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Introduction to City of Nauvoo v. C. L. Higbee et al.

City of Nauvoo v. C. L. Higbee, C. A. Foster, and R. D. Foster
Nauvoo, Hancock Co., IL, Mayor’s Court, 26 April 1844
 
City of Nauvoo v. C. L. Higbee
Nauvoo, Hancock Co., IL, Municipal Court, 3 June 1844
City of Nauvoo v. C. A. Foster
Nauvoo, Hancock Co., IL, Municipal Court, 3 June 1844
City of Nauvoo v. R. D. Foster
Nauvoo, Hancock Co., IL, Municipal Court, 3 June 1844
 
City of Nauvoo v. C. A. Foster
Hancock Co., IL, Circuit Court, 21 October 1845
City of Nauvoo v. R. D. Foster
Hancock Co., IL, Circuit Court, 21 October 1845
 
Historical Introduction
City of Nauvoo v. C. L. Higbee, C. A. Foster, and R. D. Foster
On 26 April 1844, JS presided in the , Illinois, mayor’s court over the prosecution of , , and “for resisting the auhoities [authorities] of the city.” Each of these men was a known critic of JS and the church. Higbee had been excommunicated in 1842 for sexual misconduct and had not sought reinstatement. Robert D. Foster had been excommunicated along with other prominent dissenters for “unchristianlike conduct” on 18 April 1844. His brother Charles A. Foster had never been a Latter-day Saint but had purportedly authored a letter published in January 1844 in the New-York Daily Tribune that was highly critical of JS and the Saints of Nauvoo.
Earlier on 26 April, JS ordered to arrest for an alleged assault on his brother , although JS apparently did not give Rockwell a warrant. When Rockwell confronted Spencer at the law office of attorney , Spencer refused to submit to arrest without a warrant. Rockwell called on city marshal for assistance, but the marshal was likewise unsuccessful at making the arrest. Greene then called on and the Foster brothers to assist in taking Spencer to the . They refused, insisting that Greene would need a warrant and “saying they would see the Mayor and the city damned and then they would not.” At that point, Greene left to request from JS a warrant, which was granted. The marshal returned to Marr’s office and arrested Spencer.
brought to the steps outside JS’s , with and the Foster brothers following. JS, having learned that the three men had earlier refused to aid Greene in the discharge of his duty, ordered the marshal to arrest them. When they resisted, JS attempted to detain the Foster brothers. In response pulled a double-barreled pistol on him. Latter-day Saint helped JS disarm and detain him, his brother, and Higbee. They remained in custody while JS tried and convicted Augustine Spencer for assaulting his .
Following ’s trial, JS presided at the prosecution of the Fosters and , who were tried together. The documents produced by the mayor’s court are apparently not extant, but from JS’s journal and documents made on appeal, it is possible to reconstruct details of the trial. The Fosters and Higbee were evidently charged with resisting authorities under two city ordinances. The first criminalized “ridiculing abusing, or otherwise depreciating another in consequence of his religion” and made it the duty of the mayor to have “all such violators” arrested, “either with or without process.” The second ordinance criminalized “exciting the people to riot, or rebellion or of participating in a mob or any other unlawful riotous or tumultuous assemblage of the people, or of refusing to obey any civil officer executing the ordinances of the city.” Convicted offenders of either of these ordinances could be “fined in any Sum not exceeding five hundred Dollars.” , , , and testified for the prosecution, describing how the defendants initially refused to assist the marshal in the arrest of Spencer, how pulled the gun on JS, and how each of the men threatened the mayor. JS convicted the defendants, fining them $100 each.
 
City of Nauvoo v. C. L. Higbee; City of Nauvoo v. C. A. Foster; City of Nauvoo v. R. D. Foster
, , and appealed their conviction within the week. Though they had been charged and tried as codefendants in a single prosecution in the mayor’s court, they filed separate appeals to the Nauvoo Municipal Court, resulting in three distinct actions. These appeals were scheduled to be heard at the court’s June 1844 term. The court convened on 3 June. Because JS, the chief justice, was absent, was elected president pro tempore. Although the appellants were called, they did not appear in the court and the appeals were dismissed. The appellants presumably took this step because they intended to appeal to the Hancock County Circuit Court. The Nauvoo charter provided that appeals from the mayor’s court needed to first go to the municipal court and that only at that point could they appeal to the circuit court.
 
City of Nauvoo v. C. A. Foster; City of Nauvoo v. R. D. Foster
The following month, the Foster brothers appealed to the Hancock County Circuit Court. For each appeal, the circuit court ordered the municipal court to halt the proceedings against the Fosters and to submit certified transcripts of the records. At the October 1844 term, and , representing the City of , motioned that the circuit court dismiss the appeals and uphold the original fines. In turn, the brothers, represented by , motioned for the circuit court to dismiss the original suits—and the original $100 fines—against them. After hearing arguments from the attorneys, the court overruled both motions. Each appeal was continued until the October 1845 term. For unclear reasons, at the October term attorneys representing the “plaintiff”—referring to Nauvoo—filed motions to have the original suits against the Foster brothers dismissed. The court granted the motions and held that the defendants could recover their costs from the city.
 
Calendar of Documents
This calendar lists all known documents created by or for the court, whether extant or not. It does not include versions of documents created for other purposes, though those versions may be listed in footnotes. In certain cases, especially in cases concerning unpaid debts, the originating document (promissory note, invoice, etc.) is listed here. Note that documents in the calendar are grouped with their originating court. Where a version of a document was subsequently filed with another court, that version is listed under both courts.
City of Nauvoo v. C. L. Higbee, C. A. Foster, and R. D. Foster
Nauvoo, Hancock Co., IL, Mayor’s Court, 26 April 1844
 
City of Nauvoo v. C. L. Higbee
Nauvoo, Hancock Co., IL, Municipal Court, 3 June 1844
City of Nauvoo v. C. A. Foster
Nauvoo, Hancock Co., IL, Municipal Court, 3 June 1844
City of Nauvoo v. R. D. Foster
Nauvoo, Hancock Co., IL, Municipal Court, 3 June 1844
 
City of Nauvoo v. C. A. Foster
Hancock Co., IL, Circuit Court, 21 October 1845
City of Nauvoo v. R. D. Foster
Hancock Co., IL, Circuit Court, 21 October 1845
 
Historical Introduction
City of Nauvoo v. C. L. Higbee, C. A. Foster, and R. D. Foster
On 26 April 1844, JS presided in the , Illinois, mayor’s court over the prosecution of , , and “for resisting the auhoities [authorities] of the city.” Each of these men was a known critic of JS and the church. Higbee had been excommunicated in 1842 for sexual misconduct and had not sought reinstatement. Robert D. Foster had been excommunicated along with other prominent dissenters for “unchristianlike conduct” on 18 April 1844. His brother Charles A. Foster had never been a Latter-day Saint but had purportedly authored a letter published in January 1844 in the New-York Daily Tribune that was highly critical of JS and the Saints of Nauvoo.
Earlier on 26 April, JS ordered to arrest for an alleged assault on his brother , although JS apparently did not give Rockwell a warrant. When Rockwell confronted Spencer at the law office of attorney , Spencer refused to submit to arrest without a warrant. Rockwell called on city marshal for assistance, but the marshal was likewise unsuccessful at making the arrest. Greene then called on and the Foster brothers to assist in taking Spencer to the . They refused, insisting that Greene would need a warrant and “saying they would see the Mayor and the city damned and then they would not.” At that point, Greene left to request from JS a warrant, which was granted. The marshal returned to Marr’s office and arrested Spencer.
brought to the steps outside JS’s , with and the Foster brothers following. JS, having learned that the three men had earlier refused to aid Greene in the discharge of his duty, ordered the marshal to arrest them. When they resisted, JS attempted to detain the Foster brothers. In response pulled a double-barreled pistol on him. Latter-day Saint helped JS disarm and detain him, his brother, and Higbee. They remained in custody while JS tried and convicted Augustine Spencer for assaulting his .
Following ’s trial, JS presided at the prosecution of the Fosters and , who were tried together. The documents produced by the mayor’s court are apparently not extant, but from JS’s journal and documents made on appeal, it is possible to reconstruct details of the trial. The Fosters and Higbee were evidently charged with resisting authorities under two city ordinances. The first criminalized “ridiculing abusing, or otherwise depreciating another in consequence of his religion” and made it the duty of the mayor to have “all such violators” arrested, “either with or without process.” The second ordinance criminalized “exciting the people to riot, or rebellion or of participating in a mob or any other unlawful riotous or tumultuous assemblage of the people, or of refusing to obey any civil officer executing the ordinances of the city.” Convicted offenders of either of these ordinances could be “fined in any Sum not exceeding five hundred Dollars.” , , , and testified for the prosecution, describing how the defendants initially refused to assist the marshal in the arrest of Spencer, how pulled the gun on JS, and how each of the men threatened the mayor. JS convicted the defendants, fining them $100 each.
 
City of Nauvoo v. C. L. Higbee; City of Nauvoo v. C. A. Foster; City of Nauvoo v. R. D. Foster
, , and appealed their conviction within the week. Though they had been charged and tried as codefendants in a single prosecution in the mayor’s court, they filed separate appeals to the Nauvoo Municipal Court, resulting in three distinct actions. These appeals were scheduled to be heard at the court’s June 1844 term. The court convened on 3 June. Because JS, the chief justice, was absent, was elected president pro tempore. Although the appellants were called, they did not appear in the court and the appeals were dismissed. The appellants presumably took this step because they intended to appeal to the Hancock County Circuit Court. The Nauvoo charter provided that appeals from the mayor’s court needed to first go to the municipal court and that only at that point could they appeal to the circuit court.
 
City of Nauvoo v. C. A. Foster; City of Nauvoo v. R. D. Foster
The following month, the Foster brothers appealed to the Hancock County Circuit Court. For each appeal, the circuit court ordered the municipal court to halt the proceedings against the Fosters and to submit certified transcripts of the records. At the October 1844 term, and , representing the City of , motioned that the circuit court dismiss the appeals and uphold the original fines. In turn, the brothers, represented by , motioned for the circuit court to dismiss the original suits—and the original $100 fines—against them. After hearing arguments from the attorneys, the court overruled both motions. Each appeal was continued until the October 1845 term. For unclear reasons, at the October term attorneys representing the “plaintiff”—referring to Nauvoo—filed motions to have the original suits against the Foster brothers dismissed. The court granted the motions and held that the defendants could recover their costs from the city.
 
Calendar of Documents
This calendar lists all known documents created by or for the court, whether extant or not. It does not include versions of documents created for other purposes, though those versions may be listed in footnotes. In certain cases, especially in cases concerning unpaid debts, the originating document (promissory note, invoice, etc.) is listed here. Note that documents in the calendar are grouped with their originating court. Where a version of a document was subsequently filed with another court, that version is listed under both courts.
 
City of Nauvoo v. C. L. Higbee et al., Nauvoo, Hancock Co., Illinois, Mayor’s Court
 
City of Nauvoo v. C. L. Higbee, Nauvoo, Hancock Co., Illinois, Municipal Court
  • 1844 (4)
    • April (1)
      Ca. 29 April 1844

      Bond, Nauvoo, Hancock Co., IL

    • May (1)
      2 May 1844

      William W. Phelps, Notice of Appeal, to Nauvoo Municipal Court Clerk, Nauvoo, Hancock Co., IL

      • 2 May 1844; Nauvoo, IL, Records, CHL; handwriting of William W. Phelps; docket and notation in handwriting of Willard Richards.
    • June (2)
      Between 2 May and 3 June 1844

      Docket Entry, Copy, Nauvoo, Hancock Co., IL

      • Between 2 May and 3 June 1844. Not extant.
      2 May–ca. 3 June 1844

      Docket Entry, Nauvoo, Hancock Co., IL

      • 2 May–ca. 3 June 1844; Nauvoo Municipal Court Docket Book, 104; handwriting of Willard Richards; notation in handwriting of Thomas Bullock.
  • 1845 (1)
 
City of Nauvoo v. C. A. Foster, Nauvoo, Hancock Co., Illinois, Municipal Court
  • 1844 (4)
    • April (1)
      Ca. 29 April 1844

      Bond, Nauvoo, Hancock Co., IL

    • May (1)
      2 May 1844

      William W. Phelps, Notice of Appeal, to Nauvoo Municipal Court Clerk, Nauvoo, Hancock Co., IL

      • 2 May 1844; Nauvoo, IL, Records, CHL; handwriting of William W. Phelps; docket and notation in handwriting of Willard Richards.
    • June (2)
      Between 2 May and 3 June 1844

      Docket Entry, Copy, Nauvoo, Hancock Co., IL

      • Between 2 May and 3 June 1844. Not extant.
      2 May–ca. 3 June 1844

      Docket Entry, Nauvoo, Hancock Co., IL

      • 2 May–ca. 3 June 1844; Nauvoo Municipal Court Docket Book, 105; handwriting of Willard Richards; notation in handwriting of Thomas Bullock.
  • 1845 (1)
 
City of Nauvoo v. R. D. Foster, Nauvoo, Hancock Co., Illinois, Municipal Court
  • 1844 (4)
    • April (1)
      Ca. 29 April 1844

      Bond, Nauvoo, Hancock Co., IL

    • May (1)
      2 May 1844

      William W. Phelps, Notice of Appeal, to Nauvoo Municipal Court Clerk, Nauvoo, Hancock Co., IL

      • 2 May 1844; Nauvoo, IL, Records, CHL; handwriting of William W. Phelps; docket and notation in handwriting of Willard Richards.
    • June (2)
      Between 2 May and 3 June 1844

      Docket Entry, Copy, Nauvoo, Hancock Co., IL

      • Between 2 May and 3 June 1844. Not extant.
      Ca. 3 June 1844

      Docket Entry, Nauvoo, Hancock Co., IL

      • Ca. 3 June 1844; Nauvoo Municipal Court Docket Book, 106; handwriting of Willard Richards; notation in handwriting of Thomas Bullock.
      • 16 Oct. 1844; private possession; photocopy in Historical Department, Nineteenth-Century Legal Documents Collection, 1829–1973, CHL; handwriting of John McEwan; certified by William W. Phelps.
  • 1845 (1)
 
City of Nauvoo v. C. A. Foster Hancock Co., Illinois, Circuit Court
  • 1844 (9)
    • July (3)
      26 July 1844

      Charles A. Foster and Others, Bond, Hancock Co., IL, to City of Nauvoo

      • 26 July 1844; CHL; handwriting of Charles A. Foster; signatures of Charles A. Foster, Robert D. Foster, and Artois Hamilton; certified by Jacob B. Backenstos.
      26 July 1844

      Jacob B. Backenstos, Certiorari, Carthage, Hancock Co., IL, to Nauvoo Municipal Court, Nauvoo, Hancock Co., IL

      • 26 July 1844; microfilm in Circuit Court case files, 1830–1900, CHL; handwriting of Jacob B. Backenstos; docket in handwriting of Jacob B. Backenstos; notations in handwriting of William Backenstos; notation probably in handwriting of Jacob B. Backenstos.
      26 July 1844

      Jacob B. Backenstos, Supersedeas, Carthage, Hancock Co., IL, to Nauvoo Municipal Court and Others, Nauvoo, Hancock Co., IL

      • 26 July 1844; microfilm in Circuit Court case files, 1830–1900, CHL; handwriting of M. Avise; signature of Jacob B. Backenstos; docket in handwriting of Jacob B. Backenstos; notations in handwriting of William Backenstos; notation in handwriting of David E. Head.
    • October (6)
      Ca. 21 October 1844

      Almon Babbitt, Motion, Hancock Co., IL

      • Ca. 21 Oct. 1844; microfilm in Circuit Court case files, 1830–1900, CHL; handwriting of Almon Babbitt.
      22 October 1844

      Docket Entry, Motion, Carthage, Hancock Co., IL

      • 22 Oct. 1844; Hancock County Circuit Court Record, vol. D, p. [177], Hancock County Courthouse, Carthage, IL; microfilm at FHL; handwriting of David E. Head.
      Ca. 24 October 1844

      George Stiles and Almon Babbitt, Motion, Hancock Co., IL, ca. 24 Oct. 1844–A

      • Ca. 24 Oct. 1844; Hancock County Courthouse, Carthage, IL; microfilm at FHL; handwriting of George Stiles; docket in handwriting of George Stiles; notation in handwriting of Jacob B. Backenstos.
      Ca. 24 October 1844

      Onias Skinner, Motion, Hancock Co., IL, ca. 24 Oct. 1844–B

      • Ca. 24 Oct. 1844; private possession; handwriting of Onias Skinner; docket in handwriting of Onias Skinner; docket and notation probably in handwriting of David E. Head.
      25 October 1844

      Docket Entry, Motions, Carthage, Hancock Co., IL

      • 25 Oct. 1844; Hancock County Circuit Court Record, vol. D, p. 202, Hancock County Courthouse, Carthage, IL; microfilm at FHL; handwriting of David E. Head.
      31 October 1844

      Docket Entry, Motions Overruled, Nauvoo, Hancock Co., IL

      • 31 Oct. 1844; Hancock County Circuit Court Record, vol. D, p. 224, Hancock County Courthouse, Carthage, IL; microfilm at FHL; handwriting of David E. Head.
  • 1845 (3)
    • October (3)
      21 October 1845

      Docket Entry, Dismissal, Nauvoo, Hancock Co., IL

      • 21 Oct. 1845; Hancock County Circuit Court Record, vol. D, p. [325], Hancock County Courthouse, Carthage, IL; microfilm at FHL; handwriting of David E. Head.
      Ca. 21 October 1845

      Docket Entry, Carthage, Hancock Co., IL

      • Ca. 21 Oct. 1845; Hancock County Circuit Court, Judgment Docket, vol. C, p. 165, Hancock County Courthouse, Carthage, IL; image in Hancock County Papers, 1830–1872, CHL; handwriting probably of David E. Head.
      Ca. 21 October 1845

      Docket Entry, Fee Bill, Carthage, Hancock Co., IL

  • 1846 (1)
    • March (1)
      Between 17 December 1845 and ca. 17 March 1846

      Docket Entry, Fieri Facias, Carthage, Hancock Co., IL

      • Between 17 Dec. 1845 and ca. 17 Mar. 1846; Hancock County Circuit Court, Execution Docket, vol. C, p. [19], Hancock County Courthouse, Carthage, IL; image in Hancock County Papers, 1830–1872, CHL; handwriting of David E. Head; notation in unidentified handwriting.
 
City of Nauvoo v. R. D. Foster Hancock Co., Illinois, Circuit Court
  • 1844 (11)
    • July (3)
      25 July 1844

      Robert D. Foster and Others, Bond, Hancock Co., IL, to City of Nauvoo

      • 25 July 1844; microfilm in Circuit Court case files, 1830–1900, CHL; handwriting of Robert D. Foster; signatures of Robert D. Foster, Charles A. Foster and Artois Hamilton; certified by Jacob B. Backenstos.
      26 July 1844

      Jacob B. Backenstos, Certiorari, Carthage, Hancock Co., IL, to Nauvoo Municipal Court, Nauvoo, Hancock Co., IL

      • 26 July 1844; microfilm in Circuit Court case files, 1830–1900, CHL; handwriting of Jacob B. Backenstos; docket in handwriting of Jacob B. Backenstos; notations in handwriting of William Backenstos; notation probably in handwriting of Jacob B. Backenstos.
      26 July 1844

      Jacob B. Backenstos, Supersedeas, Carthage, Hancock Co., IL, to Nauvoo Municipal Court and Others, Nauvoo, Hancock Co., IL

      • 26 July 1844; microfilm in Circuit Court case files, 1830–1900, CHL; unidentified handwriting; signature of Jacob B. Backenstos; docket in handwriting of Jacob B. Backenstos; notations in handwriting of William Backenstos; notation in handwriting of David E. Head.
    • October (8)
      16 October 1844

      Docket Entry, Copy, Nauvoo, Hancock Co., IL

      • 16 Oct. 1844; private possession; photocopy in Historical Department, Nineteenth-Century Legal Documents Collection, 1829–1973, CHL; handwriting of John McEwan; certified by William W. Phelps.
      Ca. 21 October 1844

      George Stiles and Almon Babbitt, Motion, Hancock Co., IL

      • Ca. 21 Oct. 1844; private possession; microfilm 1,521,606 at FHL; handwriting of George Stiles; docket in handwriting of George Stiles; docket in unidentified handwriting; notation probably in handwriting of David E. Head.
      22 October 1844

      Docket Entry, Motion, Carthage, Hancock Co., IL

      • 22 Oct. 1844; Hancock County Circuit Court Record, vol. D, p. [177], Hancock County Courthouse, Carthage, IL; microfilm at FHL; handwriting of David E. Head.
      Ca. 23 October 1844

      George Stiles and Almon Babbitt, Motion, Hancock Co., IL

      • Ca. 23 Oct. 1844; private possession; microfilm 1,521,606 at FHL; handwriting of George Stiles; docket and notation in handwriting of Jacob B. Backenstos.
      Ca. 24 October 1844

      Onias Skinner, Motion, Hancock Co., IL

      • Ca. 24 Oct. 1844; private possession; microfilm in Court Cases Files, 1830–1846, CHL; handwriting of Onias Skinner; docket in handwriting of Onias Skinner; docket and notation probably in handwriting of David E. Head.
      25 October 1844

      Docket Entry, Motions, Carthage, Hancock Co., IL

      • 25 Oct. 1844; Hancock County Circuit Court Record, vol. D, p. 202, Hancock County Courthouse, Carthage, IL; microfilm at FHL; handwriting of David E. Head.
      30 October 1844

      Onias Skinner, Praecipe, to Hancock Co. Circuit Court Clerk, Hancock Co., IL

      • 30 Oct. 1844; private possession; microfilm 1,521,606 at FHL; handwriting of Onias Skinner; docket in handwriting of Onias Skinner; notation in handwriting of Jacob B. Backenstos.
      31 October 1844

      Docket Entry, Motions Overruled, Carthage, Hancock Co., IL

      • 31 Oct. 1844; Hancock County Circuit Court Record, vol. D, p. 224, Hancock County Courthouse, Carthage, IL; microfilm at FHL; handwriting of David E. Head.
  • 1845 (3)
    • October (3)
      Ca. 20 October 1845

      George Stiles and Almon Babbitt, Motion, Hancock Co., IL

      21 October 1845

      Docket Entry, Dismissal, Carthage, Hancock Co., IL

      • 21 Oct. 1845; Hancock County Circuit Court Record, vol. D, p. [325], Hancock County Courthouse, Carthage, IL; microfilm at FHL; handwriting of David E. Head.
      Ca. 21 October 1845

      Docket Entry, Carthage, Hancock Co., IL

      • Ca. 21 Oct. 1845; Hancock County Circuit Court, Judgment Docket, vol. C, p. 165, Hancock County Courthouse, Carthage, IL; image in Hancock County Papers, 1830–1872, CHL; handwriting probably of David E. Head.
  • 1846 (1)
    • March (1)
      Between 17 December 1845 and ca. 17 March 1846

      Docket Entry, Fieri Facias, Carthage, Hancock Co., IL

      • Between 17 Dec. 1845 and ca. 17 Mar. 1846; Hancock County Circuit Court, Execution Docket, vol. C, p. [19], Hancock County Courthouse, Carthage, IL; image in Hancock County Papers, 1830–1872, CHL; handwriting of David E. Head; notation in unidentified handwriting.