Out of the Frozen Deep — II

Barbara Rich
17 min readJan 26, 2020


This is the story behind and beyond the facts and evidence in Ommanney v Stilwell (23 Beav 328) 53 ER 129, 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, who had died in England in January 1850.

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 pre-1856 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 I — A Trafalgar Veteran’s Death, is here


Early life

Edward Couch was born in Camberwell and christened in the parish church of St Giles on 27 August 1823, the fourth of his parents’ nine children, and the second to be born in London. His parents had left Plymouth a year or two earlier, although they still had a home in Plymouth Dock, and later in Stoke Damerel, and extended family there. Edward’s father, Captain James Couch, a veteran of the battle of Trafalgar and many other voyages in ships of war, was a serving naval captain, but his ship was moored in the Port of London and was a base for naval recruitment. Edward’s date of birth is not recorded but he would have been very close in age both to his sister Elizabeth, born in May 1822, and his sister Caroline, born in October 1824. The population of Camberwell, as of other parts of London, was rapidly expanding and the bourgeois and the working class lived side by side. On the same page of the baptism book for 1823 that records Edward’s christening are the sons and daughters of gentlemen, bricklayers, bakers, painters, butchers and tailors, and of a naval surgeon.

Nothing else is known to posterity of Edward’s early life and education. He was 21 when he joined the crew of HMS Erebus and the Franklin expedition as a mate (a junior officer). He had been only 14 in early 1838 when he first met James Fitzjames, then a recently promoted lieutenant, whilst undertaking a course on HMS Excellent, a ship moored off Portsmouth Harbour as a base for the provision of proper theoretical and practical tuition in the latest developments in naval gunnery. In November 1841 he had joined HMS Queen, a first rate ship of the line, as a first class volunteer, but had seen no active service. The following year, in 1842, in the Opium Wars in China, Edward, still not yet twenty years old, had served with James Fitzjames and was put in command of two of his ship’s boats rigged to carry artillery support in an attack on Chinese fortifications in Zhenjiang, a city on the southern bank of the Yangtze River. He and other men were wounded by heavy Chinese gunfire from the city wall and forced to abandon their boats and take cover behind masonry until they were rescued. He was commended for distinguishing himself in hard street fighting the following day, after scaling the walls of the town, in a fierce battle which was the turning point of that war. Immediately before he joined the crew of HMS Erebus, he had served on HMS St Vincent, built as a first rate 120-gun ship, but since 1841 reduced to a stationary flagship and depot vessel at Portsmouth. To exchange this for joining an Arctic expedition in the spring of 1845 must have been an irresistible prospect.

A polar bear plunging into the sea — Sir John Ross 1819 — an image of the early 19th century search for the north-west passage © British Library

The Franklin expedition

Since the end of the Napoleonic wars, the Royal Navy had promoted numerous voyages of discovery in the polar regions, both north and south. Sir John Franklin was 59 when, following some political manoeuvring in which his wife, Lady Jane Franklin, played an influential part, he was appointed to lead the 1845 expedition. Like the two repurposed “bomb” warships he commanded, he had had previous experience of polar voyages and expeditions, dating back to his first sailing to the Arctic in 1818, followed by an overland expedition from which he had returned to be known as the man who ate his boots in order to survive. Since then, the Admiralty had acquired a great deal of knowledge and experience of sailing to and over-wintering in the Arctic, and had added the contours of what had previously been vast areas of blank territory and sea to the map, naming these places after numerous now largely forgotten men of maritime patronage or achievement of their day. Perhaps the most incongruous of the names, a name that sounds as if it had come from Edward Lear’s nonsense botany, was Boothia Felix — an icy peninsula in what is now Nunavut, named in 1829 by Sir James Ross after his patron Sir Felix Booth, the maker of Booth’s gin.

The purpose of Franklin’s 1845 expedition was to seek the final stretch of navigable sea to form a north-west passage from the Atlantic to the Pacific oceans, and thereby, amongst other objects, to achieve a strategic advantage over Russia. The search for the north-west passage, first begun hundreds of years in the past, had been a particular ambition of Sir John Barrow, second secretary to the Admiralty, by then 80 years old and anxious to see his ambition fulfilled. In December 1844 he submitted a proposal for the attempt to the Admiralty, urging that the discovery “ought not to be abandoned, after so much has been done, and so little now remains to be done”. Once approved, there was significant time pressure to recruit each ship’s company and prepare the expedition’s ships, which were refitted with steam engines and propellers at Woolwich naval dockyard, to depart by May 1845 in order to sail westward into the Arctic archipelago before they were trapped by the encroaching ice of winter.

James Fitzjames was appointed to Franklin’s expedition as Commander of HMS Erebus, second only to Sir John Franklin himself, and was responsible for recruitment of the ship’s more junior officers and crew. He appears to have been a charismatic and original man, whose own true life story was largely hidden until quite recently[1]. He wrote in his journal of Franklin’s insistence on “the necessity of observing everything from a flea to a whale in the unknown regions we are to visit.” Fitzjames had had no previous Arctic experience. He was ambitious for the expedition to make his name, planning to bring the news of its success home to London by travelling overland across Russia, which he believed would be a more rapid journey than by sea. The officers he recruited, a mix of former shipmates and men with Arctic experience, were also ambitious for themselves, hoping for promotion and adventure. Edward Couch was appointed by James Fitzjames as one of three mates to HMS Erebus on 14 March 1845.

Sir John Franklin received his sailing instructions from the Admiralty on 5 May 1845. These directed him to enter the Arctic archipelago west of Greenland via Lancaster Sound and its continuation, Barrow Strait, and to continue to push to the westward without loss of time, in the latitude of about 74 ¼ °, until he had reached the longitude of that portion of land on which Cape Walker was situated, or about 98 ° W

From that point we desire that every effort be used to endeavour to penetrate to the southward and westward, in a course as direct towards Behring’s Strait as the position and extent of the ice, or the existence of land at present unknown, may admit.

Map of the Arctic showing area unknown in 1845 and the route Franklin was instructed to follow — map originally published in Sir John Franklin’s Last Arctic Expedition by Richard Cyriax 1939

A will made before departure

Ten days later, on Thursday 15 May 1845, less than a week before HMS Erebus and HMS Terror sailed for the Arctic on 20 May, Edward Couch made his will. The days before departure must have been full of activity of every kind, including farewells from family and friends. Only two days earlier Edward had sat and passed the lieutenant’s examination at the Naval College, although he was not to receive his lieutenant’s commission until his name had reached the top of the list on 8 June 1847. The previous week, on Friday 9 May, the First Lord of the Admiralty and other senior officers, including the great Arctic explorer Sir Edward Parry, had visited the expedition ships and their officers and crews. The Times of 12 May reported on the considerable quantity of provisions taken on board “numerous chests of tea, although the crews are not expected to become teetotallers, an ample supply of rum having been provided for their use in the frozen regions.” The mood was one of optimism and pride

“The . . . Admiralty have, in every respect, provided most liberally for the comforts of the officers and men of an expedition which may, with the facilities of the screw-propeller, and other advantages of modern science, be attended with great results . . . There appears to be but one wish amongst the whole of the inhabitants of this country, from the humblest individual to the highest in the realm, — that the enterprise in which the officers and crew are about to be engaged may be attended with success, and that the brave seamen employed in the undertaking, may return with honour and health to their native land.”

The officers and crew of the expedition ships were paid an advance of their wages a few days before departure. That payment and the knowledge of the dangers of the expedition into uncharted and ice-bound sea are likely to have prompted Edward’s decision to make a will, as innumerable young naval officers and seamen with no other property to their name had done for centuries. He was one of six officers of HMS Erebus to make his will between 9 and 15 May 1845. James Fitzjames made his will explicitly “in case of my death during the voyage which I am about to undertake to the Arctic Seas”, on board HMS Erebus, had his signature witnessed by two of the ship’s lieutenants and gave the will to his “best beloved friend” William Coningham, who was its primary beneficiary, for safekeeping on the day that it was made.

The will that Edward Couch made left all he had in the world to his father. Who else might he have chosen? He was unmarried, and had no children of his own. He might have chosen to provide for his unmarried sisters, as his father later did in a will made after he was widowed, but it is unsurprising that Edward chose his father, perhaps with little deep thought, for he was a young man who confidently expected to return from the Arctic. He appointed two naval agents, Octavius Ommanney and William Palin as his executors. Naval agents handled commissioned naval officers’ pay in their absence at sea, and were an obvious choice of executor for a young officer with nothing to leave but his naval pay. Henry Foster Collins, second master of Erebus chose the same executors. Like the Couch family, the Ommanneys were a naval family, and Octavius a member of the third generation to act as a naval agent. A brother of Octavius, Captain Erasmus Ommaney, was to sail on one of the expeditions unsuccessfully searching for Franklin in 1850. Edward’s will used an old-fashioned form of words almost identical to those used by his own grandfather, ship’s carpenter James Couch, in his will made in Plymouth in June 1789, as he was about to depart aboard HMS Adamant for Halifax, Nova Scotia. The form of words in Edward’s will had no doubt been adopted as a precedent by the Ommanneys for many sailors’ wills in which they had acted as executors as part of their business as navy agents. It read

In the name of God Amen

I Edward Couch of her Majesty’s Ship Erebus being in bodily health and of sound and disposing mind and memory and considering the perils and dangers of the seas and other 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 I commit to the earth or sea as it shall please God to order and as for and concerning all my worldly Estate I give bequeath and dispose thereof as follows that is to say all wages sums and sums of money lands amounts goods chattels and Estate whatsoever as shall be any ways due owing or belonging to me at the time of my decease I do give devise and bequeath the same unto my dear father Captain James Couch of the Royal Navy And I do hereby nominate and appoint Octavius Ommanney and William Harry Palin of Norfolk Street Strand Navy Agents as Executors of this my last Will and Testament hereby revoking all former and other Wills Testaments and Deeds of Gifts by me at any time heretofore made

And I do ordain and ratify these presents to stand and be for and as my only last Will and Testament

In witness whereof to his my said Will I have set my hand and seal the fifteenth day of May in the year of our Lord One Thousand Eight Hundred and forty five and in the eighth year of the Reign of our Sovereign Lady Victoria by the Grace of God of the United Kingdom of Great Britain and Ireland Queen Defender of the Faith and so forth — Edward Couch (LS) Signed sealed published and declared by the Testator the said Edward Couch in the presence of us present at the same time who in his presence and in the presence of each other have subscribed our names as witnesses

G J Schroeder

Frederick Pike

The two witnesses were not members of the crew of either Erebus or Terror, so may either have been friends, or dockyard clerks, or employees of Octavius Ommanney.

Franklin’s route to Greenland, the Whalefish Islands and across Baffin Bay to Lancaster Sound (map shows route of James Clark Ross’s 1848–9 expedition in search of Franklin)

Images and letters

On Friday 16 May 1845, the day after Edward Couch and his witnesses signed this will, and three days before the expedition ships sailed from Greenhithe in the sight of thousands of people, Lady Franklin had arranged for a photographer to visit HMS Erebus and take daguerreotypes, then a novelty, of the ship’s officers. In some of these images, although not in that of Edward Couch, the reflections in the peak of the naval cap worn or held by the man give a glimpse of the ships themselves. They were to be the last (and for some, the only) known images ever to be made of each of these men.

Daguerrotype of Edward Couch, HMS Erebus 16 May 1845 © National Maritime Museum, Greenwich, London

Edward Couch also appears in a brief description from James Fitzjames’ journal of the early part of the voyage, sent home from Greenland to his close friend Elizabeth, the wife of William Coningham

10th June 1845

Couch is a little, black-haired, smooth-faced fellow; good humoured in his own way; writes, reads, works, draws, all quietly. Is never in the way of anybody, and always ready when wanted, but I can find no remarkable point in his character, except, that he is, I should think, obstinate.

But the strongest impression of Edward’s personality appears in the fragments of a letter he wrote to his parents from Greenland, now preserved in the Scott Polar Research Institute in Cambridge[2]. The letter was written from the “Whale Islands — close along side of Isle Disco — Davies Strait” between 4 and 11 July 1845.

Arrival took place this morning at 3 o’clock and one of the rummest snug little places I ever saw — I have been on shore with Le Visconte (sic) one of the Lieuts — all over one of the Islands taking the bearings of the different points of land and making a sketch or two. Old Sir John came up with us — very rough barren place, so I was obliged to help him up and down every minute — all the climbing places. I was surprised to see him attempt anything so risky but he managed very well considering ….

I have been very busy all the way across, making Sir John a signal book — painting in etc — a copy of one Sir E Parry used — a long job and have only just finished it — so He is pleased — as I took a good deal of pains about it and that, with a little drawing, has been my chief occupation.

Old Franklin is an exceedingly good chap — all are quite delighted with him and –and very clever — He is quite a Bishop — We have church morning and evening on Sundays — the evening service in the cabin to allow the watch that could not attend in the forenoon to do so in the evening. [He] gives sermons out of his sermon books and I can assure you — adds a great deal himself. They say they would sooner hear him than half the parsons in England. He has 3 every day to dinner with him and when the weather permits the Captain and officers of “Terror”. He ordered stock and wine to be laid in, enough for 4 every day and a cabin full twice a week for 3 years, so you see what a liberal old man he is.

It is striking in this passage and elsewhere in his letter that Edward refers to Sir John Franklin as “old”, as indeed he was at 59, for a leader of such an expedition, for Sir John was in fact four years younger than Edward’s own father, Captain James Couch, and like him, had served with Nelson at Trafalgar. Unlike either Edward or his father James, Franklin had not been born into a naval family, nor into a place dominated by the Navy and its ships, as James Couch and his father had been in Plymouth. But also unlike James Couch, who had continued his naval service onshore since 1817, Franklin had become an adventurer and explorer of the Arctic and a notable public figure since the wars had ended. Edward may have seen in Franklin something of a father-figure — indeed a man quite similar in some respects to his father, who had a wounded leg from a naval battle in the United States in 1812 — as he helped him climb up and down on rough ground on the Whalefish Islands. Edward was not the only member of the ship’s company also to complain of his flesh being eaten by mosquitoes there at the height of summer. It is also likely that Edward told his parents so much about the Sunday services and Franklin’s powers of preaching because he knew it would have been of interest to them. It is easy to forget how deeply regular church attendance and adherence to Anglican faith formed a part of most people’s lives in mid-19th century England, and Edward’s father James would have been familiar with the routine of Sunday services conducted by his ship’s captain since his own boyhood.

Edward’s letter goes on to describe how well and comfortably he is living with his mess-mates, who would have been other junior officers of HMS Erebus, and his enthusiasm about the prospect, both a duty and a pleasure, of shooting game for provisions “when we arrive at our station — jammed in the ice”. He was obviously not the only one of the crew of either of the ships positively excited about the prospect of over-wintering in the ice

“They were talking in England about our being too late for the season but we are full early now even and they say it is a very comparatively warm season …. It is not decided where we shall winter but very likely at Melville Island — It is almost an impossibility to think of getting thro’ this season — odd as it appears nobody likes the thoughts of being done out of going through one of the winters to see and pick up every thing worth knowing

So about September 1846 we hope to be in Behring’s Straits on our way home — which is not over long to look forward to . . . ”

The truth was to be very different. But it’s impossible not to read this letter, with its warm quasi-filial description of Sir John Franklin, and its larky sense of adventure about the expedition he had embarked on, as the more enduring voice of the young officer who wrote it than the sombre and archaic formality of the will he had left behind in England.

About a fortnight after leaving the Whalefish Islands and sailing westwards, the expedition ships passed a whaling ship and some of the officers had dinner with its captain, who reported them as being well and in good spirits. The Times of August 11 1845 reported on the arrival back in England a few days previously of the Barretto Junior which had transported supplies for the expedition ships to Greenland, and which brought the latest letters home from them. The newspaper quoted an extract of a letter from one of the officers “not sorry to have turned our backs upon the frigid zone . . . We left our excellent and good friends of the discovery ships at Whalefish Island, Disco, on the 12th [of July 1845], all in good health and high spirits as to their future enterprise, full of hope as to their ultimate success. They are famously strong ships, well manned, and impossible to be better officered. We left them complete in full three years’ provisions, stores, and fuel.”

But this was to be the last that would be heard in England of the expedition ships whilst their officers and crew still lived. And the wills that the officers of HMS Erebus had made in anticipation of their voyage to the Arctic seas were also to be their last. Nearly a decade after the ships had sailed to Greenland, on 14 June 1854, James Fitzjames’ “best beloved friend” William Coningham came from his home in Bayswater to Doctors’ Commons in London, the court which then dealt with probate of wills. He had to appear in person, as James Fitzjames had forgotten to completely date his will. William had to swear to the court that the will had been made on board HMS Erebus in May 1845 and given to him for safe custody, and that the last letters received from the ship were dated on or about the 12 July 1845 since which time James Fitzjames had not been heard of, nor had any news of the expedition been received. It must have been a moment of sorrowful reflection for William Coningham as he swore his oath and stated aloud for the record his belief that James Fitzjames was long since dead.

A few weeks later, in the early autumn of 1854, the first real news of what might have happened to Franklin’s expedition reached London. The consequences of that for the probate of the will of Edward Couch will form the following instalments of this story.


There is a vast literature of the Franklin expedition and searches for the lost ships and their companies of men. An excellent short illustrated general introduction and overview is Sir John Franklin’s Erebus and Terror Expedition — Lost and Found by Gillian Hutchinson 2017 published by Bloomsbury for the National Maritime Museum, London. Erebus — The Story of A Ship by Michael Palin has a full account of the building, previous voyages and fitting out of the ship for the expedition.

[1] See James Fitzjames: The Mystery Man of the Franklin Expedition by William Battersby, Dundurn Press/The History Press 2010, from which the biographical material about Fitzjames and about Edward Couch’s gunnery training on HMS Excellent and service in the Opium Wars of 1842 is taken

[2] SPRI MS 248/363 — text quoted with permission from SPRI



Barbara Rich

English barrister & mediator — specialising in disputed succession & decision-making for people who lack mental capacity