The Correct Answers to the Hypothetical
Here are the professors notes. Consult The Case of the Thorns, Y.B. 6 Edw. 4, 7, pl. 18 (1466) for the relevant law.
The questions were these:
1. Does Thurible Sloop have a right to recover the price of his bus ticket from the tourguide company, on the ground that Ironhand St. James the Moorslayer prevented the busload of tourists from entering the grounds of the Mosque?
Ironhand was pursuing a police investigation (as distinguished from Gumbo, who was merely enforcing an injunction in a nuisance case, which is a civil case). There is no suggestion in the fact pattern that Ironhand exceeded his authority in attempting to secure the area from tampering. Indeed, he would have been in violation of his duties as an officer of the peace if he allowed the chain of evidence to be broken by having the evidence of the crime open to the public. The crime in this case is a felony (murder), and even if it should be ruled that the murder was a lawful execution under Al-Qeda law, this later ruling does not excuse Ironhand at the time of the investigation from securing the evidence.
Since Ironhand had a right to exclude or stop the public from interfering with the crime scene, the tourguide company had no choice but to comply with a lawful order from the police. (The fact that there are two police forces operating in the Walled City would not change this.) The fact that Thurible is protected by Al-Qeda is not pertinent, since no rights nor property of his is being invaded. Even though the hypothetical does not specify how to resolve the various conflicts of law raised in the other cases and events, in this case there is no allegation of any conflict of law. No one claims that Ironhand does not have the right to investigate the crime.
Even if Godiva is found to be a client of Al-Qeda, and even if Godiva’s death is found to be a lawful execution, these later findings are not known at this time, and the police cannot treat a crime scene where they may have been a murder as a public area where there was no murder. Likewise, Orangist police are under a contractual obligation to protect their clients, and therefore must investigate crimes happening to anyone who is or who appears reasonably to be one of their clients.
The terms of the contract between Sloop and the Tourguide company are not recited in the hypo, but no matter what they were, the tourguide company cannot perform the contract where an agent of the sovereign power acting within his agency and under color of authority forbids the tourguides from entering a crime scene. Contracts impossible to perform are void. Nor can the tourguide company be held to be negligent, since there is no allegation in the hypo that the Tourguide company breached any duty of due dilligence toward Sloop. Hence, under either contract law or tort law, the company is held harmless.
2. If Al-Qeda law allowed Mr. Sloop to recover, but Orange-Catholic law did not, and if the tourguide company was protected by the Al-Qeda policy, what happens if the tourguide company refuses to pay, and when Saladin Gumbo and his men come to seize tourguide company property in lieu of payment, the tourguide company quickly buys an Orange-Catholic policy, and asks Ironhand St. James the Moorslayer and his police to stop the Al-Qeda police? Who is in the right in that scenario?
This is a trick question, becuase the hypo does not give any of the provisions of any treaties or agreements (or even informal agreements, like customary practices) as to how the Orangists and Al-Qedans settle conflicts of jurisdiction. Nonetheless, the idea behind competing sovereign justice providers would be to protect clients from war, invasion, and trespass, not from each other. The outcome of this question would be the same as if a man committed a crime in one jurisdiction, and fled to Switzerland to avoid sentencing. Even if the act in question is not a crime in Switzerland, the Swiss would normally render him back (if they wanted reciprocal courtesy extended to them). In this case, switching policies to avoid paying a fine or paying court-ordered restitution is like fleeing a jurisdiction to escape justice. If people could do this, there were not be any system of competing sovereign justice providers to begin with. The tourguide company has no right to refuse to pay restitution if found by a court of law to be liable, and therefore no right to call the Orangists to protect his rights (which, in this fact pattern, are not being threatened).
3. Who has legal authority to give orders to the Militia, to declare war, and to negotiate a surrender?
The hypothetical says quite clearly that Mrs. O’Fferrocker and Brother Vortigern are the chieftains of the militia. No one has legal authority to declare war or negotiate a surrender, since, by hypothesis, the Orangists and Al-Qedas are separate and independent sovereigns who happen to be occupying the same terrain.
The hypothetical does not make it clear whether O’Fferrocker was lawfully relieved of command. However, the fact that she ordered her pet cat to consume Brother Vortigern does lend strength to the contention that she was not in possession of her mental faculties, and therefore not fit for command. The hypothetical does not recite the relevant militia regulations or say under what conditions the leader can lawfully be relieved of command. The militia is implied to be a joint project of both the Orangist and Al-Qeda justice providers, but in this case the hypo says one law allows and the other forbids the act. The question does not admit of a clear, non-speculative answer.
4. Who has possession of Daimen?
Child custody is usually decided by the principle of what is in the best interests of the child. Since the child’s father, Osama, broke the law to preserve the child’s life, and since it is not in the best interest of the child to have him wrapped in bacon and thrown to the feral weasels, Osama should be granted custody.
The hypothetical does not say whether there is a child protective services, or any other surviving relatives, or anyone who can point out to the magistrate that the father in this case murdered the mother, and so perhaps on those grounds is an unfit parent.
5. Can Mr. al Adhan sue for the recovery of his shoe, plus damages equal to the value of the loss of the use and enjoyment of the shoe during the time said shoe was unlawfully detailed by Ironhand? If so, is Ironhand personally liable, or, under the theory of agency, is the Orange Catholic Justice provider liable? (HINT: this question turns on which actions of Ironhand are under color of his authority, that is, when he was acting as an agent of the police, and which actions of Ironhand are private actions for which he alone is responsible.)
The hypo does not say the murder took place in the Mosque, nor that there was any relevant evidence to the murder investigation there. Ironhand may have been exceeding his authority by cordoning off the whole area, including a house of worship. However, persons are not allowed to assualt police officers while the officer is on duty, even if the officer is exceeding his authority, provided he still is acting under the color of law. Ironhand was clearly acting under color of authority (see answer above). The shoe is the instrument of the assault, and is rightly liable to be seized as evidence. There is no allegation in the fact pattern that the shoe was wrongfully seized, or that Ironhand was converting the shoe unlawfully to his own use.
The doctrine of sovereign immunity applies: accused criminals cannot sue the police for the recovery or property seized as evidence in a police investigation. The question is ridiculous, and we suspect the professor threw in this last question as a joke.
IN GENERAL, WHAT WOULD HAPPEN?
Overlapping sovereignty is almost a contradiction in terms, an absurdity: all that would happen in real life in such a situation is that either
(1) the sovereigns would draw a line down the middle of the town and tell the policy holders of the other sovereign to stay on their own side of the street.
(2) the last argument of kings (open war).
(3) a treaty or set of treaties, perhaps with an independent international magistrate.
(4) the two sovereigns would combine to form a federation.
(5) the merchants, landowners and the common people of the town, outraged at having their tourist trade driven away by the civil war, would rise up and hang Guy Fawkes and Osama von Hilter III, and select a king named William from a royal family in Norway or the Netherlands to come rule them, and bring peace: and once the Holy Roman Emperor recognized this new king as a sovereign, he would command mutual toleration of the contrary religions, and the Walled City would be added to his titles and demense.
(6) the merchants, landowners and the common people of the town, outraged at having their tourist trade driven away by the civil war, would rise up and hang Guy Fawkes and Osama von Hilter III, and select from among them a Lord Protector named Cromwell, to establish justice and determine a uniform practice of religion: the idols and icons of the Orangists would be smashed, and the Al-Qedists would be forced to accept baptism or else face being wrapped in bacon and thrown into a pit of feral weasels. Exiles fleeing the Walled City would beg the King of France and the Holy Roman Emperor to restore to power some a king named William from a royal family in Norway or the Netherlands who has some arguably feasible claim to land, perhaps his great grandfather was Charles V: and once the Holy Roman Emperor recognized this new king as a sovereign, the Walled City would be added to his titles and demense, he would command mutual toleration of the contrary religions, and the headsman and the jailer would wax wealthy from the endless stream of customers, there would be a season of peace.
A question of graver and universal interest is the possibility of another attack from the Canadians. I do not think that nearly enough attention is being given to this aspect of the matter. At any rate, whether we expect another invasion or not, our views of the human future must be greatly modified by these events. We have learned now that we cannot regard this nation as being a fenced-in and a secure abiding place for Man; we can never anticipate the unseen good or evil that may come upon us suddenly out of the Great White North. It may be that in the larger design of the universe this invasion from Canada is not without its ultimate benefit for men; it has robbed us of that serene confidence in the future which is the most fruitful source of decadence, the gifts to human science it has brought are enormous, and it has done much to promote the conception of the commonweal of mankind. It may be that across the immensity of Niagara Falls the Canadians have watched the fate of these pioneers of theirs and learned their lesson, and even now draw their renewed plans against us. Be that as it may, for many years yet there will certainly be no relaxation of the eager scrutiny of the Canadian river and the cold lands beyond, haunted under the eerie twilight of the Aurola Borealis. We listen again for the tramp of metallic feet, and such echoes as we hear bring with them an unavoidable apprehension to all the sons of men.
About John C Wright
John C. Wright is a practicing philosopher, a retired attorney, newspaperman, and newspaper editor, and a published author of science fiction. Once a Houyhnhnm, he was expelled from the august ranks of purely rational beings when he fell in love; but retains an honorary title.
