July 1916. Britain is at war. The detonation of 19 charges buried in mines dug by British tunnelling units under the German trenches has recently marked the beginning of a battle on the banks of the Somme. In London, two figures steal across Chancery Lane and into the Public Record Office. Once they have dusted off two rolls of medieval parchment, they pore over the faded Norman French with a magnifying glass. Three words in particular obsess them: ‘ou par aylors’ (in English, only two: ‘or elsewhere’).
Sir Roger Casement, born in Dublin in 1864, fights against human rights abuses whilst working for the Foreign Office in the Congo and the Amazon Basin; increasingly disillusioned with the British Empire, his commitment to Irish nationalism grows in fervour. After the outbreak of war, he encourages Irish prisoners of war in Germany to join an Irish brigade, funded and armed by the Germans. In the early hours of 21 April 1916, three days before the Easter Rising, he steps off a U-boat in County Kerry; shortly afterwards, he is arrested, brought to the Tower of London, and stands trial for treason before Lord Reading CJ and Avory and Horridge JJ: R v Casement  1 KB 98.
At trial, the defence submit that the indictment does not disclose an offence known to English law, or, alternatively, that there is no evidence before the jury that could prove the offence with which Casement is charged. The relevant part of the Treason Act 1351 (25 Edw 3 St 5 c 2) provides that a person is guilty of treason if he is:
‘… adherent to the King’s enemies in his realm, giving to them aid and comfort in the realm, or elsewhere’
There is no question that Casement has been ‘adherent to the King’s enemies’: that much is clear. The difficulty is whether he can be guilty of the offence if he did so ‘elsewhere’—on German soil. The confidence the commas in the statutory language give the modern reader is illusory, as Lord Reading CJ identifies:
‘I have looked at a number of copies, reproductions of this Act, in the revised statutes and elsewhere … and I have found that the commas vary in almost every case; and apparently, according to the interpretation that the author wished to give, he has inserted the commas. You can take up some authors and you will find the commas that make it so plain that you wonder that there can be any dispute about it; you can take up another which makes “aiding and comforting” run on to the “elsewhere” without a comma. So I think we have to start with this, that commas have no place in the discussion before this Court.’
Lord Reading CJ reiterates in his judgment that ‘we must construe these words … without reference to commas or brackets, but merely looking to the language’. He concludes that ‘giving to them aid and comfort’ should be read as a parenthesis; that ‘or elsewhere’ applies to adhering to the King’s enemies; and that Casement can be guilty of the offence in law. He finds authority for his view in Sir Matthew Hale and William Hawkins; in the wording of the Treason Act 1543 (35 Hen 8 c 2); and, more recently, in Mulcahy (1868) (Willes J, obiter) and Lynch  1 KB 444 (Lord Alverstone CJ, although with no reasoned ruling).
After being directed in those terms by Lord Reading CJ, the jury convict Casement of treason. He is sentenced to death. He appeals. In the course of argument before five judges in the Court of Criminal Appeal, there is the following exchange between Casement’s counsel and Darling J:
‘Sullivan: Has your lordship the Third Institute before you?
Darling J: No. I have a print of the statute. My brother Atkin and I have been to the Record Office, and we have read the original of this statute in Norman French, and, more than that, we have compared it.
Sullivan: Compared it with the reproduction?
Darling J: No, compared it with the Parliamentary Roll of the same date, which probably was written rather before it; and we carefully observed the writing and the punctuation, if that is worth anything.’
Darling J explains that he and Atkin J (later Lord Atkin) have found no brackets or commas in the Norman French. It is no surprise, incidentally, that there are no brackets: they have not yet been invented. When they come into use, parentheses will at first be inverted, the text they book-end will usually be underlined, and they will sometimes known by the name given to them by Erasmus )lunulae: little moons(.
The two King’s Bench judges have, though, found what they call ‘transverse lines’ in the manuscript: on the parliamentary roll, one such mark is found before ‘or elsewhere’; the statute roll, they explain, is less clear, as in this version there is a physical break in the fabric of the parchment before the ‘or’, a crease caused (Darling J surmises) from nearly six centuries of folding. Atkin J observes that a line must be equivalent to a comma. Serjeant Sullivan responds:
‘I submit you cannot draw any inference from punctuation. The whole matter will have to be determined without any theory as to punctuation arising from a fortuitous circumstance which is not the same in the two rolls, and, at all events, when your lordships are dealing with a penal statute, I humbly submit that crimes should not depend on the significance of breaks or of commas. If a crime depended on a comma, the matter should be determined in favour of the accused, and not of the Crown.’
Lawrence J’s acerbic and off-the-cuff response to Serjeant Sullivan is that if he were able to ‘give an intelligible reading to the words disregarding them, then that might be so’.
The court does not ask to hear from the Attorney General, F.E. Smith. The appeal is dismissed: and so it is said that Casement is hanged by a comma. Strangely, notwithstanding Darling and Atkin JJ’s clandestine inspection of the parchment rolls, there is no reference to the transverse lines their efforts uncover anywhere in the judgment. Instead, the Court of Criminal Appeal’s opinion broadly follows Reading CJ’s reasoning; concludes that as a matter of principle the King’s subject ‘is the King’s liege wherever he may be’; and confirms that they would not ‘cavalierly’ set aside the learning of Sir Matthew Hale, William Hawkins, or even the sometimes-maligned Sir Edward Coke.
20 January 2009. Capitol Hill, Washington. The temperature is still sub-zero. Barack Obama is taking his inaugural oath on a velvet-covered Bible, first used at Lincoln’s inauguration in 1861, held in the (gloved) hands of his wife, Michelle. Chief Justice Roberts (against whose confirmation Obama voted four years earlier) is administering the oath. The two men trip over each other’s words. Although it is not clear whose fault this is, there is no doubt that the ‘faithfully’ in the wording stipulated by the Constitution ends up in the wrong place.
Steven Pinker wonders whether the movement of the adverb from its hallowed constitutional position is Roberts’ ‘inner copy editor’ taking over, as the oath splits a verb (‘will faithfully execute’): in Pinker’s view, this convention (more usually restricted to splitting infinitives) is no more than ‘a thick-witted analogy to Latin’, and ‘there is not the slightest reason to interdict adverbs’ in this way (‘Oaf of Office’, New York Times, 21 January 2009).
Whatever the reason for it, the view of constitutional scholars is that such an error does not, in fact, particularly matter:
(1) Article I of the Twentieth Amendment provides that Obama became president at noon (a development which followed the transfer of power of Herbert Hoover to Franklin D. Roosevelt in the midst of the Great Depression: the consensus was that it took far too long).
(2) The oath had gone wrong in the past, with the incoming president in question promising (with a hint of unintended irony) to ‘maintain’ rather than ‘protect’ the Constitution, with no attempt to correct it in a second ceremony (Hoover again: he had, though, been led astray by Chief Justice Taft).
(3) Although Article II of the Twentieth Amendment requires the oath to be taken before the new president ‘enter on the Execution of his Office’, an earlier president (George Washington, this time) delayed it to give his eighteenth-century congressmen the time to travel to New York City.
Chief Justice Roberts, though, takes no chances: he re-administers the oath—correctly this time—in the Oval Office the following day. Roberts asks the new president if he is ready. Obama: ‘I am. And we’re going to do it very slowly.’
In law, grammar matters: it goes hand in hand with clarity, instils confidence, and mitigates the dangers of unintended ambiguity. Both Casement and the incident on Capitol Hill show, though, that grammar is not the same thing as arid pedantry: as the Oxford English Dictionary explains, grammar is ‘the whole system and structure of a language’. Darling J was careful not to appear to found the decision in Casement on a recondite punctuation mark, although history remembers it otherwise: as a case of capital importance decided on a comma. Similarly, remaining on the safe side on Capitol Hill means adhering carefully to the grammar of the Constitution, even if its language may (on one view at least) disclose a grammatical infelicity.