main, genealogy, Wellfleet
posted Aug 2005

NEHGS, infoweb.newsbank.com and the American Antiquarian Society are collaborating to present sets of 18th and 19th century newspaper images online. The legal synopsis came from LexisNexis.


Eastern Argus
(Portland, Maine) Friday, 6 Nov 1827. vol. XXIV(1292):1

U.S. Circuit Court.—The trial of Capt. William D. Freeman, of the brigantine Lloyd [sic], of Boston, for the murder of David Whitehead, a seaman of said vessel, commenced at Boston on Wenesday of last week. The indictment charged Capt. Freeman with wanton cruelty and the murder of David Whitehead, on board the brig at sea on the 28th of April last.—Whitehead was shipped at Charleston, and was a young man who had been accustomed to a better life, but was compelled by misfortune to follow the sea for a living. He shipped as cook and steward : the captain became displeased with the manner in which he performed his duty ; in a day or two after the vessel sailed, and from this time to the day of his death, abused him in the most brutal and cruel manner, until Whitehead became so weak as to be incapable of doing his duty, with his hand swollen and paralysed by the ropes with which he had been bound, and more like a dead than a living man, he was compelled by the captain to go aloft, notwithstanding the remonstrances of the mate that he was not fit to go up. In less than five minutes Whitehead fell from the rigging into the sea, and he was drowned. The trial lasted until Thursday evening. The jury retired at 6, and at 9 o'clock, returned a verdict of Manslaughter. Freeman has been sentenced to two and an half years imprisonment, and a fine of $100.
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Providence Patriot & Columbian Phenix. 3 Nov 1827. vol. 25(88):1 (was among papers reprinting a piece from Boston Traveller.)

Capital Trial —On Wednesday last, before the U. S. Circuit Court, sitting in this city, came on the trial of William Doane Freeman, Captain of the brigantine Floyd of this port, for the murder of David Whitehead, one of his crew, in April last. Present, Hon. Joseph Story, Assistant Justice of the Supreme Court of the United States and Hon. John Davis, District Judge,—Geo. Blake, Esq. District Attorney,—Francis Bassett, and S. E. Sewall, Esquires, Counsel for the Prisoner. The indictment contained two counts:—the first charging the prisoner with assaulting and beating the said Whitehead and casting him into the sea; and the second, with assaulting and beating him, and compelling him when in extreme sickness and weakness of body, to go up aloft, from whence he fell into the sea and was drowned.

The testimony, as given in by the mate and crew, was in substance, that the Brig sailed from this port for Charleston, in April last ; thence she was to proceed to Antwerp and St. Ubes. When at Charleston, however, it became necessary to ship a new crew; among whom was Whitehead, a young man of about 22 years of age, unaccustomed to a sea faring life, but willing to learn, and apparently to obey. After W. had shipped on board, he, for some cause, attempted to escape while the vessul was lying at Charleston, for which the Captain punished him, and subjected him to the must rigorous duty. From the 15th April, the day the Floyd sailed from C. W. seems to have been an object of dislike if not of indignation to the Captain, who was in the habit almost daily of beating him and inflicting various punishments.

On the 26th April, for some alledged misdemeanor Capt. F. ordered Whitehead to be tied, with a rope round his body and his hands bound, to a bolt on deck ; in which situation he was kept, with but little intermission for 40 hours. During this time, the rope about his hands was drawn so close as to cause them to swell and change color; and he exposed to wind and storm with a heavy sea breaking over the vessel, with nothing to eat or drink but a half biscuit and three gills of water, save a glass of gin in which the Captain mixed two doses of tartar emetic. Other cruel treatment was proved, but we have not space to give a full report. On the 28th he was unbound and ordered to duty. During a heavy wind the same day, hands were ordered aloft to reef the main sail, one of whom was W. He was weak and much exhausted, and urged his inability to perform his duty, as did the mate; but to no purpose, he was compelled to go up, whence, being unable to sustain himself, he fell and was drowned.

The trial occupied the whole of Wednesday and yesterday ; and the charge of the Judge to the Jury was about three hours in length. At 6 o'clock last evening the case was submitted to the jury, who retired ; and the court adjourned till 9 o'clock, when the jury brought in a verdict of guilty of manslaughter.

Capt. Freeman belongs to Wellfleet, Mass., and previous to this transaction, is said to have been a man of unexceptionable character. By his own industry and perseverance he rose from a common sailor to be master of a vessel.—Boston Traveller.
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New Hampshire Gazette, 
13 Nov 1827. vol LXXII(52):1. reprinted from Boston papers

Trial of Capt. Freeman.— In the published evidence given in the trial of Capt. W. D. Freeman, for the murder of David Whitehead, mariner, the testimony of Thomas Richardson, mariner, of Southborough, Ms. set forth that he shipped with others on board the brig Floyd at Charleston S. C. on the 6th of April, for Antwerp. The ship's comapny consisted of nine. Whitehead, who was about 22 years of age, shipped as cook, but not giving satisfaction he exchanged places with one of the crew. Whitehead never went into the cabin without being beat  either by the captain or by the mate under his orders. On the 25th, ten days after sailing he was set on the foretopsail yard to let a reef out, and having by accident left a point untied the sail was split. When the captain saw the hole, and found out how it came, he called Whitehead aft and beat and kicked him in such a manner that the skin all over his head was broken, and his arms were all black and blue. On the next day he was lashed 24 hours to the ring bolt, and 24 to the rail, with his hands tied behind him. In the latter situation the captain daubed his mouth with tar, and asked him where he had been stealing molasses. The weather being very cold the captain asked him if he wanted a dram. He said he did, when the captain said I will give you a dram that will fix you, and he gave him a double dose of tartar emetic with some kind of spirit, which made him vomit.—The captain frequently swore that he should not be satisfied until he saw his end. Before being tied he was sent up to scrape the main topgallantmast, and not doing it to the captain's satisfaction, he tried to shake him from the rigging, the wind at the time blowing fresh. While he was tied, (two days) he had but half a biscuit to eat, which was broken up, and he took it up in his mouth like a beast and ate it. The captain  made him take off one of two pairs of trowsers, and then pump the ship, the water dashing over him as well as the sea breaking over. On the morning of the 28th, he untied him and set him to scrub the deck ; soon after the mainsail was ordered to be handed ; five men went on the yard ; the Capt. asked the mate why he did not send up that damned soldier* aloft to help hand the mainsail ; the mate replied that he was not able, and witness said, 'Capt. Freeman, if that man goes up he never comes on deck again alive;' the captain ordered him up, and as he climbed slowly struck him with a rope ; he reached the yard, went on the lee arm ; witness then asked him to "hand the leach if you can," and reaching forward to take hold of it, Whitehead fell overboard. Witness tried to throw him a rope, but could not.

    Upon his cross-examination, Richardson stated that Fearson and Whitehead had attempted to get ashore while in Charleston harbor by a raft made of spars lashed together, but were picked up and brought on board again ; that the captain treated all the men with ill language.

    The testimony of John Fearson, of Baltimore, corroborated that of Richardson, and he further stated that Whitehead was made to walk the deck two nights without sleep for not having dinner ready at 12 o'clock on the day of sailing.

    Geo. Barber, an Englishman, stated that he heard murder cried once in the cabin and on looking down saw the captain whipping Whitehead over the face with a rope, and a drawn sword in one hand, with which he pricked Whitehead once and drew blood.

    Capt. Freeman, through his Counsel denied the charge of general ill treatment, that he had a sword on board at all and everything of importance alleged by the witnesses. No objection was made to Whitehead's going aloft on the day of his death by any of the men, nor did he hear any from the mate. The deceased at the time he fell, was on the yard and not on the foot rope, as some of the witnesses had said, and which was the proper place.

    The testimony of Wm. Barrett, the mate, who was the first witness called by the defendant, rather unexpectedly tended to corroborate the evidence of the seamen. He stated that he told the captain that the man was not fit to go aloft on the day of his death. When he fell overboard, the captain said "Poor fellow, he's gone, who would have thought it." The man made no objection to going aloft, and he did not see the captain strike him. The last he saw him he was on the foot rope. Whitehead was a peacable, quiet man, willing and steady, though he had free access to the liquor ; he obeyed the captain as far as was in his power.

    The prisoners counsel on Wednesday attempted to impeach the evidence of the mate, but Judge Story did not allow it to be set aside.

    A number of persons were produced to testify to the good character of the prisoner ; and four captains (Messrs. Rich, Curtis, Margree and Adams) testified that without the free use of his hands and great physical strength, Whitehead could never have reached the place from whence he fell ; and in regard to his being sent aloft to scrape the mast, it was a light punishment ; and that unless he had held on with great strength he might easily have been shaken off. Wm. Sturgis, Esq. stated that he should have thought it more difficult to reach the place from whence Whitehead fell than to keep himself up when there. He thought the captain might easily have shaken him from the shroud if he had pleased, on the occasion of scraping the mast, and that the captain was in as much danger as the man.

    The Jury did not deem the prisoner guilty of the crime of murder, as set forth in the indictment, but rendered verdict of Manslaughter.

    It is stated that Capt. Freeman belongs to Wellfleet, C. C. and has risen from the birth of a common sailor to the command of a vessel. —Boston pap.

    *Soldier among seamen signifies a lazy idle fellow.

    [On Tuesday, 30th ult. the Court sentenced Capt. Freeman to pay a fine of $100, and to suffer 2 years and 6 months imprisonment.]
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American Mercury (New Bedford) 6 Nov 1827. vol. XLIV(2262):3, reprinting a piece from Providence Literary Cadet

Capt. William D. Freeman, late master of the brigantine Floyd, of Boston, mentioned in our last, was tried on Wednesday and Thursday last,  before the Admiralty Court of the United States, on the charge of having murdered, whilst on the high seas, a mariner, named William Waitehead [sic]. Mr. Justice Story presided, and a verdict of manslaughter was recorded against the prisoner.

    The testimony adduced on trial, is of the most atrocious and ferocious nature, and if it be true, we are surprised that a verdict of Murder was not awarded. In all our readings of criminal trials, we have never met with a more offensive recital of depravity and cold-blooded murder, than this, and at the mere perusal of it, the heart sickens, and the senses are disgusted and insulted. We purposely omit giving any part of the evidence, as it recapitulates acts of wantonness and crime, which we are unwilling to record, and which we would gladly, for the sake of the honor of human nature, keep from the eye of an offended and insulted world. If justice, had her due, the offender, would close his life of infamy, on the gibbet.— Providence Literary Cadet.
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UNITED STATES v. FREEMAN

Case No. 15,162

Circuit Court, D. Massachusetts

25 F. Cas. 1208; 1827 U.S. App. LEXIS 289

October, 1827, Term

OPINIONBY:  [**1]
STORY

OPINION:
 [*1210]  STORY, Circuit Justice, in the course of his summing up to the jury, stated his opinion as follows:

    This is an indictment for murder on the high seas; and it is competent for the jury, upon a view of the whole matter, either to acquit the defendant of all guilt, or to convict him of the crime, as alleged in the indictment, or to find him guilty of manslaughter. There are some general considerations, upon which the arguments at the bar render it necessary for the court to bestow a passing comment.  In the first place, the general good character of the defendant may be properly brought into the cause, and ought to have weight with the jury in all cases, where the facts are doubtful, or admit of different interpretations.  But where the evidence is positive, and satisfactory to the jury, such good character certainly cannot overcome the just presumption of guilt arising therefrom; for such is the infirmity of human nature, that men, even of exemplary life and character, are sometimes suddenly betrayed into excesses, and hurried on, by their passions, to the commission of the grossest offences.  Previous good character is therefore a circumstance entitled to [**2]  the consideration of the jury, and ought to be thrown into the scale in favor of mercy; but if the facts, which establish the guilt of the party, are supported by proofs entirely credible and unexceptionable, there is no pretence to say, that a jury is bound to acquit the party merely because of such character.  In the next place, as to the position, which has been so strongly urged at the bar in defence of the accused, that common seamen are not entitled to belief, though their testimony is given under oath in a court of justice.  There is no such rule of law in respect to this class of persons.  Seamen, like other persons, if not interested or infamous, are competent witnesses in the trial of criminal as well as civil causes.  The law has pronounced no general sentence of exclusion against them; and there is nothing, in their course of life, or general characters, which would warrant such a harsh and vindictive proceeding.  They are competent witnesses, and their credit is to be left to the jury, to be judged of under all the circumstances of each case.  Their testimony is open to every suggestion arising from their individual characters, their station in life, their manner of testify,  [**3]  that nature of the facts related by them, their prejudices, and passions, and feelings, and indeed all the considerations which abate the force of evidence in every other case.  They have a right to be heard in what they testify under oath, like other men; and the jury, who should wholly disregard their testimony, simply because they were seamen, and thus involve the whole class in one indiscriminate proscription of discredit, as contended for at the bar, would betray their proper duty, and supercede, instead of enforcing the law.

    In the next place, as to the rights and duties of masters of ships, in relation to the crew, during the voyage. It is doubtless true, that the master has a right to require of them a prompt and ready performance of duty, and an habitual obedience to reasonable commands at all times.  The safety of the ship and the success of the voyage essentially depend upon the due enforcement of this right.  And in proportion as the urgency of the occasion, and the necessities of the sea service, require instant compliance with such commands, the duty of the seamen to obey becomes more pressing and obligatory.  If obedience does not follow, the master may compel it [**4]  by punishment, and the nature and extent of the punishment must be decided by the exigency of the case.  The master may also apply punishment, by way of correction, for past as well as present offences, to preserve the good order and discipline of the ship. But, after all, however summary or strict may be his power, it is not unlimited, nor is it to be exercised in an arbitrary, cruel, or revengeful manner.  The authority of the master, on board the ship, is nearly allied to that of a parent, and is to be used with reasonable tenderness and humanity.  No punishment can be inflicted unless for reasonable provocation or cause; and it must be moderate, and just, and proportionate to the nature and aggravation of the offence.  The law does not permit the master to gratify a brutal and low revenge, or to inflict cruel and unnecessary punishments.  It allows no excess, either in the mode, or the nature, or the object of the punishment.  It upholds the exercise of the authority only when it is for salutary purposes, not when it arises from personal prejudice, caprice, or dislike, or from gross ans vindictive passions. In every case, therefore, where punishment is applied, the master is [**5]  responsible, both civilly and criminally, if he wantonly exceed the measure of justice.

    In respect to the general principles of law, applicable to cases of homicide, there has  [*1211]  been no controversy at the bar; and I am spared the necessity of expounding them beyond what has been read from approved authorities.  But the circumstances of this case call for an explicit instruction to you upon the points made in the defence.  These are: (1) That the death of Whitehead (the seaman, whose death is feloniously charged in the indictment), was solely owing to accident and misadventure in the course of his duty, the fall from the yard not being occasioned by his debility, but by circumstances which might have occasioned it to a healthy seaman. (2) If his death was not owing to accident or misadventure, but simply to his debility, yet the circumstances of the case do not show, that such debility was so known to the master, that the order, that he should go aloft, was unjustifiable or wantonly wrong.  (3) That if the order was not strictly justifiable, still the act was not the result of personal malice to the deceased in particular, nor of brutal and malignant passions or feelings,  [**6]  which establish general malice, and, therefore, in no event can the facts justify a conviction of murder. (4) That it is not a case even of manslaughter; for there was not such a want of caution, or such gross negligence in the master, as would, in the absence of malice, justify a verdict of manslaughter.

    The first inquiry proper for the jury then is, whether Whitehead came to his death by mere accident or misadventure; or whether it was occasioned by his debility and exhaustion, arising from physical infirmity at the time of his fall from the yard.  If occasioned by such debility and exhaustion, the next inquiry ought to be, whether that state of debility and exhaustion was fully known to Capt. Freeman, when he gave the orders for his, Whitehead's going aloft. If so, were the circumstances such as, that Capt. Freeman must, and ought to have foreseen, that the enforcement of his order to go aloft would probably be attended, either by death or enormous bodily injury by falling, to Whitehead, so that the jury can justly infer, that it must have been persisted in from personal malice to the deceased, or from such a brutal malignity of conduct, as carries with it the plain indications [**7]  of a heart regardless of social duty, and fatally bent on mischief.  If so, it was murder. And it would not vary the case, that the moral force of the authority of the master to compel performance, instead of physical force, produced compliance with the order on the part of Whitehead, although the later was sensible of his own extreme debility.

    If the jury are not satisfied, that there was either actual malice to the deceased, or constructive malice, arising from brutal malignity, as before mentioned; still, if the circumstances of the case show, that there was gross heedlessness, want of due caution, and unreasonable exercise of authority on the part of Capt. Freeman, and that he ought to have known, and could not but have known, that Whitehead was unfit to go aloft, and that there was probable and immediate danger to his life in his so doing, then, notwithstanding the absence of such malice, the offence is at least manslaughter. For every act done wilfully, and with gross negligence, by any person, the known effect of which, under the circumstances, must be to endanger life, is, if death ensues, at least manslaughter.

    (The judge then proceeded to sum up, and comment at large,  [**8]  upon the facts, in the various aspects thus presented of the case, and concluded by leaving it to the jury, upon the whole evidence, under the foregoing instructions as to the law.)



           Captain William Doane Freeman, son of Captain Benjamin Freeman and Mercy Atwood, was born 27 Aug 1794 in Wellfleet, died 13 Nov 1850 in Wellfleet, and was buried in Duck Creek Cemetery. The cause of his death was dropsy.

    William married first Joanna Cole Hatch, daughter of Joseph Hatch Jr and Mary, 11 Nov 1820 in Wellfleet, officiated by Rev. Timothy Davis. Intentions had been filed 20 Aug 1820. Joanna was born 19 Oct 1798 in Wellfleet, died 2 Oct 1834 in Wellfleet, and was buried in Duck Creek Cemetery. They had three children in Wellfleet: William D, Allen, and Warren Wesley.

    William D Freeman was born 5 Jun 1828; Allen Freeman was born 13 Feb 1831, died 2 Sep 1883, and was buried in Oak Dale Cemetery; Warren Wesley Freeman was born 8 Aug 1833, died 4 Jul 1835, and was buried in Duck Creek Cemetery.

    Capt. Freeman was sentenced to 2 and a half years in prison for manslaughter in Nov. 1827, so he was potentially released just in time for the 1830 census, even if he served the full time.

1830 Wellfleet census: William Freeman, with one boy under 5, one male 30-40 and one female 30-40. With no earlier children in Wellfleet records, perhaps William and Joanna were living elsewhere for the early 1820s.

        William next married Lois Higgins Lewis, daughter of Solomon Lewis and Mary Wiley, about 1835 (intentions and marriage records not seen in Wellfleet files). Lois was born 22 Nov 1806 in Wellfleet, died 5 Oct 1884 in Acton, Massachusetts, and was buried in Oak Dale Cemetery, Wellfleet. The cause of her death was consumption. They had eight children in Wellfleet: Warren Wesley, Hosea Ballou, Samuel Dow, Benjamin, Joanna Cole, Susan J, Wesley J, and Sarah Wheeler.

             Marriage Notes: 1840 Wellfleet census images are incomplete, and this family not seen.
            
             1850 US census, Wellfleet:
             house 401, family 477
             Wm D Freeman, 56, mariner, $650
             Lois H, 43
             Wm D, 22, mariner
             Allen, 18, mariner, attended school within year
             Hosea B, 12, in school
             Samuel D, 11, in school
             Benj F, 9, in school
             Joanna C, 7, in school
             Susan L, 5, in school
             Wesley J, 3
             Sarah W, 1
            
             Flanking neighbors were the Elisha Freeman and Barnabas Freeman families.
            
             1860 US census, Wellfleet:
             house 645, family 668
             Isaac Freeman, 73, seaman, $800 real estate, $500 personal estate
             Patty Freeman, 76,
             Walter Freeman, 23, seaman, $500 personal
             Lois Freeman, 52, $600 real, $600 personal
            
             house 646, family 669
             Hose or Hove Freeman, 23, seaman,
             Samuel, 21, seaman
             Joanna, 17
             Susan, 15
             Wesley, 13, attended school within year
            
             The house & family entries for 646/669 seem to be on the wrong line, and Lois is meant as head of the household that has her children. Other nearby families are those of Andrew & Hannah Freeman (house 664, family 666), sharing a house with John Freeman (family 667), Barnabas & Rebecca Freeman (house 647, family 670), and Elisha & Eliza Freeman (house 648, family 671) who shared a house with David Freeman and others (family 672).
            
             1870 US census, Wellfleet:
             house 418, family 486
             Louis H Freeman [sic], 59, keeping house, $500 real estate
             Westly J Freeman [sic], 23, seaman
             Sarah W  Freeman, 21, tailoress
             Charles W Hayden, 13 (or 15), fishing, attended school within year
            
             Neighbors were Elisha & Elizabeth Freeman (house 419, family 487), Barnabus 2nd & Nancy W Young (house 417, family 484), sharing a house with Noah & Betsey A Young (family 485), and David C & Catherine L Freeman (house 416, family 485).
            
             1880 US census, Wellfleet:
             house 202, family 222
             Wesley Freeman, 33, sailor, unemployed 4 months in census year
             Mary Freeman, 32, wife, keeping house
             Lettie H Freeman, 7, daughter, at school
             Louis H Freeman [sic], 73, mother

    Warren Wesley Freeman was born 31 Oct 1836, died 8 Feb 1840 in Wellfleet, and was buried in Duck Creek Cemetery.
    Hosea Ballou Freeman was born 27 Dec 1837 in Wellfleet, died 4 Mar 1865, and was buried in Oak Dale Cemetery. He worked as a seaman in 1860.
    Samuel Dow Freeman was born 6 Nov 1839, died 11 Mar 1896, and was buried in Oak Dale Cemetery. He has conflicting birth information of 6 Nov 1841. He worked as a seaman in 1860. Samuel married Olevia D. Olevia was born in 1844, died in 1922, and was buried in Oak Dale Cemetery.
    Benjamin Freeman was born 12 Apr 184, died 2 Jun 1857, and was buried in Oak Dale Cemetery.
    Joanna Cole Freeman was born 30 Jan 1844. She married Charles W Locke, son of William Locke, 17 May 1864 in Wellfleet, officiated by A N Bodfish, clergyman.  Charles was born in 1843 in Wellfleet (according to marriage record, but birth record not found). They had two children: Annie W and Wesley J. in Wellfleet

             Marriage Notes: 1870 US census, Wellfleet:
             house 398, family 463
             Charles W Locke, 27, seaman, no valuation
             Joanna C Locke, 27, keeping house
             Annie W Locke, 4, at home
             Westley J, 3/12, at home
             They shared a house with Catherine Freeman (household 464), 35, school teacher, $450

Charles W. Locke worked as a mariner in 1860. At the 1860 Wellfleet census, he was 17, a mariner, living in the household of Ebenezer & Hannah A. Freeman.  He worked as a seaman in 1864 and 1870 in Wellfleet. The Lockes are not in the 1880 Wellfleet census.

    Susan J Freeman was born 15 Nov 1845 in Wellfleet. No further information.
    Wesley J Freeman was born 11 Apr 1846 in Wellfleet, died in 1925, and was buried in Oak Dale Cemetery.  He worked as a seaman in 1870 and 1880 in Wellfleet. Wesley married Mary A Higgins, who was born in 1847, died in 1931, and was buried in Oak Dale Cemetery.   They had one daughter: Lois H.

             Marriage Notes: 1880 US census, Wellfleet:
             house 202, family 222
             Wesley Freeman, 33, sailor, unemployed 4 months in census year
             Mary Freeman, 32, wife, keeping house
             Lettie H Freeman, 7, daughter, at school
             Louis H Freeman [sic], 73, mother

    Sarah Wheeler Freeman was born 3 Nov 1848 in Wellfleet, died 30 Aug 1877 in East Boston, Massachusetts, and was buried in Oak Dale Cemetery as Sarah Cobb She worked as a tailoress in 1870 in Wellfleet, Massachusetts.