Joseph Smith, Justice Frankfurter and the Great Writ

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.

31 comments for “Joseph Smith, Justice Frankfurter and the Great Writ

  1. lyle
    January 28, 2005 at 11:00 am

    another great law review article that Nate probably doesn’t have the time to publish. original insight into the american political-legal system & provides an alternative explanation to a Nauvoo event that can be defended vs. detractors on other than “mormons protect their own” grounds.

  2. lyle
    January 28, 2005 at 11:07 am

    oh almost forget. Nate, if you did some comparative research with other Anglo legal systems…would you find similar expansions of habeas corpus? say in australia, which has a federal system, or canada…do either of these countries also expand habeas corpus? If so, did they do it before or after the U.S.? if so, why? before or after the Mormons? if so, why?

    Depending on the answers, it could make the Mormons look like trendsetters, or merely following precedent from foreign countries (dangerous assertion amidst conservatives these days), or…etc.

  3. Nate Oman
    January 28, 2005 at 11:15 am

    Lyle: I don’t know how habeas works in other common law countries with federal systems (Canada and Australia seem like to only two alternatives) It is an interesting question. Obviously, post-Brown American habeas does make much sense in a unified common law country like New Zealand or the UK. I think that India is a common law country as well, and it has a federal system.

  4. SFW
    January 28, 2005 at 12:10 pm

    Great post. Any insights about how the Nauvoo Court’s novel use of habeas corpus was received by Missouri courts, other state pr courts, or legal practitioners of the time?

  5. SFW
    January 28, 2005 at 12:11 pm

    Oops…meant to say ‘other state or federal courts.’

  6. john fowles
    January 28, 2005 at 12:23 pm

    Nate, were the Nauvoo writ cases published in case reports?

  7. Nate Oman
    January 28, 2005 at 12:39 pm

    John: Not to my knowledge. There is one published case from the era entitle “Ex Parte Smith” that was tried in the federal district court rather than in the municipal court. The judge was Stephen A. Douglas and I believe it was a habeas case, but one that did not take the expansive view of the writ. It is reported in the early volumes of “Federal Cases,” the oldest non-SCOTUS federal reporter.

    SFW: There was a great deal of political outrage at the time toward the Navuoo municipal court’s actions. There was a feeling that the Mormons were thumbing their noses at the rest of the country. In a sense this was true, but I don’t know what the legal opinion was like per se. The newspaper editors thought it was outrageous but editorial pages then were no more legally informed than are editorial pages today. Another issue is the fact that most “lawyers” in the period didn’t really know that much about the law. Most of them made their living on the basis of courtroom oratory not legal analysis. There were exceptions (Douglas and Lincoln knew what they were talking about), but the general quality of the lawyers was not high.

  8. john fowles
    January 28, 2005 at 1:55 pm

    There were exceptions (Douglas and Lincoln knew what they were talking about), but the general quality of the lawyers was not high.

    Yeah, no Westlaw or Lexis back then. On the one hand it sounds quaint and fun to practice law in the nineteenth century. On the other, we have such a wealth of information at our fingertips as practicioners today that it would be a hard transition to practice solely from incomplete case reports and Blackstone’s.

  9. Jed
    January 28, 2005 at 2:35 pm

    I like the post, Nate. I do wish you would flesh this out and publish it. Dallin Oak’s 1965 article on the early history of habeas corpus, published in the Chicago Law Review, as I recall, which must have emerged from his study of Nauvoo history, stops short of examining the Nauvoo writs.

    The post left me a little confused about the merger of legal theory (1840s and 1950s) and Mormon history. For example, when you say, “Ultimately, I would submit, that the Nauvoo writ cases are not about lawlessness or even mere tactical maneuvering,” I was left wondering “are not about” for whom? –for JS? for 1840s Nauvoo Municipal Court? for 1840s editors? for 1840s federal court? for Nate Oman? Can 1840s historical events (“Nauvoo” writs), on the one hand, be anchored in timeless, contextless meaning (“are not about”), on the other?

    The question is really the old historical question of belief. Few people at the time, I imagine, spoke of competing systems of law, but many people spoke of lawlessness and political maneuvering. If JS believed the writ cases were about lawlessness, as, I think his June 30, 1843 address shows, in one instance, then what are the writs about in reality? It all depends on whose reality and when.

    Also, you say the Missouri court “obviously” had the legal authority to issue an arrest warrant for JS as a “fugitive from justice,” but I think you need to differentiate between the warrants in the Boggs murder case and those coming out of the Mormon War. They are not the same. The Boggs case was dismissed in federal court in Jan 1843 after judge Nathanial Pope found the warrant was issued illegally.

  10. Nate Oman
    January 28, 2005 at 3:02 pm

    Jed: Good questions. I think that when I say “really about” what I am talking about is what the legal arguments did functionally. Here we are admittedly in the most 1950s of legal theories, namely the Legal Process school. My point is that rather than viewing the habeas cases as a historical event to be explained by traditional historical theories, we can think of them as examples of a particular sort of response to a particular sort of legal problem. There is obviously something “ahistorical” about this, but it is worth remember that “ahistorical” is not always a dirty word.

    For example, co-operative endeavors over time create a pretty standard problem: opprotunistic behavior. If I give you 100 pieces of silver now in return for some service later, there is a danger that you will take the money, run, and not perform. This is a classic and ubiquitous problem. Now, I can think about different legal regimes from different times as being responses to this problem. Here are three very different response: 1. create a legally enforceable contract; 2. create some sort of a permanent relationship, say by marriage; or, 3. have the person promising future performance give some sort of bond, say a child as a hostage. In this sense, it is perfectly sensible to talk about how a dynastic marriage in the ancient near east and the recording of a security interest in an expensive aircraft are really about the same thing.

    I agree with you about the difference in the legal issues presented by the Boggs arrest warrants and the Missouri War arrest warrants.

    BTW, at the end of the day, I am not sure that there is enough in a comparison of the Nauvoo writs case and modern habeas jurisprudence for a law review article. A blog post, perhaps, but a whole article? I do think that more and better research could be done on the Nauvoo writs cases, however. If the JSFI ever actually get’s Joseph’s legal paper’s published, it will be interesting to see if they shed any new or interesting light on this.

  11. January 28, 2005 at 6:12 pm

    Bravo Nate.

    Is there some way to combine this comparison with a few other law reviewish blog posts? Perhaps others that involve the Nauvoo period? (e.g. The charter, the Gazette incident, etc.)

    What I would most like to see Nate write is the law review article that makes the case for, and some how defines, a law and mormonism genre of legal studies.

  12. Christian Cardall
    January 29, 2005 at 9:47 am

    Nate, having browsed here only relatively recently, I’ve only had the chance to enjoy of few of your fine posts so far. I’m not a lawyer, but I’m impressed that your legal colleagues seem to think the incisive originality of your posts qualify them as law review material. If so, what can we call this practice of spilling material of such intellectual value upon the ground of the blogosphere? I confess I’m tempted (out of great respect for your talent, seriously) to coin a paronomasia based on your name, but I worry Kristine’s censure would be swift and sure (maybe it will be anyway). ;)

    Anyway, keep up the good work, which is interesting even to us non-legal types.

  13. Rosalynde Welch
    January 29, 2005 at 10:28 am

    Christian, I’ll admit it. I’ve been sitting here for ten minutes trying to figure out what salacious pun you could make from Nate’s name, and I’m at a loss. Will you please email me and let me know? It’ll be killing me all day if you don’t.

  14. Julie in Austin
    January 29, 2005 at 11:25 am


    got to have something to do with onanism, no?

  15. Rosalynde Welch
    January 29, 2005 at 11:54 am

    I know, I was stuck on “Nate.”

  16. January 29, 2005 at 11:55 am

    Something about the process of making Nate our master? Master-nathan?

  17. Christian Cardall
    January 29, 2005 at 1:13 pm

    Steve, hadn’t thought of that. The paronomasia I had in mind wasn’t quite that…er, direct. Julie and Rosalynde guessed what I was thinking of. But the convergence is startling.

  18. Brian G
    January 29, 2005 at 1:14 pm

    Oh, man, that’s a bad joke, Steve. (Get it, Oh, man,) I’m here all week.

  19. Nate Grow
    January 29, 2005 at 4:29 pm

    Nate, you mentioned that you thought that the Nauvoo Court’s use of the writ of habeas corpus doesn’t say anything significant about the Nauvoo Charter. But it seems to me the court’s use of the writ of habeas corpus nicely illuminates the debate over how much power the Nauvoo Charter conveyed.

    Section 17 of the charter gave the court the “power to grant writs of habeas corpus in all cases arising under the ordinances of the City Council.” Governor Carlin and others interpreted this narrowly to mean that the court could issue writs only to people who had been arrested by a city law enforcement official for disobeying a city ordinance. Joseph Smith and others (including Dallin H. Oaks) interpret this passage broadly to mean that the court could issue writs to people who were arrested by anyone (local, state or federal law enforcement) for anything that in someway fit into a city ordinance or the charter.

    The legislative history supports the broader interpretation. The state legislature intended to grant a very broad charter to Nauvoo because both Whigs and Democrats were eager to win the Mormon vote. However, general sentiment within the state supported the narrower interpretation since many in the state were afraid of giving the Mormon’s too much power.

    The court’s use of the writ of habeas corpus is a prime example of how the Mormons pushed to expand the limits of their charter while others pushed to restrict.

  20. Nate Oman
    January 29, 2005 at 6:00 pm

    Nate G.: I basically agree with this. I am referring to those who take the writ cases as evidence that the Mormons extracted an unusually broad charter from the state legislature. The problem with this is that the Nauvoo Charter is word-for-word almost identical to the charters granted at the time to other cities — such as Springfield. Hence, the issue is the interpretation of the habeas power itself, not the unique text of the Charter granted by the legislature.

  21. Ivan Wolfe
    January 29, 2005 at 7:12 pm

    Nate O. –

    Usually I get lost when the lawyer talk starts up on this board. However, you made this particular issue accessible to non-specilaists like me. Bravo! Rigor and accessibilty. You really should turn this into a scholarly article.

  22. M.J. Pritchett
    January 29, 2005 at 7:16 pm

    To me, ultimate message of this case is about lawlessness.

    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”.

  23. M.J. Pritchett
    January 29, 2005 at 7:34 pm


    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.

  24. lyle
    January 29, 2005 at 9:55 pm

    MJ: I doubt the destruction of a press in those days would have been such a big deal if the mobsters weren’t waiting to despoil the saints of property & life. Maybe we can find examples of other press destructions that weren’t seen as so “outrageous” in your eyes?

  25. M.J. Pritchett
    January 30, 2005 at 3:17 am


    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.

  26. M.J. Pritchett
    January 30, 2005 at 3:33 am


    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.

  27. Nate Oman
    January 30, 2005 at 10:05 am

    MJ: I was indeed not attempting to make a point about the “correctness” of the legal conclusions of the Nauvoo municipal court. It was probably “wrong” but I don’t really know.

    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.

  28. Nate Grow
    January 30, 2005 at 8:38 pm

    Nate O.
    Can you provide any more specifics about the Nauvoo writ cases? I thought there was only one case where the court actually issued a writ of habeas corpus to Joseph, that being in June, 1843 after Joseph was arrested in Dixon, Illinois by two sheriffs who posed as missionaries.

    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?

  29. January 30, 2005 at 10:24 pm

    Nate O. You wrote “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 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.

  30. Nate Oman
    January 31, 2005 at 10:07 am

    I have no reason to suppose that Garr is wrong, since I can’t claim to have looked into this part of the issue. I was just trying to think of possible procedural rather than substantive objections to the Missouri arrest warrants in response to MJ’s question of about whether the Nuavoo court decided the issue “correctly.”

  31. Stephanie
    February 22, 2005 at 5:34 pm

    Hey- I am a 14 year old Mormon girl. I have a strong testimony of our church. I know that Joseph Smith was a prophet and he recieved a vision in the Sacred Grove, and he restored the gospel. He was not involved in witch craft, either. Our religion is not at all a cult, and we have no false prophets. The works that go on inside of our temples are very sacred- they are not revolts or heresy of any sort. You have no idea how happy I am- to have the opportunity to grow up in such a wonderful church; to have knowledge and testimony based on what has been taught to me by The Church of Jesus Christ of Latter Day Saints. The people in my church are ever so nice and kind and humble. I love them all so much. So if you are not a member of our church, then you know no truth of it- so please don’t speak out against it. If you have any comments for me please e-mail me at [email protected] – Thanks a lot!:)

Comments are closed.