I did a quick Google search on Habeas Corpus +1840 +Nauvoo and found an artile written by Arnold G. Karr, PhD. BYU. In this article Karr discusses the mayoralship (a word?) of Joseph, and includes the events of an arrest by Missouri officials. According to Karr, the governor of Missouri petetioned the governor of Illinois for extradition, which was granted. The Missouri law officer went to Nauvoo to arrest Smith, but was presented with a writ of HC. Under the writ, the law officer left Smith to the custody of the Nauvoo legal system and left town. Some short time later, Smith was released and went into hiding for a period of three months.

In August, 1842 Joseph was arrested along with Porter Rockwell in Nauvoo. They petitioned for habeas corpus, but I thought that there was never any court preceding in regards to this petition.

When were the other Nauvoo writ cases that you speak of?

As for post-Brown jurisprudence, Brown applies only to the review of issues of federal law decided by state courts (most often 4th amendment challenges to the admission of evidence). The final decisions of state courts generally must respected by other state courts under the doctrine of res judicata. An arrest warrant would not be a final. On the other hand, it is difficult for these sorts of inter-state habeas battles to occur because the generally speaking a state court doesn’t have jurisdiction over an official in another state.

The constitution itself requires that fugitives from justice in one state be handed over to the state that seeks to try them. However, as I recall the constitution requires that the extradition occur by an application of the governor of one state to the governor of another state. (Sorry, I don’t know the law here well and I don’t have my law books with me right now.) Hence, the Missouri arrests of Joseph present some real lelgal difficulties in that my understanding is a state is not supposed to simply send law enforcement officers into another state to arrest citizens of that state. This might have provided a basis for invalidating the arrest of Joseph on habeas without necessarily reaching the merits of the underlying charges. I would have to do more research on this to figure out.

I don’t know if the decision to cast local power in terms of law rather than simply brute, extra-legal action would have been less outrageous. I am personally doubtful. It seems that the charge of lawlessness would have been even stronger had a group of Mormons simply accosted Missouri officials and freed Joseph. Figuring out whether such counter factuals are true or not is difficult.

BTW, the suppression of the Nauvoo expositor was probably legally correct under the law of the time, although the destruction of the press was not. Oaks has a very good article on this. I have seen it pooh-poohed from time to time, but never by anyone who actually put forward any legal research showing why his conclusions were wrong. On the other hand, the legal correctness or not of the Nauvoo city council’s actions in the expositor case had very little to do one way or another with people’s reaction to the action. One interesting thing would be to look at the Navuoo expositor case not in doctrinal terms but rather in terms of what contempory legal scholars call “popular constitutionalism,” namely the sorts of informal, non-expert constitutional arguments that animate political arguments. I actually blogged here about this a while back.

In re-reading your post I realize you may be making a more subtle philosophical point about these cases than whether they were legally correct or incorrect or historically productive or counterproductive. If so, forgive me for hijacking the thread.

You are right, to those who were violently opposed to the Saints, the destrution of the press was just a good excuse to whip up sentiment for what they already wanted to do.

My point is that the Saint’s “casting their local power in legal conclusions” was actually counterproductive. If an informal group of citizens had destroyed the press in the night or if Joseph had merely freed by force, as Nate suggests would have been logistically possible, that would have caused outrage, but not as much, I believe, as by doing the same thing through the law. Clothing extralegal (or only arguably legal) activity in the guise of offical government action became part of the problem. It reinforced the idea that this was not merely a few people out of control that the law could eventually deal with, but rather a “competing legal system” that wasn’t playing by the rules anymore and required vigilante action. I don’t think it negotiated between competing legal systems, but rather hastened the failure of the rule of law.

With respect to the “correctness” of the decision, under today’s post-Brown law, could an Illinois state court be used to “relitigate” questions of Missouri law or does the Brown decision only apply to the “overlapping” federal and state systems.

The Municipal court’s decision was so “radical”, that it had no credibility outside of the Mormon community. (I can’t tell for sure from your post, but I don’t think that you are in fact arguing that the Nauvoo decisions were “correctly” decided.)

To my mind, this case is similar to the Nauvoo City Coucil’s order to destroy the press of the Nauvoo Expositor as a nuisance: a use of government power that was so “radical” that it was perceived as a threat by the larger community.

In this sense both actions were missteps in the “negotiation” process, since these “misuses” of governmental power were viewed as seperate and significant threats to the surrounding communites. Joseph’s threats to Boggs or his secret plural marriages may have been tolerated, but the combination of Joseph’s acts with the “lawless” actions of the Nauvoo courts and municipal governement, could not.

Of course, the subsequent actions of the state of Illinois and the various local militias were no better.

Ultimately, I would say that the various legal systems were simply not strong enough to negotiate the conflicts between the Mormons and their neighbors, and the result was “lawlessness”.