Out of the Frozen Deep — IV

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 (part I), the departure of the Franklin expedition in 1845 (part II), the pre-1856 searches for Franklin’s ships and human remains and artefacts from them (part III), the evidence and judgment in the 1856 trial (part IV), and the discoveries made subsequently and the light they cast (or not) on the 1856 decision (part V).

Part I — A Trafalgar Veteran’s Death

Part II — HMS Erebus and Edward Couch

Part III — Declarations and Discoveries 1854

Part IV — TOWARDS VICTORY POINT 1854–9

The Victorian Court of Chancery and Doctors’ Commons

I have used three 19th century images of a sailing ship in the Arctic seas to illustrate each of the previous instalments of this narrative: the first drawn by the explorer Sir John Ross himself, with its polar bear plunging from an iceberg. Ross drew what he observed, but for others who had never been there, the “frozen regions” existed most strongly in the imagination, and in metaphor, as pristine and awe-inspiring places. But the primary location of this instalment needs little imagination. Far from the undrawn lines on the map of land and frozen sea of the Arctic archipelago, it is the Court of Chancery, in the heart of legal London, as it is and was, in November 1856.

London. Michaelmas term lately over, and the Lord Chancellor sitting in Lincoln’s Inn Hall. Implacable November weather. Fog everywhere … and at the very heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.

These were the opening words of Charles Dickens’s novel, Bleak House, published in instalments in 1852–3 and in completed form in late 1853, a few months before the Admiralty had declared all the men of the Franklin expedition to be dead in the spring of 1854, and about a year before Dr John Rae had come to London with the first real discovery of their fate in October 1854. Bleak House opens in, and, in a sense, never leaves the Court of Chancery, both in itself, and as a metaphor for obsolescence and decay throughout the institutions of contemporary England –

This is the Court of Chancery; which has its decaying houses and its blighted lands in every shire; which has its worn-out lunatic in every madhouse, and its dead in every churchyard; which has its ruined suitor, with his slipshod heels and threadbare dress, borrowing and begging through the round of every man’s acquaintance; which gives to monied might the means abundantly of wearing out the right; which so exhausts, finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man among its practitioners who would not give — who does not often give — the warning, ‘Suffer any wrong that can be done you, rather than come here!’

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A scene in the Court of Chancery 1829 by John Doyle (“HB”) © British Museum — this image depicts a scene from a Chancery case called Wellesley v Duke of Beaufort, and is only a faint approximation of how the court would have appeared in Ommanney v Stilwell

Charles Dickens was neither the first nor the only person to draw attention to the evils of the Court of Chancery, which at the turn of the 19th century was largely unreformed since Jacobean times. It had been the subject of national grievance and complaint for decades, and reforms in 1852 and earlier in the century had already been put in place to try to bring an end to the delay in Chancery proceedings caused by interminable references and reports backwards and forwards from one lesser judicial officer to another, or between the courts of law and equity. Under the 1852 reforms, a new set of court officials called Chief Clerks worked under the supervision of a judge, and did not themselves make judicial decisions, but had an important role in managing the progress of cases through the Court. In 1858 Lord St Leonards praised them in a debate in the House of Lords, (although he was scarcely an impartial observer, as he had been instrumental in introducing the reforms himself), saying -

He had recently gone through the Chief Clerks’ offices, and he had been much struck with the competence, the diligence, and the excellent arrangements of all the Chief Clerks he had seen. It was impossible for any men to be more diligent in the discharge of their duties.

After the Admiralty had announced its decision to remove all the men of the Franklin expedition from its active service list in March 1854, many of their wills, including that of Edward Couch, were admitted to probate shortly afterwards. At the time, the court which made grants of probate to wills was the Doctors’ Commons, where, until its abolition by the Court of Probate Act 1857, lawyers practised ecclesiastical and Admiralty law, and where wills were kept and were available to be searched by anyone looking for a legacy they might claim. Like the Court of Chancery, Doctors’ Commons was long overdue for reform in the 19th century. One MP speaking in a debate in the House of Commons in 1853 described it as “a reproach to the times in which we lived, and a disgrace to the civilisation of the age”. As a young man, Charles Dickens had worked as a shorthand reporter in the courts of the Doctors’ Commons, and described it in his fiction and journalism in very similar terms.

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Doctors’ Commons 1808 — Thomas Rowlandson © Metropolitan Museum of Art, New York

Evidence and judgment in Ommanney v Stilwell — November 1856

After the will of Edward Couch had been admitted to probate in Doctors’ Commons in June 1854, its contents would have become known to the surviving members of his family, and the question raised of who was entitled to inherit his estate, in view of the fact that he had left it to his father, who had himself died in January 1850. Edward was one of nine children of James Couch, although not all of them were still living in 1854. Some time between June 1854 and November 1856, Octavius Ommanney, Edward’s executor, began legal proceedings in the Court of Chancery against Thomas Stilwell, the executor of the will of James Couch. Both Ommanney and Stilwell were naval agents and would have known each other well. In the mid-19th century their offices were in adjacent streets off the Strand — Norfolk Street and Arundel Street — both chosen for their proximity to the Navy Office, then in Somerset House. The litigation was brought purely as representatives of the two estates, and reflected no personal animosity between them. Octavius Ommanney was also a member of a prolific naval family, through which he had another connection to the fate of the Franklin expedition. Like the Couch family, the Ommanneys, who may have been descended from Huguenot immigrants, had settled in Plymouth. Edward Ommanney founded his naval agency in London in the 18th century, and it was taken over by his nephew Francis, the son of one admiral and the brother of two more, in the early 19th century. Octavius was Francis’ eighth son — hence Octavius, and his brother, Admiral Sir Erasmus Ommanney, was appointed second in command of one of the expeditions sent in search of Franklin in 1850, on the ship HMS Assistance. On 25 August 1850, Erasmus Ommanney had discovered some “fragments of stores and ragged clothing and the remains of an encampment” on Beechey Island, where Erebus and Terror had over-wintered in 1845–6.

Octavius Ommanney appears to have taken a neutral position in the litigation, simply asking the court to decide who was entitled to Edward’s estate. Thomas Stilwell, as James’s executor, argued that it must be presumed that Edward died before his father, with the consequence that only Edward’s sisters, Elizabeth and Caroline, who were the beneficiaries of the will of Captain James Couch, would inherit. Octavius Ommanney and Thomas Stilwell were not the only participants in the litigation, however. One of Edward’s surviving brothers, William Couch, had an interest in arguing that Edward had survived their father, so that his estate would be treated as intestate and divided between all his surviving brothers and sisters. One puzzling feature of the litigation for which there is no explanation in the law report is that by the time the case was decided in November 1856, both Elizabeth and Caroline Couch were dead, and neither appears to have made a will herself. Caroline had died of phthisis (tuberculosis) at home in Camberwell in 1851, and her sister Elizabeth, who had suffered from an outbreak of erysipelas (a then incurable bacterial infection of the skin) over her face and body, again at home in Camberwell, in September 1855. Both were still young women when they died. They were very close in age to their brother Edward, and their last years must have been quite overshadowed by the anxiety and unhappiness of not knowing his fate. They lived inconspicuous lives in Camberwell, very different from the social prominence and influence of Lady Franklin, only a few miles away in central London. Their home was in Albany Road, a long street of modest houses laid out in the 1840s, where some years later one of the pubs was named The Lady Franklin. Their deaths before 1856 make it difficult to see why the outcome of the case made any difference to the remaining Couch children. Both Elizabeth and Caroline were unmarried and childless, and if intestate, their estates would have been divided between their surviving brothers and sisters — exactly as William Couch argued in opposition to Thomas Stilwell.

Sir John Romilly, Master of the Rolls, gave judgment in Ommanney v Stilwell on 7 November 1856, not in the old hall of Lincoln’s Inn described by Dickens in the opening chapter of Bleak House, but in his nearby Rolls Court in Chancery Lane. It is clear from the contemporary law report that the case had first been referred to one of the Chief Clerks recently introduced as part of the new Chancery procedures. The evidence which the Chief Clerk had to consider was an affidavit (a sworn statement) by Dr John Rae, which appears to have largely either repeated or quoted word-for-word his 1854 report to his employers, the Hudson’s Bay Company, and to the Admiralty, although the law report, and, it seems, the affidavit, omits the reference to survival cannibalism which had caused such a furious reaction from Lady Franklin and Charles Dickens. This may have been a conscious decision to spare Edward Couch’s surviving family from further unnecessary distress, although this particularly shocking content of Rae’s original report must by then have been a matter of wide common knowledge, and Sir John Romilly himself, as a prominent figure of the establishment, would surely have known of it from reading the Times newspaper.

After repeating the Esquimaux’ account of the discovery of some of the bodies of white men, as he had reported it in 1854, Rae said in his affidavit -

“That I verily believe such dead bodies (if so seen or found as aforesaid, of which I have no reason whatever to doubt) were those or a portion of the party of the said white men, and that such party of white men were persons who joined in and left this country in the said expedition of the said Sir John Franklin. And from my experience in the said regions, I verily believe that wild geese, in their migrations, would not, from the nature of the climate, reach at or near the mouth of the said river called ‘Back’s Great Fish River’ until about the latter end of the month of May or the first week in the month of June, and even if they could have reached there before those times, I say, from my knowledge and experience of their migratory habits in those regions, they would not reach there until about the times last mentioned, as the ice and snow do not begin to thaw there until about those times, and therefore there would not be any water or food for their sustenance, so that the fresh bones and feathers of such geese, mentioned by the said Esquimauxs as having been seen where such dead bodies were said to have been found, as aforesaid, lead me to conclude that some of such white men survived until at least the latter end of the month of May, or the beginning of the month of June in the year 1850.”

Before 1925, there was no statutory presumption in English law, as there now is, that in cases of uncertainty of the date or time of death of two or more people, the older was presumed to have died before the younger. Still, the Chief Clerk, anticipating the future law, thought that there was a presumption, of fact at least, that the son survived the father, but it was the judge who ultimately had to decide. Sir John Romilly said -

This case involves a question of as great difficulty as any I have ever had to deal with; not only from the want of evidence, but from the tendency of the evidence which exists to create doubt.

The sole question is, whether the son or the father died first. The father died in January 1850, and the son, who was an active, strong young man, went as mate with Sir John Franklin in 1845, and the question is whether he died before January 1850. That is the sole question.

The ordinary presumption that a person who has not been heard of for seven years would apply, if there were nothing else on the subject. The evidence which exists is that of Dr. Rae. He discovered the remains of various persons who had perished from hunger belonging to the expedition of Sir John Franklin. It is clear that the persons who were seen in April [1850] survived the father [James Couch]; they were about forty in number, while the original number was 133, and no identity is proved.

In this state of things, I confess I cannot come to a satisfactory conclusion on the subject. My Chief Clerk is of opinion that the son survived the father, and has made or was about to make a certificate accordingly. He relied on the youth and strength of the son. I cannot see that this conclusion is erroneous. I cannot but express my extreme inability to come to a satisfactory conclusion, but, relying on the chances in favour of the youth and strength of the son, I see no reason to differ from the conclusion of the Chief Clerk.

This short judgment is quite striking in several respects. There was absolutely no evidence that Edward Couch was one of the party of men of Erebus and Terror encountered by the Esquimaux who had narrated their history to those interrogated by Rae in 1854. And the chances in favour of his youth and strength should surely have been weighed against the perils of the expedition and the fact that its loss was already feared by 1850. Sir James Clark Ross had returned despondent from his 1848–9 expedition in search of Franklin with nothing to report, only a few weeks before Captain James Couch had died in early January 1850. But the desire to continue to believe that some men, particularly the younger and stronger men, had somehow survived was strong. Both the Chief Clerk and the Master of the Rolls unhesitatingly accepted Rae’s evidence in its entirety, despite the criticism to which he had been publicly subjected by Dickens and Lady Franklin in 1854–5. And Rae’s evidence itself was not only hearsay, based on the second hand narrative of the Esquimaux whom Rae had interrogated in 1854, but the original narrative came from the purely oral tradition of a race of people who did not measure the calendar in European years, and whom many people in 1850s England would have regarded with the same attitude of disdain and disbelief as Dickens, who had written in Household Words

We believe every savage in his heart covetous, treacherous, and cruel: and we have yet to learn what knowledge the white man — lost, houseless, shipless, apparently forgotten by his race, plainly famine-stricken, weak, frozen and dying — has of the gentleness of Esquimaux nature.

Altogether, it was thoroughly tenuous evidence for reaching the conclusion that Edward Couch survived so long beyond the three years for which the expedition was provisioned, and until after his father’s death in January 1850, but it was at least an answer to the question the Court had to decide, and it may have been some consolation to John Rae that his narrative was treated with unquestioned seriousness by the Court.

Less than a month after Sir John Romilly had given his judgment, on 2 December 1856 Lady Franklin wrote to the Prime Minister, Lord Palmerston, pressing him to commit the government to funding another search mission for her husband. One of the points she made in a long and eloquent letter was to plead that

“a careful search be made for any possible survivor, that the bones of the dead be sought for and gathered together, that their buried records be unearthed, or recovered from the hands of the Esquimaux and above all, that their last written words, so precious to their bereaved families and friends, be saved from destruction.”

In search of Edward Couch 1856–1859

Although the case was closed, so far as Edward Couch and his family and estate were concerned, with the judgment in November 1856, there was no diminution in public interest in the fate of Franklin’s expedition or in searches for remnants which would yield some more satisfactory account of what had happened to him and his ships and men. At the very end of 1856 Wilkie Collins published The Frozen Deep, a drama in three acts, and a work guided and managed by Dickens, who busied himself with both its text and its realisation in amateur performances commencing early in 1857, even including one before Queen Victoria. Dickens himself played the role of one of the lost Arctic explorers, and he used the dramatisation of The Frozen Deep to further his views about the Franklin tragedy, re-imagining Rae as a malevolent Scottish nursemaid who predicted the expedition’s fate in supernatural visions.

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Illustration from McClintock’s Voyage of the ‘Fox’ in the Arctic Seas

In 1859, Captain Leopold McClintock, on a voyage sponsored by Lady Franklin and other private subscribers, the government having declined to fund it, searching in the region of King William Island where Rae’s evidence had suggested that survivors had been last seen, found the first (and to date, only) documentary evidence of Franklin’s fate. Like Rae, McClintock encountered Esquimaux who sold him items such as spoons and forks engraved with crests of officers of the Franklin expedition, and told him what they knew of the fate of the ships and men. He also found a large boat, in a place on the desolate fog-bound western shore of King William Island which he named Erebus Bay, loaded with clothing and equipment, and in his words[1]

“There was that in the boat which transfixed us with awe. It was portions of two human skeletons. One was that of a slight young person; the other of a large, strongly made, middle-aged man. The former was found in the bow of the boat, but in too much disturbed a state to judge whether the sufferer had died there; large and powerful animals, probably wolves, had destroyed much of this skeleton, which may have been that of an officer . . . . The other skeleton was in a somewhat more perfect state, and was enveloped with clothes and furs; it lay across the boat … Close beside it were found five watches;”

After describing their condition in more detail, he continued -

“It may be imagined with what deep interest these sad relics were scrutinised, and how anxiously every fragment of clothing was turned over, in search of pockets and pocketbooks, journals, or even names. Five or six small books were found, all of them scriptural or devotional works, except ‘The Vicar of Wakefield’… A small Bible contained numerous marginal notes and whole passages underlined. Besides these books, the covers of a New Testament and Prayerbook were found.

In the after-part of the boat we discovered eleven large spoons, eleven forks, and four teaspoons, all of silver; of these twenty-six pieces of plate, eight bore Sir John Franklin’s crest, the remainder had the crests or initials of nine different officers … of these nine officers, five belonged to the ‘Erebus’ — Gore, Le Vesconte, Fairholme, Couch and Goodsir.

… One of the watches bore the crest of Mr Couch, of the ‘Erebus’”

An engraved fork, and a watch, the only possessions known to have been those of Edward Couch, and the apparent last trace of his life as an officer of HMS Erebus.

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The Victory Point note discovered by Captain McClintock in 1859 © National Maritime Museum, Greenwich

But McClintock’s most significant discoveries for the expedition as a whole were of two cairns at the north and south of a bay on King William Island in which members of the Franklin expedition had originally deposited identical single-page notes on 28 May 1847. The note in the northern cairn, the Victory Point note, had a further message, written by James Fitzjames, commander of HMS Erebus and countersigned by Francis Crozier, Captain of HMS Terror on 24 April 1848. Between them these records showed that the expedition had been undertaken successfully up until 28 May 1847, even though beset by ice to the north west of King William Island since 12 September 1846. But Sir John Franklin had died on 11 June 1847 shortly after the first note was written and deposited, and at that date it was recorded that the total loss by deaths of the expedition was 9 officers and 15 men. Erebus and Terror were deserted on 22 April 1848 and the last note suggested that the survivors intended to “start tomorrow 26th for Backs Fish River” i.e. southwards towards the mainland of north America and the northernmost Hudson’s Bay Company settlements. None reached them.

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Franklin Monument, Greenwich — Illustrated Times 17 September 1859 © British Newspaper Archive

During McClintock’s absence on this voyage, a monument was commissioned by Parliament and erected in the Painted Hall of Greenwich Hospital (it is now in the nearby ante-chapel of the Old Royal Naval College at Greenwich). As the Illustrated London News described it on the 8 January 1859

The monument … to the memory of Sir John Franklin and his brave companions who sailed in the Erebus and Terror in search of a north-west passage, consists of a centre tablet, on which are inscribed the names of the enterprising- and unfortunate officers and crews engaged in the expedition. This is surmounted by a pediment, within which are two crowns of oak and olive entwined. The subject is illustrated by sculpture. On the right of the tablet (the spectator’s left) is a statue of a naval officer — not a portrait — studying on an open folio, with compasses in hand, the route of the ships. This figure is standing. Near him are a globe, books, and papers referring to Arctic researches, and inscribed with the names of Franklin, Parry, and Ross. In the background are seen, in low relief, the tall masts of the ships, with sails set, as if departing. A space is then left; and the next object that takes the attention is group of large, splintered icebergs, shooting up irregularly into the sky. Over these is a star, denoting the North or Polar Star. In the fissure of an iceberg is seen a crushed and broken spar, with loose tackle. Below this scene of desolation is a statue of sailor sitting fragment of rock. He is habited in the dress worn in the inclement northern regions; one of his feet, wounded, is bandaged. The expression given to this figure is intended for that of deep despondency. Lying near him are a broken ice-pole with its tackle such as was used in those expeditions, and the peculiar floe anchor employed for grappling and holding on to the ice.

Deep despondency indeed. As for Edward Couch, one question remains? Have the many searches for the shipwrecks and human remains and other evidence of the fate of Franklin’s expedition since the court’s decision in 1856 revealed any further facts which cast light on the assumptions made then? These searches are continuing to reveal remarkable finds, as very recent reports of artefacts found on HMS Erebus during the 2019 diving season show. Is it known, or ever likely to be known, with any certainty, where and when Edward Couch died, and whether before or after his father? This will be the subject of the final instalment of this blog.

[1] Chapter XV of The Voyage of the ‘Fox’ in the Arctic Seas: A Narrative of the Discovery of the Fate of Sir John Franklin and his Companions — Francis Leopold McClintock, published by John Murray, 1859.

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

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