Out of the Frozen Deep — III

Barbara Rich
12 min readFeb 16, 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.

Links to previous instalments

Part I — A Trafalgar Veteran’s Death

Part II — HMS Erebus and Edward Couch


“What search was ever so great or so barren as the search for [the Franklin expedition] has been?” asked the author of Reflections on the mysterious fate of Sir John Franklin in February 1857.

Erebus and Terror and their men had last been heard of in July 1845 before they entered Lancaster Sound at the west of Baffin Bay. As they had provisions for three years, or longer if rations were reduced, and the entire expedition had set out with such confidence of achieving its object, it was only in 1848 that the Admiralty’s searches for them commenced. Between then and early 1854, there had been many other ships sent in search of the lost expedition, in different places and directions, but which had found no living trace of either ships or men. The British public had become obsessed with the mystery of the lost Arctic explorers, even to the point of mystical speculation arising from the visions of a dead child, and Jane, Lady Franklin, had become an object of public sympathy as well as a relentless promoter of her husband’s interests, and of hope for his survival and return. In 1852 she sewed a flag for one of the search expedition sledges: a navy blue ground, ornamented with a rope and anchor and the words Hope On, Hope Ever.

HMS Erebus in the ice — F E Musin — National Maritime Museum, Greenwich

It is very hard to now imagine living, not in a world of instant geo-location from a mobile phone, but in the world of communication with ships at sea before the advent even of wireless telegraphy, and particularly of ships of discovery, sent to explore places as yet unknown. These ships were lost in a blankness of unmapped archipelago, where their only possibility of human contact would be with the native Esquimaux (as the Inuit were then known), with whaling ships that ventured westwards from Baffin Bay, or with ships sent in search of the lost expedition itself. The Arctic searchers knew what Franklin’s initial sailing instructions from the Admiralty were, but could only conjecture when and where and why he might have deviated from them. They looked in vain for messages in bottles, or notes in sealed cylinders under cairns of stones left by previous Arctic expeditions. In the searches of 1852–3 the rescue ships carried small red-striped balloons filled with hydrogen gas, which dropped fragments of silk with messages stating that they had been despatched by a balloon to Sir John Franklin from a named ship in stated latitude and longitude, in the hope that they would be found and lead to some signal in response. But there was no response.

Pen and ink drawing of the crews of Erebus and Terror playing cricket on an ice field as they await rescue — collection of Edward Harrison of HMS Assistance 1850 — National Maritime Museum, Greenwich MSS/75/061

Although even by 1850 Franklin’s expedition would have spent five winters in the Arctic and run out of its original provisions, a persistent hope of finding the men alive remained, driven by a belief in their superior capacity for survival and in the alternative possibilities that they had found food either with the Esquimaux or by hunting wild animals and birds for themselves. A sketch kept by the clerk of HMS Assistance, one of the search ships of 1850, even imagined the rescuers’ balloons finding the men of Erebus and Terror playing cricket in an ice field with a cluster of igloos bearing the ships’ and captains’ names. Both the men of the expedition ships and the searchers largely took their native 19th century British and Christian lives intact into the unknown icescapes and alternating seasons of endless dark and light of the Arctic, as if in a sealed capsule. In August 1850, Captain McClure of HMS Investigator, one of the search ships that had sailed from England only a few days after the death of Captain James Couch in January 1850, wrote of an encounter with some Esquimaux, and that he had observed their flag — “a pair of sealskin inexpressibles”, inexpressibles being an old-fashioned euphemism for tight trousers, and thus incongruously importing the world of the Regency drawing room into the frozen regions, where there were no young women to blush at the mention of tight trousers within a thousand miles. And in a deepening adherence to the Victorian world carried in the opposite direction across the Atlantic, in January 1854, Kallihirua Kalliessa, a young Esquimaux man who had served as a pilot on one of the 1848 search expeditions was publicly baptised as a Christian in England, the Admiralty having paid for him to be educated and Christianised in recognition of his services in the Arctic, and to be renamed Erasmus after captain Erasmus Ommanney, under whom he had served.

In August 1850 the first traces of where Franklin’s expedition had spent the first winter of its departure were found, principally in the form of the graves of three seamen: John Torrington, John Hartnell and William Braine, who had all died in early 1846 on Beechey Island, about 230 miles to the west of the entrance to Lancaster Sound. There were no documents of any kind left on Beechey Island, but each grave had a headboard with the dead man’s name and date of death, and a line of scripture. Unknown to those who first came upon the graves in 1850, the permanently frozen land had preserved their bodies just as they were at the moment of their burial. John Hartnell’s grave was opened in 1852, but the startling resurrection of all three men was still long in the future. Other relics found on the island were brought home for examination and proof that they were from the missing ships. But where the ships had sailed after over-wintering on Beechey Island in 1845–6 remained a mystery.

Sketch of the three graves on Beechey Island, published in the Illustrated London News 4 October 1851

On 31 March 1854, nearly nine years after the departure of the expedition, the Admiralty formally declared the men of Erebus and Terror to be dead and removed their names from its active service lists. This enabled their wills to be admitted to probate, and widows’ pensions to be paid. The Admiralty’s decision had been foreshadowed in the Times in late 1853, and Lady Franklin had been told of it by a letter in January 1854. She responded, calling it a “premature and cruel measure”, persisting in her belief that “my husband may yet be living where your expeditions have never looked for him”, and refused to accept her widow’s pension. In a calculated theatrical gesture which it is easy to imagine being as, or even more, effective today than it was in 1854, Jane Franklin changed her habitual dress from the mourning black which, in accordance with Victorian convention, she had taken to wearing for some years, for bright colours of pink and green. She said

“It would be acting a falsehood and a gross hypocrisy on my part to put on mourning when I have not yet given up all hope. Still less would I do it in that month and day that suits the Admiralty’s convenience”.

The surviving members of the Couch family made no such gestures, so far as is known. On Midsummer day, 21 June 1854, Octavius Ommanney obtained a grant of probate to the will of Edward Couch. Whatever there was to distribute from his estate — probably no more than his accumulated naval pay — could now be distributed. But to whom? The will left everything to Edward’s father James, who had died in January 1850. Who now inherited depended on whether or not Edward had predeceased his father. If James had died first, then Edward would be intestate, as he had not contemplated the possibility that his father would die before him, or directed what should happen in that event. Edward’s intestate estate would go to his surviving brothers and sisters. If Edward had died first, then James would have inherited, and both his and Edward’s estates would in turn have gone only to his daughters Elizabeth and Caroline, although by 1854 Caroline herself had died of tuberculosis at the sisters’ home in Camberwell. The question of who was to inherit Edward’s estate was to take more than two years to resolve, and to turn on evidence from the Arctic as yet unknown in London in the summer of 1854.

As it happens, on the same day that the Admiralty’s declaration took effect, 31 March 1854, Dr John Rae, an employee of the Hudson’s Bay Company who had grown up on the island of Orkney, and who was a highly skilled and experienced Arctic explorer, set off on an expedition into the Arctic to further map the northern coast of North America. He had spent the winter with a small group of men in Repulse Bay (modern Naujaat), just south of the Arctic Circle at the base of the Boothia peninsula, and his intention was to survey the coastline of the west of the peninsula. Rae had participated in previous searches for Franklin in 1848 and 1849. In March 1854 he set off from Repulse Bay to the north west with four men, including William Ouligbuck, an Inuit man, who acted as their interpreter. They travelled as the Inuit did, building igloos as they went, rather than with tents and bedding as the naval expeditions did. An encounter with some Esquimaux in mid-April 1854 gave Rae the information that 35–40 white men had starved to death west of a large river a long distance off. At first Rae thought it impossible that this would be an account of the Franklin expedition, which he believed to have been lost in the area being searched by the Admiralty’s ships, much further north. But further encounters and the acquisition of some artefacts, such as a fork marked with the initials F R M C (Francis Rawdon Moira Crozier, captain of HMS Terror) and a silver plate engraved with Sir John Franklin’s name convinced him that what he had been told by the Esquimaux of the fate of some members of the expedition was true. In August 1854 he left Repulse Bay to bring his news — the first real news of the fate of the lost expedition — to England.

On Sunday 22 October 1854 John Rae landed at Deal in Kent, and went straight to the Admiralty with the report which he had prepared of his findings in the Arctic. He had also composed a letter to the editor of the Times, unaware that it would be published at the same time as some of the findings which he intended only for his official reports to the Hudson’s Bay Company and the Admiralty. Within days of his arrival, a publisher had produced a book entitled “The Melancholy Fate of Sir John Franklin”, opening with the words

“The veil that so long concealed from our view the fate of Sir John Franklin and others of our gallant countrymen engaged in the arduous and hazardous task of exploring the Polar Seas, has been suddenly and unexpectedly lifted, presenting a spectacle painfully distressing”

Rae himself had written to the Admiralty, originally from Repulse Bay at the end of July 1854

“ …. during my journey over the ice and snow this spring, with the view of completing the survey of the west shore of Boothia, I met with Esquimaux in Pelly Bay, from one of whom I learned that a party of ‘white men,’ (Kablounans) had perished from want of food some distance to the westward, and not far beyond a large river, containing many falls and rapids. Subsequently, further particulars were received, and a number of articles purchased, which places the fate of a portion, if not all of the then survivors of Sir John Franklin’s long-lost party, beyond a doubt — a fate as terrible as the imagination can conceive.

The substance of the information obtained at various times and from various sources, was as follows:

In the spring, four winters past (spring 1850) a party of ‘white men’ amounting to about forty, were seen travelling southward over the ice, and dragging a boat with them, by some Esquimaux, who were killing seals near the north shore of King William’s Land, which is a large island. None of the party could speak the Esquimaux language intelligibly, but by signs the party were made to understand that their ship, or ships, had been crushed by ice, and that they were now going to where they expected to find deer to shoot. From the appearance of the men, all of whom, except one officer, looked thin, they were then supposed to be getting short of provisions, and purchased a small seal from the natives. At a later date the same season, but previous to the breaking up of the ice, the bodies of some thirty persons were discovered on the Continent, and five on an island near it, about a long day’s journey N.W. of a large stream, which can be no other than Back’s Great Fish River …. Some of the bodies had been buried (probably those of the first victims of famine), some were in a tent or tents, others under the boat, which had been turned over to form a shelter, and several lay scattered about in different directions. Of those found on the island, one was supposed to have been an officer, as he had a telescope strapped over his shoulders, and his double-barrelled gun lay underneath him.

From the mutilated state of many of the corpses and the contents of the kettles, it is evident that our wretched countrymen had been driven to the last resource — cannibalism — as a means of prolonging existence.


None of the Esquimaux with whom I conversed had seen the ‘whites’ nor had they ever been at the place where the bodies were found, but had their information from those who had been there, and who had seen the party when travelling.

I offer no apology for taking the liberty of addressing you, as I do so from a belief that their lordships [of the Admiralty] would be desirous of being put in possession, at as early a date as possible, of any tidings, however meagre and unexpectedly obtained, regarding this painfully interesting subject.”

John Rae’s report on “this painfully interesting subject” was difficult for many people in Britain to accept, Lady Franklin amongst them. Besides her, the most vocal of its critics was Charles Dickens, who devoted two instalments of his journal “Household Words” to “The Lost Arctic Explorers” in December 1854. Dickens’ prose, laden with rhetorical flourish and declamation, contrasts sharply with the spare language of John Rae’s report. Dickens acknowledged that Dr Rae had established the deaths of the men of the expedition by the “mute but solemn testimony of the relics he has brought home”, but furiously contested the suggestion that they had resorted to survival cannibalism. Dickens described the Esquimaux as “a race of savages” and conjectured that the men’s bodies had been mutilated by the ravages of scurvy and by wolves and foxes. He argued, in language that seems painfully archaic now, that the innate civilisation of “the flower of the trained adventurous spirit of the English Navy” would have led them to starve to death rather than resort to cannibalism, concluding that “the memory of the lost Arctic voyagers is placed, by reason and experience, high above the taint of [the suggestion of cannibalism]; and that the noble conduct and example of such men, and of their own great leader himself . . . outweighs by the weight of the whole universe the chatter of a gross handful of uncivilised people, with domesticity of blood and blubber.”

Despite this criticism of his report, and despite Lady Franklin’s attempts to prevent him doing so, in early 1856 John Rae received the Admiralty’s £10,000 reward as the first person to ascertain the fate of Sir John Franklin’s expedition. A few months later, his report was called in evidence in Ommanney v. Stilwell — the case which decided whether Edward Couch, promoted to lieutenant of HMS Erebus in his absence, had died before or after his father James, who had died in January 1850, and which is the subject of the next instalment of this blog.

Chart of the recent search for a North-West Passage and of the Coast Explored in search of Sir John Franklin between 1848 and 1854


Sir John Franklin’s Erebus and Terror Expeditions — Lost and Found — Gillian Hutchinson, Bloomsbury/National Maritime Museum

Fatal Passage — biography of John Rae — Ken McGoogan, Transworld

Lady Franklin’s Revenge — Ken McGoogan, Transworld

Reflections on the Mysterious Fate of Sir John Franklin — James Parsons, 1857

The Melancholy Fate of Sir John Franklin as disclosed in Dr Rae’s Report, 1854



Barbara Rich

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