Parts I-III By James T. Murphy
I. Hue and Cry
On July 11, 1670 in the small village of Wickford in the Narragansett Country of Rhode Island, Walter House walked into the shop of Thomas Flounders. The two men spoke. And then they argued. The argument turned to blows. Flounders struck House with a piece of wood. At the conclusion of the argument, Walter House lay dead. Thomas Flounders decided to lay low. House’s corpse was buried quickly, without ceremony and without notice to the authorities. But there was an eyewitness and the hastily dug grave was quickly discovered. A “hue and cry” issued throughout the Narragansett Country for the apprehension of Flounders and for a forensic examination of the body.[1]
The homicide occurred not only in the heat of a summer’s day, but also in the midst of a hotly contested jurisdictional dispute between Rhode Island and the neighboring colony of Connecticut. Both colonies claimed the Narragansett Country as being within the grant of their respective royal charters. Both asserted the right to appoint and install their own constables, magistrates, judges and other officials within the disputed territory – to the exclusion of the other colony’s rights. The epicenter of this conflict was Wickford. The colony that could successfully apprehend, investigate, arrest and prosecute the suspected murderer would have a strong precedential argument in support of its jurisdictional claim. This conflict would impact heavily on the murder case. It also is the first recorded case in Rhode Island in which an accused man faced execution on the gallows. It is a story that truly is unique in the history of American justice.
Map of Rhode Island Area Circa 1670
II. Background To a Crime
The exact location of Thomas Flounder’s Wickford shop is not known. The “Narragansett Historical Register”in 1883 noted the place where Thomas Flounders killed Walter House “is believed to be between Thomas Holloway’s house and Jeremiah Carpenter’s on the north side of the road and a little east of the Town House.” The Wickford “Town House,” however, was built in 1806, over 135 years after the homicide. It was located at what is now 136 West Main Street in Wickford. The structure was built by William Holloway on land given by James and Daniel Updike earlier that year. [2]But, the Registeralso opines that “[i]t is far more likely to have taken place somewhere between Richard Smith’s house and the Devil’s foot.” [3]The Register’s“opinion” therefore would place Flounders’ shop somewhere along the old Pequot Path, now known as Post Road. It was the major thoroughfare of the 1600’s.
The eyewitness to the homicide was a twenty-four year-old young man identified in the records as one “Lodowick Vandicke.”[4] His father, Gysbert op den Dyck, was a native of Prussia who immigrated to New Amsterdam. There, Gysbert met and married Katherine Smith. She was the sister of Richard Smith, Jr., proprietor of the trading post at Smith’s Castle and adjoining lands near Cocumscussoc.[5]When Smith died childless, his nephew – now known to us as Lodowick Updike – inherited his uncle’s demesne and platted what is today the village of Wickford.
Walter House and Thomas Flounders were no strangers to each other. The day of the crime was not the first time they met. However, little is known of the backgrounds of these two men or the cause of their dispute that fateful day. We have no sufficient description of their lives to support even a briefly detailed biography of either man. But though scant, there is enough evidence to draw some broad outlines. These outlines are colored by the place and time in which they lived.
The date and place of Walter House’s birth are unknown. Thomas Flounders likely was born in 1644, somewhere in what is now Rhode Island. He would have been twenty-six years-old at the time of the killing.[6]
Both Walter House and Thomas Flounders were married men. House’s wife was named Mary.[7]Next to nothing is known about her. Other than a record relating to the prosecution of Flounders, which mentions that summonses were delivered to widow House, and a note that she died in Wickford sometime “after 1670,” Mary’s identity likely would not even be known.[8]
Thomas Flounders’ wife was Sarah. She was the daughter of John Greene, Jr. (otherwise known as “Major Greene,” of the Potowomut area of Warwick, Rhode Island. He was an important man, at one time being appointed a commissioner to “treat” or negotiate with the neighboring colony of Connecticut. At another time he was selected for possible travel to England to protect the colony’s interests. Later, in 1690, Greene would become Deputy Governor of the colony. He was born in Salisbury, Wiltshire, England in 1620.[9] In 1648, Greene married Ann Almy. Together they had eleven children.[10] However, Sarah was not one of them. She likely was John Greene’s first-born, but born outside of marriage. Sarah’s birth-mother’s name, once known to her contemporaries, has been forgotten. She is remembered in history and genealogies as being a Wampanoag woman. Sarah, her daughter, must have lived a complicated life. While there is no evidence that her parents were ever married to each other, the records do make clear that her father maintained an ongoing affection for Sarah. For example, according to the proceedings of the “Court of Tryalls Held for the Collony at Newport,” [11]in 1668 Sarah was called to present herself to the court to answer a charge of fornication. This was considered a serious crime at the time, punishable by whipping and a fine of forty shillings.[12]On at least three occasions, Sarah failed to appear in court, despite a bond being posted by one Samuel Wayte. Finally, the court records relate:
Sarah Greene alias Flounders being mandamus to appeare to answer for fornication and her father John Greene being called to Informe the Court why his Daster did not appeare. And doth say that it is not out of contempt to the Court but by reson of shortness of time and multiplisitye of business, etc. and the said John Greene on his Daster’s behalf Doth Confese that shee is guilty of fornication and Doth promise to answer the Law in that Case provided on the case of Sarah Greene alias Sarah Flounders, John Greene her father came before the Court and did Ingage that he would pay unto the Treasurer fortye Shillings in Corrent pay of the Collony[13]as the Law Requires for fornication.[14]
The reference in the records to Sarah’s “alias” identity as “Flounders” suggests that by some point in 1668 she and Thomas were married. It also suggests that he was the individual with whom she allegedly committed fornication. If so, the crime would have occurred before their marriage, as fornication by definition is “voluntary sexual intercourse between two unmarriedpersons.”[15]In 1670 Sarah gave birth to a child, although it is not clear whether the infant was conceived before or after their marriage. The name and gender of this child, and whether he or she even survived beyond infancy is not known.
These circumstances and the support of her father may have mitigated her alleged sexual transgression in the eyes of the court.[16]There is no indication that Sarah ever had to undergo a whipping.
While it is possible that Sarah was the subject of heated discussion and disputation on the day of House’s death – and while possible that House may have uttered words about Sarah’s chastity or the circumstances of her own birth that enraged Thomas Flounders and propelled him to violence – we will never know if this was the spark of animus.
Neither House nor Flanders was a stranger to the courts or judicial proceedings. For instance, on September 19, 1667, Samuel Gorton and Captain Randall Houldon, both of Warwick, filed a lawsuit against Walter House of Narragansett.[17]The plaintiffs sought £200 in damages for House’s “unjust detinue.” [18] Whether or not he was actually a thief, the Jury found for defendant House. It “declared the general ground for their Verdict was an order that they not “medell with particular titles to land.”[19]The judge, after he “perused the contents… of sayd order,” found it not to be “consistent to the jury.” He reversed the verdict, finding that House “elegaly detained” property from the plaintiffs for two years. Nevertheless, the judge suspended entry of the judgment due to the assertion by seven jurors that the foreman acted contrary to the jury’s charge “not to disclose one another’s secrets.” The case of Gorton v. House seems to have ended in suspension. Court records contain no further references to it. Perhaps the parties wisely decided to settle their differences outside court, rather than to rely on the uncertainty of judicial proceedings.
Likewise, Thomas Flounders had his own experiences with legal process in colonial Rhode Island. In August, 1669, Governor Arnold and members of his General Council met “upon an extraordinary occasion” to address certain complaints against a man variously named “Shawawgonoush,” “Suckwanash” and “Sawagonett.” (hereinafter, Sawagonett”)[20] The context, gleaned from the records, shows that the principal reason for the Council’s meeting was a perceived threat to the Colony of Rhode Island, “touching on the alarum of the country upon the suspition of the Indians to cut of the English.” [21]The Council, “having the peace of the Colony before them, in a very high respect,” sent out an order that Sawagonett and “Nenecraft” (likely Ninigret, Sachem of the Eastern Niantics) were “desired to appear… and give satisfaction” of their intentions. They complied and made the trip to Newport.
The records show that “Thomas fflounders” also was “sent for” or summoned to “come over” and appear before the Council in Newport. Proceedings were delayed for a day or two before he presented himself. Although the records lack specifics, it appears that Flounders “exhibited his complaint against said Sawagonet.” The contents of the complaint, though unknown to us, were read to Sawagonett through an interpreter. The defendant’s responses were kept “amongst the Councill papers.” The Council adjourned for an hour. That seems to have ended the matter.
Perhaps the cause of the July 11, 1670 dispute between Flounders and House was something other than a lawsuit. The records contain no reference to litigation between the two men. The evidence, sparse as it may be, suggests a potentially different source of ignition for their argument.
Research reveals no extant written record of land ownership by either Walter House or Thomas Flounders. It is possible that they held tenancies on land acquired by Richard Smith from the Narragansett or through agents of Boston’s Atherton Company. But neither Flounders nor House are mentioned in the list of conveyances found in the Fones Records of Narragansett Country proprietors. If either man possessed a deed or written lease, the documents likely were lost or destroyed over time. But they each did reside in the Wickford area for several years. It also appears that each man held a strong opinion on which colony should govern this growing settlement.
On July 3, 1663, a group of English settlers calling themselves “the Inhabitants and the proprietors of the lands lying in the Narragansett” signed a petition desiring “according to His Majesties grant to be under the Governm’tt of Conecticut Collony.” The principal signatories of the petition were two of the largest land-holders in the Narragansett Country – Richard Smith and Richard Smith, Jr., of Wickford. Among the other signatures was that of “Walter ‘H’ House his marke.” [22]This petition is evidence that House was resident in the Wickford area for at least seven years before his fatal encounter with Flounders. It presumes he had some interest in land in the Narragansett Country. It also made public his joinder with many others that Wickford and its environs be governed by the Connecticut Colony and not by Rhode Island. This long-standing jurisdictional dispute between Connecticut and Rhode Island would continue to fester and, eventually, would factor significantly during the investigation and legal proceedings following Walter House’s death.
In fact, the Connecticut versus Rhode Island dispute over governance of the Narragansett Country frequently rekindled. At one point both House and Flounders joined together as comrades in the jurisdictional conflict. They both are listed among the nineteen signatories to the “Petition of the inhabitants of Wickford” submitted to the “Honoured Generall Court at Hartford” on May 4, 1668.[23]
Once again, the petitioners referred to themselves as “the inhabitants of the towne of Wickford” and as “the proprietors” of land “in the Narragansett countrye.” Again, Richard Smith is a notable signatory. Another notable is one “Lawick Vandick” – no doubt, Smith’s nephew, today remembered as Lodowick Updike. Included among the nineteen signatories, were two other men of significance, one name above the other: “Thomas fflanders” and “Walter H the mark of Howes.” (both sic).[24]
Hearkening back to their earlier petition, these “proprietors” beseeched the General Assembly of Connecticut to afford them “protection” so they might have liberty to settle plantations” in the Narragansett Country for “the advancement of the generale good of the countrye.”[25]
Ten days later, upon receipt of the petition, the General Assembly sitting at Hartford appointed John Allyn and Thomas Stanton to be its “agents to treate with the Governor of Rhode Island… concerning our right to claim any land in the Narragansett country… or elsewhere detained by any persons under pretense of being vunder Rohd Island gouerment…” (sic). [26]
The jurisdictional dispute between Rhode Island and Connecticut continued to simmer, without significant exacerbation or resolution, into the summer of 1670.
But then it re-ignited just weeks before Walter House was killed and – after his death – the conflicting claims of the two colonies complicated and frustrated the forensic investigation into the death of House, as well as the apprehension and prosecution of the accused, Thomas Flounders.
III. This Land Is My Land and It’s Not Your Land
Early rumblings heralding the upcoming jurisdictional conflict are found in the actions of the “Commission of the Conservators of the Peace in the King’s Province” as recorded on March 25, 1670. The Commissioners, had “a sence of the pressures that lye on the minds … of members of the Collony” living in the Wickford area. They complained of “overtures” from the neighboring colony of Connecticut, “seeming to tend to an exercising jurisdiction in some parts of this our Collony,” specifically the King’s Province.[27] The commissioners instructed their fellow Rhode Islanders, “each and every one of you be watchful and carefull to prevent and suppresse all such misdemeanors and disorders…” The Commission went so far as to “empower” the Conservators of the Peace, Richard Smith, Samuel Dyer, Samuel Wilson and Jireh Bull “to apprehend” any “person that shall presume to exercise jurisdiction in any part of the King’s Province.” If and when apprehended, these jurisdictional usurpers were to be sent to Newport “to be examined by the Governor [Benedict Arnold] or the Magistrates.”[28]
Connecticut proceeded in its efforts to set up its own government in the King’s Province. Rhode Island, in turn, wrestled with how to resist these efforts and maintain sovereignty over Wickford and its environs. The respective colonial governors and general assemblies initially undertook a diplomatic approach to the impasse.
On June 7, 1670, the Rhode Island General Assembly, sitting in Newport, ordered that Roger Williams, Richard Bailey and Joseph Torrey “be desired to draw up instructions for those that shall be appointed to treat with” Connecticut’s commissioners. Governor Benedict Arnold also scheduled a proposed meeting with Connecticut’s representatives at New London on June 14th. The purpose of the meeting was “to conclude a final accord between the said Colonies for about concerning boundaries, and any other matters of general concernment between them and us.” Rhode Island named Captain John Greene, Lieutenant Joseph Torrey and Richard Bailey as its commissioners.[29]
The Rhode Island commissioners, upon arriving in New London, demanded that the parties set forth their respective positions in writing. Connecticut’s commissioners, John Allyn, Captain John Winthrop and James Richards, complied. In writing, they set forth Connecticut’s claim. And it was a large claim, comprising most of the Narragansett Country, now known as Washington County, including Westerly, Misquamacut, Wickford and more. They described the territory they wished to govern as “part of his Majesties dominions granted us by Charter… which are thus abutted on the east by Narrogancett river, commonly called Narrogancett Bay, where the sayd river falleth into the sea, and on the north by the lyne of the Massachusetts plantation, and on the south by the sea; and in longitude as the lyne of the Massachusetts Colony, running from east to west: that is to say, from the Narrogancett Bay on the east, to the south sea on the west part, with the islands thereunto adjoining ; part of which, some vnder pretence of authority from your Colony, haue disturbed some of ours in the possession and improuement thereof.”[30]
This position, set forth in writing by the Connecticut agents, triggered a barrage of more than a dozen letters between them and their Rhode Island counter-parts over the next few days. Rhode Island’s position, steadfastly maintained, was very different from Connecticut’s. Succinctly stated, Rhode Island adamantly insisted that the “Narragansett River” mentioned in Connecticut’s royal charter was not the same body of water as “Narragansett Bay.”
On June 16th, the Rhode Island Commissioners wrote, “wee doe hereby signifie that wee doe fully and plainly vnderstand Pacatuck, alias Pawcatuck river, to be the Narragansett river mentioned in your Charter.” As grounds for their argument, they stated that it was “not grounded vpon the vncertaine or various reports of either English or Indians, but vpon his Majesties gracious and absolute determination in that respect.”
In the event Connecticut planned to press the issue by attempting to set up government in the Narragansett Country, commissioners Greene, Torrey and Baily had a ready answer: “Wee doe in pursuance thereof, and in obedience [to King Charles’ charter to the Rhode Island colony] declare that in case you refuse to rest sattisfied in his Majesties determination; but shall exercise jurisdiction within the bounds of our Charter: wee doe in behalfe of the Governor and Company of his Majesties Colony of Rhode Island and Providence Plantations, &c., appeale vnto his Majestie for redress within his realme of England.”
Connecticut, however, remained undeterred in it desire to assert its governmental and judicial powers over what is now southern Rhode Island. It issued a warrant ordering John Frink, in the name of Connecticut, “to warne the inhabitants of Stonington resident on the east side of Pawcatuck River [i.e., today’s Westerly, Rhode Island’s side of the Pawcatuck River boundary line] to appeare” at Connecticut Capt. Gookin's house this 17th of June, 1670, to hear a proclamation of Connecticut’s claim of sovereignty over the area and that the residents must submit to its government. But the Westerly settlers refused to attend. Thus, the “declaration was publiquely and audibly read [by Samuell Cheesebrough, Marshall protempore] on Capt'n Gookin's land, in the audience of diuers witnesses.”[31]
Conversely, on that same June 17th, Rhode Island’s Tobias Sanders, a “Conservator of the Peace,” issued a warrant to James Badcock, a Westerly resident and Rhode Island constable. The warrant authorized Badcock, in the name of the King, to “seize’ Connecticut’s John Frink, Benjamin Palmer and Thomas Bell. He was authorized to bring them to jail and subject them to inquiry by the Rhode Island authorities with respect to their incursion into its jurisdiction.[32]
Badcock did his duty. He arrested the men. In response, Connecticut authorities arrested Badcock and Sanders. The imprisoned constables requested release upon posting bail and a promise to return for further proceedings. Bail was granted with a fifty-pound bond for each of the men. They were released on June 18th, with a hearing set for the following week.[33]
[1] The term “hue and cry” in the English common law sense was much more than a metaphorical equivalent to the modern “all-points bulletin.” Black’s Law Dictionary, 9thEdition (Brian Garner, editor) West Publishing (2009), (hereinafter “Blacks” ) at p. 309, defines “hue and cry” as “[T]he public uproar that, at common law, a citizen was expected to initiate after discovering a crime.” Citizens were then obligated to pursue and apprehend the suspected felon. Neglect of this duty “entailed an amercement [discretionary fine or penalty] of the individual, the township or the hundred.” Ibid, citing William Holdsworth, A History of the English Law 294 (7thed. 1956).
[2]North Kingstown, Rhode Island Statewide Historical Preservation Report W-NK-1, Rhode Island Historic Preservation Commission, November, 1979 at p. 64. William Holloway also owned a house at 141 West Main Street.
[3]The Narragansett Historical Register (hereinafter “Register”) Vol. 1, No. 3 at p. 164 (James N. Arnold, Hamilton, R.I. (January, 1883).
[4]Records of the Colony of Rhode Island and Providence Plantations in New England, Vol. II, 1664-1677, Printed by order of the General assembly, Providence, 1857 (Hereinafter “Records of the Colony, Vol. II.,”) atp. 341.
[5]See, WikiTreebiographical and genealogical note on Gysbert op den Dyck and his family at https://www.wikitree.com/wiki/Op_den_Dyck-5 See also, https://www.geni.com/people/Geysbert-Gilbert-Updike/6000000006831074065.
[6] According to the Sullivan Burgess Family Tree, Thomas Flounders, a/k/a/ Flanders was born in 1644.See, www.http://www.sandisullivan.com/getperson.php?personID=I19676&tree=Tree.
See also, geneaological report on Flounders located at https://www.geni.com/people/Thomas-Flounders/6000000000445784358
[7] Records of the Colony, Vol. II at p 351. We know Mary’s name because on October 13, 1670 during proceedings of the “Generall Assembly of the Collony,” the Assembly was informed that Governor Benedict Arnold and his Assistants, had caused to issue “severall summonses” to give testimony concerning the death of Walter House. These summonses “were delivered to Mary House, relick [i.e.,surviving member of a married couple] of Walter House, who did engage she would convey them as directed…”
[8]Austin, John Osborne, Geneaological Dictionary of Rhode Island, Geneaological Publishing Company, Baltimore (1969) at p. 105.
[9]See,www.https://en.wikipedia.org/wiki/John_Greene_Jr.See also, www.https://www.wikitree.com/wiki/Greene-37.
[10]Ibid.
[11]Records of the Court of Trials of the Colony of Providence Plantations 1662-1670, Vol. II, Rhode Island Historical Society, Providence, 1922 at pp 74, 75, 77, 82 and 92. (Hereinafter, “Records of the Court of Trials”)
[12]Records of the Colony of Rhode Island and Providence Plantations, in New England, 1636 to 1663, Vol. I, Bartlett, John Russell, Providence, 1856 (Hereinafter“Records of the Colony, Vol. II) at p. 355.
[13]The “corrent pay” of the colony is a reference to the Pound, Sterling, being the currency of the realm. In 1670 a pound (20 shillings) had the buying power of $277.76 in U.S. dollars in 2023. Thus, the 40 shillings John Greene paid on his daughter’s behalf would approximate a $500 fine today. See Calculator at “Pounds Sterling to Dollars: Historical Conversion of Currency,” E. Nye, University of Wyoming, https://www.uwyo.edu/numimage/currency.htm (hereinafter,“Calculator.”
[14]Records of the Court of Trials, at p. 92.
[15]Black’s at p. 725. On the other hand, “adultery” is defined as “voluntary sexual intercourse between a married person and someone other than the person’s spouse.” Black’s at p. 60.
[16]On May 19, 1657 the General Court of Commissioners, sitting in Newport ordered that “any person caught in the act of Fornication within the jurisdiction of the Collony shall be publiquely whipped in the Town where the fact was done, with fifteen stripes by the first offense, or pay forty shillings.” A second offense earned the defendant fifteen more stripes or a four pound fine.
[17]Records of the Court of Trials, at pp. 59-61.
[18]“Detinue” is defined as a “common law action to recover personal property wrongfully taken or withheld by another.” Blacks at p. 515.
[19]Records of the Court of Trials at p. 60.
[20]Records of the Colony, Vol. II, atpp. 279-284. See also, Records of the Court of Trials, pp. 279, et seq.
[21]Ibid at pp. 279-280. (Thursday, August 19, 1669, afternoon session.)
[22]The Fones Record (a/k/a “The Records of the Proprietorship of the Narragansett”, hereinafter, “Fones Record”) Vol. I , James N. Arnold, Narragansett Historical Publishing Co., Providence (1894) at pp. 24-25.
[23]Records of the Colony,Vol. I at pp. 226-227.
[24]The records of both Rhode Island and Connecticut concerning their respective jurisdictional claims to the “Narragansett Country” neglected to mention that the original “proprietors” of the land were the indigenous Narragansett, Niantic, Wampanoag, Pequot and Mohegan people. Not only was this their ancestral land, but it wouldremain so. The records of 1670 were written only five years before the Narragansett Country and most of New England was consumed in the existential conflagration known today as King Philip’s War.
[25]Ibidat p. 227.
[26]Ibid.
[27]Recordsof the Colony, Vol. I, at p. 298
[28]Ibid. The appointment and empowerment of Richard Smith as a Conservator of the Peace perhaps evidences a change of allegiance on his part. In any event the confidence placed in him by the commissioners is at odds with his two previous petitions to Connecticut requesting it exercise governance over the Wickford area.
[29]Records of the Colony, Vol. I at pp. 306-307.
[30]Ibid, at p. 312. Once again, there is absolutely no reference to the indigenous inhabitants or their ancestral lands, let alone any sachems’ views on the matter.
[31]Records of the Colony, Vol. II at p. 319.
[32]Records of the Colony, Vol. IIat pp. 319-320.
[33]Ibid at p. 320.