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THE FAMILY OF DAVID SHRUBSOLE

b 1774 Smeeth, d1837 Wye


During research into my family tree I found several newspaper articles relating to the marriage of a David Shrubsole & Elizabeth Finn/Fenn (k/a Shrubsole) which intrigued me & on further investigation realised they tied into David Shrubsole b 1774 Smeeth.  I have transcribed them all lower down on this page in date order but have copies of the articles if anyone wishes to see them.

In 1834 the Churchwardens of Wye instituted proceedings against David Shrubsole for marrying his niece with the objection of setting aside the marriage on the grounds of incest.  It would appear that this was driven by the fact that David & his family required Parish relief in 1833 and had applied in Eastling, where they lived, but had been refused.  In June 1833 he & his family were removed to Wye, with the result being the court proceedings brought against him.  The newspaper article of the Kentish Weekly Post or Canterbury Journal of 18th February 1834 states very clearly their thoughts on the proceedings and the total cost to the parish of Wye as a result of the case!  

Some background history on David:  he was baptised 13 Feb 1774 in St Mary the Virgin, Smeeth, the fourth child of Richard Shrubsole & Elizabeth Ashman.  He first married Anne Higgens in 1796 in Smeeth & they had five children baptised in Eastling.  I haven't as yet discovered why they were living in Eastling but it must have been for work initially I would have thought.  Sadly Anne died in 1811 at Eastling, very likely in childbirth, as their last child was born in 1811.  David then married Elizabeth Finn (k/a Shrubsole)  24 May 1813 in Rochester. [One newspaper report remarks this was a clandestine marriage, both parties being in the workhouse at the time - the marriage was in Rochester, so one assumes they were in Rochester for some reason, so more research needed here methinks to find out why].  Their first child William was baptised 13 Aug 1813, so obviously  Elizabeth was pregnant when they married.  Elizabeth Finn b ca 1789 was the daughter of Sarah Finn who in 1791 married Richard Shrubsole, David's brother.   David & Elizabeth had a total of 9 children in this marriage, 8 at the time of the court case and Elizabeth must have been pregnant with Thomas whilst these proceedings were being taken against them as he was baptised in Wye on 22 Jun 1834 (Image of baptism attached where it was noted that the marriage had been void 'These parties stand in the relationship of uncle and niece and have been married in another parish which marriage was declared void by sentence of the Ecclesiastical court'.).  David was buried in Wye 3 Aug 1837.   Elizabeth his 'widow' was living with sons David & Thomas in 1851 & on her own in 1861.  It looks as if she was possibly buried in Wye in 1862.  

The court ruled 1st May 1834 that the marriage was null and void on account of it being incestuous and the parties had to live separately and apart.   I thought this was really harsh;  they had been married for 25 years, had 8 children and one on the way and because they required parish relief and Eastling refused and had them removed to Wye the over zealous churchwardens at Wye then started the proceedings against them.  It is not absolutely sure that Elizabeth was his brother's daughter anyway & if she wasn't then it couldn't have been incest!  She was born before her mother married and the only evidence we have that Richard is her father is that she was baptised as their child in 1792 after their marriage!  I'd love a good DNA test from a direct descendant to prove me right!  I am guessing here as well that if the family hadn't fallen on hard times and needed parish relief then this court case would not have happened!!  I do wonder as well if David, Elizabeth & her parents all knew she wasn't Richard's daughter and thus they thought there was no problem with the marriage?

I had thought all this was bad enough and then came across further newspaper reports on one of their children William.   -  In 1836 at the East Kent Quarter Sessions there was an appeal about Shrubsole, a pauper in the Wye v Doddington case.  Shrubsole, the pauper obviously being a son of David Shrubsole above.

If you read the newspaper report of 28th April 1838 in the Canterbury Journal, Kentish Times & Farmers Gazette it details the timelines better. And the introduction is very revealing!   'As the following case has excited so much attention during the last two or three years, in this part of the country, an authentic report of the legal arguments, urged on both sides, and of the judgment delivered by the Lord Chief Justice of the Court of King's Bench, may be considered interesting by many of our readers.'  Wow, it must have been the gossip of the area methinks.

It also explains why there was an appeal in 1836 because the original case had been in 1835 to remove the pauper William Shrubsole & his wife Elizabeth  from Doddington to Wye.

All I can say is thank goodness for the safety net of the welfare state of modern times.

If there are any descendants of this particular family out there researching I'd love to hear from you, so please do get in touch.  

EXTRACTS OF NEWSPAPERS CONTAINING REPORTS ON DAVID SHRUBSOLE
+ WILLIAM SHRUBSOLE


[Note: The Arches Court, presided over by the Dean of Arches, is an ecclesiastical court of the Church of England covering the Province of Canterbury.]



Extract from Morning Post 6 February 1834

ARCHES COURT – Wednesday Feb 5

(Before Sir John Nicholl)

KENNETT V SHRUBSHALL, OTHERWISE SHRUBSOLE

In this case the office of the Judge was promoted by churchwardens of Wye, in Kent against David Shrubshall, otherwise Shrubsole, and Elizabeth Shrubshall, otherwise Shrubsole, to set aside a marriage on the alleged ground of incest.  The parties did not appear personally.

The KING’S  ADVOCATE, on behalf of the parochial authorities, stated the nature of the case.  It was alleged that the party in the cause had married his brother’s daughter, and the Learned Civilian prayed the Court to admit articles pleading the facts.

Sir JOHN NICOLL said he had no doubt, if the facts pleaded in the articles were proved, that the marriage must be pronounced a nullity.  The churchwardens had acted most meritoriously in commencing this suit, as if such cases were allowed the common concerns and connections of life would be interfered with, it appearing to be notoriously the case that such a marriage as pleaded had occurred.




Extract from Kentish Weekly Post or Canterbury Journal 18 February 1834


The Churchwardens of Wye recently instituted proceedings in the Arches Court, against an individual named ‘David Shrubsall or Shrubsole, and Elizabeth Shrubsall otherwise Shrubsole otherwise Fenn’, on the ground of incest, the former having married his brother’s daughter.  Poverty, it seems, overtook Shrubsole at Eastling, and on that parish he laid claim to relief, having resided in it some years.  The application was refused.  Thence the pauper applies to the overseers of Wye for assistance.  The question is mooted whether he really is chargeable, and a plea for refusing relief advanced, that Shrubsole married his neice, and consequently the parish ought not to support a family the fruit of incestuous intercourse:-  We must confess we did not imagine that the parish officers of Wye – even though what they have done has been consistent with their duty – would have prosecuted the matter so far as to separate an aged couple and a large family, the produce of the marriage, because the poor ignorant fellow united himself to a women the illegitimate daughter of his brother, more than twenty years since!  We say nothing of the feeling which could have promoted the prosecution, but it seems the separation of perhaps a happy family, is trifling compared with the saving of a few pounds.  We much doubt whether the parish of Wye will receive any benefit by ridding themselves of the burden.  The expenses attending appeals, and incidental charges, will run away with an enormous sum of money.



Extract from the Kentish Gazette 6th May 1834.


The proceedings in the Arches Court, promoted by the Churchwardens of Wye against David Shrubsole, for marrying his brother’s daughter, have terminated by the incestuous marriage being declared null and void.  The parties are not to cohabit or live together, on pain of excommunication;  and they are enjoined to perform penance on Sunday next.




Extract from Devizes and Wiltshire Gazette 8 May 1834

ARCHES COURT – The Office of the Judge promoted by Kennett v David Shrubshaw, otherwise Shrubsole and Eliza Fenn falsely called Shrubshaw, otherwise Shrubsole.

The KING’S ADVOCATE said that this was a suit promoted by Mr. Kennnett, the surviving Churchwarden of the parish of Wye, in Kent, against the other parties in the cause, in order to set aside a marriage celebrated between them, on the grounds of being incestuous.  The proceeding came before the Court by letters of request from the Commissary of the Archbishop of Canterbury.  The Learned Advocated stated the contents, the articles exhibited against the parties, by which it was shown that David Shrubshaw, otherwise Shrubsole, had married his brother’s daughter – the marriage having taken place in 1813, and they had cohabited since, the issue of such marriage being eight children.  According to the 99th Canon such a marriage was declared to be incestuous and null and void.  The Learned Advocate said the evidence produced in the cause fully proved the fact as pleaded in the articles and he should pray the Court to pronounce the marriage null and void – that the parties should hereafter live separate from each other – they they should be  ? punished, and condemned in the payment of costs.

Sir John Nicholl – As this is a proceeding for dissolving a marriage, and which will have the effect of bastardizing the children and punishing the parties, the Court must have the evidence read, and proceed in the most formal way.

The evidence was then read.       

The King’s Advocate, in reply to a remark from the Court said that if it should be fact that the female was the illegitimate daughter of the brother of the husband in the cause or not, still the connection would be incestuous.

Dr. Addams said the marriage had been a clandestine one, both parties being in the workhouse at the time.

Sir John Nicholl thought there was enough before the Court to satisfy its mind as to the decision it should pronounce.  It is a suit to declare a marriage null and void, and to prevent the parties from continuing to cohabit together – David Shrubshaw and Eliza his wife.  The suit was instituted by the parish officers, in order to put an end to so improper a cohabitation, and to put down a nuisance.  The evidence showed that David Shrubshaw had married his brother’s daughter, and the registers of marriages and births were exhibited, to prove the facts as alleged.  The marriage was proved, and the cohabitation, and the Court could entertain no sort of doubt that a form of marriage had been gone through.  Under these circumstances it became the duty of the Court to declare the marriage null and void, an account of its being incestuous.  The Court was bound to proceed further – it was bound to declare it null and void, ab initio, and to enjoin penance.  In the case in the Consistory Court of Burgess v Burgess, the penance had been excused, on the ground of the advanced age of the party, but the parties were enjoined that they should live separate and apart.  He should make the same order here, and if the decision of the Court was not followed, excommunication and other penalties would follow.  It was necessary that the great offence to the parish should be put down.  The sentence of the Court was as he had stated.

The King’s Advocate said the penance was enjoined to be performed on Sunday, the 11th of May.




Extract from the South Eastern Gazette 13th May 1834.

The proceedings in the Arches Court, promoted by the Churchwardens of Wye against David Shrubsole, for marrying his brother’s daughter, have terminated by the incestuous marriage being declared null and void.  The parties are not to cohabit or live together, on pain of excommunications;  and they are enjoined to perform penance on Sunday next.



Extract from Kentish Weekly Post or Canterbury Journal 12 Jan 1836

WYE V DODDINGTON

This was an appeal against an order for the removal of a pauper named Shrubsole.  The facts of the case were admitted.  The only question for decision was, whether pauper followed his father’s settlement.  He was not included in an order made about two years ago, for the removal his father, mother and family, from Eastling to Wye, which was confirmed on appeal at these Sessions.  Since this confirmation, however, the marriage of the father and mother had been declared null and void, by an appeal to the Arches Court, and the children thereby became illegitimate.

Mr. Shee maintained that this was not a question of morality, but simply of law.  No doubt could exist that the order must be quashed, since previous to the degree of the Arches’ Court, the children born of this marriage were to all intents and purposes, legitimate.  Subsequently it transpired that the marriage was invalid, David Shrubsole, the father of pauper having married his own niece, which made his offspring illegitimate.  It would appear that the children were legitimate prior to this decision, but as the decree did not then exist, nor the fact of the illegitimacy, the order must be quashed.

Mr. Brett followed on the same side.

Mr. Starr, with who was Mr. Deedes, appeared for the respondent parish.  He contended this marriage was within the degree of consanguinity, and the Arches’ Court having decided that it was null and void, he had no doubt the Court would confirm the order.  He argued, that cases either unappealed against, or confirmed on appeal, were conclusive (as observed by Lord Coke) against all the world.  

The Court then confirmed the order.



Extract from Canterbury Journal, Kentish Times & Farmer’s Gazette 28th April 1838.

REX v THE INHABITANTS OF WYE:

COURT OF QUEEN’S BENCH

[As the following case has excited much attention during the last two or three years, in this part of the country, an authentic report of the legal arguments, urged on both sides, and of the judgment delivered by the Lord Chief Justice of the Court of King’s Bench, may be considered interesting by many of our readers.]

By order of two justices dated Mar 19 1835 the pauper William Shrubsole & Elizabeth, his wife, were removed from the parish of Doddington to the parish of Wye.  On appeal the order was confirmed subject to the court of King’s Bench on the following case:-  David Shrubsole, the father of the pauper was settled in Wye.  He married his niece Elizabeth Fenn at Rochester in 1813 and had by her several children, of whom William the pauper was one.   David Shrubsole resided with his wife and family at Eastling until June 6th 1833 and all his children were born in that parish.  During his residence there he frequently received relief from the parish of Wye.  On June 6th 1833 he was removed with his wife and six children from Eastling to Wye.  The pauper William was not named on the order, but had at that time gained no settlement in his own right and was unemancipated1.  At the East Kent Midsummer sessions for that year, an appeal against this order was entered and respited.  A further respite took place at Michaelmas, and at the Epiphany sessions of 1834, the order was confirmed.  Previous to the confirmation of this order, the churchwardens of Wye had commenced a suit in the Arches Court of Canterbury, for the purpose of dissolving the marriage between David Shrubsole and his wife on the grounds of incest, and on May 1st 1834 the marriage was pronounced null and void, ab initio, to all intents and purposes.  The court of quarter sessions were of opinion that the order of removal for David Shrubsole, his wife and six children to Wye, having been confirmed on appeal, was conclusive as to the pauper’s having obtained from his father a derivative settlement in Wye.  The question for the opinion of the court was, whether, in consequence of the decree of the Arches Court having been pronounced subsequently to the date of the order confirmed, which removed David Shrubsole, and his family, to Wye, the settlement of the pauper William was in Eastling, the place of his birth, or in Wye, as a derivative settlement from his father.  If the court should be of the opinion that the settlement of the pauper was in Eastling, the order of sessions and the order of removal were to be quashed; otherwise the order was to be confirmed.



1[Unemancipated child. The term ''unemancipated child'' means a person below the age of 18 receiving at least one-half of his support, which could include room and board, from a parent or guardian.]










Extract from “Reports of Cases Argued and Determined in the Court of King's Bench: And Upon Writs of Error from that Court to the Exchequer Chamber, in Michaelmas Term, 1836, [to Trinity Term, 1838], Volume 3”


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