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

Document Transcript

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.

Footnotes

  1. 1

    Willard Richards, clerk of the municipal court, inscribed the docket entry for each appeal using the appellant’s name first and identifying the city of Nauvoo as the respondent. Although not used by Richards in this case, abbreviations for ad sectam were often used when reversing the order of parties on record. (Docket Entry, 2 May–ca. 3 June 1844 [City of Nauvoo v. C. L. Higbee]; Docket Entry, 2 May–ca. 3 June 1844 [City of Nauvoo v. C. A. Foster]; Docket Entry, ca. 3 June 1844 [City of Nauvoo v. R. D. Foster].)  

  2. 2

    JS, Journal, 26 Apr. 1844.  

  3. 3

    On 7 May 1844, Robert D. Foster acquired “an opposition printing press.” On 10 May, Foster, along with his brother Charles, Chauncey L. Higbee, and other dissenters, published a prospectus for the Nauvoo Expositor, a newspaper dedicated to opposing the church and its teachings. (JS, Journal, 7 May 1844; Nauvoo Expositor Prospectus [Nauvoo, IL: ca. 10 May 1844], copy at CHL.)  

    Nauvoo Expositor Prospectus. Nauvoo, IL: ca. 10 May 1844. Copy at CHL.

  4. 4

    Nauvoo Stake High Council Minutes, 20 and 24 May 1842, 1–2.  

    Nauvoo High Council Minutes, 1839–1845. CHL. LR 3102 22.

  5. 5

    JS, Journal, 18 Apr. 1844.  

  6. 6

    “The Mormons and Their Prophet—Legislation at Nauvoo—The Temple,” New-York Daily Tribune, 27 Jan. 1844, [1]; JS, Journal, 7 Mar. 1844.  

    New York Weekly Tribune. New York City. 1841–1866.

  7. 7

    Charles A. Foster, Nauvoo, IL, Letter to the Editor, 29 Apr. 1844, Warsaw (IL) Signal, 8 May 1844, [3]. JS evidently based his initial order for Rockwell to arrest Augustine Spencer on an 1841 Nauvoo ordinance that criminalized “ridiculing abusing, or otherwise depreciating another in consequence of his religion” and declared the convicted offender “a disturber of the public peace.” The ordinance further made it the duty of the mayor to have “all such violators” arrested, “either with or without process.” It is unknown why JS asked Rockwell, who is not known to have been a law officer at that time, to arrest Spencer. (Nauvoo City Council Minute Book, 1 Mar. 1841, 13; Pleas, ca. 26 May 1844, C. A. Foster v. JS and Coolidge [Hancock Co. Cir. Ct. 1844], Circuit Court Files, Archives and Special Collections, Malpass Library, Western Illinois University, Macomb, IL)  

    Warsaw Signal. Warsaw, IL. 1841–1853.

    Archives and Special Collections. Malpass Library, Western Illinois University, Macomb.

  8. 8

    John P. Greene, “All Is Peace at Nauvoo among the Saints,” Nauvoo Neighbor, 1 May 1844, [3]; Charles A. Foster, Nauvoo, IL, Letter to the Editor, 29 Apr. 1844, Warsaw (IL) Signal, 8 May 1844, [3]; Pleas, ca. 26 May 1844, C. A. Foster v. JS and Coolidge [Hancock Co. Cir. Ct. 1844], Circuit Court Files, Archives and Special Collections, Malpass Library, Western Illinois University, Macomb, IL.).  

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

    Warsaw Signal. Warsaw, IL. 1841–1853.

    Archives and Special Collections. Malpass Library, Western Illinois University, Macomb.

  9. 9

    John P. Greene, “All Is Peace at Nauvoo among the Saints,” Nauvoo Neighbor, 1 May 1844, [3].  

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

  10. 10

    Pleas, ca. 26 May 1844, C. A. Foster v. JS and Coolidge [Hancock Co. Cir. Ct. 1844], Circuit Court Files, Archives and Special Collections, Malpass Library, Western Illinois University, Macomb, IL; JS, Journal, 26 Apr. 1844; Introduction to City of Nauvoo v. A. Spencer.  

    Archives and Special Collections. Malpass Library, Western Illinois University, Macomb.

  11. 11

    JS, Journal, 26 Apr. 1844. Summarizing the trial, Willard Richards wrote in JS’s journal that he tried “at once R. D. Foster. Chauncy L. Higbee. & charls Foster.—for resisting the auhoities [authorities] of the city.” William W. Phelps, clerk of the mayor’s court, wrote to notify the municipal court that the defendants had appealed the mayor’s decision in “the case of The city of Nauvoo vs Chauncy L. Higbee Charles A. Foster Robert D. Foster.” (Notice of Appeal, 2 May 1844.)  

  12. 12

    Nauvoo City Council Minute Book, 1 Mar. 1841, 12–13. Documents produced for Higbee’s and the Fosters’ appeals to the municipal court simply noted that the three men had been convicted of violating unspecified city ordinances. However, when Charles A. Foster brought a civil suit against JS and Joseph W. Coolidge in the Hancock County Circuit Court, alleging that they had falsely imprisoned and injured him on 26 April 1844, defense attorneys filed as evidence certified copies of the ordinances relating to religious societies and public meetings and referenced both ordinances in defense pleas. (Notice of Appeal, 2 May 1844; Docket Entry, 2 May–ca. 3 June 1844 [City of Nauvoo v. C. L. Higbee]; Docket Entry, 2 May–ca. 3 June 1844 [City of Nauvoo v. C. A. Foster]; Docket Entry, ca. 3 June 1844 [City of Nauvoo v. R. D. Foster]; Pleas, ca. 26 May 1844, C. A. Foster v. JS and Coolidge [Hancock Co. Cir. Ct. 1844], Circuit Court Files, Archives and Special Collections, Malpass Library, Western Illinois University, Macomb, IL; Nauvoo City Council Minute Book, 1 Mar. 1841, 12–13; “An Ordinance in Relation to Religious Societies,” 1 Mar. 1844, copy, C. A. Foster v. JS and Coolidge [Hancock Co. Cir. Ct. 1844]; “An Ordinance in Relation to Public Meetings,” 1 Mar. 1844, copy, C. A. Foster v. JS and Coolidge [Hancock Co. Cir. Ct. 1844], Circuit Court Files, Archives and Special Collections, Malpass Library, Western Illinois University, Macomb, IL .)  

    Archives and Special Collections. Malpass Library, Western Illinois University, Macomb.

  13. 13

    JS, Journal, 26 Apr. 1844.  

  14. 14

    Notice of Appeal, 2 May 1844. The Nauvoo charter specified that appeals of convictions in the mayor’s court for breaches of city ordinances would be heard in the municipal court. (Act to Incorporate the City of Nauvoo, 16 Dec. 1840.)  

  15. 15

    Notice of Appeal, 2 May 1844.  

  16. 16

    JS, Journal, 3 June 1844; Nauvoo Municipal Court Docket Book, 102; Act to Incorporate the City of Nauvoo, 16 Dec. 1840.  

    Nauvoo Municipal Court Docket Book / Nauvoo, IL, Municipal Court. “Docket of the Municipal Court of the City of Nauvoo,” ca. 1843–1845. In Historian's Office, Historical Record Book, 1843–1874, pp. 51–150 and pp. 1–19 (second numbering). CHL. MS 3434.

  17. 17

    Docket Entry, 2 May–ca. 3 June 1844 [City of Nauvoo v. C. L. Higbee]; Docket Entry, 2 May–ca. 3 June 1844 [City of Nauvoo v. C. A. Foster]; Docket Entry, ca. 3 June 1844 [City of Nauvoo v. R. D. Foster].  

  18. 18

    Act to Incorporate the City of Nauvoo, 16 Dec. 1840.  

  19. 19

    Bond, 26 July 1844 [City of Nauvoo v. C. A. Foster]; Bond, 25 July 1844 [City of Nauvoo v. R. D. Foster].  

  20. 20

    Supersedeas, 26 July 1844 [City of Nauvoo v. C. A. Foster]; Supersedeas, 26 July 1844 [City of Nauvoo v. R. D. Foster]; Certiorari, 26 July 1844 [City of Nauvoo v. C. A. Foster]; Certiorari, 26 July 1844 [City of Nauvoo v. R. D. Foster].  

  21. 21

    Motion, ca. 24 Oct. 1844 [City of Nauvoo v. C. A. Foster]; Motion, ca. 24 Oct. 1844 [City of Nauvoo v. R. D. Foster]; Motion, ca. 24 Oct. 1844 [City of Nauvoo v. C. A. Foster]; Motion, ca. 23 Oct. 1844 [City of Nauvoo v. R. D. Foster]; see also Act to Incorporate the City of Nauvoo, 16 Dec. 1840.  

  22. 22

    Docket Entry, Motions Overruled, 31 Oct. 1844 [City of Nauvoo v. C. A. Foster]; Docket Entry, Motions Overruled, 31 Oct. 1844 [City of Nauvoo v. R. D. Foster].  

  23. 23

    Docket Entry, Dismissal, 21 Oct. 1845 [City of Nauvoo v. C. A. Foster]; Docket Entry, Dismissal, 21 Oct. 1845 [City of Nauvoo v. R. D. Foster].  

  24. 24

    Docket Entry, Dismissal, 21 Oct. 1845 [City of Nauvoo v. C. A. Foster]; Docket Entry, Dismissal, 21 Oct. 1845 [City of Nauvoo v. R. D. Foster]. Although the Illinois legislature had disincorporated the city of Nauvoo in January 1845, the following April the area’s residents voted to incorporate a town under the state’s general incorporation law. It was presumably this entity that sent an attorney to represent its interests at the October term. Nauvoo’s leadership may have opted to seek dismissal of the suits against the Fosters because Latter-day Saint leaders were by that time preparing to depart the city and were perhaps uninterested in prolonging the suits. In addition, after an outbreak of violence between church members and their antagonists in September 1845, the church’s opponents requested Illinois judge Norman H. Purple to not convene the October 1845 session of the Hancock County Circuit Court on the grounds that holding court might provoke further hostilities. Although Purple ultimately presided at the session as scheduled, the heightened tensions may have influenced Nauvoo’s leadership to seek dismissal of the suits against the Fosters. (An Act to Repeal the Act Entitled “An Act to Incorporate the City of Nauvoo,” Approved December 16, 1840 [29 Jan. 1845], Laws of the State of Illinois, pp. 187–188; Clayton, Journal, 15 Apr. 1845; see also An Act Further Defining the Powers and Duties of Trustees of Incorporated Towns [31 Jan. 1835], Public and General Statute Laws of the State of Illinois, pp. 384–385, sec. 1; Administrative Records, Volume 1, Introduction to Part 3: Sept.–Oct. 1845; and Council of Fifty, “Record,” 4 Oct. 1845.)  

    Laws of the State of Illinois, Passed by the Fourteenth General Assembly, at Their Regular Session, Began and Held at Springfield, December 2nd, 1844. Springfield, IL: Walters and Weber, 1845.

    Clayton, William. Journals, 1842–1845. CHL.

    The Public and General Statute Laws of the State of Illinois: Containing All the Laws . . . Passed by the Ninth General Assembly, at Their First Session, Commencing December 1, 1834, and Ending February 13, 1835; and at Their Second Session, Commencing December 7, 1835, and Ending January 18, 1836; and Those Passed by the Tenth General Assembly, at Their Session Commencing December 5, 1836, and Ending March 6, 1837; and at Their Special Session, Commencing July 10, and Ending July 22, 1837. . . . Compiled by Jonathan Young Scammon. Chicago: Stephen F. Gale, 1839.

  25. 25

    Docket Entry, Dismissal, 21 Oct. 1845 [City of Nauvoo v. C. A. Foster]; Docket Entry, Dismissal, 21 Oct. 1845 [City of Nauvoo v. R. D. Foster].