dissenting: This case is so distressing and repellant in its details that it is difficult, as it seems, to give it that dispassionate consideration which every case should have. There is not a word of condemnation too severe to be applied to the conduct of the defendant. He has subjected himself to the penalties of the criminal law, but not to prosecution by his wife, and simply because that unity of person which has always been attributed to the marital relation still exists, notwithstanding that married women have been endowed with so many property rights, as they should have been; which appear to furnish the only argument for the destruction of that unity so important for the preservation of the peace and happiness of the home. Married women owned, and were constantly acquiring, property by gift, inheritance, and purchase just as in the case of men,' and it was clearly their right to have and possess it freed from the control of their husbands, and this has now become a legal right with a few certain exceptions. But the *526Legislature bas wisely refused to abolish that legal unity existing between man and wife, which was deemed by it so essential in securing the blessings of the marital union, in which, not only the principles, but society and the community are so deeply concerned. The privacy of the home is as sacred as it ever was, and it is often better “to draw the curtain, shut out' the public gaze, and leave the parties to forget and forgive,” as said by Justice Settle in S. v. Oliver, 70 N. C., 60, at p. 61, and this is done from motives of public policy, in order to preserve the sanctity as well as the peace and tranquility of the domestic circle. It concerns too deeply the public welfare that this should be done, for us to change it without a mandate from the Legislature, which makes and controls the public policy of the State, and for the reason we have given, among others, it has withheld its consent to any such amendment of the law. It has been considered so essential to the well-being of the community that this doctrine of the marital unity should continue to be the rule with us, that those who have the only power to legislate and abolish it have refrained from doing so. We should not attempt to do that which will effect radical changes in the law by mere construction, for with the policy, wisdom, or justice of the legislation in question this Court can have no rightful concern. It must take the law as it has been established by competent legislative authority. It cannot, in any legal sense, make law, but only declare what the law is, as established by competent authority. It, therefore, has always been considered as utterly opposed to our public policy to change the law in this respect.
At common law no cause of action arose in favor of either husband or wife by reason of any injury to the person or character of one committed by the other, Thompson v. Thompson, 218 U. S., 611; Peters v. Peters, 156 Cal., 32; Abbott v. Abbott, 67 Me., 304; Bandfield v. Bandfield, 117 Mich., 80; Strom v. Strom, 98 Mich., 80; for instance, libel or slander. This doctrine of nonliability is founded not on the inability of the one spouse to sue the other, but on the principle that husband and wife are one person in law, and it is well exemplified in the cases which hold that a wife, after an absolute divorce from her husband, though she is then fully capable of suing him, still can maintain no action against him for a tort or wrong committed by him during the marriage relation against her person or character. Henneger v. Lomas, 145 Ind., 287; Libby v. Berry, 74 Me., 286. So it is generally recognized that the Married Woman’s Property Acts, which enlarge the rights of married women even to such an extent as to permit a wife to sue her husband, do not entitle her to sue him for an injury to her person or character after their marriage, for the reason that whether a husband is liable to his wife therefor is not a mere question of procedure, but of substantive right. Schultz v. Christopher, 65 Wash., 496; Brown v. Brown, 88 Conn., 42; Smith v. Smith, 73 Mich., 445; Fiedler v. Fiedler, 42 Okla., *527124. And this is Leld true under a statute authorizing the wife to bring and maintain an action in her own name for any injury to her person or character, the same as if she were sole; such a statute merely changes the procedure, but gives no new right, and applies only to such causes of actions as could be maintained by the husband and wife as coplaintiffs before the statute took effect. Coleman v. Burr, 93 N. Y., 17.
On account of the unity of husband and wife, no cause of action arises at common law in favor of a wife against her husband for an assault and battery or personal injury inflicted by him on her during coverture. Thus no cause of action arose in favor of a wife against her husband from his wrongful act in forcibly taking her to an insane asylum, nor would a right of action for damages arise in favor of a wife from his wrongfully and maliciously inoculating her with a venereal disease, Deeds v. Strade, 6 Idaho, 317, nor for false imprisonment and malicious prosecution. This denial of the existence of a cause of action for assault and battery was not based on the incompetency of a wife to maintain an action at law against her husband on account of the relation of the parties to each other, and therefore a wife could not, after divorce, though the divorce removed the common-law disability of the wife to sue her husband, maintain an action for assault and battery committed by him prior to the divorce. It is generally held that statutes authorizing a wife to maintain an action against her husband only authorizes her to maintain alone such actions as previously could be sustained when brought by the husband alone, or by the husband and wife jointly. On the same reasoning which denies the right of a wife to maintain an action against her husband, it has been held that a husband cannot maintain an action against his wife for injuries inflicted on him either at common law or under statutes giving her the right to separate property, and permitting them to contract with each other.
But this question of the unity of person existing between husband and wife has been recently considered by the United States Supreme Court in the case of Thompson v. Thompson, 218 U. S., 611 (54 L. Ed., 1180); 21 Anno. Cases, 921; 30 L. R. A. (N. S.), 1153; Aff. 31 App. Cases (Dist. of Col.), 557 (14 Anno. Cases, 879), which was a civil action by a wife to recover damages from the husband for an assault and battery committed on her person. The Court there held as follows : The common-law relation between husband and wife was not so far modified as to give the wife a right of action to recover damages from her husband for an assault and battery committed by him ■ upon her person, by D. C. Code, p. 1155, authorizing married women “to sue separately for the recovery, security, or protection of their property, and for torts committed against them, as fully and freely as if they were unmarried. The act of Congress applicable to the District of Columbia is not less extensive or comprehensive than are our statutes in regard to *528the rights of married women, if it does not cover much less ground. We cannot refrain from referring extensively to the reasons given by that exalted tribunal, in its able and learned opinion, as delivered by ■Justice Day, though we might quote all of it advantageously in this case. That Court said that the limitation upon the wife’s right of action imposed in the requirement of the common law that the husband should join her was removed by the statute, and she was permitted to recover separately for such torts, as freely as if she were still unmarried. The statute was not intended to give a right- of action as against the husband, but to allow the wife, in her own name, to maintain actions of tort which, at common law, must be brought in the joint names of herself and husband. This construction is obvious from a reading of the statute in the light of the purpose sought to be accomplished. It gives a reasonable effect to the terms used, and accomplishes, as we believe, the legislative intent, which is the primary object of all construction of statutes. It is suggested that the liberal construction insisted for in behalf of the plaintiff in error in this case might well be given, in view of the legislative intent to provide remedies for grievous wrongs to the wife. Apart from the consideration that the perpetration of such atrocious wrongs affords adequate grounds for relief under the statutes of divorce and alimony, this construction would, at the same time, open the doors of the courts to accusations of all sorts of one spouse against the other, and bring into public notice complaints for assault, slander, and libel, and alleged injuries to property of the one or the other, by husband against wife, or wife against husband. Whether the exercise of such jurisdiction would be promotive of the public welfare and domestic harmony is at least a debatable question. The possible evils of such legislation might well make the law-making power hesitate to enact it. But these and kindred considerations are addressed to the legislative, not the judicial, branch of the Government. In cases like the present, interpretation of the law is the only function of the courts. It must be presumed that the legislators who enacted this statute were familiar with the long-established policy of the common law, and were not unmindful of the radical changes in the policy of centuries which such legislation as is here suggested would bring about. Conceding it to be within the power of the Legislature to make this alteration in the law, if it saw fit to do so, nevertheless such radical and far-reaching changes should only be wrought by language so clear and plain as to be unmistakable evidence of the legislative intention. Had it been the legislative purpose not only to permit the wife to bring suits free from her husband’s participation and control, but to bring actions against him also for injuries to person or property as though they were strangers, thus emphasizing and publishing differences which otherwise might not be *529serious, it would have been, easy to have expressed that intent in terms of irresistible clearness. "We can but regard tbis case as another of many attempts wbicb have failed to obtain by construction radical and far-reaching changes in the policy of the common law, not declared in the terms of the legislation under consideration. Some of the cases of that character are: Abbott v. Abbott, 67 Me., 304; Schultz v. Schultz, 89 N. Y., 644; Freethy v. Freethy, 42 Barb., 641; Peters v. Peters, 42 Iowa, 182. Nor is the wife left without remedy for such wrongs. She may resort to the criminal courts, which, it is to be presumed, will inflict punishment commensurate with the offense committed. She may sue for divorce or separation and for alimony. The Court, in protecting her rights and awarding relief in such cases, may consider, and, so far as possible, redress her wrongs and protect her rights.
This clear and vigorous statement of the true law upon this subject would seem to conclusively demonstrate the correctness of the Court’s position that statutes relating to the property rights of married women, and to their rights to sue separately for torts committed against them by third persons, do not include the right of a wife to sue her husband for such a tort as was committed here, however grievous and humiliating to her, and however atrocious was the act of her husband. Hard cases are said to be the quicksands of the law. It is not because of any consideration for such men as he is that the law is as we have stated it to be, but to prevent the great and lasting evil to the cofnmunity at large by establishing a principle most harmful to it." It is a decision in favor of every man and woman who has an interest in the welfare of the public, which should be protected and safeguarded, lest greater evil be the result. It is but another application of the acknowledged maxim of the law that private convenience, or advantage, must yield to the public good. As Justice Pay so well said, the wife is not without remedy to vindicate the right and to punish, according to his deserts, this human miscreant who has so vilely and profanely broken the sacred vows, which he made at the marriage altar, by his infamous conduct, and the cruel and heartless treatment of his wife, polluting and debauching her by his foul and contaminating touch, and filling her blood with the poison of a most loathsome disease. Nothing.could be so horrible and repulsive, and he will deserve all the punishment he may receive for this grave and enormous wrong to her. But we must not be led away from correct thinking and impartial judgment by any such consideration as the enormity of the evil done by him. His conduct, however aggravated, does not change the law. , It stands just as it was before. The State may indict him for this foul assault upon his wife’s person, but his wife cannot sue him because of the personal unity that subsists between them.
*530Tbe unity of person, as to busband and wife, bas not been completely severed by our law, as to contracts or torts, as will appear from Consol. Statutes of 1919, secs. 2515, 2518, tbe first of those sections forbidding certain contracts between busband and wife, unless executed in tbe prescribed way, and tbe second of tbe sections providing tbat tbe busband shall be jointly liable with the wife for her torts, and for costs and fines, and be is jointly liable with her for certain crimes or offenses committed solely by her, be, on account of their relation or oneness to each other, presumably being present and participating in tbe offense, and supposed to exercise a kind of control over her. It may be added tbat by section 2516, contracts between them which are “inconsistent with public policy are void.” Section 2513, as to her earnings and “damages for personal injuries, and other torts sustained by her,” manifestly refer to contracts with and torts of other persons than her busband, as tbe language of tbe section most clearly demonstrates. There are one or two other sections which more or less tend the same way. Tbe writer of this opinion went as far as was possible under tbe law, even to its extreme limit, in order to sustain and protect tbe wife’s right to tbe full enjoyment of her separate property and to facilitate her unrestricted use and enjoyment thereof (in Vann v. Edwards, 135 N. C., 661), and be would do tbe same here in order to compensate her, if such a thing can be done, for this outrageous violation of her person, but tbe law stops him in tbe pursuit of a remedy tbat will avail her, as this is a question of substantive law, and not of procedure, and tbat bas not been altered, as bas tbe other, so tbat she can recover, and we cannot go beyond what bas been provided for her. "We must keep within tbe law, however much we may desire to award her an adequate sum for this grievous and vicious wrong. Tbe law is our only rule of action in tbe premises.
Tbe case of Banfield v. Banfield, 40 L. R. A. (Mich.), 757, is like this in its facts, except tbat there tbe busband communicated to bis wife a still more loathsome disease. But tbat able and learned' Court denied her right to sue, and held tbat “personal wrongs inflicted upon her give her no right to a decree of separation or divorce from her busband, and our statutes have given tbe courts of chancery exclusive jurisdiction over that subject. This Court, clothed with tbe broad powers of equity, can do justice to her for tbe wrongs of her busband, so far as tbe courts can do justice, and, in providing for her, will give her such amount of her husband’s property as tbe circumstances of both will justify, and in so doing may take into account tbe cruel and outrageous conduct inflicted upon her by him, and its effect upon her health and ability to labor. 2 Am. & Eng. Enc. Law (2 ed.), p. 120; 2 How. Anno. Stat., p. 6245. In tbe absence of an express statute, there is no right to maintain an action at law for such wrong. We are cited to no authority bolding tbe
*531contrary. "We cite a few sustaining tbe rule: Abbott v. Abbott, 67 Me., 304; Freethy v. Freethy, 42 Barb., 641; Peters v. Peters, 42 Iowa, 182; Schultz v. Schultz, 89 N. Y., 644; Cooley Torts (2 ed.), p. 268; Schouler, Dom. Rel., p. 252; Newell, Defamation, p. 366; Townsend, Slander and Libel (3 ed.), p. 548.”
Tbe cases we have cited are also to tbe effect tbat even after tbe marital tie is severed, tbe wife cannot sue tbe busband for a wrong committed before tbe divorce. Libby v. Berry, 74 Me., 286 (S. c., 43 Am. Rep., 589). And the rule works both ways, as tbe busband cannot sue tbe wife for a tort committed upon him, as by an assault with a gun. Peters v. Peters, 103 Pac. (Calif.), 219 (S. c., 23 L. R. A. (N. S.),), 699.
Tbe Fulton case, 145 N. C., 489, has no bearing upon this question. There tbe State ^prosecuted, and not the wife. The question of the marital unity'was not at issue, and there was no determination based upon it. Tbe writer of this opinion concurred in the principle there decided, that.tbe husband was indictable for the slander of bis wife, but, as we have said, tbat is not tbe question here, as tbe right of the State to indict, and of the wife to sue, are two very different things. The State can indict any person for a violation of her laws, and the wife can sue, in any case, except where denied the right to do so, as she is in this instance.
If the unity of man and wife has been abolished, why have we still remaining as one of tbe relies of the ancient common law the estate by the entirety which is solely based, as we have often said, upon this very doctrine of unity. In that instance the twain is still but one.
"We are ready to denounce tbe brutal conduct of this man towards his virtuous wife, as severely as judicial propriety will permit, but we eanhot go beyond the law in giving a right which it denies to her, though we would willingly do so if it were proper that we should.
"We are of the opinion that this action should be dismissed, as it has not the sanction of the law.