Viewpoint: I Was Hanged by a Comma

Legend has it that these were the last words uttered by Sir Roger Casement shortly before the King’s Executioner pulled the lever, thereby causing poor Sir Roger to be hanged until dead.

Born in 1864, Sir Roger Casement worked for the British Foreign Office and was knighted for his humanitarian work to prevent human rights abuses against indigenous peoples.

Growing mistrustful of imperialism, Sir Roger retired and became active in Irish Republicanism and other separatist movements. During World War I, he endeavored to gain German military aid for Irish independence. As a result of this attempt, Sir Roger was arrested, stripped of his knighthood and honors, and convicted of high treason.

The acts which resulted in Sir Roger’s conviction included trying to persuade Irish prisoners of war held in Germany to form an Irish brigade to fight against the British. During his trial, Sir Roger’s Counsel argued that acts performed outside of the United Kingdom could not amount to treason within the U.K. This argument was based on an interpretation (favorable to Sir Roger) of a statute that outlined what constituted treason.

The following text of the act became the crux on which Sir Roger’s life depended:

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…

Sir Roger’s counsel argued that the quoted words resulted in two offenses: levying war against the King in his realm and adhering to the King’s enemies in his realm.

Counsel further argued that the phrase giving to them aid and comfort in the realm or elsewhere explained only how assistance might be given to the Crown’s enemies. To put it another way, counsel argued that the assistance had to be given in the King’s realm but that the effect of said assistance could be to aid such enemies wherever they might be located.

The prosecutors argued that, due to the placement of the comma before the word elsewhere, the statute provided for three acts of treason and not two:

• Levying war against the King in his realm;
• Adhering to the King’s enemies in his realm; and,
• Giving to the King’s enemies aid and comfort in his realm or anywhere else.

The decision favored the prosecution, and conviction, appeal, and a hanging by the neck ensued, all due to the inclusion of a comma.

Writing in 2008, insurance expert Bill Wilson observed, “there have been problems with interpreting long, convoluted sentences in legal documents since at least the 14th century. Usually, the stakes are not as high as they were in the case of [Sir Roger Casement].” ¹

A quick search for appellate cases discussing the comma results in almost 10,000 decisions in which the comma played a role. A huge number of cases have been influenced by this seemingly insignificant mark. Although the stakes may not be as high as they were for Sir Roger, the same may be said of an insurance policy interpretation.

In 2008, at issue was the interpretation of the phrase: “personal injury means injury, including bodily injury or mental harm arising out of any of the following acts…” (Liebovich v. Minn.Ins.Co.)

The insured argued that the phrase in dispute meant injury including but not limited to, while the insurer countered with injury, including and limited to.

Ruling in favor of the insured, the court concluded that the subject policy, by employing “a comma followed by the word ‘including’ (denoted) a non-exhaustive list.”

It is interesting to note that the court then proceeded to analyze other policy provisions and devoted several paragraphs to discussing the presence, placement, absence, and function of a comma. The inclusion of the controversial comma can make a significant difference in meaning.

“Let’s eat, Grandma!”

“Let’s eat Grandma!”

Humorously, even a draft of this article sent to one of my cohorts resulted in a comma-based misinterpretation. When said cohort advised that it would be a couple of days before he would be able to review it, I intended to respond, “no hurry, Mark.” But in my haste, I wrote, “no, hurry Mark,” unintentionally incurring his wrath.

¹Excerpts from “When Words Collide, Resolving Insurance Coverage and Claims Disputes, Bill Wilson, 2018