[Copyrighted Material Omitted]
Appeal
from Jefferson District Court.
E. C
WALKER AND LILLIAN HARMAN were prosecuted in the district
court of Jefferson county for a violation of § 12 of the
marriage act, which reads as follows:
"That
any persons living together as man and wife within this
state, without being married, shall be deemed guilty of a
misdemeanor, and on conviction thereof shall be fined in a
sum not less than five hundred nor more than one thousand
dollars, or be imprisoned in the county jail not less than
thirty days nor more than three months." (Comp. Laws of
1879, ch. 61, § 12.)
At the
trial, which was had with a jury at the October Term, 1886
Moses Harman, the father of Lillian Harman, testified that on
September 19, 1886, his daughter Lillian and E. C. Walker
entered into what he called an "autonomistic
marriage," at his home, in the presence of himself and
two other persons. On that occasion, a statement concerning
the compact or union about to be entered into was read by the
witness; then followed a statement made by E. C. Walker
which was responded to by Lillian Harman, and the ceremony
was terminated by another short statement from the witness.
These statements were published in the Lucifer, a newspaper
edited by the witness, and the account there given was read
in evidence, and is as follows:
"AUTONOMISTIC
MARRIAGE PRACTICALIZED.
"While
distinctly denying the right of any citizen or citizens,
whether minority or majority, to inquire into our private
affairs, or to dictate to us as to the manner in which we
shall discharge our private duties and obligations to each
other, we wish it understood that we are not afraid nor
ashamed to let the world know the nature of the civil compact
entered into between Lillian Harman and Edwin C. Walker, at
the home of the senior editor of Lucifer, on Sunday,
the 19th of September, 1886, of the common calendar. As our
answer, then, to the many questions in regard thereto, we
have reproduced as near as possible the aforesaid
proceedings.
I.
"M.
Harman, father of Lillian Harman, one of the parties to this
agreement or compact, read the following as a general
statement of principles in regard to marriage:
"'Marriage
-- by which term we mean the various attractions, sentiments,
arrangements and interests, psychical, social, material,
involved in the sex-relations of men and women -- is, or
should be, distinctively a personal matter, a strictly
private affair. There are, or should be, but two parties to
this arrangement or compact -- a man and a woman; or perhaps
we should say a woman and a man -- since the interests, the
fate, of woman is involved, for weal or woe, in marriage, to
a far greater extent than is the fate or interests of man.
Some one has said, 'Marriage is for man only an episode,
while for woman it is the epic of her life.' Hence it
would seem right and proper that, in all arrangements
pertaining to marriage, woman should have the first voice or
control. Marriage looks to maternity, motherhood, as its most
important result or outcome, and as Dame Nature has placed
the burden of maternity upon woman, it would seem that
marriage should be emphatically and distinctively woman's
work -- woman's institution.
"'It
need not be said that this is not the common, the popular,
and especially the legal, view of marriage. The very
etymology itself of the word tells a very different story.
Marriage is derived from the French word mari, meaning the
'husband,' and never did the etymology of a word more
truly indicate its popular and legal meaning than does the
etymology of this one. Marriage, as enforced in so-called
Christian lands, as well as in most heathen countries, is
preeminently man's affair -- man's institution. Its
origin (mythological origin) declares that woman was made for
man, not man for woman, not each for the other. History shows
that man has ruled over woman as mythology declares he should
do, and the marriage laws themselves show that they were made
by man for man's benefit, not for woman's. Marriage
means or results in the family as an institution, and the
laws and customs pertaining thereto make man the head and
autocrat of the family. When a woman marries, she merges her
individuality as a legal person into that of her husband,
even to the surrender of her name, just as chattel slaves
were required to take the name of their master.
"'Against
all such invasive laws and unjust discriminations, we, as
autonomists, hereby most solemnly protest. We most distinctly
and positively reject, repudiate and abjure all such laws and
regulations, and if we ever have acknowledged allegiance to
these statute laws regulating marriage, we hereby renounce
and disclaim all such allegiance.
"'To
particularize and recapitulate: Marriage, being a strictly
personal matter, we deny the right of society, in the form of
church and state, to regulate it, or interfere with the
individual man and woman in this relation. All such
interference, from our standpoint, is regarded as an
impertinence, and worse than an impertinence. To acknowledge
the right of the state to dictate to us in these matters is
to acknowledge ourselves the children or minor wards of the
state, not capable of transacting our own business. We
therefore most solemnly and earnestly repudiate, abjure and
reject the authority, the rites and ceremonies of church and
state in marriage, as we reject the mummeries of the church
in the ceremony called baptism and at the bedside of the
dying. The priest, or other state official, can no more
prepare the contracting parties for the duties of marriage
than he can prepare the dying for life in another world. In
either case the preparation must be the work of the parties
immediately concerned. We regard all such attempts at
regulation on the part of church and state as not only an
impertinence, not only wrong in principle, but disastrous to
the last degree in practice. Here, as everywhere else in the
realm of personal rights and reciprocal duties, we regard
intelligent choice -- untrammeled voluntaryism -- coupled
with responsibility to natural law for our acts, as the true
and only basis of morality.
"'As
a matter of principle we are opposed to the making of
promises on occasions like this. The promise to 'love and
honor' may become quite impossible of fulfillment, and
that from no fault of the party making such promise. The
promise to 'love, honor and obey so long as both shall
live,' commonly exacted of woman, we regard as a highly
immoral promise. It makes woman the inferior, the vassal of
her husband, and when from any cause love ceases to exist
between the parties this promise binds her to do an immoral
act, viz.: it binds her to prostitute her sex-hood at the
command of an unloving and unlovable husband.
"'For
these and other reasons that will readily suggest themselves,
we, as autonomists, prefer not to make any promises of the
kind usually made as part of marriage ceremonies.'
II.
"E.
C. Walker, as one of the contracting parties, made the
following statement:
"'This
is a time for clear, frank statement. While regarding all
public marital ceremonies as essentially and ineradicably
indelicate, a pandering to the morbid, vicious, and
meddlesome element in human nature, I consider this form
least objectionable: I abdicate in advance all the so-called
'marital rights' with which this public
acknowledgment of our relationship may invest me. Lillian is,
and will continue to be, as free to repulse any and all
advances of mine as she has been heretofore.
In
joining with me in this love and labor union, she has not
alienated a single natural right. She remains sovereign of
herself, as I of myself, and we severally and together
repudiate all powers legally conferred upon husbands and
wives. In legal marriage, woman surrenders herself to the law
and to her husband, and becomes a vassal. Here, it is
different; Lillian is now made free.
"'In
brief, and in addition: I cheerfully and distinctly recognize
this woman's right to the control of her own person; her
right and duty to retain her own name; her right to the
possession of all property inherited, earned, or otherwise
justly gained by her; her equality with me in this
copartnership; my responsibility to her as regards the care
of offspring, if any, and her paramount right to the custody
thereof, should any unfortunate fate dissolve this union. And
now, friends, a few words especially to you: This wholly
private compact is here announced, not because I recognize
that you, or society at large, or the state, have any right
to inquire into or determine our relations to each other, but
simply as a guarantee to Lillian of my good faith toward her.
And to this I pledge my honor.'
III.
"Lillian
Harman then responded as follows:
"'I
do not care to say much; actions speak more clearly than
words, often. I enter into this union with Mr. Walker of my
own free will and choice, and I agree with the views of my
father and of Mr. Walker as just expressed. I make no
promises that it may become impossible or immoral for me to
fulfill, but retain the right to act always as my conscience
and best judgment shall dictate. I retain, also, my full
maiden name, as I am sure it is my duty to do. With this
understanding I give to him my hand in token of my trust in
him and of the fidelity to truth and honor of my intentions
toward him.'
"Then
M. Harman said:
"'As
the father and natural guardian of Lillian Harman, I hereby
give my consent to this union. I do not 'give away the
bride,' as I wish her to be always the owner of her
person, and to be free always to act according to her truest
and purest impulses, and as her...
