HELMS v. FRANCISCUS. 561

The conflicting claims of this husband and wife present the next
subject of inquiry, and the adjustment of them will require some
care and attention.

According to our law, the marriage contract so strictly and inti-
mately unites husband and wife, that they form, as it were, but one
person; and in contemplation of law, the wife is considered as
having scarcely any separate existence. The husband is the head,
and therefore all the property of the wife belongs to him. This
peculiar compact is of so lasting a character, that this court recog-
nizes no power in the parties to vary the rights and duties growing
out of it, or to effect, at their pleasure, any partial, much less a
total dissolution of it during their lives; it is one by which the
parties impose duties on themselves, and engage to perform duties
with respect to their offspring; duties which are as much imposed
for the sake of public policy as of private happiness; and which,
therefore, they are never permitted to cast off at their pleasure.
From these general principles it follows, that husband and wife are
incompetent to contract with each other for the purpose of binding,
or conveying property in any manner, directly from one to the other.
And, having an inviolable right to the aid, comfort, and society of
each other, they cannot separate or have any mere agreement be-
tween themselves for a separation, enforced by a court of common
law or equity, (k)

But, although it is, in general, true, that husband and wife can-
not, of their mere motion, dissolve the marriage contract, yet
courts of law and of equity, without pretending to any authority
either to sanction or enforce cohabitation or separation, will pro-
tect either party from the personal violence, or gross moral offence
of the other; and, for that purpose, allow of, and even enforce a
separation. This, however, is always done from necessity, and
with a view to preserve the public peace, or to prevent the open
contamination of the morals of society; as where a husband, in-
dulging in a base, unmanly temper, was in the habit of beating his
wife, or, with brutish feelings, introduced lewd women with her
into his household. This pro tanto separation is not, however, an
impeachment of that public policy by which marriage is regarded
as so sacred and inviolable in its nature; it is merely a stronger
policy over-ruling a weaker one; and except in so far only as such

(k) Co. Litt. 112; Head v. Head, 3 Atk. 550; Worrall v. Jacob, 3 Meriv. 268;
Westmeath v. Westmeath, 4 Cond. Chan. Rep. 60.