and this, no matter how commendable may be the purpose of the husband or kindly his feelings." Where, also, the husband compels the wife to live separate from him, either by abandoning her or forcing her by any means to leave him, and such separation is not merely temporary and capricious, but permanent and without expectation of living together again, leaving the wife wholly unprovided for, he forfeits his right to control her person, even if she seeks lewd company.' Ordinarily, the right of recaption cannot be exercised where it will occasion a breach of the peace. Nor can the husband justify a trespass to retake his wife where she seeks the protection of her parents or friends against him. And such protection will be lawful where it is afforded at the request of the wife and without any improper solicitation on the part of the parent. The rule of the father's liability for harboring his daughter who leaves her husband is thus laid down by Kent, Ch. J., in the case of Hutcheson v. Peck." "It ought to appear that he detains the wife against her will, or that he entices her away from her husband from improper motives. Bad or unworthy motives cannot be presumed. They ought to be positively shown or necessarily deduced from the facts and circumstances detailed. This principle appears to me to preserve, in due dependence upon each other, and to maintain in harmony the equally strong and sacred interests of the parent and hus37] band." And it was said in the case of Bennett *v. Smith, that even strangers may receive the wife into and allow her the comforts of their house, where the conduct of the husband is such as to endanger her personal safety, or so immoral and indecent as to render him grossly unfit for her society." 1 Love et al. v. Moynehan, 16 Ills. 277. 25 Johns. 196. * Anne Gregory's case, 4 Burr, 1991; Rabe v. Hanna, 5 Ohio, 530; Campbell v. Carter, 3 Daly (N. Y.), 165. 4 21 Barb. Sup. Ct. 439. 5 Barnes v. Allen, 1 Abb. (N. Y.) App. Dec. 115-6. But although he may not commit a breach of the peace or a trespass under ordinary circumstances, he may, it seems, when he has reasonable ground of apprehension of his dishonor, employ force to rescue his wife from her paramour. Thus in the case of The State v. Craton,' the defendant was indicted and found guilty of the murder of Harrison. The defendant, Harrison, and some of their neighbors had been attending court some distance from their place of residence, and towards evening, when preparing to go home, Harrison desired his wife to ride with him. She objected, saying the horse was too small; and declared she would go with the defendant. Harrison did not consent. But she mounted behind the defendant and started with the others-leaving Harrison. He afterwards overtook them, and found them some distance behind the rest of the company. The defendant and Harrison's wife had been seen lying on a bed together a short time before. When Harrison overtook the defendant he demanded his wife. The defendant not surrendering her, Harrison rode in front and stopped him. This was repeated several times, Harrison all the time demanding his wife. The defendant finally dismounted, got a bludgeon and broke Harrison's skull. Harrison was somewhat in liquor, and had his knife out. *The leading question before the Supreme Court [38 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 16 Iredell, 164. parent or any proper protection during a difference between them, nor indeed, to confine her where there is not plainly a sufficient reason for imposing the restraint upon her. Lister's case,' is a full authority, and founded, as we think, on the best reason, that Harrison might have restrained his wife by force from criminal conversation with the prisoner; and by consequence, that he might compel her to leave the society of the prisoner, if he had any reasonable grounds to suspect that those persons had perpetrated, or that they were forming the guilty purpose of perpetrating a violation of his rights and honor, or were contracting those regards towards each other, which would probably result in that stigma. The circumstances in this case leave no room to doubt that the husband entertained the belief, and that upon strong grounds of presumption, that it was essential to his wife's purity and his honor, that he should separate her from the company of the prisoner. Such a cause would justify the husband in effecting that end by 39] *compulsion on his wife; for it was obvious that nothing short of it would be effectual. And it would 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 provocation to extenuate the killing of Harrison." The softening and elevating influence of Christianity 1 8 Mod. 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 *dis- [40 covered 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." SECTION III. LIMITATIONS ARISING FROM THE RELATION OF PARENT AND CHILD 1. The grounds of parental custody. 4. The power of emancipation. 5. The mother's right of correction. A parent is vested with 1. Grounds of parental custody. 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. 12 La Croix, Rev. Cons. Europe, 1790, p. 305. 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 41] 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.' 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 1 4 Bl. Com. 447. |