The leading question before the Supreme Court was, whether there was provocation shown in the facts proved to extenuate the killing. The legal power of the husband over his wife necessarily came under review. Ruffin, Ch. J., in delivering the opinion of the court, said: "In general, a man has a right to the exclusive custody of his wife. It may be true that any person has a right to protect her from the violence of her husband, and to take her from cruel usage under his hand. And it may also be true that the husband would not have a right to take her by force from the house of a parent or any proper protection during a difference between them, nor indeed, to confine her where there is not plainly a suficient reason for imposing the restraint upon her. I see's case, 8 Mai, is a fill authority, and founded. *** Ali & the best ruan Su Harian night dere married his vid by deve fica criminal conwenda vis de vient; and by ecosegpence, shar de might congei, her se jare the society of the prisoten it be had any masonable grounds so suspect that show prevrs had perremsal a 26 der were Korming the guilty purpose of perpecudir a vida giat of his sighs and her Je WHC NOCKring she works wins ach the wich would per Jobb i za sims obvious that And it would compulsion on his wife; for it was nothing short of it would be effectual. seem necessarily to follow that he might use actual force towards the paramour also, in order to regain his wife from him. But we need not consider that, as we have already seen there was no actual assault by the deceased. There was merely a stopping of the prisoner by the deceased drawing up his horse in front of the prisoner several times, accompanied by a demand of his wife and a declaration that the prisoner should not go on unless he gave up the wife. Those acts, we think, were not an injurious restraint on the prisoner's liberty, but only a lawful impediment to his carrying away the deceased's wife to her ruin and the husband's dishonor. There was consequently no provoction to extenuate the killing of Harrison." The softening and elevating influence of christianity is nowhere more perceptible than in the relation of husband and wife. If it has not entirely banished, it has greatly ameliorated the marital tyranny of the common law. This just though long delayed enfranchisement of the wife is thus noticed by the French jurist, M. De La Croix: "This unfortunate power was undoubtedly derived from the Roman law which permitted chastisement to be inflicted on the wife by the husband, who, according to the author of the Persian Letters, ‘began by alarming her modesty and led her back in a manner to a state of childhood flagellis et fustibus acriter verberare uxorem.' "But the dignity of the marriage has been exalted in the eyes of legislators in proportion as time has discovered to them the respective rights of two beings equally free, who are united for their mutual benefit; who in forming the sweetest and first of all natural societies, could never intend that one should become the slave of the other, but that both should equally depend on each other for a mutual interchange of duties and affections." 2 La Croix, Rev. Cons. Europe, 1790, p. 305. SECTION III. LIMITATIONS ARISING FROM THE RELATION OF PARENT AND CHILD. 1. The grounds of parental custody. 1. Grounds of parental custody. A parent is vested with power over the person of his child to enable him to discharge those duties towards the child which are imposed upon him by the law of nature or the state. The duties of parents to their legitimate children, and of mothers to their illegitimate children, principally consist in three particulars: their maintenance, their protection, and their education. The duty of parents, says Blackstone, to provide for the maintenance of their children is a principle of natural law; an obligation, says Puffendorf, laid on them not only by nature herself, but by their own proper act in bringing them into the world; for they would be in the highest manner injurious to their issue if they only gave their children life that they might afterwards see them perish. By begetting them therefore they have entered into a voluntary obligation to endeavor as far as in them lies that the life which they have bestowed shall be supported and preserved. And thus the children have a perfect right of receiving maintenance from their parents. 4 Bl. Com., 447. The wants and weaknesses of children, says Chancellor Kent, render it necessary that some person maintains them, and the voice of nature has pointed out the parent as the most fit and proper person. The laws and customs of all nations have enforced this plain precept of natural law. The Athenian and Roman laws were so strict in enforcing the performance of this natural obligation of the parent that they would not allow the father to disinherit the child from passion or prejudice, but only for substantial reasons to be approved in a court of justice. The obligation on the part of the parent to maintain the child, continues until the latter is in a condition to provide for its own maintenance, and it extends no further than to a necessary support. The obligation of parental duty is so well secured by the strength of natural affection that it seldom requires to be enforced by human laws. According to the language of Lord Coke, it is "nature's profession to assist, maintain and console the child." A father's house is always open to his children. The best feelings of our nature establish and consecrate this asylum. Under the thousand pains and perils of human life the home of the parents is to the children a sure refuge from evil and a consolation in distress. In the intenseness, the lively touches and unsubdued nature of parental affection, we discern the wisdom and goodness of the great Author of our being, and the Father of Mercies. 3 Kent. Com., 182. The duty of protection is a natural duty, but rather permitted than enjoined by any municipal laws; nature, in this respect, working so strongly as to need rather a check than a spur. 1 Black., 450. The education of children in a manner suitable to their station and calling, is another branch of parental duty, of imperfect obligation generally in the eye of the municipal law, but of very great importance to the welfare of the state. 2 Kent's Com., 189. These obligations rest upon a step-father when "he takes the wife's child into his own house, for he is then considered as standing in loco parentis, and is responsible for the maintenance and education of the child so long as it lives with him, for by that act he holds the child out to the world as part of his family." Although the common law did not afford any adequate means of enforcing these duties, yet it conferred adequate power upon the parent to enable him to discharge them. 4 Ad. and El., 899. The rights of parents result from their duties. As they are bound to maintain and educate their children the law has given them a right to such authority and, in the support of that authority, a right to the exercise of such discipline as may be requisite for the discharge of their sacred trust. This is the true foundation of parental power." The father * * 66 (and on his death, the mother) is generally entitled to the custody of the infant children, inasmuch as |