This is the story behind and beyond the facts and evidence in Ommanney v Stilwell, a case decided in the High Court in England in 1856. The court had to consider the unknown date of death of naval lieutenant Edward Couch, an officer of HMS Erebus, one of the two ships of Sir John Franklin’s lost Arctic expedition of 1845, in order to determine who should inherit under Edward’s will. This dispute involved the surviving members of Edward’s family, and the will made by his father, Captain James Couch.
In this series of blog posts, I trace the lives and naval background of Edward Couch and his father, the departure of the Franklin expedition in 1845, the searches for Franklin’s ships and human remains and artefacts from them, the evidence and judgment in the 1856 trial, and the discoveries made subsequently and the light they cast (or not) on the 1856 decision.
PART 1 — A TRAFALGAR VETERAN’S DEATH
9 January 1850
On a cold Wednesday morning in early January 1850, James Couch, a retired naval captain, set off on a short walk to visit another retired captain and old friend, William Slaughter. His walk took him across what is now urban Plymouth, but was then the self-contained towns of Devonport, or Plymouth Dock, as it had been known when James was young, and Stonehouse. James had been born in 1782, into a naval family in Stonehouse, a place itself dominated by the ever-growing establishment of the Royal Navy. Although the streets of the limestone peninsula on which the town was built had grown and changed since his birth, the place would have been familiar to him from his earliest memories. James’s grandfather Philip Couch had first come to Stonehouse from Liskeard in Cornwall, over a century ago, and had grown prosperous as a customs officer, owning several leasehold properties in the town and on Stonehouse Quay, including that of the excise officers’ watch house and adjoining cellars. At his death in 1791, he was living in Emma Place, one of the first streets of elegant houses to be developed in Stonehouse as a fashionable address for naval and dockyard officers. Philip Couch had also had cash and investments in Bank of England 3% stock. He left a widow and ten children of two marriages, his first wife having died at the birth of his daughter Jane in 1752. In his will, made in failing health in the last year of his life in 1791, he strongly urged his children “to live in friendship and unity with each other”, as he had not provided gifts of equal value for all of them.
In the next generation, Philip’s family rapidly became a naval family, in a century of British naval supremacy. His daughter Grace married a naval lieutenant. His son William was a shipwright who went to Calcutta as a ship builder with the East India Company, and had a son who was a British naval officer. Philip’s son James was also a shipwright and later a ship’s carpenter, and married Thomasine Little, the daughter of a shipwright from Millbrook, just across the Tamar estuary. James and Thomasine were the parents of both Captain James Couch and his brother Daniel, who was also a career naval officer and by 1850 a retired captain, living with his family in Navy Row, Morice Town, the other side of Devonport.
Both James Couch and his friend William Slaughter were in their late 60s in 1850, each with decades of service at sea, from their boyhood at the time of the American and French Revolutions and continuing through and after the Napoleonic wars. As a very young boy of 7 in the spring of 1789, James had first gone to sea on HMS Adamant, a 50-gun warship sailing to the headquarters of the Navy’s North American station at Halifax, Nova Scotia, under the flag of Richard Hughes, the Commander in Chief of that station. James’s father was a carpenter on HMS Adamant and James himself a captain’s servant, a boy’s role of varied duties and ostensible learning with a prospect of eventually becoming a commissioned officer himself. HMS Adamant arrived at Halifax on 31 July 1789, where news of the fall of the Bastille in the French revolution earlier that month only reached the ship’s company in September. The ship and its accompanying squadron remained stationed at Halifax until mid-1792. Geoffrey Moore, the First Lieutenant of the ship, recorded in his journal that it was an “extremely agreeable thing” to find that “Captain Knox is not a Flogger”, but over time his treatment of his ship’s company became more harsh, with many records of punishments of a dozen or more lashes of seamen and marines for disobedience to orders, insolence, neglect of duty, drunkenness or theft. Lieutenant Moore reflected that it would have been better for the captain to be less lenient at the outset if he wished to maintain discipline whilst being averse to flogging.
Halifax was sufficiently far north and exposed to the north Atlantic for HMS Adamant to over-winter in harbour, masts lowered, sails and rigging taken into the shipyard for overhauling, and a temporary wooden shelter built over the deck until the end of March each year. As the sea iced over in late February, the ship was frozen in, and the crew largely confined to the ship with little to do. Lieutenant Moore recorded one occasion when an army officer who ventured to walk on the ice fell through it and drowned, just beyond the grasp of a seaman tied to a rope who attempted to rescue him. As the winters of 1789 and 1790 passed, neither the older James Couch nor his son could have foreseen their family’s enduring association with a ship frozen into the ice of the Arctic much further north in the same continent, and far into the future.
The older James Couch, the ship’s carpenter of HMS Adamant, died in the Naval Hospital at Halifax on 2 September 1791. His was the first registered burial in the Burial Ground established adjacent to the hospital when it was built in 1783. As a boy not quite ten years old, his young son James would have been the only member of his family to attend that burial, or indeed ever to stand at his father’s grave, as if to mark the end of his own childhood and the beginning of his life as a man. His father had made his will on 15 June 1789, a few days before HMS Adamant sailed from Plymouth, where the ship had spent a week on the voyage from Sheerness to Halifax, taking on board supplies of water, fresh beef, firewood, candles and rum, and preparing for the open sea. The ship’s company were also paid two months’ wages in advance. James’s will opened with a standard form of words which had been used by naval officers and seamen for over a century, referring to the dangers of the sea and the possibility of dying and being buried at sea:
In the Name of God Amen
I James Couch Carpenter of his Majesty’s Ship Adamant David Knox Esquire Commander being of a sound and disposing mind and memory and considering the dangers of the sea and the uncertainties of this transitory life do (for avoiding controversies after my decease) make publish and declare this my last will and testament in manner following (that is to say) first I commend my soul to God that gave it and my body to the Earth or Sea as it shall please God to order
James Couch left everything he owned to his widow, Thomasine. His will was admitted to probate in England, only six months after his father Philip’s, after HMS Adamant’s return in the summer of 1792. So in the course of his first voyage of naval service, the younger James had lost both his father and his grandfather, the former with him at Halifax, the latter at home in Stonehouse.
The younger James did not go to sea again until 1794, but after that he had traversed the world on the ships on which he had served — in North and South America, the West Indies, Africa, the North Sea and the Cape of Good Hope. He had passed his lieutenant’s examination in 1799, was commissioned as a lieutenant in 1800, and then on active service in the campaign against Napoleon in Egypt in 1801, for which he had received the Turkish gold medal. He had been with Nelson in the West Indies fighting against the French and Spanish, and then first lieutenant on HMS Conqueror in Nelson’s fleet at Trafalgar in 1805, in which ship he had “taken a warm part” in the famous battle. That “warm part” consisted of HMS Conqueror’s presence at the very climax of the battle in the hour after Nelson was injured, firing on the flagship of Admiral Villeneuve, and taking Villeneuve’s eventual surrender. Early in 1806, far away in the West Indies, James’s first cousin, Richard Couch, lieutenant of HMS Superb, fought in and died not long after another victorious naval battle, with a squadron of French ships off Santo Domingo in the Caribbean. A few years later, on Christmas Day 1812, during the course of war and naval blockade of the United States that year, in which James had “evinced much bravery in command of the boats on various occasions of hazard” he had participated in the capture of a ship in an action which had left him with an injured leg when a gun burst.
After the end of the Napoleonic wars James had come ashore, like many sailors, and three weeks after his discharge in September 1817, the chaplain of HMS Impregnable, the last ship on which he had served, officiated at his marriage to Mary Smith Manico, a local woman some years younger than him. They were married in Stoke Damerel, the old parish of what was to become Devonport in 1824, and in 1817 still an isolated church frequented by men who stole bodies out of its graveyard. James and Mary’s first three children were christened at the same parish church, but in 1821 James had been commissioned as Regulating Captain, responsible for recruitment of men for naval service from the Port of London, and settled with his family in Camberwell, in south London, where another six children were born. James and Mary and five of their children were all in Stoke at the date of the 1841 census. By then James was already on half pay, and on 1 October 1846 had retired from service with a naval pension. His naval biography recorded both the detail of his long service, and that he had “the character of being a very scientific and ingenious officer”. In the 1820s he had invented a well-known improvement in the design of channels fixed to the ship’s side to keep the fixed rigging at a proper distance from the ship itself. By the time he retired from naval service James had both outlived his father and had outstripped him in his naval career. His father had been a skilled and indispensable artisan, but the younger James was a commissioned officer, progressing through a mixture of merit and patronage to his appointment as post captain in 1824.
By 1850, four of James’s own sons had followed their father into the armed forces — two into the Navy, one into the army and the youngest, George, into the Marines, then stationed at the Royal Marine Barracks at Stonehouse. James had been in declining health since his retirement in 1846, a decline which had sharpened with the deaths in 1848 and 1849 of first his wife and then his son Philip, a lieutenant in the Navy, and with increasing anxiety for his other naval son, Edward. Edward had left England in May 1845 as a junior officer on HMS Erebus, one of the two ships in Sir John Franklin’s expedition to the Arctic. This was a prestigious and well-equipped expedition, sent in confident search of the final link in a navigable north-west passage through the uncharted frozen archipelago between the Atlantic and Pacific oceans. HMS Erebus and HMS Terror took their sombre names from the original purpose for which they had been built, as “bomb” ships, used in war to attack land fortifications from sea, their hulls constructed with sufficient strength to withstand the recoil from the mortars fired from their decks. The two ships had previously sailed to the Antarctic and had been refitted and prepared for Franklin’s expedition with extra planking and iron sheeting, as well as by the addition of steam engines and propellers, and provisioned with sufficient food for three years, to last until the summer of 1848.
Nothing had been seen or heard of Franklin’s expedition since late July 1845. Before departing from England, Franklin had instructed his officers and crews to tell their families that they should not expect to hear from them after they entered the ice through Lancaster Sound at the west of Baffin Bay until October 1847, when he trusted that they would be successful, and that vessels would meet them in the Bering Strait between the continents of north America and Russia, after accomplishing the objects of their voyage of discovery. The Admiralty would not consider any search or relief operations before the end of 1847, even though by the spring of that year there was growing anxiety in England about the fate of the men and their ships. The missing expedition became a focus of intense national interest. Search expeditions in 1848 and 1849, when the Government had advertised a reward of £20,000 for private ships which had “rendered efficient assistance to Sir John Franklin, his ships or their crews and may have contributed directly to extricate them from the ice” had found no living trace of Franklin, his ships or their crews. In November 1849 Sir James Clark Ross had returned from an over-winter search for the Franklin expedition. At the southernmost point of his exploration, standing on a high promontory on Somerset Island on a remarkably clear day, he could trace the coastline for 50 miles, but there was nothing to be seen. Yet many people believed, or hoped, that Franklin and his men had survived even into 1850, conjecturing that they might have been provided with food by native Esquimaux, as Inuit people were then described, or found food to hunt for themselves.
I imagine James Couch on that morning in January 1850, observing how much his birthplace had changed in the course of his lifetime as he walked towards Buckingham Place, across Union Street, most of it laid out in the years when he was fighting against Napoleon. He was an old man now, increasingly out of breath as he walked, very likely weather-beaten and aged beyond his years in his appearance, as many long-serving sailors were, and troubled by his old war wound in one leg, but pressing on with eagerness to see and converse with his old naval friend. Captain Slaughter had been given a magnificent gold snuff-box with a suitable inscription on the lid when he had retired from the command of the Dartmouth Coastguard in 1832, and it is easy to imagine the two men taking snuff from it as they sat and reminisced by the fireside. As James Couch arrived at his friend’s house, William Slaughter greeted him, saying “Couch, this is too cold a morning for you to be out”. The cold morning and the walk had indeed been too great an exertion for James, for he suddenly became ill, turning pale and losing the power of speech, and died shortly afterwards of “affection of the heart”. So ended the life of a man who had travelled around the world and survived many hazards, to take his last steps not far from the place where he took his first.
In his will, which he had made in the autumn of October 1848, shortly after his wife’s death, James Couch left his estate to his two surviving unmarried daughters, Elizabeth and Caroline — an understandable decision for a 19th century father whose sons were all employed in national service, and whose oldest daughter had been married and widowed, and was to marry again. The will was admitted to probate a few months after his death, on 1 June 1850. In the 1851 census only Caroline and Elizabeth appear still living in the family home in Albany Road, Camberwell, both unmarried and in their early 30s, and described as “annuitants”. Their father had been one of the treasurers of the London branch of the Royal Naval Annuitant Society established in 1823, and their annuities probably came from this fund, payable for as long as either remained unmarried, or from the investment of capital they inherited on his death.
Captain James Couch died without knowing the fate of Franklin’s Arctic expedition, or of his son Edward. By coincidence, the very day after his death, on 10 January 1850, a further search expedition departed from Woolwich for the Bering Strait. Two ships, HMS Enterprise and HMS Investigator, which had returned from the Arctic with Sir James Clark Ross only a few weeks earlier, carried with them a strong white leather bag containing a large package of letters addressed to the officers and crews of HMS Erebus and Terror. A letter from James Couch to his son — the last that he would write — may have been among them. This expedition too was to end in failure. HMS Investigator was trapped in ice for three years, and her crew abandoned her and spent a further year in the Arctic on their rescue ship before returning in 1854, the letters in the strong white leather bag lost in the ice, white fragments in a white expanse, unopened and unread.
Links to subsequent instalments
 Formally East Stonehouse, but increasingly referred to in maps and directories of c.1850 as Stonehouse
 There are discrepancies in the records of James’s age. There are potential baptism records for a James Couch from both 1779 and 1782. He commenced naval service in 1789, and should have reached 13 by then, but it was not unusual for boys to enter service younger. In the 1841 census he stated his age as 55, but this does not accord with either of the possible birthdates, or with the commencement of his naval service, which is a matter of official record.
 These and other details of the voyage of HMS Adamant to Halifax in 1789–92 from Frigate Commander (2004) by Tom Wareham, a narrative based on the journals of First Lieutenant Graham Moore, and from the captain’s log of HMS Adamant in the UK National Archives at ADM/51/9 and 51/10
 As quoted in O’Byrne’s Naval Biography (1846)
 In Greek mythology, the deity Erebus was the personification of the deep darkness and shadows of the primeval void from which it had come
 Now the part of Millbay Road between Hobart Street and Phoenix Street
 As recorded in vol 1 of the Nautical Magazine 1832 at p.329
 As quoted in contemporary newspaper accounts.