to those pesky enemies. Taken with the repeated reference to “in his realm” in the other phrases, one could only draw the conclusion, were one free of bias, that the “or elsewhere” was part of the last phrase.

    That, of course, would not have satisfied a court dead set on executing the Irish nationalist, so they adopted a preposterous “saving” construction (where have I seen that phrase before?) to achieve the desired end. However, there was no reason to be a comma chameleon when there was a better argument to hand: that the king was, indeed, in his realm when Casement adhered to his enemies or levied war against him.

    Remember that in Norman times, and considerably thereafter, the king went roaming about Europe and the Middle East looking for trouble, and so it would be entirely possible to levy war against him (inasmuch as he levied war against others) outside the realm. This wouldn’t have been treason, though, it would have been war (enemy combatants, anyone?). Therefore, the better construction of the statute would be to consider as treason any war or adherence to enemies, giving them aid and comfort within or without the country, against a king who was in the realm. This is much more consistent with both the concept of treason as directed toward a (literally) sitting sovereign, and the structure of the statute. The court should never have taken Sullivan’s bait and gotten sidetracked into an argument that was both meaningless and futile.

    Now, had proper principles of drafting been employed, the statute would have been worded thus: “if a Man do (a) levy War against our Lord the King, or (b) be adherent to the King’s Enemies; in either case giving to them Aid and Comfort in the Realm or elsewhere…” In that event, Roger Casement would doubtless have declined to incite his captive compatriots to wage war against England on behalf of Germany; that wouldn’t be, well…football. Actually, it probably would be.

    M’luds, I rest my case.

    • Vance, interesting angle. I suspect the outcome would have been the same!

      For me, the case report has a feel very unlike modern cases. It suggests that counsel and court were fully conversant with cases and commentary going back 500 years, and that they were part of a community of barristers over that period. Nowadays, anything before the late Victorian period is rarely considered, and mostly we don’t look back that far. The connection with the time of Chaucer has been completely lost, at least in the courts.

    • You confidently say “This wouldn’t have been treason” but surely raising arms against your rightful lord would be treason regardless of where it took place.

  3. Lionel Jermy

    Mark

    Fascinating insight into the interaction of legal drafting and C20 Anglo/Irish politics. Perhaps you could spruce up the story, and boost blog ratings, by a ‘part 2’ account of the 1956 HofC debate about Roger Casement’s diaries ….

    Lionel

    • The diaries are a sad, ugly story raked up to help justify what many people thought was a clearly unjustifiable execution.

      • According to the Source of All Knowledge “At the turn of the 21st century a forensic examination of the diaries was commissioned by Bill McCormack, Professor of Literary History at Goldsmiths College, University of London. The documents were examined by Audrey Giles, a leading forensic handwriting examiner, who concluded, according to a report in The Guardian, that “the handwriting, ink, paper, pen strokes and pencillings were all genuine”.

        https://en.wikipedia.org/wiki/Black_Diaries

      • I don’t doubt it. But the ugly story isn’t that the diaries were true, it was that they were used to prove retroactively in both Britain and Ireland that Casement wasn’t fit to live, and therefore deserved what happened to him.

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