It is not true that in all voluntary association between two people, oneof them must be absolute master: still less that the law must determine whichof them it shall be. The most frequent case of voluntary association, nextto marriage, is partnership in business: and it is not found or thought necessaryto enact that in every partnership, one partner shall have entire controlover the concern, and the others shall be bound to obey his orders. No onewould enter into partnership on terms which would subject him to the responsibilitiesof a principal, with only the powers and privileges of a clerk or agent.
If the law dealt with other contracts as it does with marriage, it wouldordain that one partner should administer the common business as if it washis private concern; that the others should have only delegated powers; andthat this one should be designated by some general presumption of law, forexample as being the eldest. The law never does this: nor does experienceshow it to be necessary that any theoretical inequality of power should existbetween the partners, or that the partnership should have any other conditionsthan what they may themselves appoint by their articles of agreement. Yetit might seem that the exclusive power might be conceded with less dangerto the rights and interests of the inferior, in the case of partnership thanin that of marriage, since he is free to cancel the power by withdrawingfrom the connexion. The wife has no such power, and even if she had, it isalmost always desirable that she should try all measures before resortingto it.
It is quite true that things which have to be decided everyday, and cannotadjust themselves gradually, or wait for a compromise, ought to depend onone will; one person must have their sole control. But it does not followthat this should always be the same person. The natural arrangement is adivision of powers between the two; each being absolute in the executivebranch of their own department, and any change of system and principle requiringthe consent of both. The division neither can nor should be pre-establishedby the law, since it must depend on individual capacities and suitabilities.
If the two persons chose, they might pre-appoint it by the marriage contract,as pecuniary arrangements are now often pre-appointed. There would seldombe any difficulty in deciding such things by mutual consent, unless the marriagewas one of those unhappy ones in which all other things, as well as this,become subjects of bickering and dispute. The division of rights would naturallyfollow the division of duties and functions; and that is already made byconsent, or at all events not by law, but by general custom, modified andmodifiable at the pleasure of the persons concerned.
The real practical decision of affairs, to whichever may be given thelegal authority, will greatly depend, as it even now does, upon comparativequalifications. The mere fact that he is usually the eldest, will in mostcases give the preponderance to the man; at least until they both attaina time of life at which the difference in their years is of no importance.
There will naturally also be a more potential voice on the side, whicheverit is, that brings the means of support. Inequality from this source doesnot depend on the law of marriage, but on the general conditions of humansociety, as now constituted. The influence of mental superiority, eithergeneral or special, and of superior decision of character, will necessarilytell for much. It always does so at present. And this fact shows how littlefoundation there is for the apprehension that the powers and responsibilitiesof partners in life (as of partners in business), cannot be satisfactorilyapportioned by agreement between themselves. They always are so apportioned,except in cases in which the marriage institution is a failure. Things nevercome to an issue of downright power on one side, and obedience on the other,except where the connexion altogether has been a mistake, and it would bea blessing to both parties to be relieved from it. Some may say that thevery thing by which an amicable settlement of differences becomes possible,is the power of legal compulsion known to be in reserve; as people submitto an arbitration because there is a court of law in the background, whichthey know that they can be forced to obey. But to make the cases parallel,we must suppose that the rule of the court of law was, not to try the cause,but to give judgment always for the same side, suppose the defendant. Ifso, the amenability to it would be a motive with the plaintiff to agree toalmost any arbitration, but it would be just the reverse with the defendant.
