Introduction to C. A. Foster v. JS and Coolidge

Document Transcript

C. A. Foster v. JS and Coolidge
Hancock Co., Illinois, Circuit Court, 28 May 1844
McDonough Co., Illinois, Circuit Court, circa August 1844
 
Historical Introduction
On 9 May 1844, initiated a civil lawsuit against JS in the circuit court of , Illinois, for and personal injury. The case followed a long-standing conflict between the two men.
had moved to by 1843, presumably to be near his older brother , a Latter-day Saint physician, businessman, and justice of the peace. Charles Foster was not a member of the church; rather, he was apparently a Methodist. It is unclear when or why he became a critic of the church and its leaders. However, JS suspected that Foster was the author of a severely critical letter published anonymously in a newspaper in late January 1844. At a public meeting in on 7 March, JS identified multiple individuals who had criticized and challenged Nauvoo’s government officials by initiating lawsuits and by resisting municipal law enforcement officers as they attempted to enforce city ordinances. Without naming him, JS insinuated in the discourse that Foster was the author of the disparaging letter, and a confrontation between the two men ensued, resulting in JS fining Foster for disrupting the meeting.
On 12 April 1844, recounted the event in a letter to the Warsaw Signal, calling JS a “Tyrant,” a “Monster in human shape,” and a “modern impostor.” Foster criticized the Nauvoo City Council and the ordinances it passed as “a mimicry of law, compounded by hypocrisy and absurdity; and their [city officials’] justice is not worthy the name.” He predicted that his defiance of JS would result in serious repercussions, perhaps even his death, but said he would be satisfied “if the forfeiture of [his] life should lead to a general investigation, and purification of the iniquities that prevail[ed]” in . Even as Foster increased his public opposition, his brother renounced the church and was reportedly involved in a conspiracy to kill JS. Robert Foster was excommunicated alongside other dissenters for “unchristianlike conduct” on 18 April.
On 26 April 1844, the Foster brothers were involved in a confrontation with law enforcement officers. At root, the altercation was a protest against the legitimacy of Nauvoo city officials and the ordinances passed by the city council. Earlier that day, had quarreled with his brother , a Latter-day Saint, who accused Augustine of choking him and of criticizing JS. After Orson informed JS of the altercation, JS, as mayor, sent , who was not a peace officer, without a warrant to apprehend Augustine Spencer “for a breach of the Peace” and for violating a city ordinance that prohibited “ridiculing abusing, or otherwise depreciating another in consequence of his religion.” The ordinance made it the duty of the mayor to have “all such violators” arrested, “either with or ,” which likely explains why JS sent Rockwell without a warrant to arrest Spencer.
approached at the law office of , which was apparently located on the bluff near where the was being built. Spencer refused to be taken into custody without a warrant. Rockwell then called on city marshal for assistance. When the marshal was likewise unable to apprehend Spencer—presumably because he too lacked a warrant—Greene requested three men, and the Foster brothers, to help him in taking in Spencer. They refused, insisting that Greene needed a warrant and “saying they would see the Mayor and the city damned.” At that point, the marshal left and asked JS for a warrant, which was granted, and Greene subsequently detained Spencer.
and the Fosters followed down the hill and for several blocks as he brought to the steps outside the mayor’s office, located above near the . JS was apprised that the three men had earlier refused to aid Greene in the discharge of his duty, in violation of a city ordinance that prohibited “refusing to obey any civil officer executing the ordinances of the City.” JS therefore ordered the marshal to detain them as well. When they resisted, JS attempted to restrain the Foster brothers. In response, pointed a double-barreled pistol at him, allegedly saying that “he would thank God for the privilege of rid[d]ing the world of a tyrant.” Latter-day Saint helped JS disarm Charles Foster and detain him, as well as and Higbee. They remained in custody, without process, while JS initiated legal proceedings in the mayor’s court. He first tried and convicted Augustine Spencer of assaulting . JS then presided at the trial of the Fosters and Higbee “for resisting the auhoities [authorities] of the city.” Based on testimony from , Greene, Coolidge, and , JS convicted the Fosters and Higbee of violating the ordinance requiring citizens to assist civil officers and fined them $100 each.
The Foster brothers and disdained these legal proceedings and the city ordinances that they were based on. The Nauvoo Expositor, a dissident newspaper owned by the three men and other opponents of the church, later published an editorial on the incident that recounted that they had been convicted “for the very enormous offence of refusing to assist the notorious , and his ‘dignity,, in arresting a respectable and peaceble citizen, without the regular process of papers.” The editorial further promised that in a future issue of the paper, the dissidents would “express [their] views fully and freely upon this feature of Mormon usurpation; first, enact a string of ordinances contrary to reason and common sense, and then inflict the severest penalties for not observing them.” Although the promised critique of city ordinances and their enforcement never materialized—the city government destroyed the Expositor’s press as a nuisance following the publication of the newspaper’s first issue—the Fosters and Higbee did later seek to challenge not only their convictions but also, indirectly, the legitimacy of the city ordinances in a series of legal actions in state courts. They appealed JS’s ruling, first to the Nauvoo Municipal Court and then to the Circuit Court, following the process defined in Nauvoo’s . In addition, Higbee filed a criminal complaint against for false imprisonment.
As part of this effort, filed his civil suit against JS and on 9 May 1844, with the case scheduled to be heard in the Circuit Court during the May 1844 term. The suit, which was filed as a common law of , accused the men of false imprisonment and causing personal injury during the 26 April altercation, with Foster seeking $1,000 in damages. Following the common law system, Foster’s attorneys— and —filed a that claimed the defendants had seized Foster on 26 April 1844, leaving him “badly bruised and ill treated.” The declaration also alleged that JS and Coolidge had detained Foster “without any reasonable or probable cause whatsoever for a long time To Wit one day.”
JS retained the services of , an attorney in Macedonia, Illinois, who was also a prominent Latter-day Saint and a member of JS’s , as well as lawyers and , to defend him in the suit. On JS’s behalf, Babbitt wrote a set of around 27 May 1844 that denied ’s claim and summarized the grounds upon which he had been detained in accordance with city ordinances. Babbitt also submitted certified copies of two ordinances to the court. Both parties agreed to submit the case to a jury.
On 29 May, ’s attorneys filed a arguing that the second, third, and fourth pleas were “not sufficient in law” and that Foster was “not bound by law to answer the same.” The document did not, however, specify the reasons for this challenge. At the courthouse in , Illinois, Judge of the fifth judicial circuit heard oral arguments, which were not recorded. He then sustained the demurrer. The demurrer did not mention the first plea—which contained JS’s and ’s general denial of Foster’s claims in the declaration—thereby sending the question of whether JS and Coolidge had falsely imprisoned and injured Foster to the jury to decide. At Foster’s request, Thomas changed the venue to the Circuit Court, where the case was scheduled to be heard at the August 1844 term. The case was apparently dismissed before the jury trial could be held.
 
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

    Charles A. Foster was in Nauvoo on 27 February 1843, when he witnessed the signing of a deed there. (Hancock Co., IL, Deed Records, 1817–1917, vol. L, p. 223, 27 Feb. 1843, microfilm 954,599, U.S. and Canada Record Collection, FHL.)  

    U.S. and Canada Record Collection. FHL.

  2. 2

    John P. Greene, “All Is Peace at Nauvoo among the Saints,” Nauvoo Neighbor, 1 May 1844, [3]; Letter, Charles A. Foster to Editor, 12 Apr. 1844.  

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

  3. 3

    “The Mormons and Their Prophet—Legislation at Nauvoo—the Temple,” New-York Daily Tribune (New York City), 27 Jan. 1844, [1].  

    New-York Daily Tribune. New York City. 1841–1924.

  4. 4

    JS, Journal, 7 Mar. 1844.  

  5. 5

    Letter, Charles A. Foster to Editor, 12 Apr. 1844, italics in original.  

  6. 6

    JS, Journal, 24 Mar. 1844; 1–3, 13, and 18 Apr. 1844; Clayton, Journal, 23 Mar. 1844; Abiathar B. Williams, Affidavit, Hancock Co., IL, 27 Mar. 1844; Merinus G. Eaton, Affidavit, Hancock Co., IL, 27 Mar. 1844, in Nauvoo Neighbor, 17 Apr. 1844, [2].  

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

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

  7. 7

    Letter, Charles A. Foster to Editor, 29 Apr. 1844; Introduction to City of Nauvoo v. A. Spencer; Pleas, ca. 27 May 1844 [C. A. Foster v. JS and Coolidge]; Nauvoo City Council Minute Book, 1 Mar. 1841, 13. Under Illinois law, a constable could arrest an offender without a warrant if the offense was “committed in his presence.” In contrast, the Nauvoo city ordinance that authorized city officers to arrest individuals for alleged breaches of ordinances without a warrant did not require that the officer witness the crime. The Nauvoo charter did not require city ordinances to be consistent with state law but instead authorized the city council to pass any ordinance for the good of the city, as long as the ordinance was “not repugnant” to the national or state constitutions. (An Act concerning Justices of the Peace and Constables [3 Feb. 1827], Public and General Statute Laws of the State of Illinois, p. 412, sec. 49; Act to Incorporate the City of Nauvoo, 16 Dec. 1840.)  

    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.

  8. 8

    The precise location of Marr’s law office is unknown. JS’s journal entry for 26 April 1844 indicates that John P. Greene later “went up on hill” to detain Spencer, and Greene indicated that he and Rockwell found Spencer at Marr’s law office. It is possible that Marr shared space with attorney Sylvester Emmons, whose law office was located above the store owned by Marr’s cousin Samuel M. Marr, on Knight Street east of the temple. (JS, Journal, 26 Apr. 1844; John P. Greene, “All Is Peace at Nauvoo among the Saints,” Nauvoo Neighbor, 1 May 1844, [3]; Jamison, Descendants of John and Catherine Surplus Marr, 169, 175; “S. Emmons, Attorney and Counsellor at Law, and Solicitor in Chancery,” Nauvoo Expositor, 7 June 1844, [3].)  

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

    Jamison, James F. The Descendants of John and Catherine Surplus Marr. Zelienople, PA: J. F. Jamison, 1985.

    Nauvoo Expositor. Nauvoo, IL. 1844.

  9. 9

    Letter, Charles A. Foster to Editor, 29 Apr. 1844; John P. Greene, “All Is Peace at Nauvoo among the Saints,” Nauvoo Neighbor, 1 May 1844, [3]; JS, Journal, 26 Apr. 1844.  

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

  10. 10

    Letter, Charles A. Foster to Editor, 29 Apr. 1844; John P. Greene, “All Is Peace at Nauvoo among the Saints,” Nauvoo Neighbor, 1 May 1844, [3]; JS, Journal, 26 Apr. 1844; Nauvoo City Council Minute Book, 1 Mar. 1841, 12.  

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

  11. 11

    Letter, Charles A. Foster to Editor, 29 Apr. 1844; JS, Journal, 26 Apr. 1844; John P. Greene, “All Is Peace at Nauvoo among the Saints,” Nauvoo Neighbor, 1 May 1844, [3]; Pleas, ca. 27 May 1844 [C. A. Foster v. JS and Coolidge]. Coolidge, a Latter-day Saint living in Nauvoo, was an officer in the Nauvoo Legion and a recently inducted member of the Council of Fifty. He had no apparent connection with either the Nauvoo police or the city marshal, but he was evidently deputized because he was nearby during the altercation. (John C. Bennett, “Officers of the Nauvoo Legion,” [6]; “List of Commissioned and Non Commissioned Officers of the Second Reg Second Cohort NL,” Nauvoo Legion Records, CHL; Council of Fifty, Minutes, 18 Apr. 1844.)  

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

    Nauvoo Legion Records, 1841–1845. CHL. MS 3430.

  12. 12

    John P. Greene, “All Is Peace at Nauvoo among the Saints,” Nauvoo Neighbor, 1 May 1844, [3]; JS, Journal, 26 Apr. 1844.  

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

  13. 13

    JS, Journal, 26 Apr. 1844; Nauvoo City Council Minute Book, 1 Mar. 1841, 12; Introduction to City of Nauvoo v. C. L. Higbee et al.  

  14. 14

    Editorial, Nauvoo Expositor, 7 June 1844, [3], italics in original.  

    Nauvoo Expositor. Nauvoo, IL. 1844.

  15. 15

    Higbee and the Fosters appealed JS’s decision to the Nauvoo Municipal Court, but when the appellants did not appear on 3 June 1844, the appeal was dismissed. The Foster brothers then appealed to the circuit court. The appeals were continued until the October 1845 term, when the circuit court dismissed the original convictions and fines. (Introduction to City of Nauvoo v. C. L. Higbee et al.; Act to Incorporate the City of Nauvoo, 16 Dec. 1840.)  

  16. 16

    Warrant, Robert F. Smith for Joseph W. Coolidge, 24 June 1844.  

  17. 17

    Praecipe, 9 May 1844 [C. A. Foster v. JS and Coolidge].  

  18. 18

    Declaration, ca. 9 May 1844 [C. A. Foster v. JS and Coolidge].  

  19. 19

    Pleas, ca. 27 May 1844 [C. A. Foster v. JS and Coolidge]; Ordinance, 1 Mar. 1841–D, Thomas Bullock Copy; Ordinance, 1 Mar. 1841–E, Thomas Bullock Copy.  

  20. 20

    Demurrer, ca. 28 May 1844 [C. A. Foster v. JS and Coolidge].  

  21. 21

    Docket Entry, Sustained Demurrer, 29 May 1844 [C. A. Foster v. JS and Coolidge]; Transcript of Proceedings, 10 Aug. 1844 [C. A. Foster v. JS and Coolidge]. To be considered valid, pleas needed to be “certain,” meaning they provided “a clear and distinct statement of the facts which constitute the cause of action, or ground of defence.” Thomas may have sustained Foster’s demurrer on the grounds that the defendants’ pleas were not sufficiently certain regarding the ordinances and authorities referenced. (“Certainty, pleading,” in Bouvier, Law Dictionary, 1:245–246; see also Chitty and Chitty, Treatise on the Parties to Actions, and on Pleading, 1:534.)  

    Bouvier, John. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; With References to the Civil and Other Systems of Foreign Law. 2nd ed. 2 vols. Philadelphia: T. and J. W. Johnson, 1843.

    Chitty, Joseph, and Thomas Chitty. A Treatise on the Parties to Actions, and on Pleading, with Second and Third Volumes, Containing Precedents of Pleadings, and Copious Directory Notes. 3 Vols. Springfield, MA: G. and C. Merriam, 1840.

  22. 22

    See Stephen, Treatise on the Principles of Pleading in Civil Actions, 279.  

    Stephen, Henry John, and Francis J. Troubat. A Treatise on the Principles of Pleading in Civil Actions; Comprising a Summary View of the Whole Proceedings in a Suit at Law. 2nd American ed. Philadelphia: Robert H. Small, 1831.

  23. 23

    Affidavit, 23 May 1844 [C. A. Foster v. JS and Coolidge]; Docket Entry, Motion, Change of Venue, and Pleas, 28 May 1844 [C. A. Foster v. JS and Coolidge].  

  24. 24

    Although the outcome of the suit is uncertain, on 26 August 1844, Babbitt filed an affidavit asserting that Foster was destitute and unable to pay the costs of the suit. (Affidavit, 26 Aug. 1844 [C. A. Foster v. JS and Coolidge].)