Inuit Evidence in a British Court, Part II

Last week I wrote about second-hand Inuit evidence presented by an Arctic explorer in a British court of law to try to determine the disposition of the estate of a man who had perished on the ill-fated expedition led by Sir John Franklin.

Edward Couch had died at an unknown time on that expedition. Almost five years later, in January 1850, his father, James Couch, died in England.

The explorer, John Rae, presented an affidavit in which he stated his firm belief, on the basis of stories he had heard from Inuit at Repulse Bay, that some white men had survived until late spring of 1850. The Court was faced with the impossible question of determining whether Edward Couch was among the white men who had survived in the Arctic until the late spring of 1850, in which case Edward Couch would have survived his father.

Why did it matter?

If Edward was deemed to have died first, his estate would pass to his father, whose estate (now including the value of his son's estate) would pass to his other heirs.

If Edward was deemed to have survived his father, the father's estate would pass to his designated beneficiaries, which included Edward, and Edward's estate would pass, through common law, to his next of kin.

Those next of kin – which included a man named William Couch – may not have been the same as the individuals who would have inherited James's (the father's) estate. So money was at stake.

Lawyers for William Couch, described only as "one of the next of kin of Edward at his death," argued that under British law Edward could not be presumed dead until seven years has passed since he had last been known to have been alive, and since his father had died less than five years after Edward was last known to be alive, the Court must conclude that Edward survived his father, in which case William would stand to inherit some money. Thomas Stilwell, executor of the father's, James Couch's, estate, argued the opposite position.

The case went to Chancery Court for argument. This was a division of the Court which decided points of law on the basis of fairness, rather than a mere application of the law.

The Master of the Rolls, the third most senior judge of England and Wales, was Sir John Romilly, and he had to make the difficult decision. Of course, he had no way of knowing when Edward Couch died, any more than any of the others involved in the matter. It came down to a question of probability.

"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."

But there was something else on the subject. And that was Inuit evidence, collected by John Rae. The Master, however, in continuing his judgment, ignored the Inuit and incorrectly attributed everything to Rae:

"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 survived the father; 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."

So William Couch benefited from the estate of his unfortunate relative, Edward. He owed his good fortune to Inuit oral evidence provided second-hand to a persistent Arctic explorer.

Taissumani recounts a specific event of historic interest. Kenn Harper is a historian, writer and linguist who lives in Iqaluit. Feedback? Send your comments and questions to kennharper@hotmail.com.