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Pleas, circa 27 May 1844 [C. A. Foster v. JS and Coolidge]

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Introduction to C. A. Foster v. JS and Coolidge Ordinance, 1 March 1841–D, Thomas Bullock Copy Ordinance, 1 March 1841–E, Thomas Bullock Copy Praecipe, 9 May 1844 [C. A. Foster v. JS and Coolidge] Summons, 9 May 1844 [C. A. Foster v. JS and Coolidge] Declaration, circa 9 May 1844 [C. A. Foster v. JS and Coolidge] Praecipe, 10 May 1844 [C. A. Foster v. JS and Coolidge] Subpoena, 10 May 1844 [C. A. Foster v. JS and Coolidge] Praecipe, circa 20 May 1844 [C. A. Foster v. JS and Coolidge] Subpoena, 21 May 1844 [C. A. Foster v. JS and Coolidge] Demurrer, circa 21 May 1844 [C. A. Foster v. JS and Coolidge] Docket Entry, Demurrer, 22 May 1844 [C. A. Foster v. JS and Coolidge] Docket Entry, Demurrer, 22 May 1844, Copy [C. A. Foster v. JS and Coolidge] Affidavit, 23 May 1844 [C. A. Foster v. JS and Coolidge] Affidavit, 24 May 1844 [C. A. Foster v. JS and Coolidge] Docket Entry, Withdrawn Demurrer, 27 May 1844 [C. A. Foster v. JS and Coolidge] Docket Entry, Withdrawn Demurrer, 27 May 1844, Copy [C. A. Foster v. JS and Coolidge] Pleas, circa 27 May 1844 [C. A. Foster v. JS and Coolidge] Affidavit, 28 May 1844–A [C. A. Foster v. JS and Coolidge] Affidavit, 28 May 1844–B [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] Docket Entry, Motion, Change of Venue, and Pleas, 28 May 1844, Copy [C. A. Foster v. JS and Coolidge] Demurrer, circa 28 May 1844 [C. A. Foster v. JS and Coolidge] Docket Entry, Sustained Demurrer, 29 May 1844 [C. A. Foster v. JS and Coolidge] Docket Entry, Sustained Demurrer, 29 May 1844, Copy [C. A. Foster v. JS and Coolidge] Bill of Costs, 10 August 1844–A [C. A. Foster v. JS and Coolidge] Bill of Costs, 10 August 1844–B [C. A. Foster v. JS and Coolidge] Transcript of Proceedings, 10 August 1844 [C. A. Foster v. JS and Coolidge] Docket Entry, Fee Bill, between 16 August and circa 24 October 1844 [C. A. Foster v. JS and Coolidge] Case File Wrapper, circa October 1844 [C. A. Foster v. JS and Coolidge] Docket Entry, Certificate of Levy, 4 November 1844 [C. A. Foster v. JS and Coolidge] Praecipe, circa 13 August 1844 [C. A. Foster v. JS and Coolidge] Subpoena, 14 August 1844 [C. A. Foster v. JS and Coolidge] Affidavit, 26 August 1844 [C. A. Foster v. JS and Coolidge] Docket Entry, Dismissal, 27 August 1844 [C. A. Foster v. JS and Coolidge] Docket Entry, circa 27 August 1844 [C. A. Foster v. JS and Coolidge] Docket Entry, Dismissal, circa August 1844 [C. A. Foster v. JS and Coolidge]

Pleas, circa 27 May 1844 [C. A. Foster v. JS and Coolidge]

Source Note

, , and , attorneys, on behalf of JS and , Pleas, , IL, [ca. 27 May 1844], C. A. Foster v. JS and Coolidge (Hancock Co., IL, Circuit Court 1844); handwriting of , , and unidentified scribe; signatures of , , and [by ]; docket by , [, IL, ca. 27 May 1844]; docket by unidentified scribe, [ca. 27 May 1844]; docket and notations by , [, Hancock Co., IL], 28 May 1844; notations by , [, McDonough Co., IL], 12 Aug. 1844; seven pages; McDonough County Circuit Court Files, Illinois Regional Archives Depository vault, Archives and Special Collections, Leslie F. Malpass Library, Western Illinois University, Macomb. Includes dockets and notations.
Two bifolia measuring 12½ × 8 inches (32 × 20 cm). Each page is ruled with thirty-seven horizontal lines printed in blue ink. The document was inscribed on the first three pages of the first bifolium and continued on the first two pages of the second. The document was folded in half twice horizontally for filing.
After its creation and filing in the Circuit Court, the document was transferred to the Circuit Court in 1844, when the court granted a change of venue. The document presumably remained in the custody of the McDonough County Circuit Court until 1996, when the McDonough County Circuit Court files were transferred to the Illinois Regional Archives Depository at Western Illinois University in , Illinois.

Footnotes

  1. Email, 4 Feb. 2022, copy in editors’ possession.

    Email, 4 Feb. 2022. Copy in editors' possession.

Historical Introduction

On or around 27 May 1844, attorney prepared legal pleas on JS’s behalf as part of the civil lawsuit Charles A. Foster v. JS and Joseph W. Coolidge in , Illinois. , the plaintiff, had moved to Hancock County 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 Foster 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 held in , Illinois, on 7 March, JS named multiple individuals who had criticized and challenged Nauvoo’s government officials by instituting 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, acting as mayor, fining Foster for disrupting the meeting.
On 12 April, recounted the event in a letter to the Warsaw Signal, calling JS a “Tyrant,” a “Monster in human shape,” and a “modern imposter.” Foster criticized the 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.” Foster predicted that his defiance of JS would result in serious repercussions, perhaps even Foster’s death, but that 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 Nauvoo. As Charles increased his public opposition, his brother renounced the church and reportedly became involved in a conspiracy to kill JS. Robert 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 in what was ultimately a protest against Nauvoo city officials and the ordinances passed by the city council. Earlier that day, had quarreled with his brother, 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 “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 without process,” 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, however, refused to submit to Rockwell 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 aid 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 JS’s near the . JS was apprised that the three men had earlier refused to aid Greene in the discharge of his duty, which was 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 and detain him, as well as and . They remained in custody, without process, while JS initiated legal proceedings in the Nauvoo mayor’s court. He first tried Augustine Spencer and convicted him 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, , and , JS convicted the Fosters and Higbee of violating the city ordinance requiring citizens to assist civil officers in enforcing city ordinances and fined them one hundred dollars 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, they 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 the act incorporating Nauvoo, or the Nauvoo charter. Moreover, brought a civil suit—discussed in subsequent paragraphs—against JS and for false imprisonment and personal injury. Also, filed a criminal complaint against for false imprisonment.
, who was represented by attorneys and , filed the 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 was filed as a common law action of , for false imprisonment and personal injury, with Foster seeking $1,000 in damages. The attorneys for both parties filed a series of pleadings in order to narrow and refine the issue that was to be decided by the jury at the trial. In the plaintiff’s declaration, Foster claimed that the defendants had seized him on 26 April 1844, leaving him “badly bruised and ill treated.” He also alleged that JS and Coolidge had detained him “without any reasonable or probable cause whatsoever for a long time To Wit one day.”
JS retained the services of , Illinois, attorney , a prominent Latter-day Saint and a member of JS’s , to defend him in the suit. On JS’s behalf, Babbitt responded to the declaration in four related pleas, each of which denied that had a cause of action. Babbitt did not identify the place or date of composition, although he probably began the pleas either in , where he consulted with JS on 25 and 26 May, or in , Illinois, after he returned there on 27 May. Babbitt presumably wrote or at least finalized them around 27 May 1844, as he filed them with the court in Carthage the next day. The document containing the four pleas is featured here. Following the legal form, Babbitt wrote the name and term of the circuit court, after which he inscribed the names of the parties to the suit. He then wrote the first plea, in which the defendants generally denied the assertions presented in the declaration. The opening plea concluded with a request for a jury trial, which was later signed by Babbitt and also by Foster’s attorney . The second, third, and fourth pleas took the form of pleas of justification, in which the defendants offered reasons why they were legally justified to hold Foster in custody on 26 April 1844. The second plea alluded to the city ordinance under which and attempted to detain . The third described Greene serving JS’s warrant on Spencer as well as Foster’s interference in the arrest and resistance to both JS’s order that Greene detain Foster and the marshal’s calling upon for assistance. This plea alluded to the city ordinance that required citizens to assist law officers in the performance of their duties. The final plea referenced the mayor’s role as a conservator of the peace, under which authority JS had ordered Greene to arrest Foster and, by extension, Greene had called on Coolidge for assistance. Babbitt wrote his surname after the first, third, and fourth pleas and wrote the surnames of the two other defense attorneys, and , after the third and fourth pleas, although it is unknown how partners Skinner and Bachman contributed to the pleas.
On 29 May, ’s attorneys filed a demurrer 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 , 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 dismissed during the August term, following JS’s death in June.

Footnotes

  1. John P. Greene, “All Is Peace at Nauvoo among the Saints,” Nauvoo Neighbor, 1 May 1844, [3]; Charles A. Foster, Nauvoo, IL, 12 Apr. 1844, Letter to the Editor, Warsaw (IL) Signal, 25 [24] Apr. 1844, [3].

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

  2. “The Mormons and Their Prophet—Legislation at Nauvoo—the Temple,” New-York Daily Tribune (New York City), 27 Jan. 1844, [1]; Discourse, 7 Mar. 1844–A; JS, Journal, 7 Mar. 1844.

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

  3. Charles A. Foster, Nauvoo, IL, 12 Apr. 1844, Letter to the Editor, Warsaw (IL) Signal, 25 [24] Apr. 1844, [3], italics in original.

  4. JS, Journal, 24 Mar. 1844; 1–3, 13, and 18 Apr. 1844; Clayton, Journal, 23 Mar. 1844; Abiathar 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.

  5. Charles A. Foster, Nauvoo, IL, 29 Apr. 1844, Letter to the Editor, Warsaw (IL) Signal, 8 May 1844, [3]; Historical Introduction to City of Nauvoo v. A. Spencer; Minutes, 1 Mar. 1841. Under Illinois law, a constable could arrest an offender without a warrant if the offence 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. It is unknown why JS asked Rockwell, who was not a regularly constituted law officer at that time, to arrest Spencer. (An Act concerning Justices of the Peace and Constables [3 Feb. 1827], Public and General Statute Laws of the State of Illinois [1839], 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.

  6. 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 Marr, 165–167, 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.

  7. Charles A. Foster, Nauvoo, IL, 29 Apr. 1844, Letter to the Editor, Warsaw (IL) Signal, 8 May 1844, [3]; John P. Greene, “All Is Peace at Nauvoo among the Saints,” Nauvoo Neighbor, 1 May 1844, [3]; see also JS, Journal, 26 Apr. 1844.

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

  8. Charles A. Foster, Nauvoo, IL, 29 Apr. 1844, Letter to the Editor, Warsaw (IL) Signal, 8 May 1844, [3]; John P. Greene, “All Is Peace at Nauvoo among the Saints,” Nauvoo Neighbor, 1 May 1844, [3]; JS, Journal, 26 Apr. 1844; Minutes, 1 Mar. 1841.

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

  9. Charles A. Foster, Nauvoo, IL, 29 Apr. 1844, Letter to the Editor, Warsaw (IL) Signal, 8 May 1844, [3]; JS, Journal, 26 Apr. 1844; John P. Greene, “All Is Peace at Nauvoo among the Saints,” Nauvoo Neighbor, 1 May 1844, [3]. 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. (“The First List of the Officers of the Nauvoo Legion, as Made Out by John C. Bennett. M. Gl.,” [6]; “List of Commissioned and Non Commissioned Officers of the Second Reg Second Cohort NL,” Nauvoo Legion Records, CHL; Council of Fifty, “Record,” 18 Apr. 1844.)

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

  10. 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.

  11. JS, Journal, 26 Apr. 1844; Minutes, 1 Mar. 1841; see also Historical Introduction to City of Nauvoo v. C. L. Higbee et al.

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

  13. 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. (Historical Introduction to City of Nauvoo v. C. L. Higbee et al.; Act to Incorporate the City of Nauvoo, 16 Dec. 1840.)

  14. Robert Smith, Warrant for Joseph W. Coolidge, Hancock Co., IL, 24 June 1844, State of Illinois v. Coolidge (J.P. Ct. 1844), copy, JS Office Papers, CHL.

  15. Charles A. Foster, Praecipe, Hancock Co., IL, 9 May 1844; Jacob B. Backenstos, Summons for JS and Joseph W. Coolidge, Carthage, IL, 9 May 1844; Charles A. Foster, Declaration, Hancock Co., IL, ca. 9 May 1844, C. A. Foster v. JS and Coolidge (Hancock Co. Cir. Ct. 1844), McDonough County Circuit Court Files, Illinois Regional Archives Depository vault, Archives and Special Collections, Leslie F. Malpass Library, Western Illinois University, Macomb. John Bouvier’s law dictionary defined trespass as “an unlawful act committed with violence, vi et armis, to the person, property or relative rights of another.” (“Trespass, Torts,” in Bouvier, Law Dictionary, 2:579; see also “Vi Et Armis,” in Bouvier, Law Dictionary, 2:607.)

    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. 2 vols. Philadelphia: Deacon and Peterson, 1854.

  16. For more information on the common law pleading system, see Historical Introduction to Plea, ca. 21 May 1844.

  17. Charles A. Foster, Declaration, Hancock Co., IL, ca. 9 May 1844, C. A. Foster v. JS and Coolidge (Hancock Co. Cir. Ct. 1844), McDonough County Circuit Court Files, Illinois Regional Archives Depository vault, Archives and Special Collections, Leslie F. Malpass Library, Western Illinois University, Macomb; see also “Declaration,” in Bouvier, Law Dictionary, 1:424–426.

    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. 2 vols. Philadelphia: Deacon and Peterson, 1854.

  18. JS, Journal, 25–27 May 1844. Babbitt had traveled to Carthage to represent JS in multiple lawsuits pending at the May 1844 term. He wrote to JS from there on 17 May, requesting additional information on another lawsuit. (Letter from Almon Babbitt, 17 May 1844; see also “Part 1: 16 May–6 June 1844.”)

  19. Docket Entry, Motion, Change of Venue, and Pleas, Carthage, IL, 28 May 1844, C. A. Foster v. JS and Coolidge (Hancock Co. Cir. Ct. 1844), Hancock Co., IL, Circuit Court Records, 1829–1897, vol. D, p. 150, microfilm 947,496, U.S. and Canada Record Collection, FHL.

  20. “Plea in Bar,” in Bouvier, Law Dictionary, 2:327–328.

    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. 2 vols. Philadelphia: Deacon and Peterson, 1854.

  21. See “Defence, Pleading, Practice,” in Bouvier, Law Dictionary, 1:331 [431]; and “Not Guilty,” in Bouvier, Law Dictionary, 2:224–225.

    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. 2 vols. Philadelphia: Deacon and Peterson, 1854.

  22. “Plea of Justification,” in Bouvier, Law Dictionary, 2:329; see also “Confession and Avoidance,” in Bouvier, Law Dictionary, 1:300.

    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. 2 vols. Philadelphia: Deacon and Peterson, 1854.

  23. See “Bachman & Skinner,” Nauvoo Neighbor, 12 July 1843, [4].

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

  24. Charles A. Foster, Demurrer, Hancock Co., IL, ca. 28 May 1844, C. A. Foster v. JS and Coolidge (Hancock Co. Cir. Ct. 1844), McDonough County Circuit Court Files, Illinois Regional Archives Depository vault, Archives and Special Collections, Leslie F. Malpass Library, Western Illinois University, Macomb; “Demurrer,” in Bouvier, Law Dictionary, 1:446–447.

    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. 2 vols. Philadelphia: Deacon and Peterson, 1854.

  25. Docket Entry, Demurrer Sustained, Carthage, IL, 29 May 1844, C. A. Foster v. JS and Coolidge (Hancock Co. Cir. Ct. 1844), Hancock Co., IL, Circuit Court Records, 1829–1897, vol. D, p. 157, microfilm 947,496, U.S. and Canada Record Collection, FHL; see also An Act to Change the Time of Holding Courts in the Fifth Judicial Circuit [4 Mar. 1843], Laws of the State of Illinois [1842–1843], p. 136, sec. 1. To be considered valid, pleas of justification 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 because the defendants’ second, third, and fourth pleas were not sufficiently certain regarding the ordinances and authorities referenced. (“Certainty,” in Bouvier, Law Dictionary, 1:245–246; see also Chitty and Chitty, Treatise on the Parties to Actions, and on Pleading, 1:534.)

    Laws of the State of Illinois, Passed by the Ninth General Assembly, at Their First Session, Commencing December 1, 1834, and Ending February 13, 1835. Vandalia, IL: J. Y. Sawyer, 1835.

    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. 2 vols. Philadelphia: Deacon and Peterson, 1854.

    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.

  26. Stephen and Troubat, 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.

  27. Docket Entry, Motion, Change of Venue, and Pleas, Carthage, IL, 28 May 1844, C. A. Foster v. JS and Coolidge (Hancock Co. Cir. Ct. 1844), Hancock Co., IL, Circuit Court Records, 1829–1897, vol. D, p. 150, microfilm 947,496, U.S. and Canada Record Collection, FHL; Docket Entry, Dismissal, 27 Aug. 1844, C. A. Foster v. JS and Coolidge (McDonough Co. Cir. Ct. 1844), McDonough Co., IL, Circuit Court Record, vol. B, p. 338, Illinois Regional Archives Depository vault, Archives and Special Collections, Leslie F. Malpass Library, Western Illinois University, Macomb; see also Historical Introduction to C. A. Foster v. JS and Coolidge.

there as Mayor as aforesaid comm[an]ded the arrest aforesaid to arrest the whareuppon the aforesaid proceeded to arrest the and uppon resistance being m[a]de the aforesaid called uppon one of the defendants to assist him in the arrest and to bring said before the Mayors court to answer for his said conduct in testimony in resisting the said & breach of the peace in said whareuppon the [said?] laying gentle hands uppon hold of the said for that purpus the said then and there drew a pistol becoming greatly inraged and threa[te]ned to shoot Joseph Smith Mayor afforesaid whereuppon the said and others did wrest from from said the said pistol and then and there a little while and for that cause aforesaid imprisoned and keep the said in his custody using no voilence in maner maner and form Complained but held the said untill the said Joseph Smith Mayor could hold an examination of the said for his said resisting the said and breach of the peace as the defendets in Right might do which is the same and ingury in the decleration mentioned which they are now ready to verify wherefore they pray Judgement
[ & ]
attys for the Defts [p. [3]]
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Related Case Documents
Editorial Title
Pleas, circa 27 May 1844 [C. A. Foster v. JS and Coolidge]
ID #
4898
Total Pages
8
Print Volume Location
Handwriting on This Page
  • Almon Babbitt

Footnotes

  1. This phrase alludes to a city ordinance regarding public meetings passed by the Nauvoo City Council on 1 March 1841. The 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, or the general Laws of the State or United States, or of neglecting or refusing to obey, promptly, any military order for the due execution of said, Laws or ordinances.” JS’s scribes Thomas Bullock and Willard Richards made a certified copy of the ordinance on 25 May 1844 and JS’s attorneys filed the copy with the court on 28 May 1844, the same day they filed the pleas. (Minutes, 1 Mar. 1841; “An Ordinance in Relation to Public Meetings,” Nauvoo, IL, 1 Mar. 1841, C. A. Foster v. JS and Coolidge [Hancock Co. Cir. Ct. 1844], copy, McDonough County Circuit Court Files, Illinois Regional Archives Depository vault, Archives and Special Collections, Leslie F. Malpass Library, Western Illinois University, Macomb.)

  2. John Bouvier’s law dictionary indicated that “in an action of trespass to the person, the defendant frequently justifies by pleading that he used no more force than was necessary to remove the plaintiff who was unlawfully in the house of the defendant, and for this purpose he gently laid his hands upon him, molitur manus imposuit. This plea may be used whenever the defendant laid hold of the plaintiff to prevent his committing a breach of the peace.” (“Moliter Manus Imposuit,” in Bouvier, Law Dictionary, 2:170, italics in original.)

    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. 2 vols. Philadelphia: Deacon and Peterson, 1854.

  3. In his declaration, Foster claimed that JS and Coolidge did “assault seize & lay hold of the said Foster and with great force and violence pulled and dragged about the said Foster and then and there badly bruised and ill treated the said Foster and then and there imprisoned and kept and detained him in Prison there without any reasonable or probable cause whatsoever for a long time To Wit one day.” (Charles A. Foster, Declaration, Hancock Co., IL, ca. 9 May 1844, C. A. Foster v. JS and Coolidge [Hancock Co. Cir. Ct. 1844], McDonough County Circuit Court Files, Illinois Regional Archives Depository vault, Archives and Special Collections, Leslie F. Malpass Library, Western Illinois University, Macomb.)

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