Divorce Laws of the 1790s | Rachel's First Marriage and Divorce

Legally Dissolving a Marriage in the 1790s

The difficulties of legally dissolving a marriage in the 1790s were enormous. Prior to the Revolution you could not get a divorce in the Southern colonies, although laws were slightly more liberal in New England. After the Revolution, a more liberated school of thought took hold and people entertained the idea of freedom in general, specifically dealing with social contracts that may limit individual liberties. For example, they fought to break with the government and Church of England, which did not allow divorce but only granted separations.

Once the New Republic was formed states began to consider allowing divorce. During the time period when Rachel got her divorce, the laws were extremely vague and convoluted depending on the state. Some states, South Carolina for example, still didn't recognize divorce but others, chiefly in the West where Rachel lived at the time, were more liberal. Special acts of legislation had to be passed for permission to pursue legal divorce. (Several cases are known, however, wherein couples voluntarily separated without benefit of law and remarried with no legal repercussions.) Rachel and Lewis Robards' divorce was among the first in Kentucky.

Lewis Robards against Rachel Robards

At the time Robards began pursuing a divorce, Kentucky was still part of Virginia, and, according to the code of the Old Dominion, if a spouse wished to obtain a divorce, he/she must procure an act of legislation empowering him/her to bring the case before a jury. The divorce was only authorized upon the jury's finding of a guilty verdict. Through the good offices of his brother-in-law, John Jouett, a member of the Virginia legislature, Robards was able to get an act passed. Another member of the legislature later remembered that a request for divorce was almost unheard of at that time. It was only the second instance of such a request coming to that body, according to Jackson historian and biographer Robert Remini.

The writ of permission from the Virginia State Legislature was not a divorce. It simply gave permission to sue for divorce in the court system. Virginia law at that time required one to take several steps, including publishing a notice to the party being sued for eight consecutive weeks in the local newspaper of record, The Kentucky Gazette. The accused party had a limited amount of time to respond and appeal to the charges. If the defendant, Rachel Jackson in this case, did not appear before the court within the prescribed window of time, the case then went to trial before a jury.

In the case of Lewis Robards versus Rachel Robards, the jury found the defendant, Rachel Robards guilty of desertion and adultery.

See below for details.

Sources:

NPT Producer Kathy Conkwright's conversation with Ann Toplovich, Tennessee Historical Society.
Robert V. Remini, Andrew Jackson, Volume One, The Course of the American Empire, 1767-1821 (Baltimore: Johns Hopkins University Press, 1998) Chapter 5, "Marriage".

Writ of Permission

Legislature of Virginia act, entitled, "An Act concerning the marriage of Lewis Robards."

Sect. 1.—Be it enacted by the General Assembly, That it shall and may be lawful for Lewis Robards to sue out of the office of the Supreme Court of the district of Kentucky, a writ against Rachel Robards, which writ shall be framed by the clerk, and express the nature of the case, and shall be published for eight weeks successively, in the Kentucky Gazette; whereupon the plaintiff may file his declaration in the same cause, and the defendant may appear and plead to issue, in which case, or if she does not appear within two months after such publication, it shall be set for trial by the clerk on some day in the succeeding court, but may, for good cause shown to the court, be continued until the succeeding term.

Sect. 2.—Commissions to take depositions, and subpoenas to summon witnesses, shall issue as in other cases.

Sect. 3.—Notice of taking depositions, published in the Kentucky Gazette, shall be sufficient. " Sect. 4.-A jury shall be summoned, who shall be sworn well and truly to inquire into the allegations contained in the declaration, or to try the issue joined, as the case may be, and shall find a verdict according to the usual mode; and if the jury, in case of issue joined, shall find for the plaintiff, or in case of inquiry into the truth of the allegations contained in the declaration, shall find in substance, that the defendant hath deserted the plaintiff, and that she hath lived in adultery with another man since such desertion, the said verdict shall be recorded, and THEREUPON, the marriage between the said Lewis Robards and Rachel shall be totally dissolved.

Source:

James Parton, The Life of Andrew Jackson, Volume III (New York: Mason Brothers, 1860) p. 146-7.

Publishing a Notice

The Commonwealth of Virginia to the Sheriff of Mercer county,
Greeting.
You are hereby again to summon Rachel Roberts, to appear before the Judges of our Supreme court for the district of Kentucky, at the Courthouse in Danville on the ninth day of their next March court to answer a charge of adultery exhibited against her by Lewis Roberts. And have then there this Writ. Witness Christopher Greenup Clerk of our said Court at the Courthouse aforesaidthe 24th day of January 1792, in the XVI year of the Commonwealth.
Christo. Greenup.

Source:

Kentucky State Archives - Kentucky Gazette, February , 11, 18, 25 & March 3, 10, 17, 24, 1792.

Guilty of Desertion and Adultery

Divorce Decree

September the 27th 1793

In Adultery
Lewis Robards Plff
against
Rachel Robards Deft

This day came the Plaintiff by his Attorney, and thereupon came also a Jury, Towit: James Bradsberry, Thomas Smith, Gabriel Slaughter, John Lightfoot, Samuel Work, Harrison Davis, John Ray, Obadiah Wright, John Miles, John Meaux, Joseph Thomas, and Benjamin Lawless who being Elected tried and sworn well and truly to inquire into the allegation in the Plaintiff's Declaration Specefied upon their Oath do say that the Defendant Rachel Robards hath deserted the Plaintiff, Lewis Robards and hath and doth Still live in adultery with another man. It is therefore considered by the Court that the Marriage between the Plaintiff and the Defendant be dissolved.

Source:

Kentucky State Archives, Court of Quarter Sessions Book, 1792-96, p. 105.