It is time for the post that you have all been waiting for, the one of the place of Mormonism in habeas corpus jurisprudence.
The writ of habeas corpus ad subjiciendum is one of the great accomplishments of the English-speaking world. It is a legal device developed by the English courts in the long battle against royal perogative. A writ is an order, issued by a court, requiring that some party do something on pain of contempt (fines, prison, that kind of stuff). A writ of habeas corpus is issued by a court to a government official holding someone in custody, requring that the official “produce the body” of the person and explain to the court why the person’s incarceration is legal. In short, the Great Writ, as it has been called, is the legal device that insures that one may only be incarcerated for actually violating the law.
America has given the writ a bit of twist. Traditionally, if someone was tried and convicted of a crime or being held under arrest, a court issuing a writ of habeas corpus would only inquire into the jurisdiction of the trial court or the court issuing the arrest warrant. Hence, suppose that I was tried and convicted in Iowa, and I applied (through my attorney) for a writ of habeas corpus in federal district court. The federal court would look only to the question of whether or not the Iowa court had the legal power to try me for the crime. It would not look to the underlying substance of the trial. (One longstanding exception to this general rule was the Supreme Court’s ability to use habeas corpus as a form of appellate review, but this was in large part a way of narrowing the Court’s holding in Marbury v. Madison just in case you needed further evidence that that decision was all about politics.)
All of this changed in 1953, when the Supreme Court decided the case of Brown v. Allen, 344 U.S. 443 (1953). Writing for the Court, Justice Frankfurter held that a prisoner found guilty in state court and incarcerated by a state, could use the writ of habeas corpus not only to inquire into the jurisdiction of the original state trial court, but also into the validity of that court’s application of federal law. In other words, one could use the writ as a way of re-litigating federal issues in federal court.
This is where Mormonism comes in. A hundred years before Brown, the municipal court of Nauvoo, Illinois adopted a similarly expansive view of the Great Writ. The basic problem for the Mormons in Nauvoo was that Joseph Smith was technically a fugitive from justice in Missouri. On several occasions, he was arrested in Illinois by Missouri officials to be returned for Missouri for trial (or more likely a lynching). Joseph’s lawyers responded by filing for writs of habeas corpus. The Nauvoo court, however, applied a very expansive reading of the writ. Rather than looking merely at the question of whether the Missouri court that issued the arrest warrant against Joseph had the legal authority to do so (it obviously did), the Nauvoo court used the writ proceeding to try the underlying issues of the arrest. In short, it required that Missouri press its claims against Joseph in Nauvoo’s courts rather than in Missouri courts. Needless to say, this was a bit of a radical move.
There are a couple of traditional interpretations of the Nauvoo writ cases. On one side are those who see them as an example of Mormon lawlessness and hypocrisy. On the other side are those who see them as little more than attempts to protect Joseph from lynching that are otherwise devoid of legal significance. There is also a persistent belief that the writ cases say something signficant about the nature of the Nauvoo Charter. (They actually don’t.) One question that never gets asked is what the Nauvoo writ cases teach us about Brown.
Ultimately, I would submit, that the Nauvoo writ cases are not about lawlessness or even mere tactical maneuvering. They are about excluding certain forms of law. Joseph in Navuoo did not really need to go to court to escape from the Missourians. It would have been a logistically easy matter for local Mormons to simply overwhelm the arresting Missourians and free Joseph. For a variety of reasons, however, the Mormons turned to the law instead, casting their local power in terms of legal conclusions. The Great Writ was originally a weapon against arbitrary royal arrests. The Mormons transformed it into tool for negotiating the tensions between competing legal systems. In short, in their hands it ceased to be about marking the boundary between law and lawlessness and became about marking the boundaries between legal systems.
This throws the meaning of Brown into sharper relief. Brown marks the transformation of the Great Writ to serve uniquely American purposes. The English courts that first developed it were obsessed by the competition between royal prerogative and law. England, however, is not a federal system. The judiciary is centralized and the courts in Westminster ultimately have no rivals tribunals with which to contend. In contrast, Frankfurter was grappling with was the specter of state courts paying mere lip service to federal rights. The problem was not an overweening sovereign but the plurality of adjudicators. Habeas review, in his hands, became a tool by which the federal courts could monitor the activity of state courts. The writ became a tool for negotiating the claims of rival legal systems. It was a very American adaptation of an English legal institution, one foreshadowed a century earlier by an American prophet and his lawyers.